Sullivan and Tyler and Anor; (No. 2) - [2015] FamCAFC 179

FAMILY COURT OF AUSTRALIA

SULLIVAN & TYLER AND ANOR
(NO. 2)

[2015] FamCAFC 179

FAMILY LAW – APPEAL – APPLICATION FOR A STAY OF FULL COURT ORDERS – where the appellant made a special leave application to the High Court to appeal the orders made by the Full Court of this Court for security for costs in relation to an appeal – where the Full Court considered there was a risk of the appeal being rendered nugatory if stay was not granted – the Full Court granted the stay pending disposition by the High Court of the special leave application.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Bennett v Bennett (2001) FLC 93-088
De Lewinski v Director General, New South Wales Department of Community Services (1996) FLC 92-678
Trahn & Long (No 2) [2008] FamCAFC 194

APPELLANT:

Ms Sullivan

FIRST RESPONDENT:

Mr Tyler

SECOND RESPONDENT:

Ms Banks

FILE NUMBER:

SYC

889

2008

APPEAL NUMBER:

2013

DATE DELIVERED:

17 September 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Finn, Thackray and Strickland JJ

HEARING DATE:

15 September 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

12 April 2013

LOWER COURT MNC:

[2013] FamCA 233

REPRESENTATION

APPELLANT:

In person

FIRST RESPONDENT:

No appearance

SECOND RESPONDENT:

Appearing by videolink

Orders

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.

The application in an appeal filed 9 September 2015 be otherwise dismissed.
There be no order for costs in relation to the application in an appeal filed

9 September 2015.

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).

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

Appellant

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.

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Details

Case: [2015] FamCAFC 179
Decision Date: 17 September 2015

CaseChat Overview and Summary

This matter involves Sullivan and Tyler and Anor; (No. 2) where the dispute pertains to the enforcement of certain orders made by the Full Court on 28 August 2015. The applicant-appellant, Ms Sullivan, sought relief from the Family Court of Australia. The legal issues before the court were the operation and enforcement of specific orders, as well as the requirement for the appellant to provide security for costs in the event the High Court refuses an application for special leave to appeal.

The court considered the implications of Orders 2 and 3 of the Full Court's orders and the effect of a potential refusal of the special leave to appeal by the High Court. The court noted that if the High Court refused the application for special leave to appeal, Ms Sullivan would need to lodge a sum of $12,000 as security for any costs awarded to the second respondent in relation to Appeal EA 51 of 2013. The court also addressed the dismissal of the appeal if Ms Sullivan failed to lodge the required security. The court emphasised the importance of adherence to the procedural requirements set out in the orders and the potential consequences for non-compliance.

The court granted the stay of Orders 2 and 3 pending the High Court's decision on the application for special leave to appeal. It specified that if the High Court refused the application, Ms Sullivan would have fourteen days from the date of the High Court's decision to lodge the required security. Furthermore, the court dismissed the application in the appeal filed on 9 September 2015 and made no order for costs in relation to that application.

This decision outlines the procedural steps and the conditions under which Ms Sullivan must comply to avoid dismissal of the appeal. The court's orders ensure that the appeal process remains on track and that the parties are aware of the consequences of not adhering to the stipulated requirements.

Orders

Orders of the court

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.

The application in an appeal filed 9 September 2015 be otherwise dismissed.

There be no order for costs in relation to the application in an appeal filed

9 September 2015.

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

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