WARD & WARD
[2015] FCCA 1003
•24 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WARD & WARD | [2015] FCCA 1003 |
| Catchwords: FAMILY LAW – Costs – costs of the Independent Children’s Lawyer – consideration of matters in Family Law Act 1975 (Cth) s.117(2A) – financial circumstances of each of the parties a relevant consideration. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 117 |
| Cases cited: Re G: Children’s Schooling [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025 |
| Applicant: | MS WARD |
| Respondent: | MR WARD |
| File Number: | CSC 260 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing dates: | 24 March 2015 |
| Date of Last Submission: | 24 March 2015 |
| Delivered at: | Cairns |
| Delivered on: | 24 March 2015 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Weston |
| Solicitors for the Applicant: | Luke Weston Solicitor |
| Respondent: | In Person |
| Counsel for the Independent Children's Lawyer: | Ms Lawrence |
| Independent Children's Lawyer: | Sandra Sinclair |
ORDERS
The Applicant Mother and the Respondent Father are to do all things necessary to enrol the child, X born (omitted) 2004 at the (omitted) High School at the commencement of the child’s secondary education.
The Mother and the Father must each pay to Legal Aid Queensland the sum of $2,500.00, by way of their individual contributions to the costs of the Independent Children’s Lawyer and I allow 12 months to pay.
IT IS NOTED that publication of this judgment under the pseudonym Ward & Ward is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CAIRNS |
CSC 260 of 2013
| MS WARD |
Applicant
And
| MR WARD |
Respondent
REASONS FOR JUDGMENT
Application
There are parenting and property issues between the parties. The property issues remain unresolved, and will be adjourned until tomorrow with the view to their being resolved.
The parenting proceedings, however, have largely been resolved. I have heard some evidence from the writer of the Family Report, and the Independent Children’s Lawyer and her counsel have produced minutes of proposed consent orders.
The parties have agreed, individually, to all but two of the parenting orders which largely resolve issues relating to their two sons, Y and X. Those orders which have been agreed have now been the subject of orders by consent, and they have been arrived at after lengthy consideration and discussion between the Independent Children’s Lawyer, the Mother and her solicitor, and the Father.
There are two issues which are yet to be resolved to bring the parenting proceedings to an end. One of them is a proposed order relating to the parties younger son, X, which would require the parties to enrol him at the (omitted) High School when he commences his secondary education which should be at the beginning of the next school year. He is currently in primary school.
The application for the proposed order should be considered, of course, in the context of order 25 made by consent earlier today requiring parties to do all things necessary to enrol the elder child, Y, at (omitted) High School forthwith. He has, up until now, been attending another school, but he will be attending (omitted).
However, the Father has raised the question that X should attend the (omitted) High School rather than (omitted) when he commences his secondary education. This has come somewhat as a surprise to the Mother because it has not been subject of evidence in the pleadings filed today. And, indeed, as I told her solicitor, I had read through the Mother’s trial affidavit extensively prior to the lunch adjournment and there was no mention of a particular high school for X, and, I took it from that, that it was not covered in an otherwise large affidavit because the Mother was unaware that it was going to be an issue.
The Mother does not support the proposal that the child should go to (omitted) High School and believes that X, like his brother, should attend (omitted) High School. The Independent Children’s Lawyer does not support the proposal.
Father submits that X has, for some time, been expressing a wish that he should attend (omitted) High School, and he is of the view that just as Y has had a win in the consent orders agreed to by the parents relating to his changing school, so too should X have a win. The Father is not of the view that there is any particular significance in the boys attending the same high school when they are both in high school, pointing out that X has his own set of friends. He says that (omitted) High School is what he wants, he has been asking for this, and he believes that the child’s wish should be acceded to.
It is common ground that the children do not live in the catchment area for (omitted) High School. There is some controversy as to whether it is a selective high school or not, which has not been resolved, but the submission that has been put to the Court by the father is that the proposal is that this child would be an out-of-area admission. He had in fact made some inquiries at the school and was told that he would need to make an application quite soon if this child was to be accepted on this basis.
