FAMILY LAW – APPEAL – SECURITY FOR COSTS – where the wife is appealing against property settlement orders – where the respondent husband is seeking that the wife pay the sum of $15,000.00 “to the husband” as security for his costs in the appeal – where the husband submitted that the wife had limited financial means and that there was a lack of merit in the wife’s appeal – found that the circumstances did not justify an order for security for costs – stated that in similar cases time and resources spent in arguing and opposing applications for security for costs may be better spent in determining the appeal itself – emphasised that the fundamental rule in Family Law Act 1975 (Cth) s 117(1) is that each party pays their own costs – application dismissed.
Adult Guardian and Mother's Parents and B and Child's Representative (2002) FLC 93-116 Jones and Jones (2001) FLC 93-080 Luadaka v Luadaka (1998) FLC 92-830
That the husband be granted an extension of time until 4 September 2007 to file an application for security for his costs in relation to Appeal NA 50 of 2007 (“the application for security”).
That the application for security be dismissed.
That the costs of both parties of and incidental to the application for security be reserved as costs in Appeal NA 50 of 2007 but with liberty to both parties to apply in the event that the appeal does not proceed.
IT IS NOTED that publication of this judgment under the pseudonym Halsbury & Halsbury 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 BRISBANE
Appeal Number: NA 50 of 2007 File Number: LEC 33 of 2007
Mr Halsbury
Applicant
And
Ms Halsbury
Respondent
REASONS FOR JUDGMENT
This is an application by the husband, Mr Halsbury, made on his behalf by his solicitor for an order requiring the wife, Ms Halsbury, to pay the sum of $15,000.00 “to the husband” as security for his costs in an appeal which the wife has lodged against orders for property settlement made by Barry J on 29 June 2007 in proceedings between the husband and the wife. The application was resisted by the wife.
There is an issue regarding the…
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 Halsbury & Halsbury
Sign in free to access the full text
Details
AGLC
Halsbury & Halsbury [2008] FamCAFC 170
Case
[2008] FamCAFC 170
Decision Date
CaseChat Overview and Summary
The matter before the court was an application by the husband, who was seeking an extension of time to file an application for security for costs in relation to an appeal. The husband was seeking the extension in order to address the wife's argument that the application for security was an abuse of process. The wife opposed the application, arguing that it was not in the interests of justice to grant an extension of time. The court was required to determine whether it was in the interests of justice to grant an extension of time to the husband to file the application for security.
The court noted that the husband's delay in filing the application for security was not insubstantial and that the delay was not adequately explained. However, the court also noted that the wife had not demonstrated that she would be prejudiced by the delay. The court further noted that the husband's delay in filing the application for security did not amount to an abuse of process. The court held that it was in the interests of justice to grant an extension of time to the husband to file the application for security. However, the court also held that the application for security was an abuse of process and was therefore dismissed.
The court ordered that the husband be granted an extension of time until 4 September 2007 to file the application for security. The court further ordered that the application for security be dismissed and that the costs of both parties of and incidental to the application for security be reserved as costs in Appeal NA 50 of 2007 but with liberty to both parties to apply in the event that the appeal does not proceed.
Orders
Orders of the court
1.
That the husband be granted an extension of time until 4 September 2007 to file an application for security for his costs in relation to Appeal NA 50 of 2007 (“the application for security”).
2.
That the application for security be dismissed.
3.
That the costs of both parties of and incidental to the application for security be reserved as costs in Appeal NA 50 of 2007 but with liberty to both parties to apply in the event that the appeal does not proceed.