KNOWLES & GREEN (SECURITY FOR COSTS)

Case [2010] FamCAFC 31

FAMILY COURT OF AUSTRALIA

KNOWLES & GREEN (SECURITY FOR COSTS) [2010] FamCAFC 31

FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – DIMISSAL – Where the mother sought the father’s appeals be dismissed – Where the dismissal of the appeals would work an injustice – applications dismissed.

FAMILY LAW - APPEAL – APPLCIATION IN AN APPEAL – SECURITY FOR COSTS – Where the mother sought security for costs of the appeals – Where the husband conceded that he could provide security of $10,000.00 in a relatively short period of time – Where there is some doubt about the father’s capacity to meet any costs order in a reasonable period – Where appeal not hopeless but prospects of success not overwhelming – Security for costs in the amount of $10,000.00 not unreasonable – Father ordered to pay security for costs of the appeals in the amount of $10,000.00.
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
CDJ v VAJ (1998) 197 CLR 172
Halsbury & Halsbury [2009] FamCAFC 170
Jones & Jones (2001) FLC 93-080
Luadaka  & Luadaka (1998) FLC 92-830
O’Rourke v P & B Corporation Pty Ltd [2008] WASC 36(S)
Queensland v JL Holdings (1997) 189 CLR 146
R & R and Ors [2006] FamCA 808
Family Law Act 1975 (Cth) – s 117
Family Law Rules 2004 – Chapter 22, r 22.22(2)(a)
APPLICANT: Ms Knowles
RESPONDENT: Mr Green
FILE NUMBER: MLC 1172 of 2007
APPEAL NUMBER: SA
SA 		31
68 		of
of 		2009
2009
DATE DELIVERED: 5 March 2010
PLACE DELIVERED: Sydney
PLACE HEARD: Melbourne
JUDGMENT OF: Coleman, Boland & Austin JJ
HEARING DATE: 1 March 2010
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 15 April 2009;
25 June 2009
LOWER COURT MNC: [2009] FamCA 271; [2009] FamCA 541

REPRESENTATION

ADVOCATE FOR THE APPLICANT: Ms Knowles appeared in person
ADVOCATE FOR THE RESPONDENT: Mr Green appeared in Person

Orders

  1. That appeal Nos SA 31 of 2009 and SA 68 of 2009 be consolidated and listed for hearing sequentially.

  2. The father pay to the Registry Manager, Melbourne Registry of the Family Court of Australia on or before 31 March 2010 the sum of $10,000.00 by way of security for costs of appeals SA 31 of 2009 and SA 68 of 2009.

  3. Paragraph 1 of the mother’s application filed 3 December 2009 is dismissed.  

  4. Paragraph 1 of the mother’s application filed 18 February 2010 is dismissed. 

IT IS NOTED that publication of this judgment under the pseudonym Knowles & Green (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 MELBOURNE

Appeal Number: SA 31 of 2009; SA 68 of 2009
File Number: MLC 1172 of 2007

Ms Knowles

Applicant

And

Mr Green

Respondent

REASONS FOR JUDGMENT

Introduction  

  1. Ms Knowles filed an Application in an Appeal on 3 December 2009 (SA 31 of 2009) in which she sought orders for the…

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AGLC
KNOWLES & GREEN (SECURITY FOR COSTS) [2010] FamCAFC 31
Case
[2010] FamCAFC 31
Decision Date

CaseChat Overview and Summary

In Knowles & Green, the Court dealt with appeals stemming from a family law dispute. The mother sought the dismissal of the father's appeals and the imposition of security for the costs of those appeals. The legal issues before the court were whether the dismissal of the father's appeals would work an injustice, and whether the security for costs sought by the mother was reasonable. The court had to balance the need to prevent a party from proceeding with an appeal that has no reasonable prospect of success against the right of a party to have their appeal heard.

The court examined the father's ability to provide the security for costs within a reasonable timeframe and found that there was some doubt about his capacity to meet any costs order in a reasonable period. However, the court determined that the appeals were not entirely hopeless, though the prospects of success were not overwhelming. The court concluded that requiring the father to provide $10,000.00 as security for the costs of the appeals was not unreasonable. The appeals were consolidated and listed for hearing, and the father was ordered to pay the sum of $10,000.00 by way of security for costs of the appeals by a specified date.

The court dismissed the mother's applications seeking the dismissal of the father's appeals, finding that such a dismissal would work an injustice in the circumstances. The father was ordered to pay the security for costs of the appeals in the amount of $10,000.00 by a specified date. The appeals were to be heard sequentially following the consolidation. This outcome reflects the court's approach to balancing the interests of the parties in family law appeals while ensuring that the appeals process is not unduly hindered by financial constraints.

Orders

Orders of the court

1.

That appeal Nos SA 31 of 2009 and SA 68 of 2009 be consolidated and listed for hearing sequentially.

2.

The father pay to the Registry Manager, Melbourne Registry of the Family Court of Australia on or before 31 March 2010 the sum of $10,000.00 by way of security for costs of appeals SA 31 of 2009 and SA 68 of 2009.

3.

Paragraph 1 of the mother’s application filed 3 December 2009 is dismissed.

4.

Paragraph 1 of the mother’s application filed 18 February 2010 is dismissed.

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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