Branson and Aske and Anor

[2009] FamCA 1042

FAMILY COURT OF AUSTRALIA

BRANSON & ASKE AND ANOR [2009] FamCA 1042

FAMILY LAW - COSTS - Application by the Independent Children’s Lawyer for costs  - Application dismissed

Family Law Act 1975 (Cth) s 117

APPLICANT: Mr Branson

1^ST RESPONDENT: Ms Aske

2^ND  RESPONDENT: Mr Setken

INDEPENDENT CHILDREN’S LAWYER: Mr Foat, Ticehurst Foat Lawyers

FILE NUMBER: NCC 2833 of 2008

DATE DELIVERED: 26 October 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 26 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE 1^ST RESPONDENT: Not Applicable

SOLICITOR FOR THE 1^ST RESPONDENT: Mr Hannaway, Hannaway Lawyers

COUNSEL FOR THE 2^ND RESPONDENT: Not Applicable

SOLICITOR FOR THE 2^ND RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Foat, Ticehurst Foat Lawyers

Orders

1. All preceding parenting orders relating to the child C, born … March 2002, (“the child”) are discharged.

2. The mother (First Respondent) and father (Applicant) shall have equal shared parental responsibility in respect of the child.

3. The child shall live with the mother.

4. With the consent of the Applicant, the First Respondent and the Independent Children’s Lawyer, it is ordered in accordance with the document entitled “Draft Minutes of Consent Orders” signed by those parties and/or their legal representatives on  26 October 2009, which is marked Exhibit A and placed with the Court file:

   4.2       The child shall spend time and communicate with the father:

   a.For the first half of school term holidays from 11:30 am on the first Saturday until 11:30 am on the second Sunday during school terms;

   b.For 10 days during the long summer school holidays as agreed between the father and the mother;

   c.The changeover place in relation to sub paragraphs (a) and (b) above shall be as agreed between the parties;

   d.There shall be liberal telephone communication between the child and the father; and

   e.Otherwise as agreed between the parties.

   4.3The parties are restrained from consuming alcohol to excess, or consuming illicit substances, during or 12 hours prior to the time that they have the care of the child.

   4.4The parties shall keep each other informed of their residential addresses and telephone numbers and shall inform each other within 24 hours of any change to their residential addresses or telephone numbers.

   4.5The mother is to obey all directions of her treating medical practitioners.

IT IS FURTHER ORDERED

1. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

2. All documents produced pursuant to subpoena shall be returned by the Registrar to the owners and providers upon expiration of any applicable appeal period.

3. Any and all outstanding applications are dismissed.

4. Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

5. The oral application for costs made by the Independent Children’s Lawyer against the Applicant and the First Respondent is dismissed.

NOTATIONS

A.With the consent of the Applicant, the First Respondent and the Independent Children’s Lawyer, Notation A1 is made in accordance with the document entitled “Draft Minutes of Consent Orders” signed by those parties and/or their legal representatives on  26 October 2009, which is marked Exhibit A and placed with the Court file:

A1. The Court notes that the father and the mother intend that the child spends time with the father in accordance with the above orders accompanied on most occasions by the mother’s child J, born … September 1999, but outside of any time which J may spend with her father Mr Setken in accordance with the Orders concerning J made by this Honourable Court at Canberra in proceedings no: CAF1253 of 2003 on 17 November 2003.

B.The Applicant and the First Respondent make allegations of family violence against one another in these proceedings but each party submit, pursuant to Rule 10.15A(2) of the Family Law Rules, that the Consent Orders which they have entered into satisfactorily address incidents of past violence between them.  The Independent Children’s Lawyer agrees.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2833 of 2008

MR BRANSON

Applicant

And

MS ASKE

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1. These proceedings come before me today for less adversarial trial.  The parties have commendably settled the proceedings outstanding between them on a final basis.  That amicable resolution has been facilitated by the Independent Children’s Lawyer.

2. As is conventional, the Independent Children’s Lawyer has made an application for costs against both parties in the proceedings. 

3. The application, insofar as it relates to the respondent mother, is dismissed. The reason for that dismissal is that the mother is currently in receipt of a grant of legal aid, and in those circumstances s 117(4) of the Family Law Act 1975 (“the Act”)  mandates dismissal of the application.

4. Insofar as the application relates to the applicant father, I am informed by Mr Hannaway, who acts for the respondent mother, of a conversation he recently had with the solicitor formerly representing the applicant father in these proceedings, namely Mr Dampney.  Mr Hannaway submits from the bar table that Mr Dampney informed him that the grant of legal aid formerly granted in favour of the applicant father has not yet concluded.  With his customary fairness, Mr Foat, the Independent Children’s Lawyer, has not sought to dispute that evidence given from the bar table. 

5. In the circumstances, I am prepared to accept what I am told, namely that the grant of legal aid in respect of the applicant father remains current. In the face of that finding, s 117(4) also applies in favour of the applicant father. For that reason, the application for costs made by the Independent Children’s Lawyer against the applicant father is similarly dismissed.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin.

Associate: 

Date:  26 October 2009