Petergrass and Vanburn and Anor (Security For Costs)

FAMILY COURT OF AUSTRALIA

PETERGRASS & VANBURN AND ANOR (SECURITY FOR COSTS) [2010] FamCA 541

FAMILY LAW – COSTS – security for costs – parties of limited financial means – no order for costs made

Family Law Act 1975 (Cth)

B and B (1986) FLC ¶91-749
Luadaka v Luadaka (1998) FLC ¶92-830
Fennessy & Gregorian (Security for Costs) [2008] FamCAFC 89

APPLICANT: Mr E Pentergrass

1^st RESPONDENT: Ms Vanburn

2^nd RESPONDENT: Mr T Pentergrass

FILE NUMBER: CAC 711 of 2007

DATE DELIVERED: 30 June 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Canberra

JUDGMENT OF: Justice Fowler

HEARING DATE: 24 June 2010

REPRESENTATION

APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Brzostowski

SOLICITOR FOR THE 2^ND RESPONDENT: Mr Nicholl

Orders

1. The husband’s Application in a Case filed 12 May 2010 as orally amended on 24 June 2010, for orders for security for costs is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Pentergrass  & Vanburn and Anor (Security for Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CAC 711  of 2007

MR E PENTERGRASS

Applicant

And

MS VANBURN

1^st Respondent

And

MR T PENTERGRASS

2^nd Respondent

REASONS FOR JUDGMENT

Introduction

1. The substantive proceedings before the Court are proceedings commenced by an application filed in a Response that orders made by the Family Court of Australia by the consent of the parties be set aside under section 79A of the Family Law Act 1975 (“the Act”), and that other orders be made.

2. That application is brought by the wife and opposed by the husband.

3. On the day of hearing the present application the husband put before the Court an Application in a Case in which the husband sought initially spousal maintenance in the sum of $20,000 and payment of security for costs in the sum of $40,000.

4. In subsequent discussion with the Court it was pointed out to the applicant that he had not procured leave to bring the spousal maintenance application as would be required having regard to the date upon which the decree for the dissolution of the parties’ marriage became absolute.

5. In the event the husband abandoned his claim for interim spousal maintenance and sought and procured leave to amend his claim to a claim for $60,000 as security for costs, in lieu of the $40,000 previously sought.

6. Whilst the applicant husband initially sought an order that the amount be paid to him by way of security for costs, he subsequently sought before the Court that the amount be paid into the Court to be held pending the determination of the substantive proceedings.

7. The husband’s evidence was encapsulated in an affidavit lodged in support of his application and in various documents tendered to the Court upon the hearing of the matter.

8. The affidavit filed by the husband contained some inadmissible material although no objection was taken to that and some material which was tendered was of insufficient…