M & F

[2005] FamCA 695

[2005] FamCA 695

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT CANBERRA   Appeal No. EA 106 of 2004

File No. CAM 2503 of 2001

BETWEEN:

M

Applicant Mother

-and-

F

Respondent Father

REASONS FOR JUDGMENT

CORAM:  Finn J
DATE OF HEARING:         28 January 2005
DATE OF JUDGMENT:     27 July 2005

APPEARANCES:

Mr Farrar, solicitor (Farrar Gesini & Dunn), appeared on behalf of the applicant mother.

The respondent father appeared on his own behalf.

APPEAL SUMMARY

MATTER:  M and F

APPEAL NUMBER:              EA 106 of 2004
(CAM 2503 of 2001) 

CORAM:  Finn J
DATE OF HEARING:           28 January 2005
DATE OF JUDGMENT:     27 July 2005

CATCHWORDS:     

FAMILY LAW – APPEAL from FEDERAL MAGISTRATE – SECURITY FOR COSTS – Principles governing an application for security for costs outlined – Financial situations of the parties, the merits of the appeal and its prospects for success, and the likelihood that the respondent would comply with an order for security discussed.

Caselaw cited:

Luadaka v Luadaka (1998) FLC 92-830

Jones v Jones (2001) FLC 93-080

Adult Guardian & Others (2002) FLC 93-116

Application for security for costs of the appeal dismissed.

Directions made for the hearing of the appeal.

1. This is an application by the mother for an order that the father lodge $2,000 with the Court by way of security for the costs of an appeal which the father has instituted in respect of orders made by Brewster FM on 15 September 2004.  Those orders essentially provided that the two children of the parties’ relationship (who were born respectively in May 1999 and August 2000) should reside with the mother and that there should be school holiday contact with the father.

Factual Background

1. At the hearing of the mother’s application for security for the costs of the appeal there was little material before me in relation to the factual background to this case.

2. However on 18 June 2003 I delivered a judgment in relation to another appeal, which the father had instituted against other orders made by Brewster FM on 9 January 2003, and which I allowed in part.  In that judgment, I recorded that on 22 August 2002 Brewster FM had made orders which permitted the mother to relocate the children’s residence from a rural area of southern New South Wales (where the father lives) to Sydney, and which also provided for contact between the father and the two children.

3. As also recorded in my judgment of 18 June 2003, further orders were made by Brewster FM in relation to the arrangements for contact between the father and the children on 13 September 2002, 9 December 2002 and 9 January 2003.  In the period between the orders of 22 August 2002 and 9 January 2003 each party filed an application (or applications) against the other alleging contravention of the orders.

4. From such material as was before me when I heard the present application, I am aware that on 28 June 2004 there was a short hearing before Brewster FM at which both parties were represented.  At that hearing his Honour made orders and procedural directions for a “final hearing” on 15 September 2004.  He also made orders in relation to contact (including the venue for “the changeover”) for the July school holidays, and he required the father to attend on a Dr L.W prior to that contact for the purpose of being briefed in relation to the asthma medication of one of the children.

5. On 8 September 2004 there was a further brief hearing before Brewster FM.  On that occasion the mother was represented by a new solicitor, Mr Farrar, and the father appeared on his own behalf by telephone link.  The purpose of that hearing appears to have been to make arrangements for the hearing on 15 September 2004.  It appears from the transcript that prior to the hearing on 8 September 2004 the matter had settled, but that that settlement had broken down, with Mr Farrar informing his Honour that there were three areas of dispute being “end of school holidays, collection point and the delivery of asthma medication” (transcript 8/09/04 at p 1, lines 18-20).

6. When the matter came before his Honour on 15 September 2004, Mr Farrar appeared for the mother and the father was represented by Ms Burgess.  The transcript of that hearing indicates that the matter was before his Honour from 10.03am to 10.47am.

7. It is not entirely clear from the transcript, but it would seem that the application before his Honour was an application by the mother in relation to the contact arrangements.  At the beginning of the hearing Mr Farrar again informed his Honour (transcript 15/09/04 at p 2, lines 22-24) that “the areas of non agreement” were the three matters mentioned at the hearing on 8 September 2004 (see paragraph 7 above).

