Stubbs and Stubbs - [2011] FamCA 293

FAMILY COURT OF AUSTRALIA

STUBBS & STUBBS

[2011] FamCA 293

FAMILY LAW – COSTS – Application by independent children’s lawyer for security for costs – Application dismissed

Family Law Act 1975 (Cth) ss 117(2) (2A) and (3), 68L(2) and 4, 68LA
Family Law Rules 2004 Rules 6.01 and 8.02

Lane & Holmes [2008] FamCAFC 75
Luadaka & Luadaka (1998) FLC 92-830
Penfold and Penfold (1981) 44 CLR 311

APPLICANT:

Ms Stubbs

RESPONDENT:

Mr Stubbs

FILE NUMBER:

ADC

1974

2009

DATE DELIVERED:

14 April 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

O’Reilly J

HEARING DATE:

14 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Lewis

SOLICITOR FOR THE APPLICANT:

Norman Waterhouse Lawyers

COUNSEL FOR THE RESPONDENT:

Mr McQuaid

SOLICITOR FOR THE RESPONDENT:

Caldicott & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Horvat

INDEPENDENT CHILDREN’S LAWYER:

Mr Stephen

Legal Services Commission

Orders

IT IS ORDERED

The independent children’s lawyer has leave to amend the application in a case filed 5 April 2011 in paragraph 1 by deleting the words ‘pursuant to rule 19.05(1) Family Law Rules 2004 (as amended)’ and inserting the words ‘pursuant to s 117(2) and (3) Family Law Act 1975 (Cth)’.
The application filed 5 April 2011 as so amended is dismissed.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1974 of 2009

Ms Stubbs

Applicant

And

Mr Stubbs

Respondent

REASONS FOR JUDGMENT

Application

This is an application filed on 5 April 2011 by the independent children’s lawyer for:
1.An order pursuant to Rule 19.05(1) of the Family Law Rules 2004 that each of the parties in these parenting proceedings pay to the trust account of the Legal Services Commission of South Australia $25,000 by way of security for costs incurred by the independent children’s lawyer in the proceedings to be paid within 21 days and
2.An injunction restraining the parties from disposing of assets pending such payment.
Rule 19.05(1) has no application for the reason that the independent children’s lawyer is not a respondent in any sense, as defined in the Rules, for the purpose of Rule 19.05(1), and indeed not a party to the proceedings. See section 68L(2) and (4); section 4(1) (definition of independent children’s lawyer); and section 68LA Family Law Act 1975 (Cth); and Rules 6.01 and 8.02 Family Law Rules 2004.
In these circumstances Ms Horvat desisted in reliance on Rule 19.05 and put the application instead on the basis of section 117(2) of the Act. I allowed Ms Horvat leave to amend the application in a case to delete the words ‘pursuant to Rule 19.05(1) Family Law Rules 2004 (as amended)’ and insert instead the words ‘section 117(2) and (3) Family Law Act 1975 (Cth)’.
Ms Horvat conceded during argument that if I should dismiss order 1 as sought, order 2 as sought must also be dismissed as it is predicated…

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 Stubbs and Stubbs

Details

AGLC: Stubbs and Stubbs [2011] FamCA 293
Case: [2011] FamCA 293
Decision Date: 14 April 2011

CaseChat Overview and Summary

In the matter of *Stubbs and Stubbs*, O’Reilly J considered an application filed on 5 April 2011. The specific nature of the dispute between the parties is not detailed in the provided text, beyond the fact that an independent children's lawyer sought to amend an application.

The primary legal issue before the court was whether the independent children's lawyer should be granted leave to amend the application. This amendment involved substituting the statutory basis for the application from rule 19.05(1) of the *Family Law Rules 2004* to sections 117(2) and (3) of the *Family Law Act 1975* (Cth).

O’Reilly J granted the independent children's lawyer leave to amend the application as sought. However, despite this amendment, the court ultimately dismissed the application filed on 5 April 2011.

Orders

Orders of the court

IT IS ORDERED

The independent children’s lawyer has leave to amend the application in a case filed 5 April 2011 in paragraph 1 by deleting the words ‘pursuant to rule 19.05(1) Family Law Rules 2004 (as amended)’ and inserting the words ‘pursuant to s 117(2) and (3) Family Law Act 1975 (Cth)’.

The application filed 5 April 2011 as so amended is dismissed.

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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