EDWARDS & SIMPSON (No.2) - [2013] FCCA 315

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDWARDS & SIMPSON (No.2)

[2013] FCCA 315

Catchwords:

FAMILY LAW – Costs – application for costs by respondent following dismissal of parenting application – parenting application dismissed applying rule in Rice & Asplund – whether justifying circumstances for costs – order for costs.

Legislation:

Family Law Act 1975 (Cth) ss.117, 117, (2A)

Cases:

Penfold v Penfold (1980) 144 CLR 311

Latoudis v Casey (1990) 170 CLR 534

Cassidy v Murray (1995) FLC 92-633

PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & Anor [2005] FamCA 158

Brown & Brown (1998) FLC 92-822

I & I (No.2) (1995) FLC 92-625

Hitch & Hitch [2012] FamCA FC 124

Rice & Asplund (1979) FLC 90-725

Edwards & Simpson [2013] FCCA 14

Applicant:

MS EDWARDS

Respondent:

MR SIMPSON

File Number:

DGC 3186 of 2008

Judgment of:

Judge O'Sullivan

Hearing date:

On the papers

Date of Last Submission:

16 May 2013

Delivered at:

Dandenong

Delivered on:

30 May 2013

REPRESENTATION

Counsel for the Applicant:

Mr Halliday

Solicitors for the Applicant:

Robert Halliday & Associate

Counsel for the Respondent:

Ms Jeffries

Solicitors for the Respondent:

Robin Harrison & Associates

ORDERS

The applicant pay the respondent‘s costs in accordance with Schedule 1, of the Federal Circuit Court Rules 2001 fixed in the amount of $2,338.50 within 60 days.

IT IS NOTED that publication of this judgment under the pseudonym Edwards & Simpson (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 3186 of 2008

MS EDWARDS

Applicant

And

MR SIMPSON

Respondent

REASONS FOR JUDGMENT

These reasons for decision concern an application by Mr Simpson (“the father”) for costs arising from proceedings that were commenced by Ms Edwards (“the mother”).
On 18 April 2013 the Court made the following orders for the reasons set out in Edwards & Simpson [2013] FCCA 14:
“1.The application filed 23 November 2012 be dismissed.
2.The respondent file and serve any submissions in relation to costs within 14 days.
3.The applicant file and serve any submissions in reply 14 days thereafter.
4.Unless the parties request otherwise the application for costs will be dealt with on the papers in chambers.”
As indicated in the above orders, unless otherwise requested in the written submission the father’s costs application was to be dealt with on the papers in chambers. No request was made.

Background

In order to understand the father’s application for costs it is necessary to set out briefly some of the relevant background.
The mother is 40 years of age. The father is 45 years of age. The parties commenced a relationship in 1998 and separated in 2003. They are the parents of X, born (omitted) 2001 (“the child”).
On 17 December 2008 after a 3 day trial, final parenting orders were made for the child by Bender FM as Her Honour then was.
On 23 November 2012 the mother filed an initiating application seeking inter alia

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading EDWARDS & SIMPSON (No.2)

Details

AGLC: EDWARDS & SIMPSON (No.2) [2013] FCCA 315
Case: [2013] FCCA 315
Decision Date: 30 May 2013

CaseChat Overview and Summary

In *Edwards & Simpson (No.2)*, the applicant sought costs from the respondent following the dismissal of a parenting application. The application was dismissed by Judge O'Sullivan of the Federal Circuit Court of Australia.

The central legal issue before the court was whether there were justifying circumstances for an order for costs to be made against the applicant, given that the parenting application had been dismissed pursuant to the rule in *Rice & Asplund*.

Judge O'Sullivan reasoned that the dismissal of the parenting application under the *Rice & Asplund* rule, which generally presumes each party bears their own costs in family law proceedings, did not automatically preclude an order for costs. The court considered the conduct of the parties and the circumstances surrounding the application and its dismissal. The court found that there were justifying circumstances present that warranted an order for costs in favour of the respondent.

Consequently, the court ordered that the applicant pay the respondent's costs, fixed at $2,338.50, to be paid within 60 days.

Orders

Orders of the court

The applicant pay the respondent‘s costs in accordance with Schedule 1, of the Federal Circuit Court Rules 2001 fixed in the amount of $2,338.50 within 60 days.

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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