Strahan & Strahan (No. 4)

[2007] FamCA 1555

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN (NO. 4) [2007] FamCA 1555

FAMILY LAW – CHILDREN – Independent Children’s Lawyer – whether Independent Children’s Lawyer should be appointed – whether previous Independent Children’s Lawyer should be reappointed, excluded from appointment or no order made on issue – discussion of Court’s power to specifically appoint or exclude a person from being appointed as Independent Children’s Lawyer in a case – Court has power in appropriate circumstances to exclude someone from available range of Independent Children’s Lawyers.

FAMILY LAW – PRACTICE AND PROCEDURE – previous application to remove Independent Children’s Lawyer dismissed by Court – whether res judicata or issue estoppel applicable.

FAMILY LAW – COSTS – application by husband for costs – circumstances justify costs order – costs to be taxed.

Family Law Act 1975 (Cth)

Re K (1994) FLC 92-461
F & R (No 2) (1992) FLC 92-314
Bennett & Bennett (1991) FLC 92-191
Steen & Black (2000) FLC 93-005
Jackson & Goldsmith (1950) 81 CLR 446
Caddy & Miller (1986) FLC 91-720
Kemeny & Kemeny (1998) FLC 92-806

APPLICANT: Mrs Strahan

RESPONDENT: Mr Strahan

FILE NUMBER: ADF 228 of 2005

DATE DELIVERED: 31 October 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 31 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ackman QC with Ms McMillan

SOLICITOR FOR THE APPLICANT: Robinson Mason

COUNSEL FOR THE RESPONDENT: Mr Kearney

SOLICITOR FOR THE RESPONDENT: Donaldson Walsh

Orders

1. That pursuant to Section 68L(2) of the Family Law Act 1975 (Cth) the child S born on … June 1996 shall be independently represented, and the Legal Services Commission of South Australia is requested to arrange such representation.

2. That within 7 days each party shall provide the Legal Services Commission of South Australia with copies of any applications and affidavits on which the party relies.

3. That the Registry Manager, by his or her nominee, is requested to forward a copy of these orders promptly to the appropriate officer of the Legal Services Commission.

4. That the Application in a Case filed by the husband on 28 August 2007 and the Response to an Application in a Case filed by the wife on 12 October 2007 be dismissed and removed from the active pending cases list.

5. That the wife pay to the husband’s solicitors on behalf of the husband, the husband’s costs of and incidental to the hearing today SAVE AND EXCEPT the costs of that part of the hearing spent on the application by the husband for the specific appointment of Ms Anne Bills as the Independent Children’s Lawyer, such costs to be taxed or as agreed.

6. That the Amended Response filed by the husband on 27 August 2007 in so far as it seeks orders in relation to the child S and the Reply filed by the wife on 12 October 2007 be listed for a first day hearing under Division 12A of the Family Law Act (Cth) at 10:00am on 11 December 2007 with a time estimate of 1 day.

7. That each party file and serve Parenting Questionnaires by 4:00pm on 4 December 2007.

8. That leave be granted for counsel to attend the directions hearing on 7 December 2007 by way of telephone upon providing my Associate with landline numbers.

9. Certified fit for Senior Counsel.

IT IS NOTED that publication of this judgment under the pseudonym Strahan & Strahan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 228 of 2005

MRS STRAHAN

Applicant

And

MR STRAHAN  

Respondent

EX TEMPORE REASONS

Introduction

1. This is an Application in a Case filed by the husband on 28 August 2007 in which he seeks that Ms Ann Bills be reappointed as Independent Children’s Lawyer in the child matters.

2. That application is opposed by the wife, and specifically in her response to an Application in a Case filed on 12 October 2007 wherein she sought the dismissal of that application, but in the alternative sought an order that in the event that an Independent Children’s Lawyer was appointed, the Legal Services Commission of South Australia appoint a child representative for the child and such child representative be a person other than Ms Ann Bills.

