Lorenzi & Lorenzi - [2022] FedCFamC2F 1506

Federal Circuit and Family Court of Australia
(DIVISION 2)
Lorenzi & Lorenzi [2022] FedCFamC2F 1506

File number(s): NCC 2218 of 2020

Judgment of: JUDGE KEARNEY

Date of judgment: 8 November 2022

Catchwords: FAMILY LAW – Parenting – where the mother filed an application seeking the father pay for security of costs in the sum of $34,177.02 – where the application comes less than a month out from trial – where the father opposes the mother’s application – where the Court dismisses the mother’s application – where the trial remains listed.

Legislation:
Family Law Act 1975 (Cth), PT XV

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Cases cited:
Boxall & Boxall (No. 2) [2008] FamCA 587 (‘Boxall’)

Fennessy & Gregorian (security for costs) [2008] FamCAFC 89 (‘Fennessy & Gregorian’)

Hayes & Stapleton (surety for costs) [2009] FamCAFC 223 (‘Hayes & Stapleton’)

Luadaka & Luadaka (1998) FLC 92-830 (‘Luadaka’)

Division: Division 2 Family Law

Number of paragraphs: 66

Date of last submission/s: 7 November 2022

Date of hearing: 7 November 2022

Place: Newcastle

Counsel for the Applicant: Mr Tregilgas

Solicitor for the Applicant: Merridy Elphick Lawyers

Solicitor for the Respondent: Self represented

Solicitor for the Independent Children’s Lawyer: Legal Aid NSW, Newcastle Family Law

Table of Corrections

9 November 2022 In paragraph 47 the date “13 September 2021” has been corrected to show “13 September 2022”.

9 November 2022 In paragraph 60 the date “October 2021” has been corrected to show “October 2022”.

9 November 2022 In paragraph 60 (b) the date “September 2021” has been corrected to show “September 2022”.
ORDERS

NCC 2218 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS LORENZI

Applicant

AND:
MR LORENZI

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE KEARNEY

DATE OF ORDER:

8 NOVEMBER 2022

THE COURT ORDERS THAT:
1.The application for security for costs filed 21 October 2022 is dismissed.
2.The trial remains listed for hearing over two days, commencing 10.00am Wednesday 9 November 2022.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Lorenzi & Lorenzi has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
“Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Division 1) Rules 2021 (Cth) on 9…

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 Lorenzi & Lorenzi

Details

AGLC: Lorenzi & Lorenzi [2022] FedCFamC2F 1506
Case: [2022] FedCFamC2F 1506
Decision Date

CaseChat Overview and Summary

The mother filed an application for security for costs against the father in the sum of $34,177.02, less than a month before the parenting trial was due to commence. The father opposed the application, and the Independent Children's Lawyer did not take a formal position. The court had to decide whether to grant the mother's application for security for costs and, if so, in what amount. The court considered the financial circumstances of both parties, the father's prospects of success in the substantive proceedings, his failure to conduct the proceedings in a way consistent with the overarching purpose, the prospect of the relief sought stifling the proceedings, and whether the mother's delay in bringing the application caused prejudice to the father. The court found that the mother's delay in bringing the application would cause prejudice to the father, and there was no persuasive evidence that the father had access to the financial resources to make a payment for security for costs. The court was also concerned that if it made the security for costs order, the proceedings would be stifled, and the trial would proceed on an undefended basis. The court dismissed the mother's application for security for costs.

The court ordered that the application for security for costs filed on 21 October 2022 be dismissed, and the trial would commence as scheduled. The court noted that publication of this judgment by the court under a pseudonym had been approved under section 121(9)(g) of the Family Law Act 1975 (Cth).

Orders