Sullivan and Tyler & Anor
[2015] FamCAFC 167
•28 August 2015
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
File Number: SYC 889 of 2008
| Ms Sullivan |
Appellant
And
| Mr Tyler |
First respondent
And
Ms Banks
Second respondent
REASONS FOR JUDGMENT
Introduction
On 12 April 2013 Loughnan J dismissed an application by Ms Sullivan (“the mother”) for injunctions to restrain the ongoing publication of an electronic book which concerned events in the life of the child of the mother’s relationship with Mr Tyler (“the father”), and for certain related orders. The respondents to that application were the father and the author of the book, Ms Banks.
The mother has filed an appeal (No EA51 of 2013) against his Honour’s order of 12 April 2013 dismissing her application. In her notice of appeal the mother has sought leave to appeal. We are of the view that leave is not required for the appeal given that the order of 12 April 2013 must be regarded as a final order.
The father is named as the first respondent to the appeal and Ms Banks as the second respondent.
The mother had already filed her appeal books and her required written outline of argument when on 13 October 2014, Ms Banks filed an application seeking orders that the mother provide security in the sum of $12,000 for her costs in relation to the appeal, and that in the event that security was ordered and not paid, that the appeal be dismissed. The mother filed a response on
7 January 2015 seeking that the application for security be dismissed. These reasons for judgment are concerned with that application for security, which was heard on 5 February 2015.
So far as the father is concerned, we are uncertain as to his position in relation to the appeal against the order of 12 April 2013. It appears that the solicitor for the father attended a procedural hearing on 25 July 2013 for this appeal and also for another appeal concerning parenting orders made as between the father and the mother. At that procedural hearing orders were made for the filing of written outlines of argument. We are informed by the Appeal Registrar that the father has never filed an outline of argument in relation to the appeal against Loughnan J’s order of 12 April 2013 (although both the mother and Ms Banks have done so).
At the hearing of Ms Banks’ security application on 5 February 2015, there was no appearance by, or on behalf, of the father, although the father’s solicitor had appeared before us earlier that day in relation to an application by the mother to re-instate the appeal against the parenting orders.
Relevant Principles
Given the complexity of some of the issues which arise in connection with this application, it will be useful if, at this initial stage, we set out the principles which govern the determination of an application for security for the costs of an appeal. These principles were summarised by the Full Court in
Sawer & Sawer[2007] FamCA 140 (at [19] – [21]) in the following way:
19.The power in this Court to make an order for security for costs is to be found in s 117(2) of the [Family Law Act 1975 (Cth)], which is in the following terms:
If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), [4A] and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
20.The provisions of s 117(2A) are as follows (s 117(4) [4A] and (5) are not presently relevant):
In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
21.The authorities establish that in exercising the discretion to order security for costs, it may also be relevant for the Court to consider in addition to the financial circumstances of the parties and the other five specific matters mentioned in s 117(2A), the following matters:
a) the prospect of success of the litigation;
b) whether the claim for security is made bona fide;
c)whether or not an order for security would stifle the litigation;
d)whether or not the litigation may involve a matter of public importance;
e)whether or not there has been a delay in bringing the application for security;
f)whether there would be difficulty in enforcing an order for costs.
…
The principles enunciated by the Full Court in Sawer were drawn from the earlier Full Court decisions of Luadaka & Luadaka (1998) FLC 92-830,
Jones and Jones(2001) FLC 93-080, and Adult Guardian and Mother's Parents and B and Child's Representative (2002) FLC 93-116.
Even though both Ms Banks and the mother appeared before us without legal representation, their written submissions to us reveal that both have an understanding of the abovementioned principles which will govern the determination of the present application.
