Simons and Simons (No. 2)

[2008] FamCA 829

FAMILY COURT OF AUSTRALIA

SIMONS & SIMONS (NO. 2) [2008] FamCA 829

FAMILY LAW –  COSTS –  Relevant factors in the exercise of discretion to make an order for costs

Family Law Act 1975 (Cth) ss117(1), 117(2), 117(2A)

APPLICANT: Ms Simons

RESPONDENT: Mr Simons

FILE NUMBER: SYF 3205 Of 2005

DATE DELIVERED: 23 September 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 23 September 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Legal Aid Commission of New South Wales

SOLICITOR FOR THE RESPONDENT: In person

Orders

1. That the application of the applicant for an order for costs against the respondent is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Simons & Simons is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYF3205 of 2005

MS SIMONS

Applicant

And

MR SIMONS

Respondent

REASONS FOR JUDGMENT

1. In these proceedings an oral application was made, on behalf of the wife, for an order for costs representing costs thrown away due to the adjournment of the hearing on 11 August 2008.

2. That adjournment was granted by me due to information received by the case coordinator on behalf of the husband that he was unable to leave home to attend court due to health issues and was bed-ridden.

3. The order for costs sought by the wife following the delivery of judgment on 26 August 2008 was in the sum of $1,694.99.

4. On the application of the husband, I gave him an opportunity to produce a medical report which he was confident in obtaining within seven days.  That report was not forthcoming.

5. After allowing a further period of time, due to the husband being unrepresented, I directed that the proceedings be re-listed before me today.

6. The wife was represented by her solicitor.

7. The husband appeared in person and informed me from the Bar Table, without objection, that he had made enquiries of the medical practice which he claims he attended on 12 August 2008 and there was no record kept by the doctor he consulted who, in turn, is no longer practising at the medical centre involved.  The husband informed me that the medical centre did not have any clinical notes in relation to his consultation with that medical practitioner, he was not informed of her current place of practice, nor has he been able to ascertain where it might be.

8. The husband informed me that he is due to receive further hospital and medical treatment today both in relation to a suspected broken ankle and foot as well as at a drug and alcohol rehabilitation centre.

9. The general rule in family court proceedings is that pursuant to s.117(1) each party bears his or her own legal costs.

10. That general rule is subject to the discretion that the Court has to make in order for costs, should there be a circumstance that makes it appropriate or proper to do so and having regard to the matters set out in ss117(2) and 117(2A).

conclusion

1. I have come to the conclusion that there is not a circumstance that justifies the departure from the general rule in these proceedings.

2. I accept the information given to me by the husband.

3. The husband was not required to be cross examined by the solicitor for the wife.

4. Consequently, I find that the husband had health issues beyond his control which resulted in him being unable to attend court on 11 August 2008.  I also accept his information that he has taken all reasonable steps to obtain a medical report, but was unable to do so for the reasons earlier referred to by me.

5. Consequently, the application for the costs is dismissed.

6. The husband in Exhibit A raised some other matters.  I am no longer in a position where I can deal with the other issues that he has raised in that letter.  The reason being that I have heard the defended proceedings, I have given a judgment and I have made orders in relation to those proceedings.

7. For the benefit of the husband in particular, as I pointed out in the judgment, the wife did not seek spousal maintenance, nor is she now seeking it.

8. Secondly, in terms of whether the husband should or should not have supervised periods of time with the children, I made parenting orders by consent so that has already been dealt with.  As a result, any further proceedings about parenting issues, requires either of the parties to file an application with an affidavit in support.  I am no longer in a position to deal with those issues.

9. If the parties can reach agreement without the need to go to Court, well and good.  If agreement is not reached on a new issue, then it may be that either of the parties can make an application.  The result will of course be a matter for whoever is the Judge or Federal Magistrate who will deal with it.

10. The issue raised by the husband regarding him having telephone communication with the children on the wife’s landline telephone number in accordance with Orders was raised as it is alleged that she has not complied with the Order to date.  The wife’s solicitor is to make enquiries of her client and will write a letter to the husband this week.

I certify that the preceding three (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate:  …

Date:  14 October 2008