3. When the matter was called on this morning, Mr Ackman QC for the husband, indicated that his client was no longer pursuing an application that Ms Bills be reappointed but rather just that an Independent Children’s Lawyer be appointed. However, in a later submission made to me Mr Ackman indicated that he would like me to consider making an order that Ms Bills be reappointed, on the basis that there is power to do that in Section 68L(2)(b). Thus they are the applications before me.

Background

1. The wife was born in March 1962 and is now aged 45 years.

2. The husband was born in October 1962 and is now aged 45 years.

3. The parties married in January 1994.

4. The child S was born in June 1996 and is now aged 11 years.  He is autistic and he lives with the wife.

5. The parties separated in January 2005 when the husband moved to Hong Kong.  The husband continues to live there and the wife and child remain living in Adelaide.

6. The wife commenced proceedings in this Court on 15 February 2005.

7. On 12 April 2005 a Child Representative was appointed by consent of the parties.

8. The marriage between the parties was dissolved on 14 February 2006.

9. Various interim parenting orders were made during the progress of the case, primarily regarding the time the child was to spend with the husband.

10. On 8 November 2006, the wife filed an application seeking that the order of 12 April 2005 appointing the Child Representative be discharged, or in the alternative, that the Independent Children’s Lawyer at the time, Ms Ann Bills, be restrained from further representing the child. The wife’s application was opposed by both the Independent Children’s Lawyer and the husband.

11. The hearing of the wife’s application took place on 15 and 21 November 2006, and on 15 December 2006 I delivered my reasons for judgment, dismissing the wife’s application. I found there was no basis for removal of the Independent Children’s Lawyer.

12. The trial of the children’s issues commenced before Justice Bell on 5 March 2007, but those issues were settled and on that date there was a final consent order made. In summary, the order provided that the child live with the wife and spend time with the husband.

13. On 26 March, 26 April and 3 August 2007 the husband filed Contravention Applications in the Federal Magistrates Court. These contraventions were transferred to this Court and are now listed for hearing before Judicial Registrar Forbes on 7 November 2007.

14. On 27 August 2007 the husband filed an Amended Response to an Application for Final Orders, in which he sought that all prior parenting orders in relation to the child be discharged.  He then sought a series of orders which are quite different from those contained in the consent order.

15. On 12 October 2007 the wife filed a Reply to that Amended Response wherein she sought that the application of the husband be dismissed.

Discussion

1. It is in the context of the husband now wanting to significantly change the orders made in March 2007 that he makes an application for the appointment of an Independent Children’s Lawyer and specifically Ms Ann Bills.

2. The issues therefore that I need to determine are, firstly, should there be an Independent Children’s Lawyer appointed?  The husband says yes, but the wife says no. The wife says that there is no need for one to be appointed.

3. However, if the answer to that question is that there should be an Independent Children’s Lawyer, then the next question is, should Ms Ann Bills be appointed or should she be excluded from the range of possible persons to be appointed, or should there be no order made about that at all.

4. In relation to the first issue, namely, whether there should be an Independent Children’s Lawyer, Division 10 of Part VII of the Family Law Act 1975 (Cth) deals with the independent representation of the child's interests and Section 68L(2) provides that, “If it appears to the court that the child's interests in the proceedings ought to be independently represented by a lawyer, the court: (a)  may order that the child's interests in the proceedings are to be independently represented by a lawyer; and (b)  may make such other orders as it considers necessary to secure that independent representation of the child's interests.”  Thus the appointment of an Independent Children’s Lawyer is discretionary.

5. Section 68LA deals with the role and duties of the Independent Children’s Lawyer once appointed. In addition, there are guidelines for the Independent Children’s Lawyer issued by the Family Court on 11 July 2003 and those guidelines provide guidance to the Independent Children’s Lawyer in fulfilling his or her role.

6. In relation specifically to the appointment of an Independent Children’s Lawyer, the Full Court in Re K (1994) FLC 92-461, at p.80,773 said that:

   “In relation to appointments of separate representatives we consider that the broad general rule is that the Court will make such appointments when it considers that the child’s interests require independent representation.”

