IB & LB

[2006] FamCA 225

[2006] FamCA 225

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT BRISBANE

Appeal No. EA 105 of 2005

File No. NCF 3742 of 1997

IN THE MATTER OF:

IB   Applicant

- and -

LB  Respondent

REASONS FOR JUDGMENT

BEFORE:Finn, May and Boland JJ

HEARD:28 February 2006

JUDGMENT:            3 April 2006   

APPEARANCES:   

Mr Tregilgas, of counsel (instructed by Rod Powe Lawyers, First Floor, 456 High Street, Maitland NSW 2320) appeared on behalf of the applicant

The respondent appeared on her own behalf

APPEAL SUMMARY

MATTER: IB and LB  

APPEAL NUMBER: EA 105 of 2005; NCF 3742 of 1997          

CORAM: Finn, May and Boland JJ    

DATE OF HEARING: 28 February 2006            

DATE OF JUDGMENT: 3 April 2006                 

CATCHWORDS:

APPLICATION – SECURITY FOR COSTS – Extension of time to file application for security for costs granted – Consideration of matters relevant under s 117(2A) – Consideration of criteria in Luadaka v Luadaka (1998) FLC 92-830 – Order for security for costs made in sum of $5,000.

Legislation

Family Law Act 1975 (Cth) s 117(2A)
Legal Profession Act (2004) NSW s 243
Family Law Rules 2004 r 1.12, 1.14 and 22.49

Case law

Adult Guardian and Mother’s parents and B and Children’s Representative (2002) 93-116
Jones and Jones (2001) FLC 93-080
Luadaka v Luadaka (1998) FLC 92-830

APPLICATION ALLOWED

Introduction

1. This is an application by the father filed on 12 December 2005 in which he seeks security for costs in the sum of $20,000 in respect of an appeal filed by the mother on 15 September 2005 against parenting orders made by Cohen J on 19 August 2005. 

2. The mother did not file a response to the father’s application, but relied on her affidavit filed on 17 February 2006 in which she set out the facts on which she relied in opposition to the father’s application.

3. Counsel for the father, both orally and in written submissions dated 28 February 2006, acknowledged that the father’s application for security was not filed within the time provided in the Family Law Rules 2004 (“the Rules”) and sought an extension of time under r 1.12, 1.14 and 5.12 to bring the application.

Background

1. The parties were married on 1 December 1985 and separated on 1 November 1996.  There are two children of the marriage, GB, who was aged 19 at the time of the trial before Cohen J in July - August 2005, and JB who was born on 20 August 1992 and who was aged 13 years at the time of the trial.

2. The father, who was aged nearly 46 years at the date of the trial, was formerly a member of the NSW Public Service.  He retired from this service in 1999 on medical grounds, and thereafter engaged in casual employment which involved training persons in safety procedures and rescue techniques.  At the date of the trial the father was living with his de facto spouse, SG and her son in a home owned by her parents in the Hunter district of New South Wales.

3. At the time of the trial the mother, who was then aged about 46 years, was in receipt of workers’ compensation payments, and lived with her parents, Mr and Mrs R (“the maternal grandparents”) in a home owned by them in a suburb of Newcastle.  The trial Judge recorded the maternal grandparents’ income was by way of pension entitlement, and that GB was also living with the mother. He was noted to be unemployed.

4. As the prior history of litigation between the parties was a matter relied on by counsel for the father in his submissions, we set out some of the events in the extensive litigation, which were summarised in the judgment of Cohen J.  The salient features of that history are:

   (i)At separation GB and JB remained living with the mother and the father exercised regular contact to the children.

   (ii)In August 1998, after disputes between the parties about contact, the father commenced proceedings seeking orders for contact in the Local Court at Raymond Terrace.

   (iii)An interim hearing was held on 10 September 1998.  Orders were made for the father to have contact each Sunday for a period of eight hours with the maternal grandmother acting as supervisor.

   (iv)On 2 December 1998 orders (it appears these were interim orders) were made by consent that GB and JB live with the mother and that they have alternate weekend contact and half school holiday and telephone contact with the father.

   (v)On 19 July 1999 final orders were made by consent in the Family Court of Australia in broadly similar terms to the orders made on 2 December 1998.

