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Firth and Hale-Forbes (No. 2)

Firth and Hale-Forbes (No. 2)

Case [2013] FamCA 814

Appeal

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FAMILY COURT OF AUSTRALIA

FIRTH & HALE-FORBES (NO. 2)

[2013] FamCA 814

FAMILY LAW – STAY APPLICATION – Where the father lodged an appeal against final orders made in respect of child support departure – Where the father sought a stay of the child support departure orders pending the determination of the appeal – Where the father was not complying with the orders – Discussion of the law in relation to an application by a party who has not complied with an order of the court – Where the Court found that the father’s non-compliance with the orders, and his inability to demonstrate a lack of capacity to pay in accordance with the orders, or that to do so would cause him hardship, were sufficient grounds to decline to exercise the discretion in his favour – Father’s application for a stay dismissed

FAMILY LAW – SLIP RULE APPLICATION – Where the mother sought a variation of the final orders pursuant to the slip rule – Discussion of the law relating to the exercise of the slip rule –Where the amendments sought by the mother fell into the category of accidental omission – Where one of the amendments sought by the mother fell into the category of clerical mistake – Orders amended as sought by the mother pursuant to the slip rule

FAMILY LAW – COSTS – Slip rule application − Where the father was given every opportunity by the mother to agree to the slip rule amendments and did not − Where the father’s opposition to the application was unreasonable, and was wholly unsuccessful – Father to pay the mother’s costs

FAMILY LAW – COSTS – Interim application − Where the mother was forced to bring the application because of the father’s refusal to consent − Where the consent the father gave in court could have been given earlier had he chosen to do so − Where costs were unnecessarily incurred − Where the father’s financial circumstances are greatly superior to those of the mother − Father to pay the mother’s costs

FAMILY LAW – COSTS – Substantive proceedings in relation to the departure from the child support orders − Where the Court considered the father’s substantial misrepresentation of his income as a matter to be taken into account under s 117(2A)(g) – Where there is a disparity in the relative financial circumstances of the parties − Father to pay the mother’s costs

FAMILY LAW – COSTS – Where the mother sought that any costs payable by the father to the mother be on an indemnity basis – Discussion of the authorities on indemnity costs – Where the Court found that the circumstances of the case did not meet the stringent test for indemnity costs – Costs to be paid on a party and party basis

Family Law Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Family Law Rules 2004 (Cth)

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Australian Transport Insurance Pty Ltd v Graeme Phillips Road…

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 Firth and Hale-Forbes (No. 2)

Details

AGLC: Firth and Hale-Forbes (No. 2) [2013] FamCA 814
Case: [2013] FamCA 814
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered an application by Mr Firth (the father) for a stay of child support departure orders made on 10 May 2013, pending the determination of his appeal against those orders. Ms Hale-Forbes (the mother) opposed the stay application and also sought costs related to an interlocutory application and the substantive proceedings. Additionally, the mother applied to vary the final orders pursuant to the slip rule.

The primary legal issue before the Court was whether to grant the father's application for a stay of the child support departure orders. This required the Court to consider the principles governing stays pending appeal, particularly in circumstances where the applicant is not complying with the orders sought to be stayed. The Court also had to determine the mother's application to amend the final orders under the slip rule, which involves correcting accidental omissions or clerical mistakes. Finally, the Court was asked to consider applications for costs, including whether costs should be awarded on an indemnity basis.

In relation to the stay application, the Court found that the father's non-compliance with the child support departure orders was a sufficient ground to refuse the exercise of its discretion in his favour. The Court noted that the father, a legal professional, was seeking a stay of orders he was not adhering to, and he had not demonstrated an inability to pay or undue hardship. The Court reasoned that refusing the stay would not render the appeal nugatory, as the father was not currently paying the ordered amount, and if the appeal were successful, he would not suffer detriment. The Court also found that the mother's application to amend the orders under the slip rule was successful, as the amendments sought were either accidental omissions or clerical mistakes. The Court ordered the father to pay the mother's costs on a party and party basis for the slip rule application, the interlocutory application, and half of the costs for the substantive proceedings, citing the father's unreasonable opposition and superior financial circumstances. However, the Court declined to award costs on an indemnity basis, finding the stringent test for such an award was not met.

Orders