Sullivan and Tyler

[2016] FCCA 3415

FEDERAL CIRCUIT COURT OF AUSTRALIA

SULLIVAN & TYLER [2016] FCCA 3415

Catchwords:
FAMILY LAW – Review of divorce.

Legislation:

Family Law Act 1975, ss.55A, 117(2)
Federal Circuit Court Act 1999, s.17A

Applicant: MS SULLIVAN

Respondent: MR TYLER

File Number: SYC 889 of 2008

Judgment of: Judge Henderson

Hearing date: 25 November 2016

Date of Last Submission: 25 November 2016

Delivered at: Sydney

Delivered on: 25 November 2016

REPRESENTATION

Counsel for the Applicant: Self-Represented Litigant

Solicitors for the Respondent: KD Holmes Solicitors

ORDERS

1. The wife’s Application in a Case filed 23 November 2016 be dismissed.

2. The wife pay the husband’s costs incidental to this application of $350.00 no later than 24 February 2017.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 889 of 2008

MS SULLIVAN

Applicant

And

MR TYLER

Respondent

REASONS FOR JUDGMENT

1. This matter comes before the Court on the wife’s application to Review a Registrar’s decision to pronounce a decree nisi on 1 November 2016 to become absolute within one day and on month and to be satisfied that the arrangements for the parties’ child were proper. The wife disputes the arrangements for the child are proper and asserts in her material that the child is unsafe in his father’s care.

2. Justice Watts made final parenting orders in 2014 after a difficult and bitterly contested matter. The wife appealed that decision. The appeal was dismissed. I am led to believe the wife has a pending appeal or special leave application to the High Court in relation to that dismissal.

3. The wife is of the view that the arrangements for the child are not safe. The wife believes the child is at risk of harm in the father’s care and, therefore, the divorce order not be granted. The wife sought in her application in a case to reopen the parenting matter by pleadings that under section 55A of the Act[1], proper parenting orders are not in place.

   [1] Family Law Act1975 (Cth).

4. Proper parenting orders are in place. They were made by a Judge of the Family Court after a contested hearing and those orders have not been overturned, reviewed, stayed, or in any way discharged nor has any change occurred. In those circumstances, the wife’s application today had no prospect of success. I regard the wife application as an as abuse of the processes of the Court.

5. Having regard to my power under section 17A of the Federal Circuit Court Act 1999, I summarily dismiss the wife’s Review on the basis that it has no prospect of success and being an abuse of the process of the Court.

6. Costs have now been sought by the respondent, who attended Court today, in the sum of $350. In any cost matter, I must have regard to section 117(2) of the Act[2]. Impecuniosity is not, of itself, a reason not to make a cost order.

   [2] Family Law Act1975 (Cth).

7. This review had no prospect of success from the outset. It was an attempt to re-open a parenting matter which was dealt with to finality a mere two years ago with no change in circumstances. The respondent is only here due to the wife bringing this application. The wife has been wholly unsuccessful and I find it just, proper and equitable that I make an order for costs in the amount sought.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 11 January 2017