   (vi)In January 2000 a dispute arose between the parties which had its genesis in the father’s physical treatment of GB who was suffering eczema. Proceedings seeking an apprehended violence order on behalf of the mother against the father and assault charges followed.  The application and assault charge were dismissed after contested proceedings. 

   (vii)On 17 April 2000 the mother commenced proceedings in the Federal Magistrates Court in which she sought to vary the contact orders.

   (viii)On 17 April 2000 the father filed contravention proceedings.

   (ix)On 15 May 2000 the mother sought orders that there be no contact between JB and the father. At about this time the mother filed a Notice of Child Abuse or Risk of Abuse alleging the father had hit JB.

   (x)On 9 August 2000 the mother sought interim orders for the suspension of contact between JB and the father.  This application was unsuccessful.

   (xi)On 11 October 2000 consent orders were made in the Federal Magistrates Court which discharged the orders made in the Family Court of Australia on 19 July 1999.  The new orders provided for the father to exercise alternate weekend and half school holiday contact, and also provided for the father and the children to attend counselling “to assist in re-establishing the relationship” between the father and the children. The orders additionally provided for the mother to attend therapeutic counselling “to assist the mother to continue to come to terms with the fact that the children are maintaining a relationship with the father, without admissions”.

   (xii)In March 2001 the father commenced proceedings in the Federal Magistrates Court at Newcastle seeking orders that GB and JB reside with him, and that the children have reasonable contact with the mother.  By the time of the hearing in the Federal Magistrates Court neither party sought any orders in respect of GB who remained living with the mother.

   (xiii)On 12 December 2001 defended proceedings were heard by Federal Magistrate Connolly.  Orders were made for JB to live with the father. 

   (xiv)On 20 December 2004, after a number of interim hearings, contested proceedings were heard by Mullane J who made interim orders that there be no contact between JB and the mother and the maternal grandparents.

   (xv)Defended proceedings were heard by Cohen J on 18, 19, 20, 21 and 22 July 2005 and a reserved judgment was delivered on 19 August 2005.

   (xvi)Cohen J noted in his reasons for judgment that the various proceedings between the parties had resulted in the preparation of seven family reports.

The present appeal

1. By Amended Notice of Grounds of Appeal filed 20 January 2006 the mother seeks to appeal orders 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the orders made by Cohen J on 19 August 2005.  The mother does not challenge the trial Judge’s order that JB should live with the father.  The mother’s appeal is in respect of orders made by Cohen J restricting contact between JB and herself and members of her family to limited supervised contact in a children’s contact centre.  The mother’s grounds of appeal are as follows:

   “1.  His Honour was biased and unfair in His Honour’s Reasons for Judgement [sic] and His Honour’s Orders.

   2. His Honour failed to give sufficient weight under the Family Law Act 1975 ss60B, 65N of the Father’s actions and behaviour in preventing the Mother to implement contact with the Said Child.

   3. His Honour failed to give consideration or give sufficient weight under the Family Law Act 1975 s60B to the effects on the Said Child with the Father consenting to and then refusing the Said Child to have contact with the Mother as indicated in exhibit letters.

   4. His Honour failed to give consideration or sufficient weight under the Family Law Act 1975 s60B of the Father’s history of abuse as a child and the allegations of abuse from the Said Child.

   5.  His Honour failed to consider or give sufficient weight in the diagnosis by Dr [C] of the Mother having ‘Parental Alienation Syndrome’ and that Dr [C] did not interview the Mother with the children.

   6. His Honour failed to give sufficient weight under the Family Law Act 1975 ss60B(2b), 68F of the emotional effect and bond of the Said Child of limited contact of eight hours per year with his sibling, maternal family, friends, and pets.

   7. And further take notice that this Amended Notice of Appeal is prepared without the entire transcript of the proceedings being available to the Mother who may seek to add further grounds.”

2. The mother has filed and served her Appeal Books and summary of argument. For reasons we discuss below, the father did not receive the appeal books on the date provided in the orders made by Boland J at the procedural hearing. Nothing relevant to this application turns on that fact, other than a requirement to amend the timetable for filing of submissions by the father and the Child Representative for the appeal. 

