DUCKETT & ROBINSON (No.2) - [2015] FCCA 2277

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUCKETT & ROBINSON (No.2)

[2015] FCCA 2277

Catchwords:
FAMILY LAW – Costs – application for costs by father – application for costs by Independent Children’s Lawyer – conduct of the parties – where respondent totally unsuccessful in the proceedings – where respondent left Australia with the child – party and party costs – indemnity costs – whether father’s costs should be assessed on an indemnity basis.

PRACTICE AND PROCEDURE – Application for leave to file out of time – dispensation with service – where respondent’s whereabouts unknown – where respondent believed to be remaining out of the jurisdiction.

WORDS AND PHRASES – “independent children’s lawyer” – correct title is “independent children’s lawyer” even where there is only one child – title prescribed by Family Law Act 1975 (Cth), s.4.

Legislation:

Family Law Act 1975 (Cth), ss.4, 65Q, 65Y, 65Z, 67Q, 68L, 68LA, 117

Federal Circuit Court Rules 2001, rr.21.02, 21.15, 21.16

Cases cited:
Colgate Palmolive Co. v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225; 118 ALR 248
De Roma & De Roma [2013] FamCA 566
Duckett & Robinson [2015] FCCA 997
Fennessy & Gregorian [2009] FamCAFC 44; (2009) FLC 93-399
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA 158; (2005) 33 Fam LR 123
Kohan & Kohan (1992) 16 Fam LR 245; (1993) FLC 92-340
Munday & Bowman (1997) FLC 92-784
Prantage & Prantage [2013] FamCAFC 105; (2013) 49 Fam LR 197; FLC 93-544
Stephens & Stephens & Anor(Enforcement) (Costs) [2010] FamCAFC 172
Wade & McPherson [2014] FCCA 1321
Yunghanns & Yunghanns [2000] FamCA 681; (2000) FLC 93-029

Applicant:

MR DUCKETT

Respondent:

MS ROBINSON

File Number:

SYC 5776 of 2013

Judgment of:

Judge Scarlett

Hearing date:

8 July 2015

Date of Last Submission:

8 July 2015

Delivered at:

Sydney

Delivered on:

24 August 2015

REPRESENTATION

Counsel for the Applicant:

Mr Guterres

Solicitors for the Applicant:

Derham Houston

Respondent:

No appearance

Counsel for the Independent Children's Lawyer:

Ms Falloon

Independent Children's Lawyer:

Peter Baker Solicitor

ORDERS

The Applicant Father is granted leave to file his Application for an order for costs out of time.
The Independent Children’s Lawyer is granted leave to file his Application for an order for Costs out of time.
Service on the Respondent Mother of the Application in a Case filed by the Applicant and the Application in a Case filed by the Independent Children’s Lawyer and affidavits in support is dispensed with.
The Respondent is to pay the Applicant’s costs of the substantive proceedings fixed in the sum of $53,088.00.
The Respondent is to pay the Applicant’s costs of this Application in a Case fixed in the sum of $$3,242.00.
Not later than 6 October 2015 the Applicant is to pay to the Legal Aid Commission of New South Wales the sum of $6,188.60, being one half of the costs of independent legal representation for the child [X] less the amount of $1,650.00…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DUCKETT & ROBINSON (No.2)

Details

AGLC: DUCKETT & ROBINSON (No.2) [2015] FCCA 2277
Case: [2015] FCCA 2277
Decision Date: 24 August 2015

CaseChat Overview and Summary

In the matter of *Duckett & Robinson (No.2)*, Judge Scarlett of the Family Court of Australia considered applications for costs made by the father (the Applicant) and the Independent Children’s Lawyer. The dispute arose from substantive family law proceedings concerning a child, where the respondent mother was entirely unsuccessful. The mother had also left Australia with the child, and her whereabouts were unknown, leading to applications for leave to file out of time and for dispensation with service.

The court was required to determine whether to grant the father and the Independent Children’s Lawyer leave to file their respective cost applications out of time, and whether to dispense with service of these applications on the respondent mother. Furthermore, the court had to assess the appropriate basis for awarding costs, specifically considering whether the father’s costs should be assessed on an indemnity basis, and to determine the quantum of costs payable by the respondent mother to the father and the Independent Children’s Lawyer, as well as the apportionment of the child’s legal representation costs between the parents.

Judge Scarlett granted the father and the Independent Children’s Lawyer leave to file their cost applications out of time, and dispensed with service on the respondent mother due to her unknown whereabouts. The court ordered the respondent mother to pay the father's costs of the substantive proceedings in the sum of $53,088.00 and the costs of the father's application in the sum of $3,242.00. The court also ordered the respondent mother to pay the Independent Children’s Lawyer's costs of their application in the sum of $1,265.00. The costs of the child's independent legal representation were to be paid by both parents, with specific amounts and payment deadlines stipulated for each. The court certified that the employment of counsel was appropriate in each case.

Orders

Orders of the court

The Applicant Father is granted leave to file his Application for an order for costs out of time.

The Independent Children’s Lawyer is granted leave to file his Application for an order for Costs out of time.

Service on the Respondent Mother of the Application in a Case filed by the Applicant and the Application in a Case filed by the Independent Children’s Lawyer and affidavits in support is dispensed with.

The Respondent is to pay the Applicant’s costs of the substantive proceedings fixed in the sum of $53,088.00.

The Respondent is to pay the Applicant’s costs of this Application in a Case fixed in the sum of $$3,242.00.

Not later than 6 October 2015 the Applicant is to pay to the Legal Aid Commission of New South Wales the sum of $6,188.60, being one half of the costs of independent legal representation for the child [X] less the amount of $1,650.00 previously paid by the Applicant on 7 March 2014.

Not later than 6 October 2015 the Respondent is to pay to the Legal Aid Commission of New South Wales the sum of $9,175.10 being:

(a) One half of the costs of independent representation for the child [X] in the sum of $6,188.60; and

(b) The costs of the Application in a Case filed by the Independent Children’s Lawyer in the sum of $2,986.50.

The Respondent is to pay the costs of the Independent Children’s Lawyer in respect of this Application in a Case fixed in the sum of $$1,265.00.

The Court certifies that it was appropriate to employ Counsel as an advocate in each case.

10.

Within seven (7) days of the date of these Orders the Independent Children’s Lawyer is to provide a copy of these Orders by way of service on the Respondent:

(a) By email to [omitted]; and

(b) By post addressed to Ms Robinson, [address omitted].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.