Simson and Radley - [2020] FamCA 208

FAMILY COURT OF AUSTRALIA

SIMSON & RADLEY

[2020] FamCA 208

FAMILY LAW – COSTS – Circumstances justifying an order – Where the father seeks costs on an indemnity basis – Where the father asserts the mother was wholly unsuccessful – Where the mother was not wholly unsuccessful – Where the father was unable to challenge the evidence of the mother’s psychologist due to the mother’s conduct – Where the mother unsuccessfully opposed the father’s objection to evidence of the mother’s psychologist being led at trial – Where the father asserts the mother gave false or misleading evidence at trial – Consideration of section 117(2A) of the Family Law Act 1975 (Cth) – Orders

Family Law Act 1975 (Cth) ss 117, 117(2A), 117AB
Family Law Legilsation Amendment (Family Violence and Other Measures) Act 2011 (Cth) s 40
Family Law Rules 2004 (Cth) rr 19.08(1), 19.08(3), 19.18(1), 19.18(3), sch 3

Kohan & Kohan (1993) FLC 92-340
Prantage & Prantage (2013) FLC 93-544
Re Wilcox; Ex parte Venture Industries Pty Ltd and Ors (No 2) (1996) 72 FCR 151
Telfer & Telfer (1996) FLC 92-688

Replacement Explanatory Memorandum to the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (Cth)

APPLICANT:

Mr Simson

RESPONDENT:

Ms Radley

FILE NUMBER:

DNC

498

2016

DATE DELIVERED:

3 April 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Darwin

JUDGMENT OF:

Berman J

HEARING DATE:

17 January 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Tippett QC

SOLICITOR FOR THE APPLICANT:

Maley Barristers & Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Farmer

SOLICITOR FOR THE RESPONDENT:

Withnalls Lawyers

Orders

That the mother pay the father’s costs fixed in the sum of FOUR THOUSAND FOUR HUNDRED AND TWENTY SIX DOLLARS ($4,426) within one hundred and twenty (120) days of the date of this order.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNC 498 of 2016

Mr Simson

Applicant

And

Ms Radley

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By Amended Initiating Application filed 28 September 2018, Ms Radley (“the mother”) sought orders concerning the future parenting arrangements for X born in 2014 (“the child”). The orders sought by the mother included an order for equal shared parental responsibility, that the child live with her and that she be permitted to relocate the residence of the child to the United Kingdom.
If relocation was not permitted then the mother sought that the child spend significant and substantial time with the father.

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 Simson and Radley

Details

AGLC: Simson and Radley [2020] FamCA 208
Case: [2020] FamCA 208
Decision Date: 3 April 2020

CaseChat Overview and Summary

In *Simson and Radley*, heard before Berman J, the dispute concerned parenting arrangements. The specific nature of the disagreement between the parties, Simson (the mother) and Radley (the father), is not detailed, but the outcome of the proceedings involved an order for costs against the mother.

The central legal issue before the court was the determination of costs following the parenting proceedings. Specifically, the court was required to decide whether to award costs to the father and, if so, in what amount.

Berman J ordered that the mother pay the father’s costs fixed at $4,426. This sum was to be paid within 120 days of the date of the order. The court's reasoning for this costs order is not elaborated upon in the provided text, but it reflects the court's discretion in allocating legal expenses between parties in family law matters.

Orders

Orders of the court

That the mother pay the father’s costs fixed in the sum of FOUR THOUSAND FOUR HUNDRED AND TWENTY SIX DOLLARS ($4,426) within one hundred and twenty (120) days of the date of this order.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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