Extension of time in which to file application for security

1. Having regard to the fact that the father’s application for security for costs was not filed until 12 December 2005 when the mother’s notice of appeal had been filed on 15 September 2005 (although her amended notice was not filed until 20 January 2006), we consider, given the provisions of r 22.49 of the Rules, that the better view must be that the father requires an extension of time (which under r 1.14(2) can be granted retrospectively) to file his application for security.

2. Despite being given the opportunity by us to do so, the mother put little by way of opposition to the grant of such an extension of time to the father, although it must be remembered in this regard that the mother appeared before us without legal representation.  Nevertheless, given that it would appear that the father’s delay in applying for an order for security can at least in part be explained by the fact that for some of the relevant period he was without legal representation, and having regard to the considerable merit which, as we shall shortly explain, we see in the father’s application for security, we propose to grant the father the necessary extension of time to file the application in question.

Relevant law – security for costs

1. The legal principles which govern an application for security for costs are the subject of decided authority and include the decisions in Luadaka v Luadaka (1998) FLC 92-830; Jones and Jones (2001) FLC 93-080 and Adult Guardian and Mother’s parents and B and Children’s Representative (2002) FLC 93-116. Those principles are conveniently summarized in Adult Guardian at 89,173 to 89,174:

   “34. The power in this Court to make an order for security for costs is to be found in s 117(2) of the Act, which is in the following terms:

   ‘If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsection (2A) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.’

   35. The provisions of s 117(2A) are as follows:

   ‘In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a) the financial circumstances of each of the parties to the proceedings;

   (b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f) whether either party to the proceedings has, in accordance with section 117C or otherwise, made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g) such other matters as the court considers relevant.’

   36. The principles which should govern the exercise of the power in s 117(2) to make an order for security for costs have been considered in the two relatively recent decisions of the Full Court of this Court of Luadaka v Luadaka(1998) FLC ¶92-830 and Jones and Jones (2001) FLC ¶93-080.

   37. In Luadaka, which was concerned with the making of an order for the provision of security in relation to the costs of proceedings at first instance, the Full Court made the following observations concerning the matters to which regard should be had in determining whether or not to exercise the discretion to order the provision of security (emphasis added):

   ‘39. An order that an applicant provide security for costs may be made in appropriate circumstances. However, it must be established that there are circumstances justifying the making of such an order. In considering whether to make such an order regard must be had to the provisions of s 117(2A). The Family Law Act does not separately list factors which should be taken into account when dealing with an application for security for costs of a pending application for relief pursuant to provisions of the Act.

   ...

   61. In our opinion, when dealing with an application for security for costs the general rule provided for in s 117(1) applies, namely that subject to s 117(2) each party to proceedings shall bear his or her own costs. However, if the court is satisfied that there are circumstances that would justify an order then the court may, subject to s 117(2A), make such order for security for costs as the court considers just. It is not necessary to establish that there are special circumstances. However, it is necessary to establish that there are justifying circumstances. The decision to order security for costs is discretionary, both as to whether to order security, and as to the amount to be secured.

   62. The purpose of an order for security is to secure justice between the parties by ensuring that an unsuccessful party does not occasion injustice to the other. In considering whether or not to make an order, apart from those referred to in s 117(2A), matters which may be relevant include the following:

   62.1 It may be relevant to take into account the means of an applicant to satisfy an order for costs if he or she is unsuccessful. Ordinarily the means of the applicant is not alone sufficient to justify an order for costs because of the rule that poverty should be no bar to justice. This is reinforced by s 117(1). However, the financial circumstances of the applicant do not prevent an order being made if there are other grounds which justify an order. Financial weakness may be relevant, for example, if the applicant is a company. In relation to the means of the respondent, who is the applicant for security, it was held by Goldstein J in Alexander and Alexander (supra) and Gee J in B and B (supra) that the question is whether or not the respondent is able to pay his or her costs. Section 117(2A)(a) requires consideration of the financial circumstances of both parties. However, we do not accept that it will only be in cases where the applicant for security does not have the means to meet his or her costs that an order would be made. In appropriate circumstances an order may be made even if the applicant for security has the means to pay his or her costs.

