BARTSCH & REDMAN
[2014] FamCAFC 63
•16 April 2014
FAMILY COURT OF AUSTRALIA
| BARTSCH & REDMAN | [2014] FamCAFC 63 |
| FAMILY LAW – APPEAL – APPLICATION FOR SECURITY FOR COSTS – principles governing the determination of an application for security for costs – where the court considered the principles established in Sawer & Sawer – where the court considered s 117(1) of the Family Law Act 1975 (Cth) – where the court re-iterated that applications for security for costs should not be used for funding a respondent’s costs of legal representation in an appeal – application dismissed. |
| Family Law Act 1975 (Cth) s117 |
| Adult Guardian and Mother's Parents and B and Child's Representative (2002) FLC 93-116 Fenton & Marvel [2012] FamCAFC 150 Galloway & Steel [2011] FamCAFC 243 Gerber & Bradley [2011] FamCAFC 206 Halsbury & Halsbury [2008] FamCAFC 170 Jones and Jones (2001) FLC 93-080 Luadaka v Luadaka (1998) FLC 92-830 Palma & Caleffiand Anor [2011] FamCAFC 174 Sawer & Sawer [2007] FamCA 140 Shaw & Muller [2009] FamCAFC 118 |
| APPELLANT: | Mr Bartsch |
| RESPONDENT: | Ms Redman |
| FILE NUMBER: | SYC | 1818 | of | 2011 |
| APPEAL NUMBER: | EA | 50 | of | 2013 |
| DATE DELIVERED: | 16 April 2014 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Finn & Strickland JJ |
HEARING DATE: DATE OF ORDERS: | 18 March 2014 18 March 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 April 2013 |
| LOWER COURT MNC: | [2013] FMCAfam 309 |
REPRESENTATION
| APPELLANT: | In person |
| RESPONDENT: | In person |
Orders made on 18 March 2014
The application for security for costs filed by the respondent on 10 July 2013 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bartsch & Redman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 50 of 2013
File Number: SYC 1818 of 2011
| Mr Bartsch |
Appellant
And
| Ms Redman |
Respondent
REASONS FOR JUDGMENT
Introduction
On 18 March 2014 this Court dismissed an application filed on behalf of Ms Redman (“the respondent”) on 10 July 2013 seeking an order that Mr Bartsch (“the appellant”) provide security in the sum of $15,000 for the respondent’s costs in an appeal filed by the appellant.
The appeal, which was filed by the appellant on his own behalf on 3 May 2013, is against orders made by Federal Magistrate Sexton (as her Honour then was) on 5 April 2013. Those orders essentially provided that the respondent should have sole parental responsibility for the two children of the parties’ marriage, that the children should live with the respondent, and spend limited time
(not including overnight time) with the appellant. In his Notice of Appeal the appellant seeks that both parties have joint parental responsibility and that he should spend overnight time each alternate weekend with the children.
These are our reasons for dismissing the respondent’s application for security for her costs in the appeal.
Although the respondent’s application for security had been drafted and filed by solicitors, she appeared at the hearing of the application without legal representation. As we commented to her at the conclusion of that hearing,
she managed to present her case well (although not ultimately successfully).
The appellant also appeared before us without legal representation. While we understood from him that he opposed the application for security, it was unnecessary for us to receive oral submissions from him given that once we had heard the respondent’s submissions, we were of the view that the application could not succeed.
