Pearson and Jamieson

[2010] FamCA 955

FAMILY COURT OF AUSTRALIA

PEARSON & JAMIESON [2010] FamCA 955

FAMILY LAW – COSTS

APPLICANT: Mr Pearson

RESPONDENT: Ms Jamieson

INDEPENDENT CHILDREN’S LAWYER: Ms Hooper

FILE NUMBER: AYC 104 of 2007

DATE DELIVERED: 8 October 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 8 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Allen

SOLICITOR FOR THE APPLICANT: Morrison Sawers

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That all parenting orders in relation to the child T born … January 2003 shall be and are hereby discharged.

2. That pursuant to s 69VA of the Family Law Act (1975), it is hereby declared that MR PEARSON born … 1975 is the biological father of T.

3. That the mother shall sign all documents necessary for the Registrar of Births, Deaths and Marriages to alter T’s birth records to register MS PEARSON as T’s father and to ensure that T is registered as T PEARSON C… and:

   (a)The mother shall within 21 days of the date of these orders forward those documents to the father by registered mail to his residential address at …, New South Wales;

   (b)The father shall sign the documents as requested, and within 21 days of the date of their receipt, he shall forward them to the mother by registered mail to her residential address at …, Victoria; and

   (c)The mother shall within 21 days of the receipt of the signed documents, do all acts and things necessary to file the documents with the Registrar of Births, Deaths and Marriages including paying any associated fees. 

4. That the mother shall have sole parental responsibility for T.

5. That T shall live with his mother.

6. That the father shall spend time with T at the D Contact Centre at times and for hours directed by the Contact Centre, up to one occasion per month.

7. That the Independent Children’s Lawyer is requested to arrange for the D Contact Centre to forward relevant application forms to each parent, and thereafter the Independent Children’s Lawyer shall be discharged.

8. That the mother shall within 21 days from the date of these orders attend a general medical practitioner to have T referred to a psychologist or such other professional as recommended by the general medical practitioner for T to receive therapy for trauma and stress, and the mother shall ensure T attends upon that person as directed. 

9. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

10. That pursuant to s 128(5) of the Evidence Act (Cth) 1995 a certificate shall be granted to the father in respect of the evidence given by him in this case.

11. That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

12. That there will be no orders for costs.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: AYC 104 of 2007

MR PEARSON

Applicant

and

MS JAMIESON

Respondent

REASONS FOR JUDGMENT

1. The ICL has today sought costs following upon my making final orders, having published reasons for judgment this day.  Those reasons in turn followed a very long hearing which took place recently. 

2. Costs under the Family Law Act are entirely discretionary.

3. The Independent Children’s Lawyer has sought half the costs of the hearing against the father.  I do not propose acceding to that application.  This was a complex case, and it was a very difficult decision reasoned over something like 90 pages.  It was not a clear-cut case at all.   

4. When it comes to who has or who has not succeeded in a case, I would not put the ICL in the same category as the other parties.  However, I still note the irony that in this case the ICL made submissions that I rejected, as to an unacceptable risk to the child. 

5. I do agree that the financial position of the father is unclear but the information before me is not such that I can be satisfied he can afford to pay half the ICL’s costs.  The sorts of matter of conduct that the ICL referred me to, when it came to the father’s conduct during the hearing, are certainly matters that weighed in my thinking in reaching the decision I reached after the hearing.  However, overall, they do not actually weigh in my thinking in terms of a reason to order costs against him.

6. That leaves the issue of the ICL’s and the mother’s reserved costs on the last day of hearing. The mother is on Legal Aid. I am told there is a lien over her house. The amount of money claimed by Mr Allen for that last day is a modest sum of $1235. There is a strong argument in the mother’s favour for receiving that amount but, as I have said, costs are a discretionary matter, and I need to take into account a whole range of factors. It is clear under the Family Law Act that T’s well-being can play into my considerations as well. These parties are, one way or another, still likely to have some overlapping contact through a contact centre at least, and I have decided on balance not to order any costs in this matter.

7. The only thing I will add then to my earlier orders this morning is that there will be no orders for costs.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 8 October 2010.

Associate: 

Date:  8 October 2010