FAMILY COURT OF AUSTRALIA
| CLIVERY & CONWAY | [2007] FamCA 1435 |
| FAMILY LAW - APPEAL – Leave to apply for security for costs out of time |
| Family Law Act 1975 (Cth) s 117AB Family Law Rules 2004 r 1.14, r 19.05, r 22.49 |
| FAI v Southern Cross (1988) 77 ALR 411 Gallo v Dawson (1990) 93 ALR 479 Harris and Harris (1991) FLC 92-254 McMahon and McMahon (1976) FLC 90-038 Tormsen and Tormsen (1993) FLC 92-392 |
| APPLICANT: | [Ms Clivery] |
| RESPONDENT: | [Mr Conway] | ||||
| FILE NUMBER: | CAF | 551 | of | 2002 | |
| APPEAL NUMBER: | EA | 61 | of | 2007 |
| DATE DELIVERED: | 8 November 2007 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Thackray and O’Reilly JJ |
| HEARING DATE: | 8 November 2007 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 March 2007 |
| LOWER COURT MNC: | [2007] FamCA 1306 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Foster |
| SOLICITOR FOR THE APPLICANT: | Anne Marie Proctor & Associates |
| COUNSEL FOR THE RESPONDENT: | [Mr Conway] appeared in person |
| SOLICITOR FOR THE RESPONDENT: | N/A |
Orders
That the time within which the applicant, [Ms Clivery], had to file her application for security for costs be extended to the date on which it was filed.
That the costs of the application for leave to institute proceedings for security for costs out of time and the costs of the application for security for costs be reserved as costs in the appeal.
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: EA 61 of 2007
File Number: CAF 551 of 2002
| [Ms Clivery] |
Applicant
And
| [Mr Conway] |
Respondent
REASONS FOR JUDGMENT
The application before us is that filed by [Ms Clivery] (“the mother”) on 26 October 2007 seeking leave to file an application for security for costs of an appeal out of time.
The respondent, [Mr Conway] (“the father”), opposes the application.
Background
On 30 May 2007, Finn J granted the father an extension of time within which to appeal orders made by Waddy J on 26 March 2007. The Notice of Appeal was duly filed on 27 June 2007.
The appeal related to an order for costs made by Waddy J on 26 March 2007 following a 10-day trial conducted in 2005 dealing with matters concerning the welfare of the parties’ daughter, [Alexandra].
His Honour determined that [Alexandra] should move from the mother’s home to live with the father. It appears the principal reason for so ordering was his Honour’s finding that the mother had physically abused [Alexandra], notwithstanding her strong and repeated denial of ever having done so.
The father’s application for costs was heard on 26 March 2007 at which time the father was represented by his solicitor and the mother was represented by counsel.
After hearing submissions and taking some additional evidence, his Honour delivered judgment ex tempore and ordered the mother to make a contribution to the father’s costs fixed in the amount of $7,500 (which he decided could be offset against certain sums thought then to be owed to the mother…
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- AGLC
- Clivery & Conway [2007] FamCA 1435
- Case
- [2007] FamCA 1435
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Full Court was whether to grant Ms Clivery an extension of time to file her application for security for costs. This application was made after the time limit for filing such an application had expired.
The Court considered the circumstances surrounding the delay in filing the application for security for costs. It appears the Court was satisfied that there were sufficient grounds to permit the late filing. The Court's reasoning focused on ensuring procedural fairness and allowing the applicant to pursue her right to seek security for costs, even if there had been a delay. The Court applied principles relating to the exercise of discretion in granting extensions of time for procedural steps in litigation.
The Court ordered that the time within which Ms Clivery had to file her application for security for costs be extended to the date on which it was filed. Furthermore, the costs associated with the application for leave to institute proceedings for security for costs out of time, and the costs of the application for security for costs itself, were reserved as costs in the appeal.
Orders
Orders of the court
1.
That the time within which the applicant, [Ms Clivery], had to file her application for security for costs be extended to the date on which it was filed.
2.
That the costs of the application for leave to institute proceedings for security for costs out of time and the costs of the application for security for costs be reserved as costs in the appeal.
THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE
Appeal Number: EA 61 of 2007
File Number: CAF 551 of 2002
[Ms Clivery]
Applicant
And
[Mr Conway]
Respondent
REASONS FOR JUDGMENT
1.
The application before us is that filed by [Ms Clivery] (“the mother”) on 26 October 2007 seeking leave to file an application for security for costs of an appeal out of time.
2.
The respondent, [Mr Conway] (“the father”), opposes the application.
Background
3.
On 30 May 2007, Finn J granted the father an extension of time within which to appeal orders made by Waddy J on 26 March 2007. The Notice of Appeal was duly filed on 27 June 2007.
4.
The appeal related to an order for costs made by Waddy J on 26 March 2007 following a 10-day trial conducted in 2005 dealing with matters concerning the welfare of the parties’ daughter, [Alexandra].
5.
His Honour determined that [Alexandra] should move from the mother’s home to live with the father. It appears the principal reason for so ordering was his Honour’s finding that the mother had physically abused [Alexandra], notwithstanding her strong and repeated denial of ever having done so.
6.
The father’s application for costs was heard on 26 March 2007 at which time the father was represented by his solicitor and the mother was represented by counsel.
7.
After hearing submissions and taking some additional evidence, his Honour delivered judgment ex tempore and ordered the mother to make a contribution to the father’s costs fixed in the amount of $7,500 (which he decided could be offset against certain sums thought then to be owed to the mother by the father).
8.
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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