FAMILY COURT OF AUSTRALIA
| SULLIVAN & TYLER AND ANOR | [2015] FamCAFC 167 |
| FAMILY LAW – APPEAL – APPLICATION FOR SECURITY FOR COSTS – where the second respondent to an appeal seeks that the appellant lodge security for the costs of the appeal – where the appellant admits she is impecunious – where the second respondent is prepared to give an undertaking regarding the subject matter of the appeal – where such undertaking would render the appeal futile – appellant required to lodge security on the filing of the undertaking by the second respondent – appeal in so far as it affects second respondent to be dismissed if security not lodged. |
| Family Law Act 1975 (Cth) |
| Bartsch & Redman (2014) FLC 93-584 |
| APPELLANT: | Ms Sullivan |
| FIRST RESPONDENT: | Mr Tyler |
| SECOND RESPONDENT: | Ms Banks |
| FILE NUMBER: | SYC | 889 | of | 2008 |
| APPEAL NUMBER: | EA | 51 | of | 2013 |
| DATE DELIVERED: | 28 August 2015 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Finn and Strickland JJ |
| HEARING DATE: | 5 February 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: | In person |
Orders
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.
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.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sullivan & Tyler and Anor 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
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- AGLC
- Sullivan and Tyler & Anor [2015] FamCAFC 167
- Case
- [2015] FamCAFC 167
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether Sullivan should be required to lodge security for the costs of the appeal, given that an undertaking by Tyler would render the appeal futile. The court considered the precedent in relation to security for costs in family law appeals and the principle that the granting of security should be based on the ability of the party to pay the costs. The court found that the undertaking by Tyler would render the appeal futile, and therefore, Sullivan should be required to lodge security. The court also noted that the amount of security should be sufficient to cover the potential costs of the appeal, which in this case was set at $12,000.
In reaching its decision, the court considered the relevant legal principles and precedents. The court found that the precedent in relation to security for costs in family law appeals supported the requirement for Sullivan to lodge security. The court also noted that the principle that the granting of security should be based on the ability of the party to pay the costs was not in issue, as Sullivan had admitted to being impecunious. The court further found that the undertaking by Tyler would render the appeal futile, and therefore, the requirement for Sullivan to lodge security was appropriate. The court also considered the amount of security required and found that $12,000 was sufficient to cover the potential costs of the appeal.
In conclusion, the court required Sullivan to lodge security of $12,000 within 14 days of the date of the orders. If Sullivan failed to lodge the security, the appeal in so far as it affected Tyler would be dismissed. The court also required Tyler to file an undertaking within 14 days of the date of the orders, and to serve copies of that undertaking on Sullivan and the solicitor for the first respondent. The court's decision was based on the legal principles and precedents relating to security for costs in family law appeals, and the principle that the granting of security should be based on the ability of the party to pay the costs.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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