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 of 2009

APPEAL NUMBER: SA 76 of 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

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

2. 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.

3. 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

1. 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.

1. 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. 

1. 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 I have heard submissions from Mr McVeity.

1. One issue has arisen though which means that the matter cannot be completed today, apart from of course the absence of Mr Munro, and that issue is that there is no evidence before me as to the anticipated costs of the appeal.  There is certainly an amount sought by way of security namely, an amount of $10,000, but there is nothing in the affidavit material to identify that as the anticipated costs of appeal, or to break that amount up.  In my view this is necessary; it accords with authority and Mr McVeity has conceded that.

1. There have been several alternatives put to me by Mr McVeity, all of which have some attraction in the interests of finalising the matter today, but given the added element of the absence of the husband or his counsel, and not hearing any submissions on his behalf, and that concerns me given the history of this matter as the husband has always been represented, I propose to err on the side of caution and not finalise the matter today.  Indeed for two reasons, one is to obtain that further evidence and also to give the opportunity to the husband to make further submissions, if that is appropriate, and obviously in the context of an explanation as to why there has been no appearance today.  I add, perhaps unnecessarily, but perhaps appropriately, that I may not be prepared to allow further submissions depending upon what the explanation is for the absence of the husband or his counsel, today.

1. Thus, I propose to adjourn the matter.  However, I have indicated, and it is on the transcript, that on the evidence I have before me thus far, and the submissions I have received from Mr McVeity, I am disposed to make an order for security for costs.  The only issue outstanding, subject to any submissions of the husband, is what that amount should be, and that obviously depends on what evidence I have as to the anticipated costs of the appeal.

1. Although invited by Mr McVeity to make at least an order to that effect today, again, I propose to err on the side of caution and not do that given the absence of the respondent.

1. What is now to happen in this matter is it is to be adjourned to 31 August 2011 and in that time Mr McVeity will arrange for his instructor to file an affidavit setting out the anticipated costs of the appeal.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 17 August 2011.

Legal Associate:  

Date:  17 August 2011