Roberts and Roberts (No.2)

Case [2009] FMCAfam 1065


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

  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.

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

  1. 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.

  2. 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.

  3. 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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AGLC
Roberts and Roberts (No.2) [2009] FMCAfam 1065
Case
[2009] FMCAfam 1065
Decision Date

CaseChat Overview and Summary

The matter of Roberts and Roberts (No.2) was brought before the Federal Magistrates Court. The dispute between the parties, Mr and Mrs Roberts, centred on a paternity testing order made on 16 December 2008. The wife, Mrs Roberts, had sought a paternity test to determine the biological father of a child born during the marriage. The husband, Mr Roberts, contested the request on the grounds that the child was indeed his. The court was required to address whether the wife's application for a paternity test was justified and, if so, whether the costs incurred should be borne by the wife or the husband.

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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