The matters relied on in support of this application for security
In her affidavit (also filed on 13 October 2014) in support of her application for security, Ms Banks claimed that the mother is an undischarged bankrupt
(as a result of bankruptcy proceedings commenced by Ms Banks against the mother on 30 April 2014); that the mother owed her “over $69,500 in legal costs pursuant to court orders”, none of which had been paid; that while she had (to that time) represented herself in “the Family Court Appeal proceedings”, she intended to engage counsel in the appeal “due to the complexity of the legal issues involved”, and that this “will obviously incur expenses” for her, which she believed “will total around $12,000”.
In relation to Ms Banks’ claim that the mother is an undischarged bankrupt, we were advised at the commencement of the hearing of the application for security, that this was no longer the case. Later in these reasons we will explain more fully the position in relation to that matter.
In the first paragraph of her written submissions in support of her application for security, Ms Banks stated that she is “seeking security of $12,000 as security against costs I will incur to engage legal assistance if [the mother’s] appeal against the orders of 12 April 2013 proceeds to hearing”.
Given this statement in the opening paragraph of Ms Banks’ written submissions, and also the reference in her affidavit to her intention to engage counsel to represent her at the hearing of the appeal, it is important that we here refer to the observations made by the Full Court in a number of previous decisions, to the effect that applications for security for costs should not be regarded as a method of funding a respondent’s costs of legal representation in an appeal. See for example Halsbury & Hasbury [2008] FamCAFC 170; Bartsch & Redman (2014) FLC 93-584; Searle Holdings Pty. Limited & Pencious and Anor (Security for Costs) (No. 2) [2014] FamCAFC 184.
We, therefore, make it clear that Ms Banks’ desire to be able to engage counsel to represent her in the appeal is not a matter that can be taken into account in the determination of her application for security.
However, in her written submissions Ms Banks has also relied on a range of other matters which are certainly recognised by the authorities as relevant to the determination of an application for security in relation to the costs of an appeal. The matters which are relied on by Ms Banks relate, or can be said to relate, principally to the mother’s financial position and to the merits or utility of the appeal.
It is also relevant to draw attention at this point to the concluding two paragraphs of Ms Banks’ written submissions, where she states:
17. I have at all times demonstrated my willingness to abide by the Court’s wishes and orders and undertake not to publish copies of my book or otherwise publish any material in contravention of
s 121.18. I remain willing to provide the Honourable Court with a solemn undertaking to that effect.
matters relating to the mother’s financial position
Following the making of his order on 12 April 2013 dismissing the mother’s application for injunctions and other orders, Loughnan J heard on
12 August 2013 an application by Ms Banks for costs in relation to the mother’s unsuccessful application. On 13 September 2013 his Honour delivered reasons for judgment and made an order requiring the mother to pay Ms Banks’ costs, assessed at $14,000 within six months.
When the costs order remained unpaid, Ms Banks caused a bankruptcy notice to be issued against the mother on 30 April 2014 followed by a creditor’s petition filed on 25 July 2014 which resulted in a sequestration order being made against the mother by the Federal Circuit Court on 2 October 2014.
The mother appealed the sequestration order, and on 3 February 2015 the Federal Court set aside the sequestration order and remitted the creditor’s petition to the Federal Circuit Court for re-determination.
On 5 August 2015 the Principal Registrar of the Federal Circuit Court advised the Eastern Region Appeal Registrar of this Court that the creditor’s petition has yet to be re-determined by the Federal Circuit Court. Having regard to certain observations made in the reasons for judgment of the Federal Court (notably in the last sentence of [51] of those reasons), it may well be that the petition will not be reheard until the determination by this Court of the mother’s appeal against Loughnan J’s order of 12 April 2013.
Thus, for purposes of the security application now before us, we must proceed on the basis that the mother is not bankrupt. Importantly, however, she conceded in her written submissions to us that she was “impecunious” (at [2]), and that she was “unable to pay security for costs” (at [3]). We also note from the reasons for judgment of the Federal Court (in the first sentence of [51] of those reasons) that she apparently conceded at the hearing of her appeal against the sequestration order by that court on 2 February 2015 that she was “insolvent”.
