Matthews and Norris (No 2) - [2018] FamCAFC 138

FAMILY COURT OF AUSTRALIA

MATTHEWS & NORRIS (NO. 2)

[2018] FamCAFC 138

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – SECURITY FOR COSTS – Where the application is brought bona fide – Where the mother is an undischarged bankrupt in Australia – Where it cannot be found that an order for security for costs would stifle the appeal – Where the grounds of appeal as presented demonstrate an extremely poor prospect of success – Security for costs ordered.

Family Law Act 1975 (Cth)

Norris & Mathews [2017] FamCAFC 233

APPLICANT:

Mr Matthews

RESPONDENT:

Ms Norris

FILE NUMBER:

NCC

2226

2015

APPEAL NUMBER:

2018

DATE DELIVERED:

26 July 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

25 July 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

9 May 2018

LOWER COURT MNC:

[2018] FamCA 341

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Carty

SOLICITOR FOR THE APPELLANT:

Oliver Campbell Heslop Solicitors

THE RESPONDENT:

In person

Orders

Ms Norris pay to the trust account of Oliver Campbell Heslop Solicitors $15,000 as security for any costs ordered in the appeal prior to the appellant taking any further step in the matter.
In the event that security as provided in Order 1 herein is not paid within 30 days of the date of this order then the appeal be stayed pending compliance with the order.
The costs for the application for security for costs are reserved to the appeal hearing, however, in the event that the appeal is deemed abandoned or is dismissed, the applicant (Mr Matthews) has 28 days within which to relist his application for costs for determination.

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 Matthews & Norris 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 SYDNEY

Appeal Number: EA 54 of 2018
File Number: NCC 2226 of 2015

Mr Matthews

Applicant

And

Ms Norris

Respondent

REASONS FOR JUDGMENT

This is an application by Mr Matthews (“the applicant”) for security for costs in the amount of $15,000 to be paid by Ms Norris (“the respondent”). The application is brought in relation to an appeal (EA54 of 2018) against the dismissal of an application for contempt brought against the applicant. The respondent resists the application and, in the event that the court is satisfied that an order for security for costs should be made, the respondent contends that the amount sought is excessive.
The parties are well…

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.

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Details

Case: [2018] FamCAFC 138
Decision Date: 26 July 2018

CaseChat Overview and Summary

In Matthews and Norris (No 2), the parties were engaged in a family law appeal before the Family Court of Australia. The central issue was whether the appellant, Ms Norris, should be required to provide security for costs as a precondition for proceeding with the appeal. Ms Norris, who was an undischarged bankrupt, argued against the imposition of security for costs, highlighting her financial hardship. The legal issues before the court included whether the application for security was bona fide, whether the order would stifle the appeal, and whether the appeal had a poor prospect of success.

The court determined that the application for security for costs was made in good faith and that there was no evidence to suggest that the order would stifle the appeal. It was found that Ms Norris, being an undischarged bankrupt, was in a precarious financial situation, which made it difficult for her to meet any potential costs awarded in the appeal. Despite this, the court noted that the grounds of appeal presented were extremely weak and demonstrated a poor prospect of success. Consequently, the court concluded that it was appropriate to require Ms Norris to provide security for costs to protect the respondent from potential financial loss.

In light of the findings, the court ordered Ms Norris to pay $15,000 into the trust account of Oliver Campbell Heslop Solicitors before proceeding with the appeal. If the security was not paid within 30 days, the appeal would be stayed until compliance was achieved. The costs of the application for security were reserved for the appeal hearing, with an additional condition that if the appeal was abandoned or dismissed, the respondent would have 28 days to relist the application for costs.

Orders

Orders of the court

Ms Norris pay to the trust account of Oliver Campbell Heslop Solicitors $15,000 as security for any costs ordered in the appeal prior to the appellant taking any further step in the matter.

In the event that security as provided in Order 1 herein is not paid within 30 days of the date of this order then the appeal be stayed pending compliance with the order.

The costs for the application for security for costs are reserved to the appeal hearing, however, in the event that the appeal is deemed abandoned or is dismissed, the applicant (Mr Matthews) has 28 days within which to relist his application for costs for determination.

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

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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