8. Ms Burgess informed his Honour that Terms of Settlement had been filed which were “effectively what” the father sought except that he wanted “the bulk of the term school holidays” (transcript 15/09/04 at p 5, lines 35-37).

9. Discussion then ensued between his Honour, Mr Farrar and Ms Burgess about the details of the contact arrangements.  That discussion appears to have centred around one or more Minutes of Orders.  By reference to the numbers of various orders contained in those minutes, his Honour then made orders (transcript 15/09/04 at p16-20).  His Honour did not deliver any reasons for judgment, but orders in the following terms were issued by him:

   1.That all previous Orders in these proceedings are discharged.

   2.That the children [L] born … May 1999 and [R] born … August 2000 reside with the mother.

   3.That both parents have joint responsibility for the long-term care, welfare and development of the children, and day-to-day responsibility for them whilst they are in their care.

   4.That the children shall have contact with the father as follows:

   (a)For one half of each end of first term and end of third term school holiday periods alternating between the first half in even numbered years and the second half in odd numbered years

   (b)In the midyear school holidays commencing on the first Saturday after the end of the second school term and concluding on the second last day before the children return to school

   (c)From 12 noon on 24 December 2004 until 12 noon on 7 January 2005

   (d)From 12 noon on 16 January 2005 until 12 noon on 27 January 2005

   (e)For one half of all Christmas school holiday periods (other than December 2004/January 2005) being the first half of such holidays as commence in even numbered years and the second half of such holidays as commence in odd numbered years

   (f)By telephone on each of the children's birthdays, Fathers Day, Easter Sunday, Christmas Day and the father's birthday.  The mother shall ensure that the children are available to receive such phone calls between 6:30pm and 7:30pm on each of those days.  Neither parent shall monitor or record in any way such phone calls

   (g)The children shall be at liberty to call the father at their request at any other time. 

   5.That contact will commence and end at 12 noon.  When it is in the first half of the holiday it will start on the first day after school breaks up.  When it is in the second half of the holiday it will end the second last day before the children return to school.  The length of half the holidays is determined by dividing the total number of days when the children do not attend school by two.  If this is an uneven number of days contact will extend over the extra day.

   6.That changeover arrangements shall occur with the assistance of [a changeover service] provided that that Service will adopt a system whereby the children are delivered to the changeover person by one parent and transported to another location for handing over to the other parent. IT IS NOTED THAT [a changeover service] may be requested to provide a report concerning the events at the time of contact changeover.  

   7.That if [that changeover service] is unable or unavailable to facilitate the changeover, then changeover shall be at [a second centre]. In that event the contact referred to in these orders is conditional upon the father having, prior to that contact:

   (a)Telephoned the Coordinator of [the second centre] to discuss its involvement in these contact arrangements; and

   (b)Signed and delivered to [the second centre], with a copy to the mother, an undertaking that he will accept prescriptions or other information that is relevant to the health and wellbeing of the children. 

   8.That the father pay all fees of [the changeover service] and/or [the second centre].

   9.That at changeovers the mother deliver any medications relating and relevant to the children's care including [the child L’s] asthma medication.

   10.That the father administer such medication as the children may require during their time with him.  In regard to [L’s] asthma medication the father adhere to the medication regime recommended by [L’s] doctor, Dr [C]. 

   11.That each party is restrained from denigrating the other party in the presence of the children.

   AND IT IS NOTED THAT:

   (a)Each party will notify the other immediately if there is any emergency involving the children.

   (b)The mother is to keep the father informed of all medical and educational requirements of the children as soon as practicable.  Such information shall be communicated in writing. 

   (c)The mother will authorise any doctor or other professional involved in the children's health or welfare to speak directly to the father concerning those matters at any reasonable time.

   (d)The father will undertake an Anger Management Course … as soon as practicable and no later than 30 November 2004. 

   (e)Prior to commencement of the course he will provide to the mother particulars of the course including the organisation conducting the course, and place, date and time of attendance.  At the conclusion of the course the father will provide to the mother evidence verified by the organisation which conducted the course as to his attendance at it. 

