SULLIVAN & TYLER - [2014] FamCA 448

FAMILY COURT OF AUSTRALIA

SULLIVAN & TYLER

[2014] FamCA 448

FAMILY LAW – PROCEDURAL - Application for stay of final parenting orders pending determination of appeal – where that application was dismissed.

FAMILY LAW - VEXATIOUS PROCEEDINGS – where the father seeks an injunction pursuant to s 118(1)(c) pending the finalisation of the mother’s appeal –where previous s 118 order was in place but was discharged by final orders – where an order requiring the mother to obtain leave of court before instituting interim parenting proceedings pending determination of her appeal is made.

FAMILY LAW - COSTS - Application by the father for costs in the sum of $2500 pursuant to s 117 – where the mother was wholly unsuccessful in her application – where the application is repetitive of previously determined issues – where the applicant is impecunious – where the circumstances justify an order for costs against the mother on a party/party basis for a specific amount.

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

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Clemett and Clemett (1981) FLC 91-013
Cross v Beaumont (2008) 39 Fam LR 389
EJK & TSL (No. 2) (2006) 35 Fam LR 590
Hawkins v Roe (2012) 47 Fam LR 526
JRN & KEN v IEG & BLG (1998) 72 ALJR 1329

Sullivan & Tyler(No. 4) [2013] FamCAFC 175

APPLICANT:

Ms Sullivan

RESPONDENT:

Mr Tyler

INDEPENDENT CHILDREN’S LAWYER:

Mr Christaki

FILE NUMBER:

SYC

889

2008

DATE DELIVERED:

20 June 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

12 June 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

SOLICITOR FOR THE RESPONDENT:

KDB Holmes Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Berry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

Orders made 12.6.14

The mother’s application filed 9 May 2014 is dismissed. I reserve my reasons for doing so.
I reserved my decision in respect of the father’s application pursuant to s 118(1)(c) Family Law Act 1975 (Cth) and his costs application.

FURTHER ORDERS

Until the conclusion of the mother’s appeal against final parenting orders made on the 26 March 2014 and any appeal against any order made by the Full Court in that appeal, the mother is restrained pursuant to s 118(1)(c) of the Family Law Act 1975 (Cth) from filing any application for parenting orders in relation to D Tyler born … 2004 without the leave of a judge of the Family Court of Australia.
The mother pay the father’s costs in respect of the applications before the court on 12 June 2014 assessed in the sum of $1,125.00.

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…

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 & TYLER

Details

AGLC: SULLIVAN & TYLER [2014] FamCA 448
Case: [2014] FamCA 448
Decision Date

CaseChat Overview and Summary

The Family Court of Australia heard an application by Ms Sullivan (the mother) for a stay of final parenting orders made on 26 March 2014, and for variation of interim orders to allow face-to-face time with the child pending her appeal. Mr Tyler (the father) sought an injunction under s 118(1)(c) of the *Family Law Act 1975* (Cth) and costs. The mother's applications were dismissed, and the court reserved its decision on the father's applications.

The court was required to determine whether to grant the mother's application for a stay of the final parenting orders, and consequently, whether to grant the father's application for an injunction restraining the mother from filing further parenting applications without leave. Additionally, the court had to consider the father's application for costs against the mother.

In its reasoning, the court applied established principles for granting a stay of parenting orders pending appeal, which include the welfare of the child as a significant consideration, the bona fides of the applicant, the strength of the proposed appeal, and the desirability of limiting changes to the child's living arrangements. The court noted that the onus was on the mother to establish a proper basis for the stay, and that the mere filing of an appeal was insufficient. The court found that many of the grounds of appeal sought to re-argue the case presented at the hearing and involved disagreements with the court's assessment of evidence and findings of fact. The court also considered the father's entitlement to the benefit of the judgment and the presumption that it was correct.

The court ordered that the mother be restrained, pursuant to s 118(1)(c) of the *Family Law Act 1975*, from filing any application for parenting orders concerning the child without the leave of a judge of the Family Court of Australia, pending the determination of her appeal and any subsequent appeal. Furthermore, the mother was ordered to pay the father's costs in the sum of $1,125.00 in respect of the applications heard on 12 June 2014, as she was wholly unsuccessful and her application was repetitive of previously determined issues.

Orders