Principles relevant to an application for security for the costs of an appeal
Particularly given the self-represented status of both parties before us, we will begin by setting out the principles which govern the determination of an application for security for the costs of an appeal. Those principles were summarised by the Full Court in Sawer & Sawer [2007] FamCA 140 in the following way:
19.The power in this Court to make an order for security for costs is to be found in s 117(2) of the [Family Law Act 1975 (Cth)], which is in the following terms:
If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), [4A] and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
20.The provisions of s 117(2A) are as follows (- s 117(4) [4A] and (5) are not presently relevant):
In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
21.The authorities establish that in exercising the discretion to order security for costs, it may also be relevant for the Court to consider in addition to the financial circumstances of the parties and the other five specific matters mentioned in s 117(2A), the following matters:
a) the prospect of success of the litigation;
b) whether the claim for security is made bona fide;
c)whether or not an order for security would stifle the litigation;
d)whether or not the litigation may involve a matter of public importance;
e)whether or not there has been a delay in bringing the application for security;
f)whether there would be difficulty in enforcing an order for costs
…
The principles enunciated by the Full Court in Sawer were drawn from the previous Full Court decisions of Luadaka & Luadaka (1998) FLC 92-830, Jones and Jones (2001) FLC 93-080, and Adult Guardian and Mother's Parents and B and Child's Representative (2002) FLC 93-116, and have been applied in subsequent Full Court decisions such as Halsbury & Halsbury [2008] FamCAFC 170, Shaw & Muller [2009] FamCAFC 118, Gerber & Bradley [2011] FamCAFC 206, Galloway & Steel [2011] FamCAFC 243, Palma & Caleffi and Anor [2011] FamCAFC 174, and Fenton & Marvel [2012] FamCAFC 150.
The respondent’s arguments in support of the application for security
The respondent raised a number of matters before us in support of her application for security. However, only the following matters, or groups of matters, could be regarded as coming within the principles relevant to determining whether or not to order security; first, that the appeal was vexatious and/or an abuse of process, and that if the appellant was not stopped, he would continue to prosecute the parenting proceedings; secondly, that the grounds of appeal were difficult to follow and not properly directed to the orders which were appealed; and finally, that there was demonstrably no merit in the grounds raised.
We deal first with the respondent’s claims in relation to the grounds of appeal. The Notice of Appeal contains three grounds.
The first two are in identical terms in that they assert that her Honour
“arrived at a decision without proper evidence to support it”. The third ground asserts that her Honour “wrongly ignored evidence being given”.
After each ground set out in his Notice of Appeal, the appellant has provided some explanation of the particular ground. Although the explanations provided for each ground are not in the usual form in which particulars contained in grounds of appeal should appear, and would seem to raise some matters apparently of marginal relevance, we cannot say (especially without access to the transcript of the trial which the appellant has yet to provide) that the grounds would be entirely without merit. As drafted, the grounds are certainly not incompetent, but whether they have merit will have to be determined at the hearing of the appeal.
In relation to her claim that the appeal is vexatious or an abuse of process, we understood the respondent to rely in support of this claim on the fact that following the making of the orders now appealed, the appellant has commenced contravention proceedings. Those subsequent proceedings alone could not at least at this point in time cause the appeal to be described as vexatious or an abuse of process, and no other historical matter was put to us which would cause us to so categorise the present appeal.
Conclusion
We were thus unpersuaded that the matters relied upon by the respondent would justify an order that the appellant lodge security for the respondent’s costs in the appeal.
Moreover, we accepted that the application for security was made bona fide; that in the circumstances there was no delay in bringing the application for security; and that having regard to the apparent financial position of the parties, an order for security might well stifle the litigation.
Accordingly, we dismissed the respondent’s application.
Finally, and without intending any criticism of the respondent (whose application was prepared by solicitors), we repeat the observations which were made in certain of the Full Court decisions referred to in [7] above, being that applications for security for costs should not be regarded as a method of funding a respondent’s costs of legal representation in an appeal, and that this must be particularly so in this jurisdiction, where the fundamental rule regarding costs is that contained in s 117(1) of the Family Law Act1975 (Cth) being that each party pays his or her own costs.
In the present case, the appellant has already filed (on 20 December 2013) the appeal books (albeit not with transcript). The respondent demonstrated to us by her arguments in support of her application for security that she has a reasonable command, at least for a lay-person, of the issues raised by the grounds of appeal, and thus might well be able to competently argue the appeal if she cannot afford legal representation. It is therefore most unfortunate for these parties and their children that the time which the court had to take to hear the application for security could not have been used for the hearing of the appeal itself.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Finn & Strickland JJ) delivered on 16 April 2014.
Associate:
Date: 16 April 2014
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