   That repeats what Section 68L(2) of the Act says.  However, the Full Court went on and set out criteria for where an Independent Children’s Lawyer should normally be appointed.  Those criteria are as follows:

   i)Cases involving allegations of child abuse, whether physical, sexual  or psychological;

   ii)Cases where there is an apparently intractable conflict between the parents;

   iii)Cases where the child is apparently alienated from one or both parents;

   iv)where there are real issues of cultural or religious difference effecting the child;

   v)where the sexual preferences of either or both of the parents or some other person having significant contact with the child are likely to impinge upon the child’s welfare;

   vi)where the conduct of either or both of the parents or some other person having significant contact with the child is alleged to be anti-social to the extent that it seriously impinges on the child’s welfare;

   vii)where there are issues of significant medical, psychiatric or psychological illness or personality disorder in relation to either party or a child or other persons having significant contact with the child;

   viii)Any case in which, on the material filed by the parents, neither seems a suitable custodian.

   ix)Any case in which a child of mature years is expressing strong views, the giving of effect to which would involve changing a long standing custodial arrangement or a complete denial of access to one parent.

   x)Where one of the parties proposes that the child will either be permanently removed from the jurisdiction or permanently removed to such a place within the jurisdiction as to greatly restrict or for all practicable purposes exclude the other party from the possibility of access to the child.

   xi)Cases where it is proposed to split siblings.

   xii)Custody cases where none of the parties are legally represented.

   xiii)Applications in the court’s welfare jurisdiction relating in particular to the medical treatment of a child where the child’s interests are not adequately represented by one of the parties.”

7. In terms of whether any of those criteria apply here I need to refer to a decision I made in this case on 15 December 2006. That was in relation to the application filed by the wife on 8 November 2006 wherein she sought the discharge of the order appointing the Independent Children’s Lawyer at that time. I found that there were two of the Re K criteria which were relevant to the case, namely, firstly - and quoting from my reasons for judgment:

   “This is a case where there is an intractable conflict between the parents and secondly, there are significant medical, psychological and personality issues in relation to [the child].”

8. Mr Kearney for the wife has submitted that there is no need for an Independent Children’s Lawyer. He says the application now made by the husband is nothing more than seeking an increase in the time spent with the child and that there are no significant issues in dispute. He referred to the question of obtaining the views of the child, and the need to balance the costs that would be involved in the appointment of an Independent Children’s Lawyer and the fact that the child issues will now be determined under Division 12A of the Family Law Act 1975 (Cth). Mr Kearney also submitted that it was perhaps premature to consider the need for an Independent Children’s Lawyer, given that the first-day hearing has not yet taken place and the issues not yet defined.

9. Mr Ackman put to me that there were in fact significant issues in dispute and that the orders sought by the husband were significantly different from the consent orders made by Bell J in March 2007. He said that it was not just a case of “re‑jigging” that order; there were fundamental issues involved, particularly in relation to paragraph 11 of the order of Bell J, which has apparently created difficulties, on the father's case, in the father spending time with the child.

10. Mr Ackman, of course, has also referred me to the fact that there are contravention proceedings on foot which are listed for hearing before the Judicial Registrar on 7 and 8 November 2007.  He submits that the combination of those proceedings, the orders the husband now seeks and the issues raised by those orders create the need for an Independent Children’s Lawyer. 

11. I must say that I agree with that submission. It seems to me that this is a case where there is still an intractable conflict between the parents, and in my view even more so than was apparent in December 2006 when I determined the application the wife then made in relation to the Independent Children’s Lawyer.

12. The second criteria that I found existed in December 2006 was that there were significant medical, psychological and personality issues in relation to the child. In my view that is also still the case, although it is not necessarily apparent from the new orders that the husband seeks that all of the same issues are present now.  Nevertheless, whether the parties are arguing about it or not, the child's condition has not changed and there are still significant medical, psychological and personality issues which impact on what orders should be made.

