RBP and Ors & DEP

Case [2005] FamCA 696


[2005] FamCA 696

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT SYDNEY   Appeal No. of EA 28 of 2005
  File No. of CAF 741 of 2003

IN THE MATTER OF:

RBP AND EP

1st Applicant

AND

CJS

2nd Applicant

AND

DEP

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

CORAM: KAY, COLEMAN  AND MAY JJ
DATE OF HEARING: 7th day of June 2005
DATE OF JUDGMENT: 7th day of June 2005

APPEARANCES:

Mr Blank

Of counsel for the 1st Applicant

Mr Dura

Of counsel for the 2nd Applicant

Mr Elmaraazey

for the Respondent

Name of Appeal  RBP & EP & CJS & DEP
Appeal Number  EA 28/2005
Date of Appeal hearing                   7th day of June 2005
Date of Judgment  7th day of June 2005
Coram  Kay, Coleman, May JJ

Catchwords:   Respondents’ application for security for costs. Principles enunciated in Luadaka v Luadaka (1998) FLC 92-830, as confirmed with respect to applications for security for costs in Jones v Jones (2001) FLC 93-080, applied – accepted that appeal bona fide, however, appellant unlikely to be able to satisfy an order for costs if appeal unsuccessful and considerable difficulty likely to be encountered in enforcing such an order which would have significant adverse impact on the respondents – no evidence of “strongly arguable case on behalf of the appellant” - Pederson v Vega Lira [2003] FamCA 1383 followed. Respondent mother likely to adopt submissions of respondent paternal grandparents at hearing of the appeal. Appropriate order that appellant provide security for costs.

Security for costs ordered in favour of paternal grandparents.
Mother’s application for security for costs dismissed.
Applicant to contribute to respondent paternal grandparents’ costs.

  1. These are applications for security for costs in relation to the appeal which was instituted by the father, by filing a Notice of Appeal on 21 March 2005 against orders made by Faulks DCJ on 24 February 2005. 

  2. The applicants for security for costs are the respondents to such Notice of Appeal; they being the paternal grandparents and  the mother. 

  3. The paternal grandparents and the mother through their counsel seek that the father provide security for costs in the terms set out by each of them in material filed in support of their applications. 

  4. The proceedings before Deputy Chief Justice Faulks related to residence and contact of the child who was born in June 1999.  The reasons for judgment of the Deputy Chief Justice make clear that his Honour found the child to have lived for the bulk of his life with the paternal grandparents and to have had contact, which included substantial contact on an interim basis, with each of his natural parents pursuant to orders of the Court. 

  5. Before the trial Judge there was a welfare report.  His Honour clearly saw the relevant adults cross-examined and heard submissions. 

  6. The law which governs the applications is not in doubt and does not require re-stating in the context of these applications.  It has, in recent years,…

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RBP and Ors and DEP [2005] FamCA 696
Case
[2005] FamCA 696
Decision Date

CaseChat Overview and Summary

The Full Court of the Family Court of Australia considered an application for security for costs brought by the respondent paternal grandparents against the appellant. The dispute arose in the context of an appeal, where the respondents sought to ensure that the appellant would be able to meet any costs order made against them should the appeal be unsuccessful.

The primary legal issue before the Court was whether the appellant should be ordered to provide security for the costs of the appeal. This required the Court to consider the principles governing applications for security for costs, particularly in the context of family law appeals, and to assess the likelihood of the appellant being able to satisfy a costs order and the potential difficulties in enforcing such an order.

The Court applied the principles established in *Luadaka v Luadaka* and confirmed in *Jones v Jones*, which govern applications for security for costs. While acknowledging that the appeal was brought *bona fide*, the Court found that the appellant was unlikely to be able to satisfy an order for costs if the appeal failed. Furthermore, significant difficulties were anticipated in enforcing any such order, which would have a substantial adverse impact on the respondents. The Court also noted the absence of evidence demonstrating a "strongly arguable case on behalf of the appellant," following the approach in *Pederson v Vega Lira*. Given that the respondent mother was likely to adopt the submissions of the paternal grandparents, the Court determined that it was appropriate to order security for costs in favour of the paternal grandparents.

Consequently, the Court ordered that the appellant provide security for the costs of the respondent paternal grandparents. The mother’s application for security for costs was dismissed, and the appellant was ordered to contribute to the respondent paternal grandparents’ costs.

Orders

Orders of the court

Security for costs ordered in favour of paternal grandparents.

Mother’s application for security for costs dismissed.

Applicant to contribute to respondent paternal grandparents’ costs.

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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