Malcher & Malcher (Security for Costs)

The appeal before the Family Court of Australia was brought by a husband, who ordinarily resides outside Australia, against a decision of the Federal Circuit Court of Australia concerning a family law matter. The wife, the original respondent in the lower court, became the respondent in the appeal, and the Independent Children’s Lawyer was also involved. The husband sought to challenge the decision of the lower court and, in conjunction with the appeal, applied for security for costs and an extension of time to file certain documents.

The court had to determine whether to grant the husband’s application for security for costs, considering his poor financial position and the likelihood that an order would stifle the appeal. The court also needed to decide if the delay in bringing the application and the husband’s unlikelihood to comply with an order for costs if the appeal was unsuccessful should affect the decision. Furthermore, the court had to consider the arguability of the appeal and the balance of matters raised before making a decision on the security for costs application.

The court dismissed the application for security for costs, finding that the husband’s financial position and the other factors weighed against making such an order. The appeal was considered arguable, and the delay in bringing the application, along with the husband’s potential non-compliance with a costs order, were significant considerations. The court granted the husband’s application for an extension of time to file the electronic transcript, Summary of Argument, and List of Authorities, as well as the corresponding application made by the wife and the Independent Children’s Lawyer.

The court made several orders, including dismissing the application for security for costs, extending the time for the appellant husband to file and serve the electronic transcript up to and including 10 November 2017, and extending the time for the appellant husband, the respondent wife, and the Independent Children’s Lawyer to file and serve their respective Summaries of Argument and Lists of Authorities. The form of the order was subject to the entry of the order in the Court’s records.