Viktorova & Terranova (No 2)
[2025] FedCFamC1F 189
•27 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Viktorova & Terranova (No 2) [2025] FedCFamC1F 189
File number: SYC 2307 of 2023 Judgment of: MCCLELLAND DCJ Date of judgment: 27 February 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – ADJOURNMENT – Where the father seeks an adjournment for the purpose of obtaining an Expert Report – Where the father contends that an Expert Report is required to investigate the child’s medical condition and if that medical condition is causing nightmares and hallucinations, which are the basis for sexual abuse allegations that the child makes against the father – Where the evidentiary value of an Expert Report which assesses the impact of the child’s medical condition would be outweighed by the negative impacts on the child and the child’s mother – Application dismissed.
FAMILY LAW – COSTS – Where the Independent Children’s Lawyer seeks that the mother and father pay their costs – Consideration of factors under s 117(2A) of the Family Law Act 1975 (Cth) – Where the parties would suffer some financial strain if a costs order was made – Where impecuniosity does not bar the making of a costs order – Where the Independent Children’s Lawyer plays a vital public role in representing the best interests of the child – Parties to pay the costs of the Independent Children’s Lawyer 50 per cent each – Application upheld.
Legislation: Family Law Act 1975 (Cth) ss 69ZN, 95, 102NA, 117 Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Cross v Beaumont (2008) 39 Fam LR 389; [2008] FamCAFC 68
Dahdah v Platinum Distributors Australia Pty Ltd [2023] FCAFC 65
Gabrielle v Abood (No 2) [2023] NSWCA 28Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Legal Aid ACT & Westwell (2021) FLC 94–013; [2021] FamCAFC 50
Lenova & Lenova (Costs) [2011] FamCAFC 141
Mallory & Mallory [2020] FamCAFC 62Division: Division 1 First Instance Number of paragraphs: 22 Date of hearing: 24–27 February 2025 Place: Sydney Solicitor for the Applicant: Remington & Co Solicitors Counsel for the Respondent: Ms Wong Solicitor for the Respondent: Gad & Co Lawyers Counsel for the Independent Children’s Lawyer: Mr Blank Solicitor for the Independent Children’s Lawyer: Phillip A Wilkins & Associates ORDERS
SYC 2307 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VIKTOROVA
Applicant
AND: MR TERRANOVA
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
27 FEBRUARY 2025
THE COURT ORDERS THAT:
1.…
2.Within three (3) months of the date of these orders, the parties are to each pay the Independent Children’s Lawyer the sum of $7,332.90.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCCLELLAND DCJ
FATHER’S ADJOURNMENT APPLICATION
In this matter, counsel for the father has made an application for an adjournment of the proceedings for the purpose of obtaining a medical report from a paediatrician or a paediatrician with a particular expertise. Upon pressing counsel, she indicated either would be a possibility. She has sought the adjournment for a period of two months to enable her client to obtain such a report. She has advised the Court that her client anticipates, with the assistance of friends, being able to meet the costs of that report. She states, on behalf of her client, that the purpose of obtaining the Expert Report is to assess the extent of the child’s medical condition and the nature of the child’s medical condition, and in particular, whether it is of such a nature that it is likely to be causal of nightmares the child may have experienced.
Counsel for the father indicates that the basis of such a speculative proposition is research she has undertaken on the internet. Counsel for the father suggests that there are at least two types of the medical condition which can be undiagnosed, but, nonetheless, can potentially lead to nightmares and hallucinations, which she contends are symptomatic of such a condition. When pressed as to the evidentiary significance of that, I was advised that such evidence from an expert that established the possibility or, I gather, probability, of there being a causal connection between the child’s medical condition and nightmares, would lead to a further possibility that such a causal connection can also be causally linked to the child hallucinating about past events.
It is contended that, in the event of such evidence being before the Court, the Court may therefore either dismiss, as I understand it, or give less weight to the child’s accounts that he has provided to investigating officers from police and the New South Wales Department of Communities and Justice regarding allegations he has made that the father has engaged in acts of sexual abuse against him. Counsel for the father indicated that such evidence, should it be provided, would support the father’s application for the parties to attend counselling with a view to engaging in family therapy, and also possibly continuing to work with the child regarding hallucinations, presumably hallucinations that it is contended the child has regarding being sexually abused.