   (f)The mother is undertaking counselling as recommended by Doctor [S] in his report.

   (g)The father will ensure that the children travel in approved car seats when they are in his care, and that the children travel in booster seats until that becomes inappropriate by reason of their age. 

10. On 12 October 2004 the father acting on his own behalf filed a notice of appeal against all the orders of 15 September 2004.  The grounds of appeal contained in the father’s notice of appeal are as follows:

    1.That Federal Magistrate Brewster was criminally bias (sic) when hearing the case using untested false statements provided by his wife.

    2.That FM Brewster was criminally bias (sic) when hearing the case using untested false statements provided by DR [C].

    3.That I have been denied natural justice in that FM Brewster dismissed an agreement signed and witnessed, according to the laws of The Commonwealth of Australia between [the mother] and [the father] on the 3^rd August 2004.

    4.That I have been denied natural justice in that no notice of the court appearance of the 8^th September 2004 was served on me in any way and the subsequent orders of that day have not been forwarded to me.

    5.That FM Brewster deliberately ignored the report by DR [S] requested by [the mother] and ordered by him on the 13^th April 2004.

    6.That all the vexatious allegations of sexual abuse, violence and harassment have been used to deny me legal access to my children since November 2003.

    7.That FM Brewster deliberately showed bias in not testing [the mother’s] serious allegations because of there incriminating nature.

    8.That in an unbiased court the mother … would suffer greatly under the Laws of the Commonwealth of Australia.

    9.That in an unbiased court the children [L] and [R] would be afforded all the legal rights of a child living in Australia under the Laws of the Commonwealth of Australia.

    10.That FM Brewster did deliberately and purposely pervert the course of justice in his actions while dealing with this matter.

11. The orders sought in the notice of appeal are as follows:

    1.That the court deal with Federal Magistrate Brewster according to the laws of the Commonwealth of Australia.

    2.That the court order a new hearing in a Sydney court with a new Magistrate to allow natural justice to accure (sic).

    3.That the court place the children [L] and [R] in the care of their natural father.

    4.That children remain in the care of their father until,

    a)A new hearing is complete

    b)The NSW Police investigation is complete.

    5.That all costs incurred by the father relating to this action since the 21^st March of 2004 be paid by the responded (sic) mother.

12. A direction was made on 14 October 2004 by the Chief Justice of this Court pursuant to s 94AAA of the Family Law Act (“the Act”) that I as a single Judge should determine this appeal.

13. On 19 November 2004 the mother through her solicitors filed her application for security for the costs of the appeal.  The exact terms of the orders sought in her application are as follows:

    1.Within twenty eight (28) days of this Order the Appellant [father] lodge $2,000 with this Court by way of security for the costs of his Appeal.

    2.The Appeal be stayed until such time as the Appellant lodges the said sum.

14. The mother’s application was heard by me on 28 January this year (2005) with Mr Farrar again representing the mother and the father appearing on his own behalf.

15. Before considering the submissions made to me at that hearing, it will be useful to set out the principles which govern an application for security in relation to the costs of an appeal.

The principles governing this application

1. The principles governing an application for security for the costs of an appeal against an order made under the Act as determined by the Full Court of this Court in its decisions in Luadaka v Luadaka (1998) FLC 92-830 and in Jones v Jones (2001) FLC 93-080, are usefully set out in the following passage from the decision of the Full Court in Adult Guardian & Others (2002) FLC 93-116:

   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 Enterpreises 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."

Discussion of the issues

1. Against the background of the above-mentioned principles (which now find some expression in Rule 19.05(2) of the Family Law Rules) Mr Farrar relied on the following matters in support of the mother’s application for security:

   ·the mother’s financial position;

   ·the prospect of success or the merits of the appeal;

   ·the issue of whether an order for security would stifle the litigation;

   ·the likely costs of the appeal, which were estimated for the mother at $3,000; and

   ·the fact that neither party was in receipt of legal aid.

