Sullivan and Tyler and Anor (No 2)
[2016] FamCAFC 131
•20 July 2016
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 | of | 2008 |
| APPEAL NUMBER: | EA | 51 | of | 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 51 of 2013
File Number: SYC 889 of 2008
| Ms Sullivan |
Applicant
And
| Mr Tyler |
First Respondent
And
| Ms Banks |
Second Respondent
REASONS FOR JUDGMENT
Summary
The applicant and the first respondent have been engaged in lengthy parenting proceedings during which the applicant unlawfully took their only child overseas. The second respondent, who is an author, published a book about their experiences. The applicant unsuccessfully applied for orders designed to prevent publication of the book and then appealed against the order made by Loughnan J on 12 April 2013 dismissing her application.
In August 2015, the second respondent obtained orders from the Full Court compelling the applicant to secure her costs of the appeal and, in default of payment of the secured sum, dismissing the appeal against her. The applicant did not pay the secured sum to the Court by the due date and so, in December 2015, the appeal was dismissed insofar as it concerned the second respondent.
These reasons deal with three interlocutory applications relating to the appeal against the order of Loughnan J.
The first two are applications filed by the applicant on 24 December 2015. One seeks re-instatement of the appeal against the second respondent and the other seeks the stay of further procedural orders made by the Full Court pending the determination of the re-instatement application.
The applicant filed an amended Application in an Appeal on 13 July 2016, which additionally sought the discharge of all costs orders made against her by Loughnan J, including one made on 13 September 2013 arising out of the dismissal of her underlying application on 12 April 2013, but that part of the amended Application was incompetent, as the applicant properly conceded. The pending appeal is only against the order made on 12 April 2013, not any orders for costs, and the parties filed their summaries of argument in relation to the existing appeal long ago. Even if the applicant later successfully obtains leave to amend her appeal to include the costs orders, the validity of those orders will be considered when the substantive appeal is heard; not now.
The third Application in an Appeal was filed by the second respondent on 21 April 2016, by which she effectively seeks to confirm her removal as a party from the appeal proceedings and to be left alone by the applicant. The same and similar forms of relief were sought by the second respondent in the responses she filed on 11 February 2016 and 4 July 2016 in reply to the applicant’s two Applications.
All applications contained within the applications and responses should be dismissed with no orders as to costs.
The substantive appeal may proceed, but only now against the first respondent.
The effect of the applicant’s bankruptcy on these proceedings
The applicant is now a bankrupt; a sequestration order having been made on 6 May 2016. Arguably, the provisions of the Bankruptcy Act 1966 (Cth) would operate to stay the applications brought by the applicant until her trustee in bankruptcy elected whether to prosecute or discontinue the action (s 60(2)), or alternatively, the action was deemed abandoned in the absence of an election (s 60(3)). However, without the benefit of detailed argument by two self-represented litigants and comforted by their mutual wish to have the current applications determined expeditiously, we are prepared to accept the applicant’s contention that her “action” is “in respect of” a “wrong” she alleges was done to her and/or her child so as to enable her to prosecute it without recourse to the trustee (s 60(4)). The alleged “wrong” was the identification of her and/or her child in the book published by the second respondent, purportedly in breach of s 121 of the Family Law Act 1975 (Cth) (“the Act”), which is the underlying subject of the substantive appeal and conceivably caused “pain felt by the [applicant] in respect of [her] mind, body or character” unrelated to her property rights (see Cox v Journeaux(No 2) (1935) 52 CLR 713 at 721 and see also Daemar v Industrial Commission of New South Wales (1988) 12 NSWLR 45).
Background
In April 2008, the applicant removed the child from Australia without the permission of the first respondent or the Court.
In December 2008, Watts J made an order permitting the publication of details about the applicant and the child, which publication would otherwise have been prohibited by s 121 of the Act, to facilitate the search for the child.
In September 2010, the applicant and child were found in Europe and the applicant was arrested. She was thereafter extradited to Australia, prosecuted, convicted, and sentenced for an offence under s 65Y of the Act. The publication order made in December 2008 was discharged in February 2011, there no longer being any need for it.
In July 2012, the applicant became aware that a book written by the second respondent about the case was published electronically on the internet. The applicant asserts that she and the child were readily identifiable as subjects of the book.
Relatively soon thereafter, the applicant filed an application (which was later amended) seeking relief against the respondents under both s 68B of the Act, to restrain further publication of the book, and s 121 of the Act, to ensure the prosecution of one or both respondents for the alleged contravention of that provision. The application was heard in January 2013, but dismissed by orders made by Loughnan J on 12 April 2013 (“the April 2013 orders”). The applicant appealed those orders in May 2013.
On 2 September 2013, the applicant filed an amended Notice of Appeal with the amendments being to the grounds of appeal and the orders sought. There was no change to the appeal being against the order made on 12 April 2013.
