BRANTLEY & SWENSON - [2020] FamCAFC 159

FAMILY COURT OF AUSTRALIA

BRANTLEY & SWENSON

[2020] FamCAFC 159

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – SECURITY FOR COSTS – Where the mother’s financial circumstances are not clear on the available evidence – Where the mother deposes to at least two sources of funds to meet any order for costs in the appeal – Where the father concedes that the appeal is not entirely without merit – Where an order for security for costs would not stifle the litigation – Where further submissions are sought from the parties – Where injunctions are put in place pending the finalisation of the appeal restraining the mother from joining with her current husband in obtaining any further loan secured over either of the titles to their jointly owned properties, and from dealing with or disposing of $16,682.18 of her share of any net proceeds of sale of either or both of those properties.

Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) r 19.05(2)

Marsden & Winch (2013) FLC 93-560; [2013] FamCAFC 177
Rice and Asplund (1979) FLC 90-725

APPLICANT:

Mr Brantley

RESPONDENT:

Ms Swenson

FILE NUMBER:

DGC

2935

2018

APPEAL NUMBER:

SOA

2019

DATE DELIVERED:

3 July 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide (via telephone)

JUDGMENT OF:

Strickland J

HEARING DATES:

16 April 2020

2 July 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

2 September 2019

LOWER COURT MNC:

[2019] FCCA 2438

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Eley

SOLICITOR FOR THE APPLICANT:

Emera Smith Family Law

COUNSEL FOR THE RESPONDENT:

Dr R Smith

SOLICITOR FOR THE RESPONDENT:

Pentana Stanton Lawyers

Order

Pending the finalisation of appeal no. SOA 52 of 2019 the respondent mother be restrained and an injunction be granted restraining her:
(a)from joining with her current husband Mr A in obtaining any further loan secured over either of the titles to their jointly owned properties situated at Town D, and at Town C, in the State of Victoria; and
(b)from dealing with, or disposing of in any way, the amount of $16,682.18 of her share of any net proceeds of sale of either or both of the said properties.

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 Brantley & Swenson 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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 52 of 2019
File Number: DGC 2935 of 2018

Mr Brantley

Applicant

And

Ms Swenson

Respondent

REASONS FOR…

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 BRANTLEY & SWENSON

Details

AGLC: BRANTLEY & SWENSON [2020] FamCAFC 159
Case: [2020] FamCAFC 159
Decision Date: 3 July 2020

CaseChat Overview and Summary

The application was heard by Justice Strickland on 16 April 2020 and 2 July 2020. The primary issue for determination was whether the mother should be ordered to pay security for costs in relation to the appeal against the parenting orders. The court had to consider the financial circumstances of the parties, the merits of the appeal, the conduct of the parties, and whether an order for security would stifle the appeal. The father argued that the mother's financial circumstances were not clear on the available evidence and that she had at least two sources of funds to meet any order for costs in the appeal. The mother submitted that she would be able to meet any costs order in the future but that an order for security for costs now would be oppressive to her. The father conceded that the appeal was not entirely without merit, and thus it was possible that no order for costs would be made in his favour. The court found that the mother's financial circumstances were such that an order for security for costs would not stifle the litigation. However, the court was concerned about the lack of detailed evidence as to the two sources of the funds available to the mother. Therefore, the court proposed to make orders to ensure that what the mother says about the funds being available turns out to be the case, if necessary.

On 3 July 2020, Justice Strickland delivered his reasons for judgment. The court found that the mother's financial circumstances were such that an order for security for costs would not stifle the litigation. However, the court was concerned about the lack of detailed evidence as to the two sources of the funds available to the mother. Therefore, the court proposed to make orders to ensure that what the mother says about the funds being available turns out to be the case, if necessary. The court proposed to restrain the mother from joining with her current husband in obtaining any further loan secured over either of the titles to their jointly owned properties, and from dealing with or disposing of $16,682.18 of her share of any net proceeds of sale of either or both of those properties. The court listed the matter for a further hearing to raise the same and receive any submissions that either party sought to make, before making those orders. The court did not make any order for costs arising out of this application. The court certified that the preceding forty (40) paragraphs were a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 3 July 2020.

Orders