Ansilda & Hartford

Case [2009] FamCAFC 128

FAMILY COURT OF AUSTRALIA

ANSILDA & HARTFORD [2009] FamCAFC 128

FAMILY LAW - APPEAL – application for security for costs – Appellant impecunious – third party paying Appellant’s legal expenses – prospects of success of appeal – bona fides of appeal – whether an order for costs would stifle the appeal – Appellant to pay security for costs.

FAMILY LAW – APPEAL - Application for expedition – no discrete aspect of this case that demonstrates why the hearing should be expedited and thus gain priority over other cases – application dismissed.

Family Law Act 1975 (Cth)
Family Law Rules

Federal Court of Australia Act 1976 (Cth)

Adult Guardian and Mother’s Parents v B and Child’s Representative (2002) FLC 93-116
Beaumont and Cross [2007] FamCA 1129
Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497
Croker v Deputy Registrar of the High Court of Australia [2003] FCA 628
D and D (2006) FLC 93-260
Fennessy and Gregorian [2008] FamCAFC 89
Halsbury  and Halsbury [2008] FamCAFC 170

Hartford & Ansilda (No. 3) [2008] FamCA 602

Jones and Jones (2001) FLC 93-080
Luadaka v Luadaka (1998) FLC 92-830
Rodgens and Pisoni [2007] FamCA 1510
Simpson v McGueren (2005) FLC 93-223

Stapleton and Bryant [2009] FamCAFC 63
APPELLANT: Ms Ansilda
RESPONDENT: Mr Hartford
FILE NUMBER: MLC 10686 of 2007
APPEAL NUMBER: SA 9 of 2009
DATE DELIVERED: 17 July2009
PLACE DELIVERED: Sydney
PLACE HEARD: Melbourne
JUDGMENT OF: May, O'Ryan & Stevenson JJ
HEARING DATE: 13 July 2009
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 22 January 2009
LOWER COURT MNC: [2009] FamCA 23

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Ackman QC, Ms McMillan
SOLICITOR FOR THE APPELLANT: DKP Lawyers
COUNSEL FOR THE RESPONDENT: Mr Mawson SC, Mr Dickson
SOLICITOR FOR THE RESPONDENT: Gillian Coote Family Law

Orders

  1. On or before 21 August 2009 the Appellant Mother lodge with the Registry Manager in the Melbourne Registry, Family Court of Australia the sum of $15,000 as security for costs of her appeal against the judgment of Brown J of 22 January 2009.  

  2. In the event that the Appellant Mother does not lodge the security as provided in Order 1 of these orders her appeal stands dismissed.

  3. The application by the Appellant Mother for expedition of the hearing of her appeal be dismissed.

  4. The application by the Respondent Father filed on 18 March 2009 is otherwise dismissed.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 9 of 2009
File Number: MLC 10686 of 2007

Ms Ansilda

Appellant

And

Mr Hartford

Respondent

reasons for judgment

INTRODUCTION

  1. There are two Applications in an Appeal before us for hearing.  The first is by Mr Hartford (“the Father”) seeking an order that Ms Ansilda (“the Mother”) be required to lodge security in the sum of $42,000 for…

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Details
AGLC
Ansilda & Hartford [2009] FamCAFC 128
Case
[2009] FamCAFC 128
Decision Date

CaseChat Overview and Summary

In the matter of Ansilda and Hartford, the parties were involved in a family law dispute, with the Appellant, the mother, appealing a judgment made by Brown J on 22 January 2009. The appeal related to various family law issues, including the assessment of costs and the care of the child. The case was heard in the Family Court of Australia, Melbourne Registry.

The court had to determine whether the Appellant should be required to provide security for costs in her appeal, considering that she was impecunious and a third party was funding her legal expenses. Additionally, the court needed to assess the prospects of success of the appeal and the bona fides of the Appellant to ensure that an order for costs would not stifle the appeal. The Appellant also sought an expedited hearing of her appeal, which the Respondent opposed.

The court ruled that the Appellant must lodge $15,000 as security for costs by 21 August 2009, or her appeal would be dismissed. The court found that the Appellant had not demonstrated sufficient prospects of success or bona fides to warrant an exemption from providing security for costs. Regarding the application for expedition, the court dismissed the application, stating that there was no discrete aspect of the case that would warrant priority over other cases. The Respondent’s application filed on 18 March 2009 was also dismissed.

The court's final orders required the Appellant to lodge $15,000 as security for costs by the specified date, dismissed her appeal if the security was not provided, and dismissed her application for expedition. The Respondent's application was dismissed without any further orders.

Orders

Orders of the court

1.

On or before 21 August 2009 the Appellant Mother lodge with the Registry Manager in the Melbourne Registry, Family Court of Australia the sum of $15,000 as security for costs of her appeal against the judgment of Brown J of 22 January 2009.

2.

In the event that the Appellant Mother does not lodge the security as provided in Order 1 of these orders her appeal stands dismissed.

3.

The application by the Appellant Mother for expedition of the hearing of her appeal be dismissed.

4.

The application by the Respondent Father filed on 18 March 2009 is otherwise dismissed.

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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