13. In summary, even though there were consent orders made in March 2007 finalising the child issues, in the current dispute, as evidenced by the orders now sought by the husband and the contravention proceedings and the factual issues raised in those contravention proceedings, there are significant issues between the parties, there is an intractable conflict, and there are significant medical, psychological and personality issues in relation to the child. As much as this matter required an Independent Children’s Lawyer in December 2006 it equally requires an Independent Children’s Lawyer now.

14. Having determined that issue in the positive, namely, that there should be an Independent Children’s Lawyer appointed, I turn to the next issue which is, should an order be made that Ms Bills be appointed, should she be excluded, or should there be no order made about that at all.

15. Firstly, I need to address what power I have to make the order sought. Initially, as I say, when the matter commenced this morning, counsel were agreed that there was no power to make an order specifically appointing Ms Ann Bills but, to repeat, Mr Ackman changed his position in that regard and he now says that Section 68L(2)(b) would allow me to make such an order.

16. I do not recall Mr Ackman putting to me that there was no power to make the order sought by the wife; namely, excluding Ms Bills from being appointed as the Independent Children’s Lawyer, and Mr Ackman's focus on that issue was more that there was no basis for excluding Ms Bills.

17. In terms of what power this court has to make either an order that Ms Bills be specifically appointed or an order specifically excluding her, counsel have informed me that there does not seem to be any cases directly on point, and in the short time I have had to research the question, I agree.

18. Mr Kearney still referred me to two cases. Firstly, the case of F & R (No 2) (1992) FLC 92-314, which was a decision of Fogarty J. However, I do not consider that necessarily helps decide this point. What Fogarty J held there was that a court, in making an order for separate representation of a child, may mark out or limit the ambit of that representation. It seems to me that is a different thing than determining who should be the separate representative.

19. Mr Kearney also referred me to the case of Bennett & Bennett (1991) FLC 92‑191, but again I do not consider that necessarily assists in determining the issue that confronts me now. That case is a significant case in the history of decisions dealing with Independent Children’s Lawyer’s, as they are now known. However, the decision is focused more on what limitations if any can be placed on the role of a separate representative. Thus I am not assisted specifically by any decision of this court in this regard.

20. My view is that the court does have the power to exclude a person from being appointed as the Independent Children’s Lawyer, under Section 68L(2). I see that as, and using this as the only comparison I have, quite a different circumstance than appointing a named person as the Independent Children’s Lawyer.

21. In considering the orders that I could make, and ultimately should make in relation to the independent representation of a child, I have to bear in mind of course the role that the Legal Services Commission has in that. The normal process is that this court makes an order which provides for the Legal Services Commission to arrange for the child or children to be represented by an Independent Children’s Lawyer. Once that order is made it is up to the Legal Services Commission to arrange that representation, to identify who will be appointed and provide the funds necessary for that person to then represent the child.

22. It seems to me that to make an order specifically nominating who the Independent Children’s Lawyer should be smacks of interfering with the role and the discretion of the Legal Services Commission. This court would not want to limit the range of persons who may be available to be appointed because there are all sorts of practical considerations involved in the appointment. For example, there is the availability of the person, how quickly that person can become involved in the matter, and there are issues of cost and the like, which are all matters that are more within the responsibility of the Legal Services Commission.

23. Although there might be a fine line, I consider that there is a difference between the two possibilities, namely, either exclude or include, and I would be hesitant to make an order appointing Ms Ann Bills specifically for the reasons that I have expressed. Indeed, it seems that to make such an order would be akin to making an order about the funding that Legal Services Commission should provide in a case, and there are decisions of this court that determine that this court does not have that power.

24. However, to repeat, I see excluding a person from the range of possibilities as different.  It is a question of degree though and the same principles could apply.  In other words, by excluding someone you are limiting the number and range of possible Independent Children’s Lawyers who could be appointed by the Legal Services Commission, but I consider that to have less impact on the role and discretion of the Commission.