In October 2014, the second respondent filed an Application in an Appeal seeking that the applicant give security for her costs of resisting the appeal. That application was granted by the Full Court making orders in the following terms on 28 August 2015 (“the August 2015 orders”):
1.That within 14 days of the date of these orders, the second respondent to appeal EA 51 of 2013:
(a)shall file with the Eastern Region Appeal Registrar a written undertaking (in a form acceptable to the Registrar) that she will use her best endeavours to remove from the internet [the book] and that she will not in future publish or permit to be published in any manner (including on the internet) that book; and
(b)serve copies (endorsed as to the date of service) of that undertaking on the appellant and on the solicitor for the first respondent.
2.Within 14 days of the date of service of a copy of the undertaking referred to in Order 1 of these orders on the appellant, she shall lodge with the Registry Manager of the Sydney Registry of the Family Court of Australia the sum of $12,000 to be held as security for any costs awarded to the second respondent in relation to Appeal EA 51 of 2013.
3.In the event that the appellant fails to lodge the security provided for in Order 2 of these orders, then Appeal EA 51 of 2013 in so far as it is directed to, or affects, the second respondent to the appeal shall stand dismissed.
The second respondent filed her undertaking pursuant to those orders some days later. The parties have earlier informed the Full Court that the undertaking was served upon the applicant on 4 September 2015 (Sullivan & Tyler (No 2) [2015] FamCAFC 179 at [8]), so the applicant had until 18 September 2015 to pay the secured sum. Before the due date for payment, she filed an Application in an Appeal seeking a stay of the August 2015 orders pending her application for special leave to appeal against them to the High Court.
On 17 September 2015, the Full Court granted her application conditionally, making orders in the following terms (“the September 2015 orders”):
1.The operation of Orders 2 and 3 of the orders made by the Full Court on 28 August 2015 be stayed pending the disposition by the High Court of the application for special leave to appeal those orders filed 10 September 2015.
2.(a) Notwithstanding the provisions of Order 2 of the orders made by the Full Court on 28 August 2015, in the event that the application for special leave to appeal those orders is refused by the High Court, then the applicant-appellant, Ms [Sullivan], will have fourteen days from the date of the decision of the High Court, to lodge with the Registry Manager of the Sydney Registry of the Family Court of Australia the sum of $12,000 to be held as security for any costs awarded to the second respondent in relation to Appeal EA 51 of 2013.
(b) In the event that the applicant-appellant fails to lodge the security provided for in Order 2(a) of these orders, then Appeal EA 51 of 2013 in so far as it is directed to, or affects, the second respondent to the appeal, shall stand dismissed.
3.The application in an appeal filed 9 September 2015 be otherwise dismissed.
4.There be no order for costs in relation to the application in an appeal filed 9 September 2015.
On 17 December 2015, the High Court dismissed the applicant’s application for special leave to appeal against the August 2015 orders. Therefore, by operation of the September 2015 orders, the applicant’s appeal against the April 2013 orders would stand dismissed, as against the second respondent, as and from 31 December 2015 if the secured sum was not paid into Court.
The Applicant’s two Applications in an Appeal
The applicant did not pay the secured sum. Instead, before the payment was due, she filed her two Applications in an Appeal on 24 December 2015.
The first sought relief in the following terms:
That [the appeal] in respect of the second respondent is reinstated and listed for hearing as soon as possible.
The second sought relief in the following terms:
That Order 2(b) of Orders made on 17 September 2015 is stayed pending the results of my reinstatement application to reinstate [the appeal] in respect of the second respondent.
The second application adds nothing to the first because, pursuant to the ordinary operation of the September 2015 orders, the appeal already stands dismissed in respect of the second respondent. The applicant either succeeds with her first application, in which event the appeal is re-instated against the second respondent and it is unnecessary to consider the stay application, or alternatively, she fails with the first application, in which event the appeal is not revived against the second respondent and the stay application is groundless.
The second respondent resisted the grant of any relief to the applicant. The first respondent filed short written submissions, but was excused from further attendance as the applications did not concern him.
The applicant relied upon her affidavit filed on 24 December 2015 in support of her applications, but it afforded no evidence of value. Aside from a detailed recitation of the history already summarised above, it offered little more than some argument about the asserted merit of the grounds of appeal she wants to press against both respondents in the substantive appeal and some short reasons as to why she believes the second respondent would not be unduly prejudiced if required to meet the substantive appeal.
In the latter respect, the applicant deposed (at [59]):
…The time required for hearing [of the appeal] is estimated to be half a day. The appeal to date has not cost [the second respondent] anything. The appeal to date has been of considerable cost to me in the preparation of appeal books. The only expense remaining is attendance for the half day hearing … [The second respondent] could represent herself at the appeal…
The applicant also deposed (at [64]):
The order for security of [sic] costs made on 28 August 2015 and further implemented on 17 September 2015 will stifle my appeal.
