Peakridge and Martin (No. 2)

[2007] FamCA 1407

FAMILY COURT OF AUSTRALIA

PEAKRIDGE & MARTIN (NO. 2) [2007] FamCA 1407

FAMILY LAW – COSTS – Independent Children’s Lawyer – Application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Ms Peakridge

RESPONDENT: Mr Martin

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: AYC 77 of 2007

DATE DELIVERED: 29 November 2007

PLACE DELIVERED: Albury

PLACE HEARD: Albury

JUDGMENT OF: Justice Cronin

HEARING DATE: 27 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O'Shannessy

SOLICITOR FOR THE APPLICANT: Nevin Lenne & Gross

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Boyle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Harris Lieberman

Orders

Upon the application of Ms Boyle of Counsel on behalf of the Independent Children’s Lawyer and under the instructions from the New South Wales Legal Aid Commission, it is ordered

1. That the application for costs by the Independent Children’s Lawyer be dismissed.

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

FAMILY COURT OF AUSTRALIA AT ALBURY

FILE NUMBER: AYC 77 of 2007

MS PEAKRIDGE  

Applicant

And

MR MARTIN  

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. In this matter I delivered reasons for judgment in an undefended parenting case on Wednesday 28 November 2007.  The father did not participate but largely as a result of his early lack of cooperation, an Independent Children’s Lawyer had been appointed.

2. The Independent Children’s Lawyer sought an order for costs against the father but not against the mother.  I was told that the mother as a legal aid recipient had been exempted.

3. Section 117 of the Family Law Act1975 (Cth) (“the Act”) sets out that each party should bear their own costs. The exception to that rule is set out in sub-section (2) which provides that if the circumstances justify it, a court can depart from that position and order a party to contribute to costs provided the factors set out in sub-section (2A) are taken into account.

4. The first step in this case therefore is to determine whether or not these circumstances justify an order for costs.

5. In my view they would normally follow in a case such as this where a litigant has been less than cooperative in the ultimate determination of the matter.

6. What ultimately makes me determine not to make an order for costs is its futility.  Exhibits in the substantive proceedings included two letters from the Child Support Agency.  They have apparently rigorously pursued the father to have him contribute towards obligations which one would normally expect that a responsible parent would do voluntarily.  That apparently is not the way the father seeks things.  In one of the letters, there was a reference to the fact that he had a reasonable income and that was consistent with the material that I read filed on behalf of the mother.

7. Rather than put the public purse to the continued expense in this matter, it is my view more appropriate to refuse to make an order for costs.  That is not to be seen as in any way condoning the conduct of the father in the proceedings nor to say that a costs order would not otherwise be warranted.  It is my view in the exercise of discretion, not appropriate to make an order in this case.

I certify that the preceding Seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate

Date:  29 November 2007