FEDERAL CIRCUIT COURT OF AUSTRALIA
| DUCKETT & ROBINSON (No.2) | [2015] FCCA 2277 |
| Catchwords: 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…
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- AGLC
- DUCKETT & ROBINSON (No.2) [2015] FCCA 2277
- Case
- [2015] FCCA 2277
- Decision Date
CaseChat Overview and Summary
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
1.
The Applicant Father is granted leave to file his Application for an order for costs out of time.
2.
The Independent Children’s Lawyer is granted leave to file his Application for an order for Costs out of time.
3.
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.
4.
The Respondent is to pay the Applicant’s costs of the substantive proceedings fixed in the sum of $53,088.00.
5.
The Respondent is to pay the Applicant’s costs of this Application in a Case fixed in the sum of $$3,242.00.
6.
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.
7.
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.
8.
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.
9.
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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