Luna & Luna (No 4)

[2023] FedCFamC1F 29

Federal Circuit and Family Court of Australia

(DIVISION 1)

Luna & Luna (No 4) [2023] FedCFamC1F 29

File number(s):	BRC 11516 of 2019
Judgment of:	HOGAN J
Date of judgment:	27 January 2023
Catchwords:	FAMILY LAW – SUMMARY DISMISSAL – Where an oral application is made on behalf of the Applicant for a summary dismissal of the proceedings – where the application is dismissed.
Legislation:	Family Law Act 1975 (Cth)
Division:	Division 1 First Instance
Number of paragraphs:	6
Date of hearing:	27 January 2023
Place:	Brisbane
Counsel for the Applicant:	Mr Hackett
Solicitor for the Applicant:	Feeney Family Law
Counsel for the Respondent:	Mr Brown
Solicitor for the Respondent:	Alroe Somers & O’Sullivan Solicitors

ORDERS

BRC 11516 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS LUNA

Applicant

AND:

MR LUNA

Respondent

order made by:	HOGAN J
DATE OF ORDER:	27 JANUARY 2023

THE COURT ORDERS THAT:

1.The final hearing of this matter listed for three (3) days commencing on 13 February 2023 is vacated.

2.The parties have liberty to apply on the giving of 24 hours’ notice in writing by directing jointly signed correspondence to …@....

3.The oral application made today on behalf of the Applicant for a summary dismissal of the proceedings is dismissed.

AND IT IS FURTHER ORDERED THAT

4.In the event that any party seeks an order that another party pay the costs of and incidental to the proceedings:

(a)any such party shall, within twenty-eight (28) days of today, file and serve

(i)any affidavit necessary to support such application; and

(ii)written submissions in support of such application for costs; and

(b)the party against whom an order for costs is sought shall, within a further fourteen (14) days thereafter, file and serve:

(i)any affidavit necessary for the determination of any such application for costs; and

(ii)any written submissions in answer to the submissions filed and served by the party seeking an order for costs; and

(c)the party seeking an order for costs shall, within seven (7) days of being served with the submissions relied on by the party against whom an order for costs is sought, file and serve any further written submissions, strictly in reply, to the submissions served by the party against whom an order for costs is sought,

and any such application for costs shall be considered in Chambers.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

EX TEMPORE REASONS FOR JUDGMENT

HOGAN J:

1. I do not intend to dismiss summarily the proceedings this morning on what I regard as the oral application made for such an order on behalf of the applicant.

2. The Reasons delivered late last year determined the application for security for costs. The comments I expressed in the same, of course, need to be seen in the context of the disposal of that application and that application alone.

3. I have also had some regard, albeit limited, to the contents of the affidavit filed by the respondent, sealed 27 January 2023, in relation to his attempts to obtain, in essence, litigation funding from third parties in order to be able to comply with the order for security for costs.  I note, also, his evidence that he is engaged in employment. It appears, from my brief perusal of the balance of his affidavit, that he is hopeful that such employment may cause him to receive funds in larger amounts into this year than he has previously received. 

4. So I am not persuaded to dismiss the application. I certainly am not persuaded to exercise the power to dismiss the proceedings on the basis of the default/non-compliance with the order that I made in late 2022 in dealing with the application for security for costs. That order is self-explanatory. It provides for a stay of the proceedings in the event that funds were not paid into Court by the nominated time. It certainly does not provide for summary disposal/dismissal of the proceedings in the event that the respondent was unable to comply with the order for security for costs. 

5. For those short reasons, I decline to make an order this morning finally disposing of the proceedings.

6. I am happy to make an order in addition to the orders I foreshadow – namely the order vacating the hearing date and according the parties liberty to apply – to afford the parties an opportunity (if they wish to take it up) in relation to the costs of the appearance this morning. I propose that those orders be in my standard form and, in essence, mirror the orders I have already made in relation to the issue of costs and parties being able to seek costs by way of the provision of written submissions, and that the same be considered in Chambers.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Hogan.

Associate:

Dated:       2 February2023