It is an issue upon which the parents are unable to agree. Accordingly, it falls to the Court to make a judicial decision on that point.
It is without saying that what school a child is to attend is a parenting order. Like any parenting order, the Court must consider the principles set out in Part VII of the Family Law Act 1975 (Cth) and various sections set out in that Act. Section 60B sets out the principles of Part VII, or the objects of Part VII and the principles to achieve those objects. Section 60CA is a well-known section, and provides that the best interests of the child must be the paramount consideration.
Section 60CC of the Act provides a guide to the Court in determining what is in a child’s best interests. In these circumstances, noting the extensive and significant parenting orders to which these parties have earlier agreed, I do not need to consider further the provisions of section 61DA relating to the presumption of equal shared parental responsibility, nor do I need to consider the requirements of section 65DAA of the Act.
I have also, in my consideration of those sections that are relevant, and I will make it clear that I have considered those which are relevant, but I have considered an authority, being a decision of the Full Court of the Family Court of Australia, called Re G: Children’s Schooling[1]. It is a decision of the then Chief Justice of the Family Court, Nicholson CJ and Kay and Brown JJ in a joint decision.
[1] [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025
Re G is an important decision because their Honours considered earlier decisions which had been considered by the trial judge, and sought to set out, in some detail, how it is that a Court should consider the all too frequent controversy raised by parents who ask the court, “What school should my child attend?”
First of all, their Honours have made it quite clear that where the children are living primarily with one parent, referred to by, for conveniences, the residence parent, it does not follow that the residence parent has the right to decide the child’s school. What is important and continues to be important, as in any parenting matter, is the best interests of the child. In doing so the court will consider various principles made clear in section 60CC of the Act, the court will consider the issues of the children and give such weight to those wishes as the court considers proper, and considers all of the other matters may apply as can be found in subsection 60CC(2) and (3) of the Family Law Act 1975. It is not the case that the court will engage in an analysis of the respective academic merits of the school concerned. Their Honours were at pains to point that out in the judgment.
So I approach this decision by considering what is in the best interests of this child. The Father has said that X himself has asked to go to (omitted) High School rather than (omitted) High School. How much weight could the Court give to this child’s expressed wish? I turn to section 60CC(3) at paragraph (a). One of the additional considerations is:
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
This boy was born on (omitted) 2004. He is 10 years of age, but he is certainly closer to the age of 11 than he is to the age of 10. Obviously his age is a relevant matter.
One thing that the Court must consider is any view expressed in a Family Report. It is significant that a Family Report dated the 21st of this month, annexed to her affidavit of the 23rd of this month, Ms C, whose oral evidence I heard yesterday, made this recommendation, and I quote:
With respect to the children’s wishes I recommend the court gives no weight to any of the children’s wishes. They have not been protected from the adult conflict and are traumatised. Their comments have been contaminated by parental expectations and agendas.
I had the opportunity of considering Ms C’s oral evidence yesterday, and I must say that I found her evidence to be cogent and persuasive. Ms C expressed her opinions in forthright terms and, to use the vernacular, did not pull any punches. It was interesting to me, and I myself asked Ms C some questions when she was in the witness box, about the relationship between the boys themselves, between X and his elder brother Y. It appears clear that the boys share a positive relationship and are capable of providing support to each other when they have been caught in the middle of the conflict between their parents. I am conscious of the fact that the legal conflict between the parents has been resolved by hard work by the parents themselves, and also by the contribution of the mother’s solicitor, and particularly by the Independent Children’s Lawyer.
The boys are very different. The Father made that point. It certainly emerges from the family consultant’s evidence, orally and in the family report, but it still appears to me that their relationship, on all the evidence before me, is a strong one. If the boys still had difficulty between, and by being in between parents who are at arm’s length, it would seem to me that they would get some benefit from spending time together. It is noteworthy, going back to the report of Ms C of 21st March annexed to her affidavit, Ms C said:
Y needs to see his brother for longer periods of time.
It seems to me that it would be beneficial, once the boys are both attending high school, for them to attend the same high school.