25. Of course, the decision to make an order excluding a particular person as an Independent Children’s Lawyer must be based on whether that person is appropriate or, more so, whether that person should or should not be appointed as the Independent Children’s Lawyer. Obviously that is a relevant issue here and I will come back to it.

1. It seems to me that if this court has good grounds for excluding a particular person, then it would be a fruitless exercise to make a general order and not exclude that person.  If the Legal Services Commission then in fact appointed that person, I would fully expect there to be an application to this court for the removal of that person. 

2. There is no doubt about the power of this court to remove an Independent Children’s Lawyer once appointed, so that is another point of distinction I see between the two positions. It also adds significant weight to why this court, in an appropriate circumstance, would exclude someone from the range of Independent Children’s Lawyers available to the Legal Services Commission.

3. I turn then to that issue, namely, whether there is a basis for the exclusion of Ms Ann Bills. The starting point here is again my decision in December 2006.  At that time the wife had made an application for the removal of the Independent Children’s Lawyer, who was Ms Ann Bills. Specifically, she sought an injunction restraining Ms Bills from representing the child S on the basis that she had exhibited bias against her and demonstrated a lack of impartiality and a lack of professional objectivity.

4. In my judgment delivered on 15 December 2006 I found that there was no basis for the wife's complaints, except for one. I found in relation to that one complaint though that whilst the Independent Children’s Lawyer’s actions may have been misguided they did not demonstrate bias, a lack of impartiality or a lack of objectivity.

5. In support of the wife's application to not have Ms Bills appointed as the Independent Children’s Lawyer the wife raises the same complaints that she raised in support of the application that she made in November 2006. It is common ground - and no-one suggested otherwise - that there were no new facts, no new allegations, no new complaint made by the wife in relation to the conduct of Ms Bills which suggested that she had exhibited bias or demonstrated a lack of impartiality or a lack of professional objectivity.

6. Mr Ackman submitted that therefore this issue should be decided on the basis that it is res judicata. Mr Kearney attempted to argue otherwise and referred me to two decisions. Firstly, the decision of O'Ryan J in Steen & Black (2000) FLC 93-005. Helpfully, his Honour details the law in relation to res judicata, or, as he described it, cause of action estoppel.  He referred to a number of authorities where res judicata and issue estoppel have been determined.  In the case itself his Honour found that the doctrine of res judicata did not apply because there was no decision or adjudication on the merits by a relevant tribunal, in relation to the particular point that was being raised before the Family Court.  However, that is not the case here.

7. Mr Kearney also referred me to the High Court case of Jackson & Goldsmith (1950) 81 CLR 446 and in particular the judgment of Williams J. That was another case involving a submission of res judicata, and it was held that res judicata did not apply in the circumstances of that case. Mr Kearney referred me, as I say, to the judgment of Williams J and attempted to draw a comparison between what Williams J said as to where res judicata would not apply, and the situation here. At page 463 of the report, his Honour said, in effect - and putting it in a way that can be understood in the context of this case - res judicata does not apply where the facts are substantially the same but they are being litigated “for a different purpose or to prove or disprove a different issue”.

8. Mr Kearney submitted that here the issue was being raised in a different context, that it in fact was a different issue and it was being raised for a different purpose.  Mr Kearney referred to my judgment in December 2006 and highlighted the one concern that I had and to which I have just referred. His submission was that if you couple that with the fresh proceedings that are now before the court, there is a different purpose and a different context and res judicata does not apply.

9. However, Mr Ackman submitted otherwise and said, in effect, that this is a clear case where res judicata or issue estoppel applies - call it what you will – and that the same complaints are being made as the basis for the order sought.  There is no new material, no new facts, no new complaint, no new allegation and thus res judicata applies.

