Stapleton & Bryant (Security for Costs)

[2009] FamCAFC 63

FAMILY COURT OF AUSTRALIA

STAPLETON & BRYANT (SECURITY FOR COSTS) [2009] FamCAFC 63

FAMILY LAW – APPLICATION IN AN APPEAL – SECURITY FOR COSTS – Where the respondent mother sought the father lodge security in relation to his appeal against the parenting orders of the trial Judge – Where having regard to the father’s earning capacity an order for security would not stifle the litigation – Where outstanding costs orders in favour of the mother – Where father failed to disclose financial position – Where Court unable to discern any ability to meet a costs order – Application granted

FAMILY LAW – APPLICATION IN AN APPEAL – SECURITY FOR COSTS – Where the father sought the mother lodge security for costs in relation to his appeal against the orders of the trial Judge – Where the father sought the mother’s solicitor lodge security for costs in relation to his appeal against the orders of the trial Judge – Where father’s application misconceived – Application dismissed

FAMILY LAW – APPLICATION IN AN APPEAL – PROVISION OF TRANSCRIPT – Where respondent mother sought an order that the father provide transcript of the proceedings before the trial Judge – Where father asserted he could not afford transcript – Where father warned of difficulties of successfully prosecuting an appeal against a discretionary judgment without transcript – Application dismissed

FAMILY LAW – APPLICATION IN AN APPEAL – Where father sought under order under s 118 against the mother and the mother’s solicitor – No merit in orders sought – Where father sought issue of subpoena directed to Legal Aid Commission – No basis for subpoena demonstrated – No orders made

FAMILY LAW – COSTS – Where mother’s application for security for costs was successful – Where father’s application was unsuccessful – Father ordered to pay the mother’s costs of the application

Family Law Act 1975 (Cth) – ss 117, 118
Family Law Rules 2004 (Cth) – r 1.10, r 22.09(1), r 22.18, r 22.20, r 22.22

CDJ v VAJ (1998) 197 CLR 172
Fennessy & Gregorian(Security for Costs) [2008] FamCAFC 89
Halsbury & Halsbury [2008] FamCAFC 170
Jones & Jones (2001) FLC 93-080
Luadaka  & Luadaka (1998) FLC 92-830

APPLICANT: Ms Stapleton

RESPONDENT: Mr Bryant

INDEPENDENT CHILDREN’S LAWYER: Ms Hamilton

FILE NUMBER: MLC 553 of 2007

APPEAL NUMBER: SA 56 of 2008

DATE DELIVERED: 28 April 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Melbourne

JUDGMENT OF: May, Boland & Stevenson JJ

HEARING DATE: 11 March 2009

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 18 June 2008 (orders made 19 June 2008)

LOWER COURT MNC: [2008] FamCA 451

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Testart

SOLICITOR FOR THE APPLICANT: Jeremy Harper & Associates

ADVOCATE FOR THE RESPONDENT: Mr Bryant appeared in person

Orders

1. That the father file and serve any amended Notice of Appeal on which he seeks to rely on or before 1 May 2009.

2. That the amended Notice of Appeal referred to in Order 1 of these orders shall…