   62.2 The prospects of success is a relevant matter to take into consideration: Parkinson & Co Ltd v Triplan Pty Ltd (supra). However, ordinarily the court will not undertake a detailed assessment of the likelihood of the applicant’s success unless it can be demonstrated that there is a high probability of success or failure: Porzelack KG v Porzelack (UK) Ltd [1987] 1 WLR 420; Appleglen Pty Ltd v Mainzeal Corporation Pty Ltd (1988) 79 ALR 634; Equity Access Ltd v Westpac Banking Corporation (1989) ATPR ¶ 40-972. This is because of the lack of material at the time the application is dealt with. However, such an assessment may be possible in circumstances where, as in this case, affidavits have been filed in which the case sought to be made out is set out.

   62.3 It is a relevant consideration whether the applicant's claim is made bona fide, whether it is genuine and not trivial, vexatious or a sham: Parkinson & Co Ltd v Triplan Pty Ltd (supra); Lynnebry Pty Ltd v Farquhar Enterprises Pty Ltd (1977) 3 ACLR 133; J & M O'Brien Enterprises Pty Ltd v Shell Company of Australia Ltd (1983) 7 ACLR 790.

   62.4 It may be relevant to consider whether or not an order for costs would be oppressive or stifle the litigation. In Mantaray Pty Ltd v Brookfield Breeding Co Pty Ltd (1990) 8 ACLC 304 Byrne J said at 306:

   ‘A factor in deciding whether security should be required is that the order may well mean that the action cannot proceed. That prospect does not require refusal of the application but it is often a significant matter.’

   See also Rosenfield Nominees Pty Ltd v Bain & Co (1988) 14 ACLR 467 and Sydmar Pty Ltd v Statewise Developments Pty Ltd (1987) 5 ACLC 480.

   62.5 It may be relevant to consider whether or not the litigation may involve a matter of public importance: Equity Access Ltd v Westpac Banking Corporation (supra); Jodast Pty Ltd v A & J Blattner Pty Ltd (1991) 104 ALR 248. In Quick on Costs at [4.9440] it is said that this will militate against the making of an order.

   62.6 It may be relevant to consider whether or not there has been delay in bringing the application. An application may be refused if there is delay in making the application and prejudice is caused to the respondent to the application: Buckley v Bennell Design & Constructions Pty Ltd (1974) 1 ACLR 301 and Loreva Pty Ltd v Cefa Associated Agencies Pty Ltd (1982) 7 ACLR 164.

   62.7 Other relevant matters may include any difficulties of enforcing an order for costs and the amount of costs to be incurred.

   63. We do not suggest that the above matters are exhaustive of what may be taken into account. However, such matters may be relevant to the exercise of discretion.’

   38. Subsequently in Jones, where the Full Court was concerned with the making of an order for security for the costs of an appeal, the Full Court, after setting out paragraphs 61 to 63 of the judgment in Luadaka, went on to say (emphasis added):

   ‘20. There is no doubt that the wife is impecunious, that she may well be unable to proceed with the appeal if she is ordered to provide security and will be unable to meet an adverse order for costs in the appeal. The prospect, however, of the husband being left without a remedy in respect of a costs order if the appeal is dismissed is significant.

   21. It has long been recognised that, as a general rule and in the exercise of an unfettered discretion, mere impecuniosity of a litigant who is a natural person, will not of itself be a basis for ordering that person to provide security. There is, however, an exception to that general rule, namely in the case of appeals. See Cowell v Taylor (1885) 31 ChD 34 at 38, J & M O'Brien Enterprises Pty Ltd v The Shell Co of Australia Ltd (No. 2) (1983) 70 FLR 261 at 264, Ciappina v Ciappina (1983) 70 FLR 287 at 290 and Paton v Campbell Capital Limited (unreported, Federal Court of Australia, 1 July 1993).

   22. The fact that the wife would be unable to pay the costs awarded against her, if her appeal was dismissed, is, in our view, a significant factor to take into account in considering whether to exercise the discretion to order security in favour of the husband, but it is not the only or deciding factor.

   23. If an appeal appears to have little merit, a court may be more disposed to make an order for security for costs. Whilst we have not had the benefit of submissions on behalf of the wife, the appeal does not appear to raise matters of principle.

   ...

   27. In addition to the matters to which we have earlier referred, we have taken into account that neither party is in receipt of a grant of legal aid and that no submissions have been made as to the relevance of paragraphs (d) and (f) of s 117(2A).

