Rilak & Tsocas (No. 3) - [2017] FamCAFC 217

FAMILY COURT OF AUSTRALIA

RILAK & TSOCAS (NO. 3)

[2017] FamCAFC 217

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – SECURITY FOR COSTS – Where the appeal has limited prospects of success – Where there are outstanding costs orders against the mother – Where an order for security for costs would likely stifle the appeal – Where there are circumstances justifying an order for security of costs – Where order conditional upon the father’s solicitors providing undertaking – Application allowed.

Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) r 19.05

Bartsch & Redman (2014) FLC 93-584
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Lawrence & Tan [2012] FamCAFC 62
Sawer & Sawer [2007] FamCA 140

APPELLANT:

Ms Rilak

RESPONDENT:

Mr Tsocas

FILE NUMBER:

SYC

2062

2010

APPEAL NUMBER:

2017

DATE DELIVERED:

13 October 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

15 August 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

11 May 2017

LOWER COURT MNC:

[2017] FamCA 289

REPRESENTATION

THE APPELLANT:

No appearance

THE RESPONDENT:

In person

Orders

The appellant’s application for an adjournment be dismissed.
The appellant’s application for recusal be dismissed.
In the event that a solicitor acting for the respondent in Appeal EA 60 of 2017 files a Notice of Address for Service and provides to the Appeal Registry and to the appellant a written undertaking that the solicitor will hold the ordered security in trust on account of any costs order that may be made in the appeal, then the appellant shall pay to those solicitors the sum of $10,000 as security for any costs ordered in the appeal to be held in accordance with the terms of the undertaking.
In the event that the security as provided in Order (3) is not paid within 28 days of compliance with Order (3), then the appeal is stayed until the order is complied with.
The costs of the application for security for costs be 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 pseudonym Rilak & Tsocas (No. 3) 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).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 60 of 2017
File Number: SYC 2062 of 2010

Ms Rilak

Appellant

and

Mr Tsocas

Respondent

REASONS FOR JUDGMENT

Ms Rilak (“the mother”), by Notice of Appeal filed on 5 June 2017, appeals against an order for…

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.

Continue reading Rilak & Tsocas (No. 3)

Details

AGLC: Rilak & Tsocas (No. 3) [2017] FamCAFC 217
Case: [2017] FamCAFC 217
Decision Date: 13 October 2017

CaseChat Overview and Summary

Rilak & Tsocas (No. 3) involved a family law appeal where the father sought security for costs. The mother had outstanding costs orders against her, which influenced the court's decision on whether to grant the father's application for security for costs. The court was tasked with balancing the need for security against the potential stifling of the appeal, considering the appeal's prospects of success and the circumstances justifying an order for security.

The court identified the primary legal issue as whether the father's appeal had limited prospects of success, which would affect the decision to grant security for costs. The court also considered the mother's outstanding costs orders and whether an order for security would likely stifle the appeal. Additionally, the court examined the circumstances that might justify an order for security of costs and the conditions under which such an order could be made.

In its reasoning, the court concluded that while the father's appeal had limited prospects of success, there were circumstances that justified an order for security of costs. The court determined that the father's application could be allowed conditionally, provided that the respondent's solicitors provided a written undertaking to hold the ordered security in trust. The court also specified that if the father did not pay the ordered security within 28 days, the appeal would be stayed until compliance. The court reserved the costs of the application for security for costs to the appeal hearing.

The final orders included dismissing the father's applications for an adjournment and recusal, and directing that the father pay $10,000 as security for costs, contingent on the respondent's solicitors providing the necessary undertaking. If the father failed to pay the security within the specified timeframe, the appeal would be stayed. The costs of the application for security for costs were reserved for the appeal hearing.

Orders

Orders of the court

The appellant’s application for an adjournment be dismissed.

The appellant’s application for recusal be dismissed.

In the event that a solicitor acting for the respondent in Appeal EA 60 of 2017 files a Notice of Address for Service and provides to the Appeal Registry and to the appellant a written undertaking that the solicitor will hold the ordered security in trust on account of any costs order that may be made in the appeal, then the appellant shall pay to those solicitors the sum of $10,000 as security for any costs ordered in the appeal to be held in accordance with the terms of the undertaking.

In the event that the security as provided in Order (3) is not paid within 28 days of compliance with Order (3), then the appeal is stayed until the order is complied with.

The costs of the application for security for costs be 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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