2. As to the financial situation of the mother it emerged from her oral evidence both in chief and under cross-examination that:

   ·she received a fortnightly pension of about $700;

   ·she receives child support of $21.67 per month;

   ·with income from part time work, her income has been in the region of $12,000 to $14,000 over the last three years;

   ·she owes her parents about $40,000 on account of litigation and other expenses; and

   ·she has other debts totalling about $5,000.

3. However she also owns an unencumbered house which she conceded could have a value of $600,000, and has a second house which is subject to a substantial mortgage.

4. In this context it is also convenient to consider the father’s financial situation, which while apparently better than that of the mother in terms of income, is far less advantageous in asset terms.  I understood the father’s evidence to be that he earns $1,000 per week; he owns no real estate or other substantial asset; and that he has no savings.  I also understood his evidence to be that he does have “a cash flow problem” but that he could either borrow to pay any cost orders or meet it by instalments of $100 per week.

5. I mention here that I understood it to be Mr Farrar’s submission that because the father had explained how he could arrange to meet a costs order, an order for security would therefore not stifle the litigation.

6. However the fact that the father could make arrangements for a costs order to be met might also indicate that an order for security is unnecessary.

7. As to the merits of the appeal or its prospects of success, Mr Farrar provided me with a detailed analysis of each of the father’s grounds of appeal with a view to establishing that no ground had substance and that the appeal would therefore fail.  I have to say that at the time I heard Mr Farrar’s submissions, I found them highly persuasive on the issue of the merits of the appeal and/or on its likely outcome, and also on the weight that that issue should be given in my determination of the application for security.

8. However having reflected on these matters and having been able to consider more carefully the transcript of the hearing before Brewster FM on 15 September 2004, I am now less persuaded by Mr Farrar’s submissions than I originally was.

9. It is true that the father’s grounds of appeal are for the most part not in conventional form – indeed a number of them could be said to contain no trace of a recognizable or competent ground of appeal, and a number of them could be said to border on the offensive in their language.

10. It is also true that any appeal by the father would face the hurdle that he was represented at the hearing on 15 September 2005, and thus, at least as a general rule, would be bound by the course adopted by his legal representative at that hearing.

11. Nevertheless one of the father’s grounds (ground 5) appears to contain the assertion that his Honour did not have regard to the recommendations of the expert, Dr S.  It appears from pages 15 and 16 of the transcript of the hearing on 15 September 2004 that the father through his solicitor relied at the hearing on that day on the recommendations of Dr S about the time which the children should spend with the father, but that his Honour ultimately rejected those recommendations.  A trial Judge or Magistrate is of course entitled to reject the recommendations of an expert, but as a general rule should give reasons for so doing.  As I said earlier, his Honour did not deliver formal reasons for judgment – no doubt because he believed he was dealing with a matter which had largely been settled.  It is therefore necessary to look to the transcript for his Honour’s reasons. 

12. It would seem from the transcript that his Honour had before him the expert’s report, an affidavit of the mother, and also one or more Minutes of Orders.  None of those documents were relied on at the hearing of the application for security.  Thus it is impossible for me at this stage to inform myself of his Honour’s reasons for departing from Dr S’s recommendations or indeed of the extent of that departure.  I thus cannot be satisfied that there is no merit in at least one of the grounds of appeal.

13. However, for the assistance of the father I must emphasise that the views which I have just expressed do not mean that his appeal will ultimately succeed.  The position simply is that on the material before me I cannot be satisfied that the appeal has no chance of success (as was submitted by Mr Farrar.)

14. There is a further matter which I consider has significance in this case, and which militates against an order for security.  That is that in her affidavit in support of her application for security, the mother stated (paragraph 5):

    I say that the appellant would not comply with an order for costs at the conclusion of these proceedings…

15. The father cross-examined the mother as to why she had made this statement.  I understood her response to be that she did not trust the father’s word and that she had difficulty in obtaining child support from him.  However the mother gave no evidence of any history of a failure by the father to comply with costs orders.

Conclusion

1. It must be remembered that whatever the case-law or the Rules of Court may provide, the fundamental rule which governs this Court’s power to make an order for security for costs, and which was emphasised by the Full Court in Luadaka, is that contained in s 117(2) of the Act. That rule is that if “the court is of the opinion that there are circumstances that justify it in doing so, the court may… make such orders as to… security for costs…” (emphasis added).

