Font and Banton (No 2)

[2010] FamCA 790

FAMILY COURT OF AUSTRALIA

FONT & BANTON (NO. 2)	[2010] FamCA 790
FAMILY LAW – COSTS – Application for Costs by the Independent Children’s Lawyer – Where the mother has poor financial circumstances – Where there was some merit in the father’s litigation – Where there were no special features about the case or the mother’s behaviour in relation to the litigation which would warrant a costs order against her – No order for costs
APPLICANT:		Ms Font

RESPONDENT: Mr Banton

FILE NUMBER: PAF 4439 of 1997

DATE DELIVERED: 6 September 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Sydney and Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 15 and 16 July 2009 and 11 January 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Henness of Counsel appearing for the Applicant Mother

SOLICITORS FOR THE APPLICANT: Bowring Macaulay & Barrett

COUNSEL FOR THE RESPONDENT: Mr Friend, Solicitor of Friend & Co Lawyers appeared for the Respondent Father

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Maurice of Counsel appearing for the Independent Children’s Lawyer

SOLICITORS FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Abrams Turner Whelan

Orders

1. The Independent Children’s Lawyer’s application for costs is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Font and Banton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: PAF/4439 of 1997

MS FONT

Applicant

And

MR BANTON

Respondent

REASONS FOR JUDGMENT

1. This matter was heard on the 15 and 16 July 2009 in the Sydney Registry.

2. Issues in dispute involved what orders should be made in relation to the parties’ 15 year old son.

3. Ultimately for reasons delivered on the 11 January 2010 it was ordered that the Mother have sole parental responsibility and the child was to spend time with his father at all times as may be agreed between the parents as well as any time the child indicated HE wished to see his father whether on a supervised or unsupervised basis.

4. In the event that there was to be no time pursuant to the above arrangements, the Father was to see his son for two hours every seven weeks to be supervised at the N Contact Centre.

5. Order (11) of the Order of 11 January 2010 is in the following terms:

   “(11)Within fourteen (14) days of the date hereof the Independent Children’s Lawyer is to file and serve written submissions as to why the parties should pay costs of the Independent Children’s Lawyer.  Within fourteen (14) days thereafter the parties are to file and serve a response to such submissions.

   [underlining added]

6. The Court has been provided with written submissions filed on behalf of the Independent Children’s Lawyer.  The total amount of costs is $18,415.  An order is sought that each of the parties be required to pay the sum of $9,207.

7. On the 29 July 2009 the Independent Children’s Lawyer wrote to the legal representatives of each of the parties in the following terms:

   “We intended to make the application to Justice Barry for each party to pay their half share of the Independent Children’s Lawyer’s costs at the conclusion of the final hearing on 17 July 2009.  As the Judge has now made directions that the parties file written submissions we advise that we will be writing to his Honour to request that he make an order in Chambers for each party to pay their half share of the Independent Children’s Lawyer’s fees.  In the event that the order cannot be made in Chambers then we have requested the Independent Children’s Lawyer be granted leave to file an application seeking the order for costs.”

8. The Independent Children’s Lawyer is required pursuant to the grant of Legal Aid to seek an order that each party pay half the costs incurred.

9. I do not propose to make an order for costs as sought by the Independent Children’s Lawyer.

10. Such an order is not to be interpreted in any way as a criticism of the way the Independent Children’s Lawyer has carried out his duties in this matter.  The Court is appreciative of the assistance provided by the Independent Children’s Lawyer.

11. Pursuant to the terms of s 117(2) I take into account the fact that the Mother is in poor financial circumstances.  She has had the major cost in raising the child the subject of the proceedings who has been diagnosed with a learning disability.

12. There were a number of psychiatric reports in relation to the Father’s condition.  The Father was in employment but as noted in the reasons for judgment delivered he has serious mental issues.  He has previously been a serial litigant but as I understand the situation there has been no further litigation.

13. There was some merit in the Father’s litigation.

14. Whilst the orders would indicate the Mother was largely wholly successful, there were no special features about the case or her behaviour in relation to the litigation which would warrant a costs order against her in favour of the Independent Children’s Lawyer.

15. Similar considerations apply in relation to a determination of whether a costs order should be made against the Father of the children.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  6 September 2010