Simons and Simons and Ors - [2015] FamCA 150

FAMILY COURT OF AUSTRALIA

SIMONS & SIMONS AND ORS

[2015] FamCA 150

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

Cooper & Oakley (No. 2) [2012] FamCAFC 187
I and I (No 2) (1995) FLC 92-625
Kohan and Kohan (1993) FLC 92-340
Munday v Bowman (1997) FLC 92-784
Prantage & Prantage (2013) FLC 93-545

APPLICANT WIFE:

Ms Simons

RESPONDENT HUSBAND:

Mr Simons

2^ND RESPONDENT MATERNAL

GRANDPARENTS:

Mrs C Sanna and Mr E Sanna

3^RDRESPONDENT MATERNAL AUNT:	Ms F Sanna
FILE NUMBER:	MLC	2476	of		2010

DATE DELIVERED:

11 March 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

DATE HEARD:

By way of written submissions

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE RESPONDENT:

Esser Legal

Orders

That the maternal grandparents Mrs C Sanna and Mr E Sanna and the maternal aunt Ms F Sanna pay the costs of the husband Mr Simons in an amount to be agreed and failing agreement, as assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Simons & Simons and Ors 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 MELBOURNE

FILE NUMBER: MLC 2476 of 2010

Ms Simons

Applicant Wife

And

Mr Simons

Respondent Husband

And

Mrs C Sanna and Mr E Sanna

2^nd Respondents Maternal Grandparents

And

Ms F Sanna

3^rd Respondent Maternal Aunt

REASONS FOR COSTS JUDGMENT

On 16 January 2015, I made orders and delivered reasons in a parenting matter involving these parties. As a costs application had been foreshadowed, I made provisions for any application and response to be by written submission. Time limits were set in the orders.
The father of the children who was ultimately successful now seeks costs against the maternal grandparents and maternal aunt (the respondents). His application was contained in a written submission filed on 13 February 2015. He had until 16 February. As there was no indication on the document (as had been required by the order) to say that it had been served, a request was made to the legal practitioner for the applicant. An affidavit was then filed. I am satisfied on the basis of the affidavit of the applicant himself that the submission, and therefore the application for costs, was served by priority post on the respondents.
The respondents had until 2 March to respond. They did not.
Before dealing with the submission, some background is necessary to understand why this case was contentious. I refer to the published reasons for judgment. As the orders were made on 16 January 2015, the statutory appeal period has expired so I have concluded that the issues are no longer contentious.
The respondents to the costs application had sought parenting orders. Their position was opposed by the father, the Independent Children’s Lawyer and the Victorian Department of Human Services. I made the following final orders about their position:
That the maternal grandfather, the maternal grandmother and…

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 Simons and Simons and Ors

Details

AGLC: Simons and Simons and Ors [2015] FamCA 150
Case: [2015] FamCA 150
Decision Date: 11 March 2015

CaseChat Overview and Summary

The case of *Simons and Simons and Ors* concerned a dispute between Mr Simons (the husband) and the maternal grandparents and maternal aunt of his children. The specific nature of the dispute is not detailed in the provided text, but it involved the maternal grandparents, Mrs C Sanna and Mr E Sanna, and the maternal aunt, Ms F Sanna, in relation to the husband, Mr Simons. The decision was made by Cronin J.

The central legal issue before the court was the determination of costs. Specifically, the court was required to decide who should bear the costs of Mr Simons in the proceedings.

Cronin J ordered that the maternal grandparents, Mrs C Sanna and Mr E Sanna, and the maternal aunt, Ms F Sanna, were to pay the costs of the husband, Mr Simons. These costs were to be paid in an amount that was either agreed upon by the parties or, failing such agreement, as assessed by the court.

Orders

Orders of the court

That the maternal grandparents Mrs C Sanna and Mr E Sanna and the maternal aunt Ms F Sanna pay the costs of the husband Mr Simons in an amount to be agreed and failing agreement, as assessed.

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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