10. Trying to extract from O'Ryan J's helpful judgment in Steen & Black some sort of definition of res judicata or issue estoppel, for the purposes of my reasons, I refer to and adopt the definition set out in the Full Court decision in Caddy & Miller (1986) FLC 91-720 at 75,233, where the Full Court referred to and cited a publication entitled, The Doctrine of Res Judicata, Spencer Bower and Turner, 2^nd Ed.  The definition reads:

    “A final judicial decision pronounced by a judicial tribunal having competent jurisdiction over the cause or matter in litigation and over the parties thereto, disposes once and for all of the matters decided, so that they cannot afterwards be raised for re-litigation between the same parties or their privies…  The judicial decision estops or precludes any party to the litigation from disputing, against any other party thereto, in any later litigation, the correctness of the earlier decision in law and fact.  The same issue cannot be raised again between them, and this principle extends to all matters of law and fact which the judgment, decree, or order necessarily established as the legal foundation or justification of the conclusion reached by the court.”

11. Perhaps to labour the point I want to refer also to what the Full Court said in a case of Kemeny & Kemeny (1998) FLC 92-806 at p 85,085. The Full Court referred there, with approval, to the trial judge's judgment, where the trial judge said this:

    “The constituent elements of the doctrine are set out in "The Doctrine of Res Judicata", Spencer Bower, Turner and Handley… being those laid out in Marginson v Blackburn Borough Council [1939] 2 KB 426:-

    1.     The decision was judicial.

    2.      The decision was in fact pronounced.

    3.The tribunal had jurisdiction over the parties and subject matter.

    4.     The decision was final and on the merits.

    5. The decision determined the same question as that raised in later litigation.

    6.The parties to the later litigation were parties to the earlier litigation.”

12. In my view those criteria or elements apply here. I cannot see how the complaints are being raised in any different context or for a different purpose or to prove or disprove a different issue. Thus I find that res judicata applies to the application the wife is now making.

13. I raised with counsel whether, apart from the applicability or otherwise of res judicata, there was a discretion that I could or should exercise in a matter like this where the wife clearly has a concern about a particular person being the Independent Children’s Lawyer. The proceedings are starting again, we are at the early stages of them, and there is time to involve another Independent Children’s Lawyer.  There is not so much an issue of delay and obviously no issue of costs at this stage, like there was when the wife made her application in November 2006. What would be wrong with, and indeed might there not be significant advantages in not commencing these proceedings with a cloud over the Independent Children’s Lawyer and with both parties having confidence in that lawyer?

14. I must say this had some attraction to me when I raised it with counsel, and Mr Kearney obviously adopted it and pursued it before me, but on reflection it has superficial attraction. As Mr Ackman perhaps succinctly put it, it would smack of simply doing something just to make the wife feel better. Whether that is an accurate description or not, it is a concise summary of the effect of me taking that line, and I don’t propose to do so.

15. Once I have determined, as I have, that the issue is res judicata, that is the end of it.  For me to proceed down that path after I have made that decision does not sit well with that, because on what basis am I then excluding Ms Ann Bills?  I am not excluding her because of any finding as to her being biased or not acting professionally.  It can be nothing other than the wife is concerned and it would be better if we did not have Ms Ann Bills. That does not seem to me a proper basis to exclude a properly qualified Independent Children’s Lawyer who has had an intimate involvement in this case to date and whose involvement can bring significant advantages to this case in terms of overcoming any delay and maybe costs. 

16. Mr Kearney's client raised the issue of costs in her affidavit in support, namely her ability to afford to contribute to the costs of an Independent Children’s Lawyer. Of course, we are not at the stage as to how the costs of the Independent Children’s Lawyer will be borne. The first step will be that the Legal Services Commission will set up the Independent Children’s Lawyer in the same way they always do, namely, funded by the Legal Services Commission. Whether the Legal Services Commission then make it a condition of the appointment that the parties contribute, and how much they contribute, that is all for the future.  It may not be a situation where the parties contribute at all or to the same extent that they have in the past. 

17. Thus I do not take that into account, beyond acknowledging that it is an issue for the wife and may become an issue subsequently.  It does not affect whether there should be an Independent Children’s Lawyer, or more specifically, whether it should be Ms Ann Bills or not.

