Ryan and Carson

[2015] FamCA 1091

FAMILY COURT OF AUSTRALIA

RYAN & CARSON [2015] FamCA 1091

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

APPLICANT: Ms Ryan

RESPONDENT: Mr Carson

INDEPENDENT CHILDREN’S LAWYER: Ms Smithies

FILE NUMBER: CAC 836 of 2011

DATE DELIVERED: 3 December 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 3 December 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Certus Law

SOLICITOR FOR THE RESPONDENT: Campbell & Co

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid ACT

Orders

Order 6 made 3.12.15

6.  The mother’s application against the father for costs is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Blizzard & Camoes has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CAC 836  of 2011

Ms Ryan

Applicant

And

Mr Carson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter the mother makes an application for costs on the basis that the father made an assertion in this case that the court might make a finding of Munchausen’s by Proxy against the mother. That assertion was made by him in July 2014 arising from his understanding as to the number of medical practitioners the mother had consulted in relation to B.

2. About December 2014 directions in relation to subpoenas had been substantially complied with by the Independent Children’s Lawyer. The Independent Children’s Lawyer had inspected medical records and wrote to the parties, specifically to the father’s lawyers, indicating that she did not think that that issue required any further attention. The father responded by indicating that he was not a doctor, had no medical expertise and he wanted the single expert to report upon it.

3. The single expert addressed the issue; considered it carefully and assessed that on the documents that he looked at there was no evidence to support the father’s assertion of Munchausen’s by Proxy. Looking at the single expert’s report it does not seem that it has taken up very much time in terms of what the single expert has otherwise done.

4. This matter was referred to the Family Court by the Federal Circuit Court, not just on the basis of the father’s allegation but also on the basis of complex dynamics particularly arising from B’s particular difficulties and allegations that had been made against the father as a result of things that B had said. The father also raised issues in relation to the mother’s mental status, which had some foundation, in as much as the mother had previously suffered from anxiety arising from a stress related injury in the workplace. This case was not just about Munchausen’s by Proxy, it was about a whole gamut of fairly complex issues and having regard to the father’s conduct of the proceedings in relation to Munchausen’s by Proxy alone does not lead to a costs order in a parenting case.

5. I take into account the financial position of both the parties. The mother is working; the father says his farm income is low.

6. I take into account the orders that the parties have otherwise now been able to reach by consent and the travel that the father will be involved in pursuant to those orders which goes to the issue of the financial circumstances of the respective parties.

7. I take into account the mother is primarily responsible for caring for the children and is getting very little child support from the father.

8. The Full Court has cautioned against too easily making orders for costs in parenting cases.

9. Looking at all those factors under s 117(2A) of the Act I am unable to say it would be just to make a costs order against the father and I accordingly dismiss the mother’s application for costs against the father.

I certify that the preceding nine (9) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 3 December 2015.

Associate:

Date:  8.12.2015