Beckett and Knill

[2019] FamCA 598

FAMILY COURT OF AUSTRALIA

BECKETT & KNILL [2019] FamCA 598

FAMILY LAW – COSTS

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms Beckett

RESPONDENT: Mr Knill

INDEPENDENT CHILDREN’S LAWYER: Mills Oakley

FILE NUMBER: CAC 712 of 2016

DATE DELIVERED: 22 August 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 22 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Haddock

SOLICITOR FOR THE APPLICANT: Phelps Reid

COUNSEL FOR THE RESPONDENT: Mr Howard

SOLICITOR FOR THE RESPONDENT: Neilan Stramandinoli Family Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs Evans

Orders

1. The Application for Costs made by the Father against the Independent Children's Lawyer is refused.

2. The Application for Costs made by the Independent Children's Lawyer’s against the Father is refused.

3. The Application for Costs made by the Mother against the Father in relation to the subpoena to the Suburb C Family Practice is refused.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Beckett & Knill has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 712 of 2016

Ms Beckett

Applicant

And

Mr Knill

Respondent

EX TEMPORE REASONS FOR JUDGMENT

The Father’s Application for Costs against the Independent Children’s Lawyer

1. In this matter costs are firstly sought by Mr Knill against the Independent Children's Lawyer in relation to the Independent Children's Lawyer issuing a subpoena directed to the Suburb C Family Practice which dealt with the Father's medical records. 

2. His complaint about the subpoena is that it was too broad at the time of its issue, in that at the time of its issue the matter then in dispute was proposed medical treatment for B and thereby records that related to his medical issues were not relevant.  However, immediately following the issue of the subpoena those issues did become relevant, that is by the time the matter came on before the Registrar to deal with an objection, which in part dealt with relevance, the subject matter of the subpoena had become a live issue at the hearing.  This tells against a costs order being made against the Independent Children's Lawyer based upon the scope of the subpoena that was issued. 

3. Accordingly, the Application for Costs made by Mr Knill against the Independent Children's Lawyer is refused.

The Independent Children’s Lawyer’s Application for Costs against the Father

1. The Independent Children's Lawyer sought a costs order against the Father in respect of the objections to subpoena.  It may be observed that the Father before me, on review of the Registrar's decision, received a different outcome to that which he received before the Registrar.  I note that in receiving that outcome his review was something which was opposed by the Independent Children's Lawyer and also by the Mother as late as yesterday afternoon. 

2. Today there was little resistance to the notion that what had been produced went beyond what was required by the subpoena.  That matter was dealt with by causing those items to be placed into a sealed envelope on the Court file, not to be opened without further direction from the Court.  The effect of this is that the Father’s objection to the subpoena has not been wholly unsuccessful. 

3. While he has been in part unsuccessful, in that he has maintained a claim of a lack of relevance in the face of his Application which made it relevant, it may also be observed that what was represented to him was that all that was being sought were matters that concerned B's treatment from the practice, either by virtue of B's presentation at the practice or by the parents’ representations to the practice.  Under those circumstances it is somewhat understandable that he maintained his objection.

4. Again, under those circumstances I do not intend to depart from the default position set out in s 117 of the Family Law Act 1975 and the Independent Children’s Lawyer’s application for costs against the Father is refused.

The Mother’s Application for Costs against the Father

1. The Mother seeks costs in respect of the subpoena in relation to the Father's conduct of his objection to the subpoena.  Sensibly the Mother did not pursue costs on the basis that the Father had been wholly unsuccessful as he has not been wholly unsuccessful. 

2. The complaint rather is one of the conduct of the Father in resisting the subpoena, in that he brought an objection on relevance and pursued that objection until today. Again, it may be observed that that objection was taken in the context that representations have been made to him that all that was being sought were references to B from the medical records. On the basis of those representations having been made to him it is perhaps understandable that that objection was pursued. In a context where he has not been wholly unsuccessful and in a context where such representations were made to him, I am not prepared to depart from the usual approach contained at s 117 of the Act.

3. Accordingly, the Mother's Application for Costs against the Father in relation to the subpoena to the Suburb C Family Practice is refused.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 22 August 2019.

Associate:

Date:  23 August 2019