18. I do not know whether Ms Ann Bills will be appointed or not.  I was informed from the bar table at the commencement of this hearing, that some inquiries had been made of the Legal Services Commission as to what they might do in the circumstances. Apparently, and this is an answer that I would have expected to have been given, they would initially offer the appointment to Ms Bills and whether she was available or not would be up to her.

19. It may be that Ms Bills does not turn out to be the Independent Children’s Lawyer, but there is no basis in my view for her to be excluded from the possible range of Independent Children’s Lawyers that could be appointed.  Equally, and to repeat, I do not consider it appropriate to make an order specifically appointing her, although, as I have said, there may be advantages in that being done.

Costs

1. In this matter I now have an application for costs by the husband.  The amount sought is $35,000.00 split up in the following way - $20,000.00 for counsel fees and $15,000.00 for solicitor's fees. In terms of counsel, the rough calculation of that is that there was a day's preparation and a day of hearing, with senior and junior counsel, at an overall figure of $10,000.00 per day.  The application for costs is opposed by the wife.

2. As with any costs application, this is governed by Section 117 of the Family Law Act 1975 (Cth) and this court is able to make an order for costs if there are circumstances that justify it doing so. In considering what order if any should be made the court has to have regard to the relevant matters identified in Section 117(2A). Without going to each of those subparagraphs, it is obvious which of those are relevant, that is, subparagraph (e) namely: "whether any party to the proceedings has been wholly unsuccessful in the proceedings" and; (g) "such other matters as the court considers relevant." The financial circumstances of each of the parties to the proceedings are also relevant, and I know something of that given the documents that were filed recently for the purposes of the spousal maintenance application.

3. The applications before me, as I identified earlier in my reasons for judgment, are firstly, the husband's application whereby he sought an order that Ms Ann Bills be reappointed as Independent Children’s Lawyer in the child matters.  Although initially there was a withdrawal from that application in the sense of not seeking the appointment of Ms Ann Bills, at the end of the day the husband did in fact still seek that order.

4. The wife's response to that in her Response was to seek an order dismissing that application. She went on though and sought an order in the alternative; namely, that if there was to be an Independent Children’s Lawyer appointed then it should not be Ms Ann Bills.

5. As I indicated in my reasons for judgment, I have approached this matter on the basis of there being two issues. Firstly, should there be an Independent Children’s Lawyer appointed?  The wife's position was "No" and the husband's position was "Yes".

6. I have found that there should be an Independent Children’s Lawyer appointed, and thus in relation to that issue, the wife has been wholly unsuccessful.

7. The second issue was what order should be made in relation to Ms Bills, none or an order appointing her or an order excluding her – namely three options. In the end result I determined that there should be no order either appointing Ms Bills or excluding her. 

8. In a sense it is not correct to say the wife was wholly unsuccessful in relation to that issue because the husband was seeking an order that Ms Bills be appointed.  However, the wife, if I break that down, was unsuccessful in relation to her application made in her Response, seeking that if an Independent Children’s Lawyer was to be appointed that it should not be Ms Bills. Viewed in that way, there is a justification for there being an order for costs, namely, that the wife was wholly unsuccessful in relation to this application.

9. The husband has also been unsuccessful in relation to his application to have Ms Bills appointed. Of course though, the wife does not seek an order for costs against the husband. The only application before me is that the husband seeks an order against the wife.

10. In terms of the relevance of sub paragraph (g), the only reason I mention that is the submission of Mr Ackman that the application made by the wife to exclude Ms Bills really was a specious application. It was doomed to fail, it should never have been made and it cannot be justified on the basis that there was a legitimate application as to whether there should or should not be an Independent Children's Lawyer appointed and this was just tacked on. I agree with this submission.

11. In terms of the application to exclude Ms Bills, to repeat, I prefer to approach this on the basis that the wife was unsuccessful in relation to that application. I do not think it adds anything to either the justification for an order for costs or indeed what the costs should be, because there is no application for indemnity costs before me, to say that it should never have been made. The fact of the matter is that it was unsuccessful, and on that basis that is a justification for the husband to receive costs in relation to it.