   28. Having regard to all the matters to which we have referred, we have concluded that it is appropriate to exercise the discretion in favour of the husband and order the wife to give security for the costs of the appeal. We are further of the view that, in the circumstances of this case, we should order that the wife’s appeal be dismissed in the event that she does not provide that security.

   29. We now turn to consider the question of the amount in which security should be given. In determining that question, we have regard to the amount of the costs likely to be incurred by the husband, although as Fullagar J. said in Brundza v Robbie & Co (No 2) (1952) 88 CLR 171 at 175:—

   ‘... in ordering security for costs, the Court does not set out to give a complete and certain indemnity to a respondent: see Aberdare & Plymouth Co v Hankey [ (1888) 32 SJ 644 ]. It is not, of course, to be assumed that the appellant will fail.’

   30. The husband has sought $5000 by way of security. However, no skeleton bill of costs was provided and we are left to form our own view of what the husband’s costs are likely to be based on such knowledge as we have of the issues disclosed in the material before us. We are of the view that we should fix such sum as we think just in all the circumstances. On that basis, we would fix the security in the sum of $3000. That security should, however, be in a form acceptable to the Registry Manager, Brisbane Registry of Court.’”

Evidence in support of the application

1. The father relied on his Affidavit sworn on 9 December 2005.  In that affidavit the father set out the history of the litigation between the parties. He deposed to having incurred legal costs of $28,683.40 of which $2,000 were paid by the mother as a result of a costs order.  He deposed to having a present debt to his solicitors of $8,327.29 plus interest, being the balance of his outstanding costs and expenses.

2. In his affidavit the father also set out details of his financial circumstances. His income is derived from employment as a rescue trainer ($26,343) and an annual pension of $38,530.  The father also set out SG’s income of approximately $1,000 per week.  He also provided details of his assets and liabilities and present superannuation entitlement.  Those details revealed that the father’s total assets including superannuation were approximately $204,000 and his liabilities (including a joint mortgage liability with SG) totalled $386,000.

3. The father also set out details of the events in the litigation leading up to the proceedings before the trial Judge.  He noted in September 2004 he received a letter from the mother’s then solicitors addressed to the Child Representative which said:

   “We are instructed by [the mother] that she accepts Dr. [S’s] recommendations as contained in her report dated 29^th July this year.  However, we are instructed that our client seeks provisions safeguarding her weekend contact with [JB], so that her contact Saturdays and Sundays do not become dominated by sporting activities arranged for the boy by [the father]. 

   Whilst the writer believed that we had earlier made our client’s situation concerning residence clear, we are instructed to inform you again that [the mother] is not seeking a residence order concerning [JB].”

4. The father referred to a change of position by the mother at Court on 18 October 2004.  The father asserted the mother, who was unrepresented, advised the Court she was seeking residence of JB. 

5. The mother retained WM, lawyers to act on her behalf.  On 24 November 2004 the father deposed that the mother’s solicitors made it clear that she was seeking orders for residence of JB.  However, on 10 December 2004 the mother caused an Amended Application for Final Orders to be served on the father’s solicitors in which she sought orders for contact only.

6. The mother relied on her affidavit sworn 17 February 2006.  In her affidavit the mother deposed to an application brought by the father for costs of the proceedings before the trial Judge such application being returnable on 10 March 2006.  She deposed “I do not have the financial resources to pay for any costs if granted to the Husband.  I am now seeking a Centrelink pension until I am able to secure employment.  Previous to that I had been on a Workcover income from my previous employer.” 

7. The mother further deposed to having outstanding debts totalling $16,700 including a debt to her parents of $11,000. 

8. The mother set out costs of preparing the appeal books of approximately $5,000.  

Discussion

1. We turn to matters relevant under s 117(2A), which were previously set out in the quotation from Adult Guardian, and thereafter consider the criteria referred to in Luadaka as applicable to security applications. 

2. In relation to the parties’ financial circumstances, at the time of the hearing before the trial Judge the mother was in receipt of workers’ compensation payments.  The mother was recorded as having qualifications as a mental health worker.  We accept the mothers’ evidence concerning her liabilities and current lack of employment as at the date of the hearing of this application.  Prima facie, the mother’s present financial circumstances are poor.  However, she has engaged in employment in the past, and her affidavit indicates that she will look for employment in the future.

