Cole & Ingram - [2022] FedCFamC2F 285

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cole & Ingram [2022] FedCFamC2F 285

File number(s): HBC 330 of 2018

Judgment of: JUDGE TAGLIERI

Date of judgment: 18 March 2022

Catchwords: FAMILY LAW – security for costs – where mother non-compliant with final parenting orders and father has filed an enforcement parenting application – where mother seeks security for costs – reliance on, amongst other factors, past findings about father’s conduct, outstanding costs order in favour of the mother and lack of prospects – nature of enforcement parenting application, Rule 11.64 - application for security for costs dismissed

Legislation:
Bankruptcy Act 1966 (Cth)

Family Law Act 1975 (Cth) Part VII Division 13A, ss. 60CC(2A), 67X, 70NBA, 105, 117(2), 117(2A)

Federal Circuit and Family Court of Australia Act 2021 (Cth) s10

Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) r11.63 - r11.69, r12.02

Cases cited:
Cole & Ingram (2020) 62 Fam LR 158

Evans and Rochford [2003] FamCA 314

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania) v Fish (2005) 33 Fam LR 123.

I and I (No 2) (1995) FLC ¶92-625

Jones and Jones (2001) FLC ¶93-080

Knight and Ellington [2018] FamCA 892

Lisle & Lisle [2009] FamCA 1236

Luadaka v Luadaka (1998) FLC ¶92-83

Medlon and Medlon (No 6) (Indemnity Costs) [2015] FamCAFC 157

Millson & Halbert [2021] FedCFamC1F 94

Palma and Caleffi and Anor (Security for costs) [2011] FamCAFC 174

Division: Division 2 Family Law

Number of paragraphs: 98

Date of hearing: 18 February 2022

Place: Hobart

Counsel for the Applicant: Ms K Mooney SC

Solicitor for the Applicant: PWB Lawyers

Counsel for the Respondent: Mr M Foster

Solicitor for the Respondent: Murdoch Clarke

Counsel for the Independent Children’s Lawyer: Ms S Watson

Solicitor for the Independent Children’s Lawyer: Legal Aid Commission of Tasmania
ORDERS

HBC 330 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS COLE

Applicant

AND:
MR INGRAM

Respondent

ORDER MADE BY:

JUDGE TAGLIERI

DATE OF ORDER:

18 MARCH 2022

THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 14 December 2021 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Cole & Ingram has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri

The parties to these proceedings, Ms Cole…

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 Cole & Ingram

Details

AGLC: Cole & Ingram [2022] FedCFamC2F 285
Case: [2022] FedCFamC2F 285
Decision Date

CaseChat Overview and Summary

This case involves an application for security for costs made by the mother, Ms Cole, against the father, Mr Ingram, in proceedings for enforcement initiated by Mr Ingram on 30 September 2021. The children were the subject of parenting proceedings in the Family Court of Australia between 2018 and 2020. Final parenting orders were made by Justice Benjamin on 12 June 2020, and a costs order was made in favour of Ms Cole on 18 November 2020. Mr Ingram declared bankruptcy in 2021 and did not pay the costs. After final orders were made in June 2020, the father was spending time with the children in accordance with the final orders. However, after the mother indicated that the children would not be sent to spend time with the father due to allegations of inappropriate touching, the father filed his enforcement application on 30 September 2021. On 14 December 2021, Ms Cole filed the security for costs application and certified urgency. The court was required to decide whether to grant the mother's application for security for costs in the enforcement proceedings.

The court considered the relevant legal principles and factors outlined in section 117(2A) of the Family Law Act 1975 (Cth) and Rule 12.02 of the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth). The court assessed the financial circumstances of each party, the conduct of the parties in relation to the proceedings, the prospects of success or merits of the application, and whether an order for security for costs would be oppressive or would stifle the proceeding. The court also considered the genuineness of the application and whether the applicant's lack of financial means was caused by the respondent's conduct.

After evaluating the evidence and submissions from both parties, the court found that the enforcement application was not fundamentally flawed and had some prospects of success. The court rejected the mother's submissions that the enforcement application was bound to fail and that the Court should make an order varying the final orders. The court concluded that the enforcement application was a legitimate means of determining the issue in dispute and that if the costs of the proceedings had become problematic for both parties, then the mother had contributed to this by her actions. The court was not persuaded to make the order for security for costs, primarily because there was a legitimate issue to be determined to ascertain what was in the best interests of the children in the future and the enforcement application would enable that to be decided.

The court dismissed the mother's application for security for costs in the enforcement proceedings. The enforcement application will proceed to a hearing on 31 March 2022.

Orders