12. To repeat, I consider that there are circumstances that justify this court in making an order for costs in this case and specifically the wife being unsuccessful in her applications.

13. Turning to what the order for costs should be, I always try to fix costs if I can, because in many matters where applications for costs are made the costs involved and the delay involved in sending parties off to taxation is not warranted. To that end I invited Mr Ackman to provide me with a figure, which he has done, and he has done the best he can in the circumstances to identify the components of that application. It concerns me though that an application for costs of that order is made without more being said.  Prima facie it appears to be an unreasonable amount in the circumstances, but I do not know the particular details of how this matter has developed, and that may be something that will only be apparent on a taxation. To just be told $35,000.00 are the costs in relation to an application is not enough. Certainly I do not agree with Mr Kearney that it was a simple application. It was an application which took some time to deal with but nevertheless it was an Application in a Case where we have spent not all of but the best part of a day dealing with it, both in hearing submissions, allowing time for my deliberations and then in me delivering judgment. The documentation is not extensive, and at first blush the amount suggested by Mr Ackman creates a concern in my mind as to the basis for it and that in turn creates a difficulty in me trying to fix a figure now. 

14. I have some parameters to work with in that Mr Ackman has provided some detail of counsel's involvement, but I am particularly concerned about the solicitor's component.  That is not to say though that I consider that the amount sought for counsel is an appropriate amount in this case and should be what is ordered.

15. Reluctant as I am to not fix costs, I do not consider I am in a position to fix an amount and thus I propose to order that the costs be taxed.  I do not think I can even make any remarks which might be of assistance to the taxing officer in looking at this.  Perhaps there is one though, which was a very relevant point made by Mr Kearney.  This hearing which was intended to be a day and a half was set aside to deal with a number of applications, the primary application being an application for interim spousal maintenance. That was an application which, on my reading of the documents, certainly would have taken a lot of time in preparation and there are extensive documents relating to that.

16. I do not know, and it is not for me to inquire or to be told, when precisely an agreement was reached about that issue, but at the commencement of the hearing today I was presented with consent minutes of order relating to that particular topic which then allowed the court to get on with the other applications which were before it.

17. My point in referring to that is that it is a highly relevant factor in terms of assessing the costs that should be allowed in respect of the applications which proceeded today. That is, the parties were going to be here anyway and it was at the commencement of the proceedings that the primary issue to be determined today was resolved and a consent order was made.

18. The other comment I might perhaps make which could be helpful for the taxing officer is again to adopt a submission Mr Kearney made, and that was of course - and I mentioned it myself - the husband was unsuccessful in his application for the appointment of Ms Bills. That took time in the hearing today, in terms of submissions and then having to be dealt with by me in my reasons for judgment. It clearly did not take as much time as the other matters which were the subject of determination but it is an element which needs to be taken into account when assessing what would be reasonable in terms of the costs that should be allowed for the hearing today. 

19. I consider it appropriate to certify this matter fit for senior counsel.  It is part of a long-running matter where senior counsel has appeared more often than not.  Although obviously I am dealing discretely with this matter in terms of the costs application, I consider on both levels - namely it being part of an ongoing difficult matter but also because of the nature of the application that I have had to deal with - it is appropriate for senior counsel, thus I make that certification as well.

20. I want to turn now to the Application for Final Orders and the Response thereto in relation to the orders sought about the child. As is obvious, those proceedings are within Division 12A of the Family Law Act 1975 (Cth) and it is appropriate to now start that process and to set the matter down for the first day of trial. That first day will be 11 December 2007 and I will make an order about the filing of questionnaires beforehand. We will not have the advantage of any expert. There has not been a Family Consultant in this case, to date, and I do not see the value of involving one now. We may or may not have the presence of an Independent Children’s Lawyer but if we do, that, I am sure, will be helpful.

I certify that the preceding 82 numbered paragraphs are a true copy of the reasons herein of the Honourable Justice Strickland.

Associate

31 October 2007