NORRIS & MATTHEWS - [2017] FamCAFC 233

FAMILY COURT OF AUSTRALIA

NORRIS & MATTHEWS

[2017] FamCAFC 233

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother seeks expedition of her appeal against parenting orders – Whether there is a relevant circumstance which would cause the case to be given priority over other cases and to their possible detriment – Application dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – PREPARATION OF APPEAL BOOKS – Where the mother sought an order that the father be responsible for the preparation and costs of the appeal books – Where the mother has purchased the relevant transcript – Where there is considerable contention about the mother’s financial state – Where there is no reason why the burden of preparing the appeal books should shift to the father – Application dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – SECURITY FOR COSTS – Where the application is brought bona fide – Where the mother is bankrupt in Australia – Where it cannot be found that an order for security for costs would stifle the appeal – Security for costs ordered.

Family Law Act 1975 (Cth) s 94
Family Law Rules 2004 (Cth) r 12.10A

Sawer & Sawer [2007] FamCA 140

APPELLANT:

Ms Norris

RESPONDENT:

Mr Matthews

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

NCC

2226

2015

APPEAL NUMBER:

2017

DATE DELIVERED:

13 November 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

7 November 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

30 June 2017

LOWER COURT MNC:

[2017] FamCA 461

REPRESENTATION

THE APPELLANT:

In person (by telephone link)

COUNSEL FOR THE RESPONDENT:

Ms Carty

SOLICITOR FOR THE RESPONDENT:

Oliver Campbell Heslop Solicitors

SOLICITOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Batt (appearing as agent for Mr Scally, Legal Aid NSW Newcastle)

Orders

The application for expedition of Appeal EA 86 of 2017 is dismissed.
The application that the respondent be responsible for and bear the costs of the preparation of the appeal books in Appeal EA 86 of 2017 is dismissed.
Upon the written undertaking given by the solicitor for the respondent that the solicitor will hold the ordered security in trust on account of any costs order that may be made in the appeal:
(a) The appellant shall pay to the solicitor for the respondent the sum of $20,000 as security for any costs ordered in the appeal to be held in accordance with the terms of the undertaking.
(b)In the event that the security as provided in Order 3(a) herein is not paid within 28 days of the date of this order then the appeal be stayed pending compliance with the order.
The costs of the application for security for costs are reserved to the appeal hearing.

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…

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

AGLC: NORRIS & MATTHEWS [2017] FamCAFC 233
Case: [2017] FamCAFC 233
Decision Date: 13 November 2017

CaseChat Overview and Summary

The mother, an appellant in a family law matter, sought to appeal parenting orders made by a lower court. The father, the respondent, opposed the appeal on various grounds, including the expedition of the appeal process, the allocation of the costs of preparing the appeal books, and the imposition of security for costs. The appeal was heard in the Family Court of Australia. The court was required to determine whether the mother's application for expedition of the appeal should be granted, whether the father should bear the costs of preparing the appeal books, and whether the mother should be required to provide security for the costs of the appeal.

The court dismissed the mother's application for expedition of the appeal, finding that there were no relevant circumstances that would warrant giving the case priority over other cases. The court also dismissed the mother's application that the father be responsible for the preparation and costs of the appeal books, finding that there was no reason why the burden should shift to the father. The court did, however, order the mother to provide security for costs, as the application was brought bona fide and the mother was bankrupt in Australia. The court found that there was no reason to believe that the order for security for costs would stifle the appeal.

The court ordered the mother to pay $20,000 as security for any costs ordered in the appeal, to be held in trust by the father's solicitor. If the security was not paid within 28 days of the order, the appeal would be stayed pending compliance with the order. The costs of the application for security for costs were reserved to the appeal hearing. The form of the order was subject to the entry of the order in the Court's records.

Orders

Orders of the court

The application for expedition of Appeal EA 86 of 2017 is dismissed.

The application that the respondent be responsible for and bear the costs of the preparation of the appeal books in Appeal EA 86 of 2017 is dismissed.

Upon the written undertaking given by the solicitor for the respondent that the solicitor will hold the ordered security in trust on account of any costs order that may be made in the appeal:

(a) The appellant shall pay to the solicitor for the respondent the sum of $20,000 as security for any costs ordered in the appeal to be held in accordance with the terms of the undertaking.

(b) In the event that the security as provided in Order 3(a) herein is not paid within 28 days of the date of this order then the appeal be stayed pending compliance with the order.

The costs of the application for security for costs are reserved to the appeal hearing.

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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