The legal principles to apply in this matter are set out in several cases, including Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. That case states that, in considering an adjournment application, the Court is entitled to consider not only the impact on the parties before the Court in which the adjournment is sought, but also the business of the Court generally. That proposition is now confirmed in modern case management principles, including those set out in s 95 of the Family Law Act1975 (Cth) (“the Act”) regarding the overarching purpose of family law practice and procedure provisions as set out below:
Overarching purpose of the family law practice and procedure provisions
(1)The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:
(a) in a way that ensures the safety of families and children; and
(b)in relation to proceedings under this Act in which the best interests of a child are the paramount consideration–in a way that promotes the best interests of the child; and
(c) according to law; and
(d) as quickly, inexpensively and efficiently as possible.
(Note omitted)
I also refer to s 69ZN of the Act, which sets out principles for conducting child-related proceedings, which includes in Principle 1, which states: “… the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings”.
The Court considers an application for adjournment on the basis that no party has an entitlement to an adjournment. They are required to establish that there is a sufficient basis for that to occur (Dahdah v Platinum Distributors Australia Pty Ltd [2023] FCAFC 65 (“Dahdah”) at [166]). The matter of Dahdah refers to a very similar concept of the overarching purpose in another jurisdiction.
That principle that there is no entitlement to an adjournment and that a sound basis needs to be established is also confirmed in Gabrielle v Abood (No 2),[1] which provides that the parties and the Court are entitled to have an expectation that matters will be heard and concluded at the scheduled date. Again, the Court, according to that decision, is entitled to be mindful of the inefficient waste of court resources if adjournments are granted without cogent reasons. In my respectful opinion, the reasons advanced by counsel for the father for the adjournment lack merit.
[1] [2023] NSWCA 28 at [6] (Bell CJ, Kirk JA agreeing at [8], Adamson JA agreeing at [9]).
At their very highest, they reflect a speculative possibility that the nature of the child’s medical condition, in this case, is such that it has an impact on insomnia, and secondly, that it may give rise to the prospect of the child having hallucinated in respect to the child’s allegations that he has been the subject of sexual abuse. As against the speculative possibility of that being revealed in such a report, I need to weigh the consequence for the child, who has already been the subject of multiple interviews regarding his allegations. In particular, I have regard to the fact that the child would be required to potentially undergo testing regarding the nature and extent of his medical condition, together with, potentially another interview, which would form the basis of conclusions reflected in the report.
I am reluctant to compel a situation where the child would be required to undergo such procedure and interview, and certainly when the evidentiary value of any such report would be extremely limited. I say that in the context where the Independent Children’s Lawyer (“ICL”) has indicated to the Court that it will not be their contention that the Court would find, as a matter of probability, that the child has been the subject of sexual abuse, but rather, by reference to Isles & Nelissen (2022) FLC 94-092 (“Isles & Nelissen”), the Court needs to consider whether, based on the available evidence, there is an unacceptable risk that the child has been the subject of sexual abuse and is at consequent risk in the father’s care in the future.
In that context, the most significant impact that any such report, if counsel for the father’s speculative hypothesis proved to be correct, would, at best, diminish the weight that the Court would give to the child’s account of several incidents where he has stated that he has been the subject of sexual abuse by the father.
That reduction in weight would be in the context where the Court is assessing the element of future risk of potential sexual abuse in accordance with Isles & Nelissen, which finding may or may not be made by myself having regard to the evidence and submissions of the parties, and may not necessarily involve any positive finding that actual sexual abuse has occurred as a matter of probability. In other words, the best that the evidence could achieve, even if the speculation or hypothesis of counsel for the father proved to be correct, would be a relatively slight diminution in the weight that the Court would place on the child’s allegations of sexual abuse, which would be considered in the context of the Court itself engaging in an assessment of future risk.
