BARTSCH & REDMAN - [2014] FamCAFC 63

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

2011

APPEAL NUMBER:

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

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…

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 BARTSCH & REDMAN

Details

AGLC: BARTSCH & REDMAN [2014] FamCAFC 63
Case: [2014] FamCAFC 63
Decision Date: 16 April 2014

CaseChat Overview and Summary

The Family Court of Australia dismissed an application filed by Ms Redman, seeking an order that Mr Bartsch provide security in the sum of $15,000 for her costs in an appeal filed by him against orders made by Federal Magistrate Sexton. 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. The appeal, which was filed by the appellant on his own behalf on 3 May 2013, seeks that both parties have joint parental responsibility and that he should spend overnight time each alternate weekend with the children.

The legal issues the court was required to decide included whether the appeal was vexatious or an abuse of process, whether the grounds of appeal were difficult to follow and not properly directed to the orders which were appealed, and whether there was demonstrably no merit in the grounds raised. The court also considered the principles which govern the determination of an application for security for the costs of an appeal, including the financial circumstances of the parties, their conduct in relation to the proceedings, and the prospect of success of the litigation.

The court concluded that the respondent's claims did not justify an order that the appellant lodge security for the respondent's costs in the appeal. The court was unpersuaded that the matters relied upon by the respondent would justify an order for security. The court also accepted that the application for security was made in good faith, that 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, the court dismissed the respondent's application.

The court re-iterated 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 each party pays his or her own costs. The court noted that the appellant had already filed the appeal books, and that the respondent demonstrated a reasonable command 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 unfortunate 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.

Orders