Cosic & Cosic

Case [2022] FedCFamC2F 500


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Cosic & Cosic [2022] FedCFamC2F 500

File number(s): ADC 2721 of 2020
Judgment of: JUDGE DICKSON
Date of judgment: 22 April 2022
Catchwords:

FAMILY LAW – Property – interim application for summary dismissal and security for costs – wife argues husband’s application is without merit, has no reasonable prospect of success and should be summarily dismissed – in the alternative the wife seeks security for costs - controversy between the parties as to a previous informal agreement for property settlement – husband seeks a superannuation splitting order from the wife - husband is self-represented – where it could not be said at this stage of the litigation that the husband has “no reasonable cause of action” as it relates to a superannuation splitting order at Trial, or that “there is no real question to be tried” – where a security for costs order would stifle the litigation - matter listed for Trial and wife’s application for summary dismissal adjourned to directions date pending husband’s compliance with further orders of the Court – section 102NA of the Act enlivened

COSTS – where wife seeks costs thrown away against the husband – where husband has failed to comply with orders of the Court for the filing of responding documents – husband is ordered to pay the wife’s costs by the next directions date

Legislation:

Family Law Act 1975 (Cth) Pts V, XI, XV, ss 45A, 102NA, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.09, 10.27, 12.02, 12.06

Cases cited:

Aldred and Aldred; Westpac Banking Corp (1986) 10 Fam LR 1083

Arthurman & Arthurman [2019] FamCAFC 214

Bigg & Suzi [1998] FamCA 14; (1998) FLC 92-799.

Brown & Brown & Ors [1991] FamCA 75, (1991) FLC 92-265, 15 Fam LR 69

Buckley v Bennell Design & Constructions Pty Ltd (1974) 1 ACLR 301.

Cameron’s Unit Services Pty Ltd & Or v Kevin R Whelpton & Associates Pty Ltd & Or (1986) 13 FCR 46; 11 ACLR 43.

Evans & Rochford [2003] FamCA 314, (2003) FLC 93-147, (2003) 30 Fam LR 336

PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA 158; (2005) 33 Fam LR 123

I & I (No.2) [1995] FamCA 80, (1995) FLC 92-625, 22 Fam LR 557

Jones & Jones [2001] FamCA 460, (2001) FLC 93-080, 27 Fam LR 632

Karlsson & Karlsson [2020] FamCAFC 207

Limousin v Limousin (Security for Costs) [2007] FamCA 1179

Luadaka & Luadaka [1998] FamCA 1520, (1998) FLC 92-830, 24 Fam LR 340

Lynnebry Pty Ltd v Farquhar Enterprises Pty Ltd (1977) 3 ACLR 133.

Lysaght Building Solutions Proprietary Limited (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27

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

Moorcroft & Moorcroft [2018] FamCAFC 253

Pelerman& Pelerman [2000] FamCA 881

Taylor v Taylor (1979) 25 ALR…

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Cosic & Cosic [2022] FedCFamC2F 500
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[2022] FedCFamC2F 500
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CaseChat Overview and Summary

This matter came before the Court by way of an Application in a Proceeding filed by the applicant wife on 25 November 2021. The husband, who was self-represented, opposed the orders sought by the wife in their entirety. The wife sought an order that the husband’s Application for final orders filed on 24 June 2020 be summarily dismissed or, in the alternative, that the husband lodge with the Court security for costs. The wife also sought costs thrown away in the sum of $1,200.00. The husband sought a superannuation splitting order from the wife. The Court dismissed the wife’s application for summary dismissal and security for costs. The Court did, however, order that the husband pay the wife costs thrown away in the sum of $1,200.00 for the husband’s failure to comply with Court orders to file answering documents. The Court found that it could not be said at this stage of the litigation that the husband had “no reasonable cause of action” as it relates to a superannuation splitting order at Trial, or that “there is no real question to be tried”. The Court further found that a security for costs order would stifle the litigation. The Court found that the mandatory requirements of section 102NA of the Family Law Act 1975 (Cth) were enlivened in this matter and ordered that the husband be legally represented at Trial. The Court ordered that the husband pay the wife costs thrown away in the sum of $1,200.00.

Orders

Orders of the court

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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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