There is another reason why I believe that there is some advantage in their attending the same high school. Order 5 of the consent orders made by the Court earlier today provide for a changeover period between parents from after school on the Monday until the commencement of school on the following Monday. It would seem that if the children are at the same school, when they are at the same school, that it would be more convenient for the particular parent to collect the children from and deliver the children to the same school.
It is of course profoundly to be hoped that the making of final parenting orders today will be of great assistance to these children. I am conscious of the fact that the family consultant has pointed out that property proceedings between the parents need to be resolved. That would be of benefit to the children, and, I dare to suggest, to the parties themselves. That is a matter for tomorrow.
But I propose to order, because I am satisfied that it is in X’s best interests, and, additionally, because I consider that it would be in Y’s best interests, for X to attend the (omitted) High School when he commences his secondary education. I see a benefit to the children in their attending the same high school.
The other issue relates to an application by the Independent Children’s Lawyer for each party to make a contribution of $3,300.00 to Legal Aid Queensland in relation to the costs of the Independent Children’s Lawyer. Initially it was sought that the Mother should make that contribution because the Independent Children’s Lawyer was under the mistaken belief the Father had received a waiver. Evidence produced to the Court this afternoon, by way of correspondence from Legal Aid Queensland to the parties which I have admitted into evidence as exhibits 2, 3 and 4, makes it quite clear that there is no such waiver, and, accordingly, what is now being sought is that each party make a contribution to the costs of the Independent Children’s Lawyer in the sum of $3,300.00.
It took a little while this afternoon to ascertain that information, and I delayed the consideration of that point until the Father had had the opportunity of being apprised of all the facts, and had the opportunity to prepare a submission, which he made orally this afternoon, as to why I should not make an order in the terms now sought by Legal Aid Queensland.
I have had the benefit of hearing submissions from Ms Lawrence of counsel for the Independent Children’s Lawyer which were relatively brief, from Mr Weston, solicitor for the Mother, and from the Father himself. I note Ms Lawrence put to the court that one of the considerations should be the financial circumstances of the parties, and Ms Lawrence submitted that the Father had said that the property pool was negligible, although the Independent Children’s Lawyer, from a perusal of the documents filed, disagreed with that parent. Mr Weston, for the Mother, appropriately took the court to the provisions of section 117 of the Family Law Act, and it is a fact that whilst orders for costs are discretionary, that discretion is bound by the provisions of section 117 of the Act. Interestingly, subsections (3) and (4) of section 117 refer specifically to proceedings in which an independent children’s lawyer for a child has been appointed. Subsection (3) provides that:
The court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children’s lawyer in respect of the proceedings.
However, subsection (4) provides that:
In proceedings in which an independent children’s lawyer for a child has been appointed, if a party to the proceedings has received legal aid in respect of the proceedings; or the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children’s lawyer the court must not make an order under subsection (2) against that party in relation to the costs of the independent children’s lawyer.
I go back to the provisions of subsection (2) of section 117 which provides that:
If the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A) , (4) -
which apply –
and (4A) –
which does not –
and (5) -
which does apply –
and the applicable rules of court, make such order as to costs as the court considers just.
I have looked at and referred to the provisions of subsections (3) and (4). Subsection (5) of section 117 provides nothing more than that:
the court must disregard the fact that the independent children’s lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.
Subsection (2A) sets out a mandatory list of matters to which the court shall have regard, and it should be made quite clear the court shall have regard to them - that is exactly what the subsection says:
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 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;
whether either party has made an offer in writing to the other party to settle the proceedings and the terms of any such offer; and
(f) such other matters as the court considers relevant.
Not all of them are relevant to these proceedings.
The financial circumstances of each of the parties to the proceedings are clearly relevant.
The Court must consider whether any party to the proceedings is in receipt of assistance by way of legal aid. Neither party is in receipt of such assistance.
The Court should consider the conduct of the parties to the proceedings in relation to the proceedings, and, in this case, I would comment that the parties, over a difficult period of two days, which did involve taking some evidence, worked hard, with the assistance of the Independent Children’s Lawyer, to finalise parenting orders, or as many of them as they reasonably could. No criticism can be attached to either party.
