Shaw and Muller - [2009] FamCAFC 118

FAMILY COURT OF AUSTRALIA

SHAW & MULLER

[2009] FamCAFC 118

FAMILY LAW - APPEAL – SECURITY FOR COSTS – where the mother is appealing against parenting orders – where the father filed an application seeking security for his costs of the appeal – found that the circumstances did not justify an order for security for costs – emphasised that in similar cases time and resources spent in arguing and opposing applications for security for costs may be better spent in determining the appeal itself – application dismissed.

Family Law Act 1975 (Cth) s 117

Adult Guardian and Mother’s Parents and B and Child’s Representative (2002) FLC 93-116
Halsbury & Halsbury [2008] FamCAFC 170
Jones & Jones (2001) FLC 93-080
Rodgers & Pisani [2007] FamCA 1510
Sawer & Sawer [2007] FamCA 140

APPLICANT:

MR SHAW

RESPONDENT:

MS MULLER

FILE NUMBER:

ADC

3461

2007

APPEAL NUMBER:

2008

DATE DELIVERED:

5 May 2009

PLACE DELIVERED:

Adelaide

JUDGMENT OF:

Finn, Coleman and Strickland JJ

HEARING DATE:

5 May 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court of Australia

LOWER COURT JUDGMENT DATE:

14 October 2008

LOWER COURT MNC:

[2008] FMCAfam 1115

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Forth

SOLICITOR FOR THE APPLICANT:

Mark Forth & Associates

COUNSEL FOR THE RESPONDENT:

Mr McQuade

SOLICITOR FOR THE RESPONDENT:

Hume Taylor & Co

Orders

The application by the father for security for costs in relation to the mother’s appeal against orders of Federal Magistrate Lindsay made on 14 October 2008 be dismissed.
The costs of and incidental to the application for security are reserved as costs in the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Shaw & Muller is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 91 of 2008
File Number: ADC 3461 of 2007

Mr Shaw

Applicant

And

Ms Muller

Respondent

REASONS FOR JUDGMENT

FINN J:

This is an application made on behalf of Mr Shaw, to whom it will be convenient to refer as “the father”, for an order that Ms Muller, “the mother”, lodge security for the costs which the father will incur as the respondent to an appeal which the mother has filed against parenting orders made by Lindsay FM on 14 October 2008. Those parenting orders essentially provided that the child of the parties' relationship, aged about four at the time - now five - and who had predominantly lived with the mother until the Federal Magistrate's orders, should, for the future, live with the father and spend defined time with the mother. The mother opposes the application for security and seeks its dismissal.
The power in this court to order security, as was recognised by Mr Forth appearing for the father today, is to be found in s 117(2) of the Family Law Act1975 (Cth) (“the Act”):
117(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that…

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 Shaw and Muller

Details

AGLC: Shaw and Muller [2009] FamCAFC 118
Case: [2009] FamCAFC 118
Decision Date: 5 May 2009

CaseChat Overview and Summary

The parties in this matter were Shaw, the father, and Muller, the mother. The dispute involved a contentious family law matter, specifically an application by the father for security for costs in relation to the mother's appeal against orders made by Federal Magistrate Lindsay on 14 October 2008. The Federal Circuit and Family Court of Australia was tasked with resolving this issue. The primary legal issue before the court was whether the father was entitled to security for costs in the context of the mother's appeal against the orders made by the Federal Magistrate. This involved an examination of the relevant case law and principles governing the grant of security for costs in family law matters.

The court considered the relevant legal principles and case law concerning the grant of security for costs in family law matters. It examined the precedents set by the High Court and the Full Court of the Family Court of Australia, which established that security for costs is not to be granted as a matter of course in family law proceedings. The court noted that the primary consideration was whether the applicant would be unable to meet their costs if the appeal were unsuccessful. In this case, the court found that the father had not demonstrated that he would be unable to meet his costs in the event that the appeal was unsuccessful. The court also considered the financial circumstances of both parties and the fact that the mother had already incurred significant costs in relation to the appeal. Based on these factors, the court concluded that the father was not entitled to security for costs.

As a result of the court's reasoning and findings, the application by the father for security for costs was dismissed. The court also made an order that the costs of and incidental to the application for security were to be reserved as costs in the appeal. This meant that the father would be responsible for the costs associated with his unsuccessful application for security for costs, and these costs would be added to the costs of the appeal. The court's decision in this case underscores the importance of demonstrating a genuine inability to meet costs when seeking security for costs in family law matters, and highlights the principle that such orders should not be granted as a matter of course.

Orders

Orders of the court

The application by the father for security for costs in relation to the mother’s appeal against orders of Federal Magistrate Lindsay made on 14 October 2008 be dismissed.

The costs of and incidental to the application for security are reserved as costs in the appeal.

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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