Closely related to the issue of the mother’s financial position is Ms Banks’ claim that she is owed “over $69,500” by the mother in unpaid costs orders.
We understand that this sum includes the $14,000 which was the subject of Loughnan J’s costs order made on 13 September 2013. Even though the mother has apparently not appealed that costs order, its fate must depend on the outcome of the appeal against his Honour’s substantive order made on
12 April 2013, and thus cannot be taken into account at this time against the mother as an unpaid costs order.
Ms Banks also referred in her affidavit in support of her application for security (at [12]) to a costs order made on 14 July 2014 by Judge Altobelli of the Federal Circuit Court in relation to the sequestration proceedings. These costs were initially claimed to amount to $8000, although during the hearing before us, Ms Banks clarified that the amount was $6000. However, it also emerged during that hearing that the exact amount was still subject to assessment. Therefore this costs order cannot at this stage be regarded as unpaid.
There was also reference in Ms Banks’ affidavit (at [16]) to a further costs order made by the Federal Circuit Court on 2 October 2014 in connection with the sequestration order, but as these costs are also yet to be assessed, they also cannot be taken into account for present purposes.
It appears from Ms Banks’ affidavit that the greater part of the amount which she claims the mother owes her under unpaid costs orders relates to proceedings which the mother commenced against Ms Banks and other persons in the New South Wales Supreme Court. The relevant paragraphs of Ms Banks’ affidavit read as follows:
7. On 11 June 2013, the Appellant commenced proceedings against me, my husband and my company, along with three other defendants, in the Supreme Court of New South Wales … . The subject matter of this application was essentially the same as that in the injunction application heard by Loughnan J on 9 January and dismissed.
8. The originating Statement of Claim in these proceedings was dismissed by the court following five court appearances. The Appellant was ordered to pay the costs thrown away which portion [sic] of which owing to me, my company and my husband total approximately $45,000. These costs are currently being assessed
Annexed hereto and marked ‘B’ is a true copy of the order.
The annexed order is dated 2 June 2014, and in addition to containing an award of costs against the mother, it also provides for the continuation of the proceedings. The reasons for judgment of the Federal Court given on
3 February 2014 also indicate that the Supreme Court proceedings are continuing, and this was confirmed by the mother when she was before us. But whatever the fate or progress of the Supreme Court proceedings, there remains the costs order made against the mother on 2 June 2014. However, we cannot have regard to that costs order in the absence of any evidence of an assessment of the costs to be paid under it, and also of the proportion of those costs to be paid to Ms Banks as just one of the defendants.
We are, therefore, unable to take into account any of the alleged unpaid costs orders as a matter which would support an order for security in Ms Banks’ favour. Irrespective of that particular matter, it has to be accepted in relation to the mother’s overall financial position that she is, on her own admission, impecunious and could not meet an order for security. Thus, an order for security would clearly “stifle the litigation”; whether that should be permitted to happen will depend on issues relating to the merits or the utility of the appeal.
Matters relating to the merits or the utility of the appeal
In order to consider issues relating to the merits or the utility of the appeal, it is necessary to make some reference to the applications which Loughnan J dismissed on 12 April 2013 and to his reasons for so doing.
His Honour summarised briefly the applications before him in the opening paragraphs of his reasons in the following way:
1.Before the Court is an application by [Ms Sullivan] who sought injunctions and other orders. She sought an injunction to restrain [Ms Banks] from the ongoing publication of an electronic book … . She also sought an injunction against [Mr Tyler] to prevent the publication of certain material. Finally, she sought that the Court encourage or cause steps to be taken in relation to alleged breaches of s 121 of the Family Law Act 1975 (Cth) (“the Act”).
2.Ms [Sullivan] and Mr [Tyler] are engaged in long-running parenting proceedings in relation to their son, [D] (“the child”) born … 2004. [Ms Sullivan’s] application was filed in those parenting proceedings. I will refer to Ms [Sullivan] and [Mr Tyler] as the mother and father.
