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
[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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AGLC
Cosic & Cosic [2022] FedCFamC2F 500
Case
[2022] FedCFamC2F 500
Decision Date
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.