Jillian and Wyatt

[2008] FamCA 46

FAMILY COURT OF AUSTRALIA

JILLIAN & WYATT [2008] FamCA 46

FAMILY LAW – COSTS – Application dismissed

APPLICANT: MR JILLIAN

RESPONDENT: MS WYATT

INDEPENDENT CHILDREN’S LAWYER: DONALD LAMPE

FILE NUMBER: MLC 485 of 2007

DATE DELIVERED: 21 January 2008

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE:

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr D.C. Goddard

SOLICITOR FOR THE RESPONDENT: Goddard Elliott

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr R.N. Hoult

Orders

1. There shall be no order as to costs.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Dessau delivered this day will for all publication and reporting purposes be referred to as Jillian & Wyatt.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 485 of 2007

MR JILLIAN

Applicant

And

MS WYATT

Respondent

REASONS FOR JUDGMENT

1. The husband and the wife have today resolved difficult and complex litigation in relation to their 13-year-old son.  Thankfully, they have had the assistance of an independent children's lawyer, and I have just pronounced final orders.

2. Counsel for the wife has now made an application for costs.

3. Section 117 of the Family Law Act deals with the issue of costs.  Parties are to pay their own costs, unless in the discretion of the court an order should be made for one party to pay the other party's costs or a part of those costs.  Section 117(2A) sets out the various matters that I need to take into account in exercising my discretion.

4. I have listened to Mr Goddard's arguments on behalf of the wife.  I do not see any merit in them in terms of ordering costs in this case.  He refers to the fact that that litigation between the parties has been on-going for a long time.  That is the case.  But what has been litigated has been something quite appropriately litigated.

5. The child, who lives with his mother, had been spending very consistent periods of time with his father.  In the period leading up to this hearing, he refused to see him altogether.  It is an issue that was sufficiently complex that the experts involved have talked about the complexity, and they have in no way indicated that there is one simple answer, or one simple apportionment of blame to be made.  In fact, the final resolution reflects the experts’ suggestion of a sophisticated approach involving a range of therapeutic and counselling interventions in the hope that, for the child’s sake, his relationship with his father can be salvaged and again promoted.

6. The only limb of s 117(2A) that Mr Goddard could have been relying on was the husband’s conduct.  The sorts of matters that he has referred to in relation to conduct are insufficient to persuade me to make a costs order.  He referred to the litigation starting at a point when mediation was planned.  That might well have been unfortunate.  I do not know enough about it.  But in any event, the litigation has been entirely appropriate to try to deal with insurmountably difficult issues.  He referred to the fact that in November there was apparently no agreement by the husband to attend a round table conference.  In fairness to him, at that point, all the evidence was not even in.  Some important evidence was still being collected.

7. Mr Goddard also referred to the fact that the husband sought different orders in his initial application to the orders that were ultimately made.  In fact, the same can be said of Mr Goddard's client.  In both instances, it is understandable that things have evolved in the course of the case.

8. Otherwise, Mr Goddard referred to the fact that the husband recently filed an affidavit that he was not supposed to file.  That is correct.  I do not know why the Registry permitted him to do so.  In any event, the affidavit has been properly withdrawn today, and thankfully it was not served on the wife, so no costs were incurred by her in relation to it.

9. I will not make any costs order.  The wife’s application is dismissed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  21 January 2008