His Honour next set out the orders sought by the mother in a case outline document sent to his chambers on 13 December 2012. Those orders were:
(1) That pursuant to s68B(1)(a) an injunction be made against [Ms Banks] prohibiting further publication, distribution
or sale of the book … in response to and against publication of any details identifying or concerning the parties involved in these family court proceedings and any details of allegations of sexual abuse concerning any party involved in these Family Court proceedings.(2) The Marshall of this Court take all such steps as might be required so as to ensure that any breach of section 121 of the Family Law Act 1975 revealed by the material specified in the Affidavit in support of these orders is investigated fully and, if appropriate, thereafter prosecuted.
(3) The Family Court respectfully request that the Commissioner of the Australian Federal Police take all such steps as might be reasonably required to investigate whether any indictable offence prescribed by s 121 of Family Law Act 1975 in respect of proceedings involving the child [D], born … 2004 and involving the mother [Ms Sullivan], born … 1962 has been committed by [Ms Banks] as revealed by, or indicated in the document referred to in this affidavit and annexed to this affidavit.
(4) An injunction of silence be ordered against [Mr Tyler] prohibiting him from writing on this family court matter, the removal of our son from Australia and the details of the sexual abuse allegations and any other matter which identified by way of name, pseudonym, photograph or association any or all of the parties involved, specifically –[D] born … 2004 and [Ms Sullivan] born … 1962.
(5)That an order be made for the Family Court to respectfully request that the Commissioner of the Australian Federal Police take all such steps as might be reasonably required to investigate whether any indictable offence prescribed by
s 121 of Family Law Act 1975 in respect of proceedings involving the child [D] born … 2004 and involving the mother [Ms Sullivan] born …1962 has been committed by [Mr Tyler] as revealed by, or indicated in, the documents referred to in this affidavit and annexed to this affidavit.
After providing some factual background to the case and recording the submissions made to him by the parties, his Honour set out the terms of s 68B of the Family Law Act 1975 (Cth) (“the Act”), which provides for the granting of injunctions in relation to children, and of s 121 of the Act, which provides for restrictions on the publication of court proceedings. In relation to s 121, his Honour noted (at [43]) that proceedings for an offence against that section
“can only be commenced by or with the written consent of the Commonwealth Director of Public Prosecutions”.
His Honour first considered the mother’s application for injunctions under
s 68B against Ms Banks and the father, observing (at [54]) that this was
“the stronger of the bases for granting injunctions”. His Honour then discussed at some length the need to discourage the dissemination of information about the subject child. However, he ultimately concluded (at [61]) that an injunction would be “likely to be futile” essentially because of the information that was already on the internet about the child and the impossibility of removing such information. His Honour reached a similar conclusion in relation to the injunctions sought by the mother in aid of s 121 of the Act.
In relation to the mother’s application that the Court request the authorities to investigate and take action under s 121 of the Act in relation to alleged breaches of that section by Ms Banks and the father, his Honour concluded after discussing the issue at some length (at [92] to [103]), that he would not make the requests as he was “not sure that they are necessary, or appropriate.” Accordingly, his Honour dismissed the mother’s applications.
The mother’s amended notice of appeal (filed on 2 September 2013) contains seven grounds of appeal which assert error on his Honour’s part in that he:
· wrongly interpreted and misrepresented my orders sought which led to the wrong finding that injunctions sought by me would be futile and ineffective which led to a miscarriage of justice. (Ground 1).
· wrongly found that there was no reason to criticise the fact or method of [Mr Tyler’s] search for [D] or [Ms Banks] involvement and that it was justified because of the publicity order granted in 2008, the judgment in the Hague and Hague Appeal Trials and the consequent return of [D] to Australia. (Ground 2).
