Sullivan and Tyler (No 2) - [2013] FamCA 271

FAMILY COURT OF AUSTRALIA

SULLIVAN & TYLER (NO. 2)

[2013] FamCA 271

FAMILY LAW – CHILDREN – interim – where the mother seeks increased communication with the child – where Loughnan J has previously made two sets of orders in relation to telephone communication – where the Court was unable to find there has been a demonstrated change in circumstances – alternatively, where the current arrangements are in the child’s best interests – application dismissed
FAMILY LAW – PROCEDURE – vexatious litigant – where the father seeks an injunction pursuant to s 118 – where the proceedings were held to be vexatious – where it was appropriate to restrain the mother from instituting further interim parenting proceedings without leave

Family Law Act 1975 (Cth)

Attorney General (NSW)v Wentworth (1988) 14 NSWLR 481
Darwin &Darwin [2008] FamCA 588
Rice & Asplund (1979) FLC 90-725

Ruddock & Robins [2007] FamCA 1181

APPLICANT:

Ms Sullivan

RESPONDENT:

Mr Tyler

INDEPENDENT CHILDREN’S LAWYER:

Christos Christaki

FILE NUMBER:

SYC

889

2008

DATE DELIVERED:

19 April 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

10 April 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

SOLICITOR FOR THE RESPONDENT:

KDB Holmes Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

The mother’s Application in a Case filed 8 February 2013 be dismissed.
Pursuant to s 118(1)(c) Family Law Act 1975 (Cth) or alternatively Rule 11.04(1) Family Law Rules 2004 (Cth), the mother shall not institute any further interim proceedings under the Family Law Act for parenting orders or any other orders in relation to the child D without leave of the Family Court of Australia.
Pursuant to s 114(3) Family Law Act 1975 (Cth), subject to any further order of the Court granting permission, the mother shall be restrained from serving upon the father and the Independent Children’s Lawyer any application for leave to institute any further proceedings under the Family Law Act1975 (Cth) for parenting orders and/or any other orders in relation to the child D.
Except for any appeal against these orders, a Judge be appointed to manage any further application filed in relation to the child D (and in particular, any application for leave by the mother pursuant to order 3 or for permission to serve any such application upon the father and Independent Children’s Lawyer pursuant to order 4) and that until further order that Judge be Justice Watts, if he is reasonably available.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sullivan & Tyler has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 889 of 2008

Ms Sullivan

Applicant

And

Mr Tyler

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The mother’s application is for variation of an order for telephone communication made by Loughnan J. The mother also seeks further orders in relation to communication with the child via…

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.

Continue reading Sullivan and Tyler (No 2)

Details

AGLC: Sullivan and Tyler (No 2) [2013] FamCA 271
Case: [2013] FamCA 271
Decision Date

CaseChat Overview and Summary

In *Sullivan & Tyler (No 2)*, the Family Court of Australia considered an application by the mother, Ms Sullivan, seeking increased communication with her child, D, including telephone, email, and letter contact. The father, Mr Tyler, sought dismissal of the mother's application and, alternatively, that any further interim applications by the mother be adjourned to the final hearing. The father also sought an injunction to restrain the mother from instituting further interim parenting proceedings without leave, arguing that such proceedings were vexatious.

The court was required to determine whether there had been a demonstrated change in circumstances since previous orders were made by Loughnan J regarding telephone communication, which would warrant varying those orders in the child's best interests. Additionally, the court had to consider the father's application to restrain the mother from initiating further interim proceedings, pursuant to section 118 of the *Family Law Act 1975* (Cth) or rule 11.04(1) of the *Family Law Rules 2004* (Cth), on the grounds that such proceedings were vexatious.

Watts J applied the principles from *Rice & Asplund* and *Ruddock & Robins*, holding that new or repeated interim applications should not be entertained without a significant change in circumstances. The mother's asserted changes in circumstances, relating to the child's mental health and alleged failures by the father to facilitate communication, were not sufficiently established by independent evidence on an interim basis. The court found that the existing telephone communication order remained in the child's best interests. Regarding the father's application, the court found that the mother's repeated interim applications, particularly in light of her failure to raise certain issues in prior hearings, demonstrated a pattern of vexatious litigation, justifying the imposition of an injunction.

Consequently, the mother's application for increased communication was dismissed. The court ordered that the mother be restrained from instituting any further interim proceedings for parenting or other orders in relation to the child D without leave of the Family Court of Australia. Furthermore, the mother was restrained from serving any application for leave to institute further proceedings upon the father and the Independent Children’s Lawyer without court permission. A judge, initially Justice Watts, was appointed to manage any future applications concerning the child D, particularly those seeking leave from the mother.

Orders