3. The father’s income position is presently superior to that of the mother.  However, he has substantial liabilities to service from his income and his liabilities exceed his assets. 

4. There is no evidence that either party is in receipt of legal aid.

5. In our view, the history of the litigation in this matter and the mother’s conduct in that history is a relevant factor to be taken into account in the exercise of our discretion in this application.  The history of the litigation between the parties set out in the father’s affidavit is not subject to challenge by the mother.  We accept the litigation has been extensive, with the mother changing her position from one where she sought residence, to a contact application in the proceedings before Cohen J. 

6. Whilst the mother was not wholly unsuccessful in her application for contact to JB, the orders made by the trial Judge provided for substantially limited supervised contact compared to the contact sought by the mother in her Amended Application. 

7. There is nothing in the evidence before us which would attract comment under
   s 117(2A)(d), (f) and (g).

8. We turn then to consider the criteria contained in Luadaka, the first being whether the mother has the means to satisfy an order for costs if she is unsuccessful.  We are satisfied from the mother’s affidavit evidence that, prima facie, if the appeal is unsuccessful, she does not have the capacity to meet an order for costs.

9. The father’s counsel submitted it was arguable that the mother’s appeal lacked merit.  He submitted firstly that the appeal required consideration in the context of the history of the litigation between the parties and:

   “20.1 Absent Ground of Appeal 1 the balance relate to matters of weight which are predominantly matters within the domain of the trial judge. See Gronow and Gronow (1979) 144CLR 513 and In the Marriage of Mallett (1984) 156CLR 605. As to Ground of Appeal 1 this is not a ground of appeal. See West & West & Ors (1997) 22 FamLR 411 at page 413.”

10. We do not propose to undertake a detailed assessment of the mother’s grounds of appeal.  However, we find the submissions of the father’s counsel to be cogent having regard to the wide discretion vested in a trial Judge dealing with a parenting application.  The principles relating to the limitations on appellate interference with discretionary judgments are particularly apposite in this case, having regard to the expert evidence, the submissions of the Child Representative which were in broad terms reflected in the orders of the trial Judge, and JB’s wish that contact be supervised.

11. Counsel for the father submitted that “[i]t is arguable that the mother’s appeal is not made bona fides. … And taking into account the history of the litigation between the parties, is vexatious”.  We accept that, prima facie, the history gives some support to these submissions made on behalf of the father. 

12. We are satisfied that the proposed appeal, whilst relating to the welfare of a child, does not, from the grounds set out in the notice of appeal, raise questions of public importance.

13. We have already discussed the circumstances in which this application was filed outside the time permitted by the Rules. It was not a significant period of delay. We do not consider it to be an overriding or significant factor to be taken into account in the exercise of our discretion.

14. In Jones the Full Court recognised at paragraphs 21 to 23 (which we have set out above) the relevance of the ability of an unsuccessful appellant to pay costs and the relevance of grounds of appeal which disclose little merit.  Those matters are of significance in this application. 

15. There is no evidence which would suggest in the event that the appeal is unsuccessful the mother has the capacity to meet any costs order made against her.  The father has already incurred substantial legal costs in the extensive ongoing litigation between the parties.  We consider there is a real prospect if the appeal is dismissed that the father would be left without a remedy, and this is a significant factor to take into account in the exercise of our discretion.  We also have regard to the fact that the grounds of appeal appear to have limited merit.  We are satisfied that these factors, on balance, warrant the making of an order for security. 

Quantum of security sought

1. The father seeks security in the sum of $20,000. The father’s counsel candidly conceded before us no skeleton bill of costs had been provided which sought to substantiate a claim for the sum of $20,000. 

2. The mother prepared and filed her appeal books and her outline of argument on 9 February 2006, one day earlier than that provided in the orders made by Boland J on 14 December 2005.  We accept the mother’s explanation for administrative delay resulting in delay of service on the father. 

3. Having regard to similar applications, and in the absence of any evidence supporting the quantum of the order sought, we find an order for security in the sum of $5,000 to be an appropriate sum. 

I certify that the preceding 38 paragraphs
are a true copy of the reasons
for judgment delivered by
this Honourable Full Court.



Associate