· failed to grant injunctions and instead relied on yet another warning in circumstances where evidence supported the criteria identified by him that would support granting the injunctions and where His Honour had already found that a previous warning had failed, failing to grant injunctions was likely to lead to continued publication and that injunctions were warranted pursuant to s68B in considering [D’s] welfare. (Ground 3).
· failed to give adequate weight to the sum of persuasive and binding authority finding that injunctions in aid of s 121 should be granted when facts support a finding of special circumstances, in circumstances where His Honour found that the facts did support a finding of special circumstances in my case. (Ground 4).
· erred in referring to the published Court Judgment as a ‘transcript’ (Reasons for Judgment paragraphs 57 and 72) and misrepresented the extent of sensitive and tragic detail about [D] that was published and the seriousness of deception involved when in The Book it was falsely claimed that the publication had been approved by the Chief Justice and the injustice of the judgment being published associated with our identities given it is under appeal on grounds that the Judgment itself constituted a severe miscarriage of justice. (Ground 5).
· failed to find a prima facie breach of s121 having identified elements of the offence and having identified evidence and facts supportive of the finding of a prima facie breach. His Honour wrongly gave weight to a discharged publication grant from 2008 and past events in [Europe] and his wrongful interpretation of my orders sought, without giving adequate reason and without discernible logic. Consequently His Honour wrongly found that injunctions would be futile when this was not supported by the evidence or facts in my case. (Ground 6).
· failed to place adequate weight on the most relevant case law, caused inconsistency with existing relevant case law and failed to find that there was a prima facie case for a breach of s121 when evidence and facts identified supported that finding and failed to act having cited case law reasoning that it was the Court’s duty to report a prima facie breach to the authorities. His Honour argued that publication rights from 2008 and past events in [Europe] complicated the circumstances yet failed to provide adequate reason for this. His Honour failed in this most central role in exercising judicial power, addressed in the legislation – to uphold s60CA of the Family Law Act in this matter by following the detailed s121 legislation a key component of the Family Law Act. (Ground 7).
It will be seen that although not necessarily so precisely expressed, the grounds of appeal essentially assert errors of fact or of law on his Honour’s part.
We have considerable doubts as to whether the asserted errors of fact would have sufficient materiality to warrant appellate interference with his order, or that the asserted errors of law are indeed errors of law. However, it is unnecessary that we express a concluded view of those matters. This is because even if one or more of the grounds of appeal was found to have merit, we are strongly of the view that the appeal (at least in so far as it affects Ms Banks) would be found to be futile and thus could not succeed. We take this view for the following reasons having regard to the orders sought by the mother if the appeal was to be successful.
In the orders sought in her amended notice of appeal, the mother seeks
(as Orders 1, 3, 4, 5 and 6) the same five orders (in virtually identical terms) as she sought in her application before Loughnan J (see [31] above). Importantly, in addition, she seeks the following order (as Order 2):
2. That the Family Court order [Ms Banks] to have all internet references, promotions and listing of the book … removed including listings on [named electronic publishers], father’s rights websites, child recovery websites etc
The orders sought by the mother on appeal also include (as Orders 7 and 8) orders concerning costs, which are not of present relevance.
At an early stage in the hearing before us Ms Banks, in submitting that the appeal was “unlikely to have any merit”, informed us that following the hearing before Loughnan J on 9 January 2013 (which had led to the making of the order of 12 April 2013) she had “immediately removed the book
[about which the mother complains] from the internet” (meaning from her website). She then proceeded to explain the difficulties she had experienced in trying to have the book removed from other internet sites:
Then I approached [named electronic publisher] and asked them to take it down, which was one of the other places that it was for sale, and then I tried to get [named electronic publisher] to take it down and they refused initially because they said [Ms Sullivan] didn’t have any – or the Family Court didn’t have any jurisdiction over them in America and so they weren’t going to take it down, but eventually I wrote directly to their lawyer and asked him to please ask them to take it down because they were being sued as well and it was stupid to leave it up there and it was upsetting everybody. So the book has not been for sale on the internet for nearly two years now and it hasn’t been promoted on any other website that I’m aware of or that I’m in control of, so that issue is now – it’s not there …
(Appeal hearing transcript 5 February 2015, p 5 lines 41-48, p 6 lines 1-3)
Ms Banks then reiterated orally the offer contained in the final paragraph of her written submissions that she was prepared “to give the court a solemn understanding” that she would not re-publish the book.
