Kingley and Simmons & Anor

[2014] FamCA 572

FAMILY COURT OF AUSTRALIA

KINGLEY & SIMMONS AND ANOR [2014] FamCA 572

FAMILY LAW – COSTS – Application dismissed

APPLICANT: Mr Kingley

1ST RESPONDENT / INTERVENOR: Ms Simmons

2ND RESPONDENT / INTERVENOR : Mr Simmons

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 1363 of 2008

DATE DELIVERED: 24 July 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: In Chambers by way of written submission

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Smith & Associates

COUNSEL FOR THE 1^ST RESPONDENT /

 INTERVENOR:

Mr Baston

COUNSEL FOR THE 2^ND RESPONDENT /

 INTERVENOR:

Mr Baston

Orders

IT IS ORDERED

1. The Applicant’s Application that the Respondents pay the costs of and incidental to the Application in a Case filed 12 July 2013 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kingley & Simmons and Anor 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 BRISBANE

FILE NUMBER: BRC 1363 of 2008

Mr Kingley
Applicant

And

Ms Simmons & Mr Simmons
Respondents/Intervenors

REASONS FOR JUDGMENT

1. On 2 August 2013, I dismissed the Respondents’ application for a stay of the implementation of the parenting order made on 5 July 2013 (the Application). I also ordered that, in the event the Applicant sought that the Respondents pay his costs of and incidental to the Application, he file brief written submissions in support within 14 days – that is, by 16 August 2013.

2. An affidavit by the Applicant’s solicitor and written submissions were both filed on 16 August 2013.

3. The Order made on 2 August 2013 provided the Respondents with the opportunity to file any brief written submission in answer to the Applicant’s submission within a further 14 days – that is, by 30 August 2013.

4. No written submission or further material relevant to the determination of the Applicant’s costs application has been filed by or on behalf of the Respondents.

5. The delay in the determination of the Applicant’s application for an order pursuant to s. 117(2) of the Family Law Act (1975) (Cth)(the Act) is explained –at least in part – by the fact that the Respondents prosecuted an appeal in respect of the parenting order made 5 July 2013. The appeal was heard by the Full Court on 20 February 2014 and dismissed, with no order as to costs, on 28 March 2014.

Applicable Principles

1. Section 117(1) of the Act provides that, in proceedings under the Act, each party pay their own costs. This ‘usual rule’ is subject to the operation of s. 117(2) of the Act which provides that, if the Court considers there are circumstances justifying a departure, the Court may make such order as to costs as it considers just.

2. The discretion conferred on the Court by s. 117 of the Act is broad. I acknowledge that justifying circumstances are not to be equated with exceptional circumstances.[1]

   [1]          Penfold v Penfold (1980) 144 CLR 311.

3. I take into account the Applicant’s financial circumstances as outlined in the affidavit material and written submissions filed on his behalf. I also take into account the Respondents circumstances – as parents of two dependent adolescents - as noted in the Reasons delivered in July 2013.

4. The Respondents were wholly unsuccessful in the Application for a stay.

5. However, I am not persuaded, in the particular circumstances of this case:

   a)as outlined within the Reasons for Judgment delivered on 24 July 2013; and

   b)taking into account that the child’s transition from the Respondents’ care to the Applicant’s care took place before the delivery of Reasons; and

   c)taking into account that, whilst the Applicant was in receipt of a grant of Legal Aid for the substantive proceedings (which occupied five days in mid 2013), the Respondents privately funded their legal representation for the trial,

   that there are sufficient justifying circumstances as to depart from the “usual rule” expressed in s 117(1) of the Act.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 24 July 2014.

Associate:     

Date:              24 July 2014