That slight evidentiary advantage that the father would gain by such a report needs to be weighed in terms of the public interest of the timely disposal of matters, the impact on the parties, including the child and the mother, of these proceedings being further protracted, and the impact of the child being required to be subjected to what could be anticipated to be testing as well as a potential interview. In my view, the speculative possibility of the father obtaining such an evidentiary advantage is outweighed by the other matters to which I have referred.
On that basis, I dismiss the father’s application for an adjournment of the proceedings.
COSTS APPLICATION OF THE ICL
In this matter the parties, with the assistance of the ICL, have reached agreement as to relevant parenting orders, which I have approved as being appropriate and in the best interests of the child. Consistent with the terms of appointment, the ICL has, through counsel, made an application for costs in respect to those incurred in accordance with their duties.
In considering that application, I’m required to consider the matters set out in s 117(2A) of the Family Law Act 1975 (Cth) (“the Act”) as set out below:
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
The information before the Court satisfies the Court that the mother is in employment. Although, I accept having sole parental responsibility for the child will have ongoing expenses, including the cost of private school fees for the child. I accept the father has financial difficulties, he is currently unemployed, although looking for work. He has trade qualifications, although he faces a number of debts arising from a gambling addiction which, to his credit, he acknowledged is a challenge he needs to overcome. I accept that meeting an order for costs as sought by the ICL for each party to pay $7,332.90 will cause some financial strain for both parents. Nonetheless, the Court has determined that impecuniosity is not a bar to a costs order.[2]
[2] Cross v Beaumont (2008) 39 Fam LR 389 at [60]; Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12]; Mallory & Mallory [2020] FamCAFC 62 at [9].
In terms of s 117 (2A)(b) of the Act, each party in this case is in receipt of Commonwealth Government assistance by way of finances provided through what is known as the “Family Violence and Cross-Examination of Parties Scheme” (“the s 102NA scheme”). Section 102NA of the Act prevents parties from individually cross-examining each other in circumstances where there are allegations of family violence and/or abuse. The s 102NA scheme provides parties with legal assistance to which the parties have been beneficiaries throughout the final hearing. The legal assistance provided through that scheme, however, is not to be equated with the statutory reference: “assistance by way of legal aid” (Legal Aid ACT & Westwell (2021) FLC 94–013 at [40]–[42]). Accordingly, I don't regard the fact that the parties are represented pursuant to the s 102 NA scheme to be a bar to the making of an award for costs.
In terms of the conduct of the proceedings, I commend all advocates for the manner in which they have conducted themselves, and there is nothing relating to the conduct of any of the parties to the proceedings that influences my decision as to costs, nor are there any matters in respect to s 117(2A)(d)–(f) of the Act.
However, in respect to s 117(2A)(g) of the Act, that is, such other matters as the Court considers relevant, I indicate to counsel for the ICL and his instructors that the role of the ICL in these proceedings, which has been difficult from a number of perspectives, has been invaluable. The ICL has provided forensic assistance to the Court by carefully and objectively questioning each party and has elucidated the relevant facts that I have no doubt have ultimately led to a resolution of the matter.
The role of the ICL was summarised in the context of an application for costs in proceedings before the High Court in CDJ v VAJ (1998) 197 CLR 172, and specifically at [11] where Kirby J said the children's representative has a duty to:
...act in an independent and unfettered way in the best interest of the child. This duty carries over to an appeal. The interest of the child and their welfare is of concern to the public. Those interests extend beyond, and are separate from, the interests of the parents. The children are the children of both parties. They should share equally the costs of their children being separately represented in this Court.
Kirby J referred to the relevant principles being carried over into appeal, and in doing so, necessarily states that the relevant principles apply to first instance proceedings. In particular, I accept that it is in the public interest for the best interests of children to be represented in proceedings before this Court, and the Court invariably receives substantial assistance, as it has in this case, from ICLs appointed in those proceedings, which resulted not only in the Court being informed of all relevant matters, but also ultimately achieving a resolution of the matter.
In those circumstances, I accede to the application by the ICL for an order for costs, but in circumstances where I accept making an order for costs will place a financial burden on the parties, I will make an order that each party is to pay the costs of the ICL in the sum of $7,332.90 each, within a period of three months from the date of these orders.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 16 April 2025
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