O and G - [2003] FMCAfam 192

FEDERAL MAGISTRATES COURT OF AUSTRALIA

O & G

[2003] FMCAfam 192

CHILD SUPPORT – Application for security for costs by unrepresented litigant – where security is required for future legal costs – where applicant for a departure order has been in default of previous costs orders – where applicant for departure is in arrears with child support – the matters to be considered in such an application – where protective orders are necessary.

Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth), s.117

Cachia v Hanes (1994) 179 CLR 403
Dobree v Hoffman (1996) 18 WAR 36
Thomas Lee Jackson and Carolyn Patricia Hamer (Unreported, Butler J,
16 March 1993)
Alexander and Alexander (1977) FLC 90-257
Luadaka and Luadaka (1998) FLC 92-830
Jones and Jones (2001) FLC 93-080
Adult Guardian & Mother’s Parents & B & Child’s Representative [2002] FamCA 874
Dillon v Baltic Shipping Co (1991) 102 ALR 482

Applicant:

DMO

Respondent:

KEG

File No:

BRM 4812 of 2002

Delivered on:

11 June 2003

Delivered at:

Parramatta

Hearing date:

30 May 2003

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr D Dura

Solicitors for the Applicant:

Jones Lawyers, Qld

For the Respondent:

Self Represented

ORDERS

Upon the mother providing the father by prepaid ordinary post at his address given in his affidavit with a copy of a letter from a firm of solicitors confirming that they have agreed to act on behalf of the mother in connection with the proceedings for departure order commenced by the father on 22 March 2002 in Brisbane but now transferred to Parramatta, the father shall, within 14 days, pay into the Trust Account of his solicitors Kieran Gerard McCarthy Jones Lawyers of Level 32, 33 Queen Street, Brisbane the sum of $2,000.00 by way of security for the costs of the mother in relation to the said proceedings. The said sum shall be held by the solicitors pending the outcome of the proceedings or further order of this court. In the event that the said solicitors shall cease to act for the father they should be at liberty to apply to the court for orders releasing the said sum from the Trust Account.
The mother has liberty to apply to this court for further orders for security in accordance with the rules.
The in event that the father does not abide by this order the proceedings between the parties under the Child Support Act be stayed.
Liberty to apply.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

BRM 4812 of 2002

DMO

Applicant

And

KEG

Respondent

REASONS FOR JUDGMENT

This application for security of costs made by the respondent mother in the applicant father’s claim for a departure order under the Child Support (Assessment) Act 1989 (Cth) (“the Child Support Act”) raises first the interesting problem of whether a self represented litigant can make such an application so as to provide for security for the costs of legal representation in the forthcoming proceedings which, she claims, she could only…

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: O and G [2003] FMCAfam 192
Case: [2003] FMCAfam 192
Decision Date: 11 June 2003

CaseChat Overview and Summary

The case before the court involved a dispute between the mother and the father regarding financial security for the mother's costs in child support proceedings. The father had initiated proceedings for a departure order in Brisbane, which were subsequently transferred to Parramatta. The mother sought an order for the father to provide financial security for her costs. The court was tasked with determining whether the father should be required to deposit a specified amount into the trust account of his solicitors as security for the mother's costs and what conditions should accompany this order.

The central legal issue was whether the father should be compelled to provide financial security for the mother's costs in the child support proceedings. This involved assessing the financial circumstances of both parties, the necessity of such an order to ensure fairness in the proceedings, and the appropriate amount and conditions for any security to be provided. The court considered the mother's need for financial support to adequately defend herself in the proceedings and the father's capacity to provide such support.

The court ruled that the father should deposit $2,000 into the trust account of his solicitors as security for the mother's costs. This sum was to be held pending the outcome of the proceedings or any further order of the court. The court also granted the mother the liberty to apply for further orders for security if necessary. If the father failed to comply with the order, the court mandated that the child support proceedings be stayed. The court emphasised the importance of ensuring that both parties could participate fairly in the proceedings without undue financial burden.

The final orders required the father to deposit the specified amount into his solicitors' trust account within 14 days of receiving confirmation from the mother that she had engaged legal representation. The court also provided the mother with the right to apply for additional security if needed and stipulated that the child support proceedings would be stayed if the father did not comply with the order. The court further granted liberty to apply for any further orders.

Orders

Orders of the court

Upon the mother providing the father by prepaid ordinary post at his address given in his affidavit with a copy of a letter from a firm of solicitors confirming that they have agreed to act on behalf of the mother in connection with the proceedings for departure order commenced by the father on 22 March 2002 in Brisbane but now transferred to Parramatta, the father shall, within 14 days, pay into the Trust Account of his solicitors Kieran Gerard McCarthy Jones Lawyers of Level 32, 33 Queen Street, Brisbane the sum of $2,000.00 by way of security for the costs of the mother in relation to the said proceedings. The said sum shall be held by the solicitors pending the outcome of the proceedings or further order of this court. In the event that the said solicitors shall cease to act for the father they should be at liberty to apply to the court for orders releasing the said sum from the Trust Account.

The mother has liberty to apply to this court for further orders for security in accordance with the rules.

The in event that the father does not abide by this order the proceedings between the parties under the Child Support Act be stayed.

Liberty to apply.

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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