Kipling and Netis (No 2) - [2020] FamCAFC 306

FAMILY COURT OF AUSTRALIA

KIPLING & NETIS (NO. 2)

[2020] FamCAFC 306

FAMILY LAW – APPEAL – SECURITY FOR COSTS – Where there are serious doubts about the merits of the appeal and it is more likely than not that it will not succeed – Where it is apparent that the appellant has the ability to obtain funds when he needs them and his financial circumstances are not as dire, or as poor, or as impecunious as he has suggested to this Court – Where there is a proper basis for an order for security for costs to be made and it is not apparent that the litigation will be stifled if that order is made – Costs ordered in the sum of $10,000 to be paid within six months of the date of this order – Appeal stayed pending payment of the said amount.

Family Law Act 1975 (Cth) s 117
Family Law Rules (2004) (Cth) r 19.05(2)

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801
Kipling & Netis [2020] FamCAFC 269
Sawer & Sawer [2007] FamCA 140

APPLICANT:

Mr Kipling

RESPONDENT:

Ms Netis

FILE NUMBER:

TVC

809

2015

APPEAL NUMBER:

NOA

2020

DATE DELIVERED:

2 December 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide via telephone link

JUDGMENT OF:

Strickland J

HEARING DATE:

2 December 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

20 July 2020

LOWER COURT MNC:

[2020] FCCA 2852

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Lake

SOLICITORS FOR THE RESPONDENT:

Roberts Nehmer McKee Lawyers

Orders made on 2 December 2020 *as amended on 16 December 2020 pursuant to r 17.02 of the Family Law Rules 2004 (Cth)

Within six months of the date hereof the father pay *to the solicitors for the mother the amount of $10,000 by way of security for the costs of the mother in relation to appeal no. NOA 56 of 2020, *with such amount being held by the solicitors pending the outcome of the appeal.
Pending payment of the said amount appeal no. NOA 56 of 2020 be stayed.
The costs of and incidental to this matter be reserved pending the outcome of appeal no. NOA 56 of 2020.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kipling & Netis (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
ADELAIDE

Appeal Number: NOA 56 of 2020
File Number: TVC…

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 Kipling and Netis (No 2)

Details

AGLC: Kipling and Netis (No 2) [2020] FamCAFC 306
Case: [2020] FamCAFC 306
Decision Date: 2 December 2020

CaseChat Overview and Summary

In the matter of Kipling and Netis (No 2), the court was called upon to determine an application for security for costs in the context of an appeal from a family law decision. The father, the appellant, sought to appeal a decision made by the Family Court, which had been upheld by the Federal Circuit and Family Court of Australia. The mother, the respondent, applied for an order for security for costs in relation to the appeal, contending that there were serious doubts about the merits of the appeal and that the father had the financial capacity to meet the costs should the appeal be unsuccessful.

The primary legal issue before the court was whether an order for security for costs should be made, given the father's financial situation and the prospects of success of the appeal. The court considered various factors, including the merits of the appeal, the financial circumstances of the parties, and the potential impact on the administration of justice. The court found that there were significant doubts about the merits of the appeal and that it was more likely than not that the appeal would not succeed. Furthermore, the court was not convinced by the father's assertions of financial hardship, finding that he had the ability to obtain the necessary funds when required.

In light of these findings, the court determined that there was a proper basis for making an order for security for costs and that it was not apparent that the litigation would be stifled if such an order were made. Consequently, the court ordered that the father pay $10,000 within six months to the mother's solicitors as security for costs, with the amount to be held pending the outcome of the appeal. The appeal was stayed pending payment of the said amount.

Orders

Orders of the court

Orders made on 2 December 2020 *as amended on 16 December 2020 pursuant to r 17.02 of the Family Law Rules 2004 (Cth)

1. Within six months of the date hereof the father pay *to the solicitors for the mother the amount of $10,000 by way of security for the costs of the mother in relation to appeal no. NOA 56 of 2020, *with such amount being held by the solicitors pending the outcome of the appeal.

2. Pending payment of the said amount appeal no. NOA 56 of 2020 be stayed.

3. The costs of and incidental to this matter be reserved pending the outcome of appeal no. NOA 56 of 2020.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kipling & Netis (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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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