Yates and Yates (No 2) - [2011] FamCAFC 169

FAMILY COURT OF AUSTRALIA

YATES & YATES (NO. 2)

[2011] FamCAFC 169

FAMILY LAW – APPLICATION IN AN APPEAL – SECURITY FOR COSTS – where there was no appearance by or on behalf of the respondent – where there was no evidence as to the anticipated costs of the appeal – where the application was adjourned for further evidence as to the costs of the appeal and for the respondent to make submissions if appropriate.

APPLICANT:

Ms Yates

RESPONDENT:

Mr Yates

INDEPENDENT CHILDREN’S LAWYER:

Mr Patrick Fitzgerald

FILE NUMBER:

HBC

506

2009

APPEAL NUMBER:

2010

DATE DELIVERED:

17 August 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

17 August 2011

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

7 September 2010

LOWER COURT MNC:

[2010] FamCA 775

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McVeity

SOLICITORS FOR THE APPLICANT:

Bishops Barristers & Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Munro

SOLICITORS FOR THE RESPONDENT:

Munro & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Fitzgerald

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of Tasmania

Orders

The application filed by the wife on 8 March 2011 be adjourned for further consideration to 10.00am (EST) on Wednesday 31 August 2011.
On or before the close of business on Friday 26 August 2011 the wife file and serve an affidavit detailing the anticipated costs of the appeal.
Leave be given to both parties and their legal representatives to attend the said hearing by way of telephone link.

Noting that

The legal representative for the parties will provide to the Southern Appeal Registrar at the earliest opportunity their preferred telephone numbers for the purposes of the hearing on Wednesday 31 August 2011.

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 76 of 2010
File Number: HBC 506 of 2009

Ms Yates

Applicant

And

Mr Yates

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This matter comes before me today on the wife’s application in an appeal filed on 8 March 2011 seeking an order by way of security for costs, and a consequential order that if security is not lodged in accordance with any order that is made, the appeal be dismissed.

Mr McVeity of counsel has appeared for the wife who is the applicant in this matter. There has been no appearance by or on behalf of the husband, who is the respondent to the application.

This hearing is being conducted by way of telephone link given that the parties and counsel reside in Tasmania and I am sitting in the Adelaide Registry. We have not been able to contact Mr Munro who we understood was appearing for the husband, and nor has his office been able to contact him. Nevertheless I have proceeded with the hearing today 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 Yates and Yates (No 2)

Details

AGLC: Yates and Yates (No 2) [2011] FamCAFC 169
Case: [2011] FamCAFC 169
Decision Date: 17 August 2011

CaseChat Overview and Summary

The case of Yates and Yates (No 2) involved a dispute between the parties regarding an application filed by the wife on 8 March 2011, which was subsequently adjourned for further consideration. The case was heard in the Australian court system, with the appeal being managed by the Southern Appeal Registrar. The central issue before the court was the determination of the anticipated costs associated with the appeal, as well as the logistics of allowing the parties and their legal representatives to attend the hearing via telephone link. The court had to decide on the procedural steps necessary to facilitate this, including the provision of preferred telephone numbers for the hearing.

The legal issues at hand required the court to balance the procedural requirements of the appeal with the need to manage costs effectively and ensure fair access to the judicial process. Specifically, the court needed to address the wife's request for an adjournment, her obligation to detail the anticipated costs of the appeal, and the logistical arrangements for a virtual hearing. The court also had to consider the implications of allowing remote participation in the hearing, ensuring that all parties could adequately present their cases and participate in the proceedings.

In resolving these issues, the court determined that the application filed by the wife should be adjourned for further consideration on a specified date. The court further mandated that the wife must file and serve an affidavit detailing the anticipated costs of the appeal by a particular deadline. Additionally, the court granted leave for both parties and their legal representatives to attend the hearing via telephone link, provided that they communicated their preferred telephone numbers in advance. This decision was aimed at streamlining the appeal process, controlling costs, and ensuring that the proceedings could proceed efficiently and fairly.

The court's final orders included the adjournment of the wife's application, a requirement for the wife to detail the anticipated costs of the appeal, and permission for the parties to participate in the hearing via telephone link. These orders were designed to facilitate the smooth progression of the appeal while accommodating the practicalities of remote participation. The court's decision ensured that the appeal process could continue in an orderly and effective manner, with all parties having the opportunity to be heard.

Orders

Orders of the court

The application filed by the wife on 8 March 2011 be adjourned for further consideration to 10.00am (EST) on Wednesday 31 August 2011.

On or before the close of business on Friday 26 August 2011 the wife file and serve an affidavit detailing the anticipated costs of the appeal.

Leave be given to both parties and their legal representatives to attend the said hearing by way of telephone link.

Noting that

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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