FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ROBERTS & ROBERTS (No.2) | [2009] FMCAfam 1065 |
| FAMILY LAW – Costs – husband’s application for indemnity costs against wife and/or wife’s counsel arising from the failure of the wife and the wife’s counsel to appraise the court and the husband’s solicitors as to his client’s instructions regarding paternity issues – costs order made against wife’s counsel on an indemnity basis. |
| Federal Magistrates Court Rules 2001, r.21.07 |
| Cohen & Cohen (1993) FLC 92-340 Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46-225 Yunghanns & Others & Yunghanns (2000) FLC 93-029 C & C & Anor [2006] FMCAfam 229 |
| Applicant: | MR ROBERTS |
| Respondent: | MS ROBERTS |
| Intervenor: | CGU PROFESSIONAL RISKS INSURANCE |
| File Number: | CAC 1325 of 2008 |
| Judgment of: | Bender FM |
| Hearing dates: | 9 & 10 July, 7 August 2009 |
| Date of Last Submission: | 7 August 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 19 October 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Haughton |
| Solicitors for the Applicant: | Elrington Boardman Allport |
| Counsel for the Respondent: | Mr Ryan |
| Solicitors for the Respondent: | Last and Maxwell Solicitors |
| Solicitors for the Independent Children’s Lawyer: | Mr Stagg – Legal Aid Office (ACT) |
| Solicitors for the Intervenor: | Watts McCray McGuinness Eley |
ORDERS
Counsel for the wife, Mr Christopher Ryan, pay the respondent husband’s costs arising from the orders made for paternity testing on
16 December 2008 on an indemnity basis, fixed in the sum of $5,071.96.
AND THE COURT NOTES THAT:
A.The court directs that the Registrar of the Federal Magistrates Court to forward to the appropriate professional disciplinary body, relevant material from the Court file for the purpose of investigating the conduct of Counsel for the wife, Mr Christopher Ryan, during proceedings before the court.
IT IS NOTED that publication of this judgment under the pseudonym Roberts & Roberts (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 1325 of 2008
| MR ROBERTS |
Applicant
And
| MS ROBERTS |
Respondent
REASONS FOR JUDGMENT
Introduction
The matter of Roberts came before me for final hearing in relation to parenting issues in the Canberra Registry of the Federal Magistrates Court of Australia on 9 and 10 July, and 7 August 2009.
During the running of the matter, evidence was led in relation to an interim hearing that was conducted before Federal Magistrate Brewster on 16 December 2008. This was the third interim hearing of this matter before Federal Magistrate Brewster, in which His Honour was making orders progressively increasing the time that the parties’ two children, [X] born in 2001 (“[X]”) and [Y] born in 2003 (“[Y]”), were spending with their father.
By way of background, [X] and [Y] had not spent any time with their father for most of 2008, until the matter came before His Honour on 17 November 2008 and orders were made for that time to recommence. [X] immediately started spending overnight time with her father. [Y], who suffers from autistic spectrum disorder, initially spent supervised time with his father and that…
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- Roberts and Roberts (No.2) [2009] FMCAfam 1065
- Case
- [2009] FMCAfam 1065
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether there were exceptional circumstances that justified the wife's application for a paternity test, as well as the appropriateness of awarding costs to the husband. The court considered the nature of the evidence presented and the conduct of the parties' legal representatives, particularly that of the wife's counsel, Mr Christopher Ryan. The court examined the circumstances surrounding the application for the paternity test and whether there was a genuine dispute regarding the child's paternity.
The court determined that the application for a paternity test was not justified given the circumstances and evidence presented. The wife's counsel, Mr Ryan, was found to have acted improperly in pursuing the test without sufficient basis. Consequently, the court ordered that the husband's costs, amounting to $5,071.96, be paid by the wife's counsel on an indemnity basis. Furthermore, the court directed the Registrar to forward relevant material to the appropriate professional disciplinary body for investigation into Mr Ryan's conduct during the proceedings. This decision underscored the importance of legal conduct and the potential repercussions for improper actions in family law matters.
Orders
Orders of the court
1.
Counsel for the wife, Mr Christopher Ryan, pay the respondent husband’s costs arising from the orders made for paternity testing on
16 December 2008 on an indemnity basis, fixed in the sum of $5,071.96.
AND THE COURT NOTES THAT:
A. The court directs that the Registrar of the Federal Magistrates Court to forward to the appropriate professional disciplinary body, relevant material from the Court file for the purpose of investigating the conduct of Counsel for the wife, Mr Christopher Ryan, during proceedings before the court.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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