Sullivan and Tyler and Anor (No 2) - [2016] FamCAFC 131

FAMILY COURT OF AUSTRALIA

SULLIVAN & TYLER AND ANOR (NO. 2)

[2016] FamCAFC 131

FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – RE-INSTATEMENT – Where the applicant’s appeal was dismissed due to her failure to provide security for the costs of the second respondent – Where the applicant seeks re-instatement of the appeal against the second respondent – Where the second respondent seeks various orders including that the applicant’s applications are dismissed – Where a sequestration order has been made against the applicant – Where the parties agree the applications should still be heard – Where the applicant’s submissions sought to re-agitate matters already considered – Where the applicant failed to provide an adequate reason why the appeal should be re-instated in circumstances where she failed to abide by the order for security for costs – Applications dismissed.

Bankruptcy Act 1966 (Cth), ss 60(2), (3), (4)
Family Law Act 1975 (Cth), ss 35, 65Y, 68B, 102QB, 112AP, 118, 121
Family Law Rules 2004 (Cth)

Cox v Journeaux (No 2) (1935) 52 CLR 713
Daemar v Industrial Commission of New South Wales (1988) 12 NSWLR 45
Sullivan & Tyler [2015] FamCAFC 167
Sullivan & Tyler (No 2) [2015] FamCAFC 179

APPLICANT:

Ms Sullivan

FIRST RESPONDENT:

Mr Tyler

SECOND RESPONDENT:

Ms Banks

FILE NUMBER:

SYC

889

2008

APPEAL NUMBER:

2013

DATE DELIVERED:

20 July 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Thackray, Strickland & Austin JJ

HEARING DATE:

20 July 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

12 April 2013

LOWER COURT MNC:

[2013] FamCA 233

REPRESENTATION

APPLICANT:

In Person

COUNSEL FOR THE FIRST
RESPONDENT:

Mr Holmes

SOLICITOR FOR THE FIRST RESPONDENT:

KDB Holmes Solicitors

SECOND RESPONDENT:

In Person

Orders

The applications for relief set out within the following filed documents are dismissed:
(a)The first Application in an Appeal filed by the applicant on 24 December 2015, as amended by the applicant on 13 July 2016;
(b)The second Application in an Appeal filed by the applicant on 24 December 2015;
(c)The Response to an Application in an Appeal filed by the second respondent on 11 February 2016;
(d)The Application in an Appeal filed by the second respondent on 21 April 2016; and
(e)The Response to an Application in an Appeal filed by the second respondent on 4 July 2016.
No order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

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.

Keep reading for free

Create a free CaseChat account to read Sullivan and Tyler and Anor (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] FamCAFC 131
Decision Date: 20 July 2016

CaseChat Overview and Summary

The case of Sullivan and Tyler and Anor (No 2) involved a dispute between the parties concerning the interpretation and application of certain provisions within the Family Law Act 1975. The matter was heard in the Family Court of Australia. The applicants sought relief from various orders made by the court in a previous appeal, while the respondents opposed these applications. The case was brought before the court to determine the validity of the relief sought by the applicants and to assess the merits of the respondents' opposition.

The primary legal issue the court had to address was whether the applicants were entitled to the relief they sought from the previous orders. This involved a detailed examination of the statutory provisions and the circumstances under which the original orders were made. The court also needed to consider the principle of finality in family law proceedings and whether the applications were an attempt to relitigate issues that had already been determined. Additionally, the court had to assess the arguments put forward by the respondents regarding the appropriateness of the relief sought by the applicants.

In delivering its judgment, the court found that the applicants' applications for relief were not well-founded. The court held that the applicants had not demonstrated any grounds warranting a departure from the original orders. It was determined that the applicants' applications were an attempt to relitigate issues that had already been conclusively decided. The court emphasised the importance of finality in family law proceedings and rejected the notion that the applicants' applications should be entertained. Consequently, the court dismissed all the applications for relief brought by the applicants and the respondents.

In accordance with the court's decision, the applications for relief were dismissed, and no order as to costs was made. The form of the order was subject to formal entry in the court’s records, ensuring that the decision was properly documented and enforceable.

Orders

Orders of the court

The applications for relief set out within the following filed documents are dismissed:

(a) The first Application in an Appeal filed by the applicant on 24 December 2015, as amended by the applicant on 13 July 2016;

(b) The second Application in an Appeal filed by the applicant on 24 December 2015;

(d) The Application in an Appeal filed by the second respondent on 21 April 2016; and

(e) The Response to an Application in an Appeal filed by the second respondent on 4 July 2016.

No order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.