2. Having considered the matters which the authorities indicate may be relevant to the exercise of the discretion to award security and which were relied on before me (being principally, the financial circumstances of the parties, the merits of the appeal and the likelihood of the appellant being able to meet and to comply with any order for costs made against him), I am not satisfied that the circumstances in this case justify the making of an order that the appellant father lodge security in respect of the costs of the appeal.  I will therefore dismiss the mother’s application for such security.

Future course of this appeal

1. The first available date on which I could hear this appeal is Wednesday, 21 September 2005 in Canberra.  I will list the hearing on this date subject to either party advising me at the time of delivery of this judgment or the Appeal Registrar subsequently that it is unsuitable.

2. As a result of discussions at a procedural hearing in relation to this appeal on 22 November 2004, I understood that the following documents were before the Federal Magistrate on 15 September 2004, and therefore should be before me at the hearing of the appeal:

   (1)Notice of Appeal filed 12 October 2004;

   (2)Order of Federal Magistrate Brewster made 15 September 2004;

   (3)Order of Federal Magistrate Brewster made 28 June 2004;

   (4)Affidavit of the mother filed 6 September 2004;

   (5)Amended application of the mother filed 12 February 2004;

   (6)Affidavit of the mother filed 9 February 2004;

   (7)Two (2) undated documents headed “Father’s Minute of Orders Sought”;

   (8)Updated report by 30A expert, Dr [S], dated 27 April 2004;

   (9)Report by 30A expert, Dr [S], dated 20 November 2001;

   (10)Affidavit of [J C] filed 6 September 2004;

   (11)Transcript of proceedings before Federal Magistrate Brewster on 28 June 2004;

   (12)Transcript of proceedings before Federal Magistrate Brewster on 8 September 2004;

   (13)Transcript of proceedings before Federal Magistrate Brewster on 15 September 2004.

3. I will include the usual directions in relation to the documents to be before the Court at the appeal and in relation to the filing of written summaries of argument by both parties, in my orders at the conclusion of this judgment.

Orders

1. That the application by the mother filed 19 November 2004 for an order for security in relation to the costs of the appeal filed by the father on 12 October 2004 be dismissed.

2. That the father’s appeal be listed for hearing before the Honourable Justice Finn at Canberra at 10.00am on Wednesday, 21 September 2005.

3. That the following documents be before the Court at the hearing of the appeal:

   (a)Notice of Appeal filed 12 October 2004;

   (b)Order of Federal Magistrate Brewster made 15 September 2004;

   (c)Order of Federal Magistrate Brewster made 28 June 2004;

   (d)Affidavit of the mother filed 6 September 2004;

   (e)Amended application of the mother filed 12 February 2004;

   (f)Affidavit of the mother filed 9 February 2004;

   (g)Two (2) undated documents headed “Father’s Minute of Orders Sought”;

   (h)Updated report by 30A expert, Dr [S], dated 27 April 2004;

   (i)Report by 30A expert, Dr [S], dated 20 November 2001;

   (j)Affidavit of [J C] filed 6 September 2004;

   (k)Transcript of proceedings before Federal Magistrate Brewster on 28 June 2004;

   (l)Transcript of proceedings before Federal Magistrate Brewster on 8 September 2004;

   (m)Transcript of proceedings before Federal Magistrate Brewster on 15 September 2004.

   AND THE COURT NOTES that it has a copy of all documents listed in Order 3 and that there is no necessity for either party to provide the Court with copies of those documents.

4. That the appellant father serve upon the solicitor for the respondent mother and file at the Canberra Registry of the Court … a written summary of argument (and a list of authorities, if any) by 4.00pm on Monday, 5 September 2005.

5. That the solicitor for the respondent mother serve upon the appellant father and file at the Canberra Registry of the Court … a written summary of argument (and a list of authorities, if any) by 4.00pm on Wednesday, 15 September 2005.

6. That to the extent that these orders do not comply with any provision of the Family Law Rules, then such compliance be dispensed with.

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

Associate