McDermott and Bond (Costs)

[2010] FamCA 81

FAMILY COURT OF AUSTRALIA

MCDERMOTT & BOND (COSTS) [2010] FamCA 81

FAMILY LAW – COSTS – Oral application for costs made by the Independent Children’s Lawyer – Application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Mr McDermott

RESPONDENT: Ms Bond

INDEPENDENT CHILDREN’S LAWYER: Mr Hamilton

FILE NUMBER: NCC 2054 of 2007

DATE DELIVERED: 3 February 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 3 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Ms Burns

SOLICITOR FOR THE RESPONDENT: Ms Moore

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Hamilton

Orders

1. The Court entertains the oral application for costs made by the Independent Children’s Lawyer.

2. The application for costs as against both parties is dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2054 of 2007

MR MCDERMOTT

Applicant

And

MS BOND 

Respondent

And

INDEPENDENT CHILDREN’S LAWYER 

EX TEMPORE

REASONS FOR JUDGMENT

1. The substantive parenting proceedings between the parents of M, born in December 2003, (“the child”) have been concluded by final orders, made with the consent of each party and the Independent Children’s Lawyer.

2. Following the announcement of final parenting orders by the Court, the Independent Children’s Lawyer made a customary application for costs against each party. 

3. The Independent Children’s Lawyer fairly concedes, firstly, that the respondent mother is the recipient of a current grant of legal aid, and secondly, that the applicant father is self-represented with difficult financial circumstances.

4. The application for costs brought by the Independent Children’s Lawyer requires determination pursuant to the provisions of s 117 of the Family Law Act (“the Act”).

5. One of the criteria of salience to the Court’s determination is that the substantive proceedings involved numerous serious allegations against the father of his sexual assault of the child.  It was those allegations which led to a cessation of the child spending time with him for a period.

6. The proceedings were commenced by the father in an attempt to enforce the ability of the child to spend time with him, and in the course of the litigation the available evidence tended to indicate that the sexual allegations made against him were baseless.

7. The father’s denial of the sexual allegations was effectively vindicated. The recognition by the participants in these proceedings that the allegations were baseless is manifest in their agreement about the final parenting orders that reflect the best interests of the child.

8. The application for costs made by the Independent Children’s Lawyer against the mother is dismissed because of her receipt of legal aid, as required by s 117 (4)(a) of the Act.

9. The application for costs made by the Independent Children’s Lawyer against the father is dismissed because I am satisfied, on the basis of the fair concession made by the Independent Children’s Lawyer, that the father would suffer financial hardship were he ordered to bear a proportion of the Independent Children’s Lawyer’s costs.

10. The fact that the father was called upon to commence and prosecute his application with vigour, resulting in the ultimate settlement of the proceedings in the manner reflected by the final parenting orders, is an additional reason why I regard it as proper to dismiss the application.

11. For those reasons I make the following orders.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin.

Associate: 

Date:  3 February 2010