Tobey & Rezek (No. 2) - [2012] FamCAFC 133

FAMILY COURT OF AUSTRALIA

TOBEY & REZEK (NO. 2)

[2012] FamCAFC 133

FAMILY LAW ─ APPEAL ─ Application for security of costs ─ Security for costs ordered in reliance upon the appellant’s longstanding failure to comply with costs order against him in previous appeal ─ Court not satisfied that the appellant lacked capacity to pay outstanding costs of previous appeal, and lodge security for costs of present appeal ─ Hearing of appeal stayed unless appellant pays outstanding costs of previous appeal, and has lodged security for costs for present appeal

Family Law Act 1975 (Cth)

Luadaka and Luadaka (1998) FLC 92-830

APPELLANT:

Mr Tobey

RESPONDENT:

Ms Rezek

INDEPENDENT CHILDREN’S LAWYER:

Evans Family Lawyers

FILE NUMBER:

CAC

740

2008

APPEAL NUMBER:

2012

DATE DELIVERED:

22 August 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, Ainslie-Wallace and Ryan JJ

HEARING DATE:

22 August 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

14 December 2011

LOWER COURT MNC:

FMCAfam 1336

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Self represented

COUNSEL FOR THE RESPONDENT:

Mr Hopkins

SOLICITOR FOR THE RESPONDENT:

Legal Aid Commission ACT

Orders

That the hearing of the appellant father’s Notice of Appeal filed 28 March 2012 is stayed pending further order of the Full Court provided that, if by 1 October 2012 the appellant father has:
(a)paid $5000 to the respondent mother pursuant to the costs order made by the Full Court on 8 April 2011; and
(b)lodged security for the mother’s costs of the father’s appeal in the sum of $7,500
then the appeal will hereof be heard before a bench of three (3) Judges in Canberra on 24 October 2012.
That the appellant father pay to the respondent mother the costs of the application filed on 16 March 2012 as agreed and assessed in the sum of $2,200.
That the appellant father file and serve a summary of argument for the hearing of the appeal by the 1 October 2012 in the event that Order 1 hereof is complied with by that date.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tobey & Rezek (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 14 of 2012

File Number: CAC 740 of 2008

Mr Tobey

Appellant

And

Ms Rezek

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

coleman j

Before the Court for determination is an application by Ms Rezek (“the mother”), that Mr Tobey (“the father”), provide security for the costs of the hearing of a Notice of Appeal filed by the father on 28 March 2012. By his Notice of Appeal, the father challenges parenting and financial orders made by Neville FM on 14 December 2011. The father resists the mother’s application for security for the costs of the appeal.
As the evidence before the Court, and…

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 Tobey & Rezek (No. 2)

Details

AGLC: Tobey & Rezek (No. 2) [2012] FamCAFC 133
Case: [2012] FamCAFC 133
Decision Date: 22 August 2012

CaseChat Overview and Summary

Tobey & Rezek (No. 2) is an appeal by a father against a decision made by the Family Court regarding child support and property settlement. The matter was heard in the Full Court of the Family Court of Australia. The father sought to appeal a decision made in relation to child support and property settlement in a case that had been ongoing for several years. The father argued that the Family Court had erred in its assessment of the parties’ respective financial situations and that the resulting orders were unjust.

The legal issues before the court included whether the father had complied with the conditions set out in the court's previous orders and whether the appeal should be heard by a bench of three judges. The court was also required to consider whether the father had provided sufficient security for the mother's costs of the appeal. The reasoning of the court was based on the conditions set out in a previous order made by the Full Court on 8 April 2011, which required the father to pay a certain amount to the mother and to provide security for the mother's costs of the appeal. The court found that the father had not complied with these conditions and therefore stayed the hearing of the appeal. The court also ordered the father to pay the mother's costs of the application and to file a summary of argument by a certain date.

In summary, the court held that the father's appeal would be stayed unless he complied with certain conditions by a specified date, including paying a sum of money to the mother and lodging security for the mother's costs of the appeal. The court also ordered the father to pay the mother's costs of the application and to file a summary of argument by a certain date. The final orders of the court were that the appeal be stayed pending further order of the Full Court, that the father pay the mother's costs of the application, and that the father file and serve a summary of argument by a certain date if the conditions were met.

Orders

Orders of the court

That the hearing of the appellant father’s Notice of Appeal filed 28 March 2012 is stayed pending further order of the Full Court provided that, if by 1 October 2012 the appellant father has:

(a) paid $5000 to the respondent mother pursuant to the costs order made by the Full Court on 8 April 2011; and

(b) lodged security for the mother’s costs of the father’s appeal in the sum of $7,500

then the appeal will hereof be heard before a bench of three (3) Judges in Canberra on 24 October 2012.

That the appellant father pay to the respondent mother the costs of the application filed on 16 March 2012 as agreed and assessed in the sum of $2,200.

That the appellant father file and serve a summary of argument for the hearing of the appeal by the 1 October 2012 in the event that Order 1 hereof is complied with by that date.

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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