BULOW & BULOW - [2018] FamCAFC 157

FAMILY COURT OF AUSTRALIA

BULOW & BULOW

[2018] FamCAFC 157

FAMILY LAW – APPLICATION IN AN APPEAL – SECURITY FOR COSTS – Where the husband gave sworn evidence that he had the funds to meet an order for costs should his appeal be unsuccessful – Application dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – NOTICE TO ADMIT – Where there is no basis for the orders sought by the husband to be made – Where the application is irrelevant to the primary application before the court – Application dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – EXTEND TIME TO FILE – Where the husband seeks an extension of time to file his summary of argument – Extension of time granted as sought.

FAMILY LAW – COSTS – Where the wife seeks her costs relying on the husband’s conduct – Where the application was only brought because the husband refused to provide the necessary financial information to satisfy the wife as to his ability to meet an order for costs if necessary – Order for costs made.

Family Law Act 1975 (Cth) s 117
APPLICANT/RESPONDENT:	Ms Bulow

RESPONDENT/APPLICANT:

Mr Bulow

FILE NUMBER:

ADC

1674

2014

APPEAL NUMBER:

SOA

2017

DATE DELIVERED:

8 August 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

8 August 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

22 November 2017

LOWER COURT MNC:

[2017] FCCA 2657

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms DuBarry

SOLICITOR FOR THE APPELLANT:

Tindall Gask Bentley Lawyers

THE RESPONDENT:

In person

Orders

The Application in an Appeal filed by the husband on 7 August 2018 be dismissed.
Paragraphs 2 – 8 inclusive of the Response to an Application in an Appeal filed by the husband on 7 August 2018 be dismissed.
The Application in an Appeal filed by the wife on 11 July 2018 be dismissed.
The time for the husband to file and serve his summary of argument be extended to the close of business on Friday 10 August 2018.
The husband pay the costs of the wife of and incidental to her Application in an Appeal filed on 11 July 2018 fixed in the sum of FIVE THOUSAND DOLLARS [$5,000].

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 Bulow & Bulow 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 3 of 2017
File Number: ADC 1674 of 2014

Ms…

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.

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Details

AGLC: BULOW & BULOW [2018] FamCAFC 157
Case: [2018] FamCAFC 157
Decision Date: 8 August 2018

CaseChat Overview and Summary

In the case of Bulow & Bulow, the husband appealed against a decision regarding family law, and various applications were filed by both parties in relation to the appeal. The wife sought an order for security for costs, alleging that the husband had failed to provide adequate financial information. She also made an application for notice to admit certain facts and sought costs against the husband for his conduct. The husband, on the other hand, filed applications for an extension of time to file his summary of argument and for an order for security for costs in his favour.

The court was required to determine whether the wife's application for security for costs was justified, given that the husband had sworn evidence of his financial capacity to meet any costs order if his appeal was unsuccessful. The court also needed to decide if the husband's application for notice to admit was relevant and if it was based on any valid grounds. Additionally, the court had to consider whether the husband's request for an extension of time to file his summary of argument was reasonable and warranted.

The court dismissed the wife's application for security for costs, as the husband had provided sworn evidence of his financial capacity. The court also dismissed the husband's application for notice to admit, as there was no basis for the orders sought and the application was irrelevant to the primary application before the court. However, the court granted the husband's application for an extension of time to file his summary of argument, as it was reasonable and the delay was not prejudicial to the wife. The court ordered the husband to pay the wife's costs of the appeal, as the application was brought due to the husband's refusal to provide the necessary financial information.

The orders of the court were as follows: the husband's application in an appeal filed on 7 August 2018 and paragraphs 2-8 of his response to an application in an appeal were dismissed; the wife's application in an appeal filed on 11 July 2018 was also dismissed; the time for the husband to file and serve his summary of argument was extended to the close of business on Friday, 10 August 2018; and the husband was ordered to pay the wife's costs of and incidental to her application in an appeal filed on 11 July 2018, fixed in the sum of five thousand dollars ($5,000). The form of the order was subject to the entry of the order in the court's records.

Orders

Orders of the court

The Application in an Appeal filed by the husband on 7 August 2018 be dismissed.

Paragraphs 2 – 8 inclusive of the Response to an Application in an Appeal filed by the husband on 7 August 2018 be dismissed.

The Application in an Appeal filed by the wife on 11 July 2018 be dismissed.

The time for the husband to file and serve his summary of argument be extended to the close of business on Friday 10 August 2018.

The husband pay the costs of the wife of and incidental to her Application in an Appeal filed on 11 July 2018 fixed in the sum of FIVE THOUSAND DOLLARS [$5,000].

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

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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