These propositions do not advance the applicant’s case. Her present applications are not appeals against the interlocutory orders already made by the Full Court in this appeal in August and September 2015. Rather, her applications are for indulgent relief from the strict application of those orders.
Such indulgence necessitated satisfactory explanation for the breach. The question the applicant needed to answer was why she should be allowed to revive the appeal against the second respondent in circumstances where she failed to give security for the second respondent’s costs in the time allowed by the Full Court, but that was a question she did not address, let alone answer. She adduced no evidence about when she could pay the security, if given more time, or in what form it could be alternatively given. She simply deposed “I could not afford to pay the $12,000”, which only implied she never was, and never will be, able to give the security. During the hearing she confirmed she was “impecunious” and could not pay the security so, when alerted to the impediment, her last-minute attempt to amend her application so as to permit her to delay payment of the security until when the substantive appeal was heard was pointless because she could not pay the security even then.
The applicant mistakenly contended that the prior interlocutory orders of the Full Court were wrongly made and should be rescinded. She either overlooked or disregarded the fact that the Full Court had already expressly considered and rejected her argument about the appeal being stifled by any order requiring her to give security for the second respondent’s costs of the appeal (Sullivan & Tyler [2015] FamCAFC 167 at [21], [28], [50]). The applicant’s present contention that the second respondent should meet the appeal without legal representation, presumably to avoid incurring any or any further legal costs to avert the need for any security, is also unpersuasive, since the Full Court previously noted the second respondent’s intended legal representation on the substantive appeal (Sullivan & Tyler at [10] – [14], [51]). Moreover, the applicant’s estimate of the duration of the substantive appeal may not be reliable, since her prior appeals have taken much longer.
There is no basis for this Full Court to now reconsider another Full Court’s decision about the need for, and the amount of, the security for costs imposed by the August 2015 orders on essentially the same evidence of impecuniosity and the same arguments about lack of entitlement. The subsequent decision of the Full Court, reflected in the September 2015 orders, merely gave the applicant some temporary reprieve while her application to the High Court for special leave to appeal was still pending. Similarly, there is now no present justification to transform that reprieve from temporary to permanent when the evidence and arguments are the same as before.
It therefore follows that the applicant’s two applications should be dismissed.
The Second Respondent’s Applications and Responses in the Appeal
As already noted, although expressed differently, the second respondent sought overlapping relief in her response filed on 11 February 2016, her application filed on 21 April 2016, and her response filed on 4 July 2016.
Without reciting in full her various applications within those three documents, they effectively sought:
(a)Dismissal of the applicant’s application for re-instatement of the appeal against her;
(b)Conviction of the applicant for her alleged contempt of court, evident from her failure to comply with the September 2015 orders;
(c)Her removal as a party from the substantive appeal proceedings; and
(d)Dismissal of the applicant’s applications as frivolous and vexatious, pursuant to s 118 of the Act, and restraint of the applicant from making further applications involving her, either in the appeal proceedings or more generally.
The relief sought in the first application follows for the reasons already given.
The second application is misconceived because the desire to have the applicant sanctioned for an alleged contempt of court requires application of a quite different procedure under the Act (ss 35 and 112AP) and the Family Law Rules 2004 (Part 21.1). In any event, the mere failure of the applicant to give security for costs could not manifest the applicant’s contempt of the Court. The August 2015 orders expressly envisaged the possibility the applicant may not post the security and so made self-executing provision for the appeal to stand dismissed as against the second respondent in that event.
The third application is superfluous because the appeal is already dismissed against her and, by reason of the refusal to re-instate it, she is no longer a party to the substantive appeal.
The fourth application involves two components – dismissal of the applicant’s present applications and suppression of any more. The first part of the application is unnecessary, since the applicant’s applications are dismissed for the reasons already given. The second part of the application is misconceived for two reasons. First, the Court has no power under s 118 of the Act to restrain further applications in this appeal. The power to do so rests only in s 102QB of the Act, the requirements of which the second respondent did not address. Secondly, even under s 102QB of the Act, the Court probably has no power to restrain further proceedings brought by the applicant against the second respondent beyond the realm of these appeal proceedings.
It therefore follows that the second respondent’s applications should be dismissed.
Conclusion and costs
All applications of the applicant and second respondent within their applications and responses will be dismissed.
Both the applicant and second respondent were self-represented, and did not seek an order for costs. The first respondent was excused from participation in the hearing and did not seek an order for costs in relation to the brief submissions he filed. Accordingly, there will be no order for costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Strickland & Austin JJ) delivered on 20 July 2016.
Associate:
Date: 20 July 2016
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