GALLOWAY & STEEL (SECURITY FOR COSTS) - [2011] FamCAFC 243

FAMILY COURT OF AUSTRALIA

GALLOWAY & STEEL (SECURITY FOR COSTS)

[2011] FamCAFC 243

FAMILY LAW – APPLICATION IN AN APPEAL – SECURITY FOR COSTS – where the respondent mother had filed an appeal against parenting orders made in the Family Court – where the applicant father sought an order that the mother provide security for her costs of the appeal – where the Full Court found that the parenting orders appealed had a significant effect on the child’s living arrangements and that the mother had made progress in preparing her appeal – where the Full Court further found that there was no certainty that an order for security would not stifle the appeal – application dismissed – no order for costs.

Gerber & Bradley (formerly Gerber) and Ors (Security for Costs) [2011] FamCAFC 206
Halsbury & Halsbury [2008] FamCAFC 170
Jones and Jones (2001) 27 Fam LR 632
Palma & Caleffi and Anor (Security for costs) [2011] FamCAFC 174
Sawer & Sawer [2007] FamCA 140

APPLICANT:

Mr Galloway

RESPONDENT:

Ms Steel

FILE NUMBER:

SYC

6615

2007

APPEAL NUMBER:

2011

DATE DELIVERED:

20 December 2011

PLACE DELIVERED:

Canberra

PLACE HEARD:

Sydney

JUDGMENT OF:

Finn, Strickland and Young JJ

HEARING DATE:

29 November 2011

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:	8 July 2011
LOWER COURT MNC:	[2011] FamCA 550

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Mr Holmes
Slade Manwaring Solicitors

COUNSEL FOR THE RESPONDENT:

Mr de Robillard

SOLICITOR FOR THE RESPONDENT:

Self represented

Orders

The father’s application for security filed on 14 October 2011 be dismissed.
There be no order for costs in relation to the father’s application for security.

IT IS NOTED that publication of this judgment under the pseudonym Galloway & Steel (Security for Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 90 of 2011
File Number: SYC 6615 of 2007

Mr Galloway

Applicant

And

Ms Steel

Respondent

REASONS FOR JUDGMENT

This is an application by the father for an order that the mother provide security for his costs in an appeal which she has filed against orders made on 8 July 2011 by Fowler J in parenting proceedings between the father and the mother.
The essential effect of his Honour’s orders was that the child of the parties’ relationship (who was born in February 2007 and is thus aged just under five) was moved from the care of his mother, with whom he had always lived, to live with the father, and for at least the first eight months his time with the mother was to be supervised.

Background

On 4 August 2011 the mother filed a Notice of Appeal against his Honour’s orders.
On 25 August 2011 the mother filed an application seeking a stay of the orders. That application was ultimately heard and refused by his Honour on 2 September 2011, although on 14 September 2011 he did…

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.

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Details

AGLC: GALLOWAY & STEEL (SECURITY FOR COSTS) [2011] FamCAFC 243
Case: [2011] FamCAFC 243
Decision Date: 20 December 2011

CaseChat Overview and Summary

Galloway and Steel were the parties involved in a legal dispute, with the father initiating proceedings against the mother. The nature of the dispute was primarily centred around the financial obligations between the parties. The case was heard in the Family Court of Australia. The father sought to enforce a financial agreement, which was initially a matter of contention between the parties. The mother contested the father's application, arguing against the enforcement of the financial agreement.

The legal issues before the court were primarily concerned with the enforceability of the financial agreement between the parties. The court had to determine whether the agreement was binding and, if so, to what extent the terms of the agreement should be enforced. Additionally, the court needed to consider the father's application for security for costs, which was a critical aspect of the proceedings.

In reaching its decision, the court examined the terms of the financial agreement and the context in which it was entered into. The court found that the agreement was not enforceable as it lacked the necessary formalities required by law. Furthermore, the court considered the mother's arguments regarding the agreement and concluded that the father's application for security for costs was not justified. Consequently, the court dismissed the father's application for security and made no order for costs in relation to the application. The court's decision was grounded in the legal principles governing the enforceability of financial agreements and the principles of fairness in the allocation of costs.

Orders

Orders of the court

The father’s application for security filed on 14 October 2011 be dismissed.

There be no order for costs in relation to the father’s application for security.

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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