SCVG and KLD (No 4) - [2018] FamCA 593

FAMILY COURT OF AUSTRALIA

SCVG & KLD (NO 4)

[2018] FamCA 593

FAMILY LAW – Application for security for costs – application for security for sums not related to costs in the present matter but related to other outstanding costs orders and child support debt – application for stay pending compliance with outstanding costs and child support orders - capacity of the Court to prevent its processes being used as an abuse of process – desirability of applicant for a stay on the grounds of abuse of process to precisely identify the nature of the abuse of process rather than simply the facts said to constitute the abuse of process - application for transfer of the matter to another judicial officer.

Family Law Act 1975 (Cth) s 117(2)
Family Law Rules 2004 (Cth) r 19.05
Uniform Civil Procedure Rules 2005

Atkins & Hunt [2015] FamCAFC 66
Hearne & Hearne [2015] FamCAFC 178
Norton & Locke [2013] FamCAFC 202
Williams v Spautz (1992) 174 CLR 509

APPLICANT:

Mr SCVG

RESPONDENT:

Ms KLD

FILE NUMBER:

SYC

4380

2008

DATE DELIVERED:

8 August 2018

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

30 July 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Self-representing

COUNSEL FOR THE RESPONDENT:

Mr Stenhouse

SOLICITOR FOR THE RESPONDENT:

Macphillamy’s

Orders

Within 60 days the Applicant pay to the Respondent’s solicitor’s trust account the sum of $45,000 as security for the costs of the Respondent in these proceedings, such amount only to be removed from the trust account by written agreement of the parties or further order of the Court.
The application to set aside the orders of Justice Cronin of 20 August 2015 is stayed pending compliance with Order 1 above.
Any indulgence previously obtained by the parties regarding the mode of filing documents is revoked.
In the event that a party seeks to depart from the Rules, then that party will be required to file an application seeking such departure.
The Respondent’s amended application in a case filed 8 June 2018 is otherwise dismissed.
The matter is otherwise adjourned to 11am on 12 December 2018 for directions or in the event that parties file in accordance with the below timetable the dealing with any further applications.
In the event that a party seeks to have an application heard on 12 December 2018 that party is to file and serve such application and supporting material by close of business on 21 November 2018.
In the event that a party opposes such application or seeks alternate orders then that party is to file and serve any response and supporting evidence by close of business on 5 December 2018.

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 SCVG & KLD has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of…

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 SCVG and KLD (No 4)

Details

AGLC: SCVG and KLD (No 4) [2018] FamCA 593
Case: [2018] FamCA 593
Decision Date: 8 August 2018

CaseChat Overview and Summary

In the matter of SCVG and KLD (No 4), Gill J of the Federal Circuit Court of Australia considered an application by the Applicant to set aside previous orders made by Justice Cronin on 20 August 2015. The Respondent sought security for costs in relation to these proceedings.

The primary legal issues before the Court were whether the Applicant should be ordered to provide security for the Respondent's costs, and the consequences of non-compliance with any such order, including the stay of the Applicant's application to set aside the previous orders. The Court also addressed procedural matters concerning the filing of documents and applications.

Gill J ordered the Applicant to pay $45,000 into the Respondent's solicitor's trust account as security for costs within 60 days. The Court further ordered that the Applicant's application to set aside the orders of Justice Cronin would be stayed pending compliance with this security for costs order. The Court also revoked any previous indulgences regarding the mode of filing documents and stipulated that any future departures from the Rules would require a formal application. The Respondent's amended application filed on 8 June 2018 was otherwise dismissed. The matter was adjourned for directions, with specific timelines set for the filing of any further applications and responses.

Orders

Orders of the court

Within 60 days the Applicant pay to the Respondent’s solicitor’s trust account the sum of $45,000 as security for the costs of the Respondent in these proceedings, such amount only to be removed from the trust account by written agreement of the parties or further order of the Court.

The application to set aside the orders of Justice Cronin of 20 August 2015 is stayed pending compliance with Order 1 above.

Any indulgence previously obtained by the parties regarding the mode of filing documents is revoked.

In the event that a party seeks to depart from the Rules, then that party will be required to file an application seeking such departure.

The Respondent’s amended application in a case filed 8 June 2018 is otherwise dismissed.

The matter is otherwise adjourned to 11am on 12 December 2018 for directions or in the event that parties file in accordance with the below timetable the dealing with any further applications.

In the event that a party seeks to have an application heard on 12 December 2018 that party is to file and serve such application and supporting material by close of business on 21 November 2018.

In the event that a party opposes such application or seeks alternate orders then that party is to file and serve any response and supporting evidence by close of business on 5 December 2018.

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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