The proceedings were not necessitated by the failure of a party to comply with previous orders of the Court, nor can it be said that any party has been wholly unsuccessful in the proceedings.
There is no evidence of any offer to settle, and it is not relevant. There are no other matters that the Court considers relevant which gets me right back to paragraph (a) – the financial circumstances of each of the parties to the proceedings.
Mr Weston, the mother, submitted that an order to pay the amount of $3,300.00 to Legal Aid Queensland would cause further financial hardship to his client. He told the Court that her income is around $25,000, and, apart from her car, she has very little in the way of assets. She has, on occasions in these proceedings, been approved for fee waivers by this Court, and, as he pointed out, she is certainly not in receipt of legal aid.
He himself, is working not on a pro bono basis, but conceded that, due to his lengthy knowledge of the Applicant, the has been working for her at a significantly reduced rate of fees.
I would comment, as an aside, that that does Mr Weston great credit, and I have no doubt that his client appreciates his assistance, and the generous attitude that he has taken in respect to his fees.
Mr Ward has submitted that he is not working. He has been on compensation since Easter of last year, having broken his collarbone. He receives compensation of some $3,600.00 per month. Only slightly more, I might comment, than the contribution sought by Legal Aid Queensland.
He still owes some $18,000.00 for fees to his former solicitors, who withdrew only a matter of a week or so prior to the hearing. He has obtained the loan from another person, to assist in meeting his legal costs to date. He too, as he said, would suffer from financial hardship.
These are matters that cannot be ignored. It does not mean that the Court should wipe the slate clean, and make no order for costs at all.
The Court is conscious of the work done by the Independent Children’s Lawyer and her counsel.
The Court is conscious of the circumstances that afflict every legal aid agency in Australia, in that those agencies are pressed for funds, and must make every dollar count when they allocate funds for legal aid. There is no legal aid agency in Australia that is flush with funds. It is regrettable that Legal Aid Queensland, and its counterparts in other states, do not receive more funds, although that is not a consideration under section 117, subsection 2(a).
It is, however, a circumstance of which I am aware, because I go back to the financial circumstances of the parties. Each one of them has debts to pay. Each one of them has debts to pay to an existing lawyer, or a former lawyer. Neither one of them has a high income. To turn around, at short notice, and find $3,300.00 would cause, in my view, a significant degree of financial hardship.
I do propose to make an order for costs, but I do not propose to make it as high as $3,300.00. I propose to set the amount at a smaller amount of $2,500.00, and I propose to allow time to pay.
It may be argued that time to pay, which, I consider, is appropriate, being 12 months, is a generous period of time to pay. But, in my view, the parties have pressing commitments now, and these proceedings have cost them a lot of money, which they have not yet been able to pay. Those pressing commitments need to be given some consideration, which means that the Court should allow a lengthy period of time to pay the costs of Legal Aid Queensland.
Before I pronounce the orders which will finalise the parenting proceedings, I wish to acknowledge the contribution made by the Independent Children’s Lawyer herself, Ms Sinclair, and her counsel, Ms Lawrence. It has not escaped my notice that they have worked effectively as a team, and they have worked extremely hard in the hearing before me, over the past two days, and have met every expectation that this Court has of the independent children’s lawyers.
I made it no secret yesterday morning when I pointed out that I place great responsibility on the shoulders of an Independent Children’s Lawyer, and I am very pleased to say that my trust in the ability of the ICL and her counsel has been well placed.
This is not a case where the Independent Children’s Lawyer is to be discharged, as they orders provide that the Independent Children’s Lawyer, for specific reasons, will remain present and available to assist the children for a period of time in the future.
Nevertheless, the Independent Children’s Lawyer, and her counsel, will be excused from attending the hearing tomorrow, as it will deal entirely with property matters. They go, however, with the thanks and the appreciation of the Court.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 20 April 2015
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Jurisdiction
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Natural Justice
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