Following these submissions from Ms Banks, the mother asserted that it was not correct that the book had been removed from the internet immediately following the hearing before Loughnan J on 9 January 2013 and that it was available on the named electronic publishers websites in July and August 2013.
Ms Banks then explained to us that the book had not in fact been removed from her website until February 2013 because she had needed a
“websites designer” to do the work for her. She also further elaborated on the difficulties which she had had in persuading the named electronic publishers to remove the book from their websites and that they had only done so in
July 2013 and November 2013 respectively.
Against the background of what we were told by Ms Banks regarding her endeavours to have the book removed from those internet sites which she controlled, or is in a position to approach, we are prepared to accept from her an undertaking that she will use her best endeavours to remove from the internet the book … and that she will not in the future publish or cause to be published in any manner (including on the internet) that book.
The giving of such an undertaking would be to the same effect as Order 2 of the orders sought by the mother in her amended notice of appeal and also to a large extent to the same effect as the first order sought (although it would not affect Mr B or the company U Propriety Ltd as they are not parties to the proceedings in the Family Court).
We also point out for the benefit of both parties that an undertaking can be enforced in the same way as a court order can be enforced (s 112AA of the Act).
Order 5 of the orders sought in the appeal (which was effectively Order 4 in the proceedings before Loughnan J) is directed to the father and so has no present relevance.
Of the remaining three orders sought in the appeal (being Orders 3, 4 and 6), the first (being Order 3) is directed to the Marshal of the Family Court and would require him to ensure that any breach of s 121 (which has been occasioned by the publication of the book) “is investigated fully and if appropriate, thereafter prosecuted.”
We need only say about this proposed order that we agree with the conclusion of Loughnan J in [93] of his reasons for judgment of 12 April 2013 that such an order should not be made. Further support for that conclusion is to be found in s 38P of the Act, which specifies the responsibilities of the Marshal. We note that no reference was made to that section in the judgment of Forrest J in Xuarez & Vitela [2012] FamCA 574, on which the mother relied in support of this proposed order.
The remaining two orders sought (being Orders 4 and 6), which seek that
“the Family Court” request the Australian Federal Police to undertake investigations into a possible breach in this case of s 121, are, with respect, misconceived, if only because the Family Court as an entity created by s 21 of the Act is the body of Judges of that Court. But in any event, even if such an order were to be directed to an officer of the Court, such as the Principal Registrar, it would, in our view, be inappropriate for such a request to be made in the circumstances of this case.
Our consideration of the orders sought in the appeal has demonstrated, that subject to Ms Banks filing the required undertaking, the appeal in so far as it is directed to her or her activities is futile. This conclusion means that we can place no weight on the consideration that if the mother is unable to provide the security sought by Ms Banks in relation to the costs of the appeal, then the appeal (in so far as it is directed to Ms Banks) may well be stifled.
Therefore, subject to Ms Banks filing and serving the required undertaking within fourteen days of the delivery of these reasons for judgment, this court will order that unless within a further fourteen days the mother has lodged with the Registry Manager security in the sum sought of $12,000 (which we consider an appropriate amount), then the appeal in so far as it is directed to
Ms Banks will stand dismissed.
In the event that Ms Banks files the required undertaking, but the mother does not then lodge the required security, with the result that the appeal in so far as it is directed to Ms Banks will stand dismissed, the appeal in so far as it affects, or is directed to, the father will remain on foot.
I certify that the preceding fifty two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Finn and Strickland JJ) delivered on 28 August 2015.
Associate:
Date: 28 August 2015
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