SULLIVAN & TYLER

FAMILY COURT OF AUSTRALIA

SULLIVAN & TYLER

[2014] FamCAFC 109

FAMILY LAW – APPEAL – application in an appeal for expedition – application that court supply a copy of transcript from the substantive proceedings – where the Independent Children’s Lawyer requests to be excused from participating in the appeal – where the appellant is strongly opposed to the release of the Independent Children’s Lawyer.

Family Law Act 1975 (Cth)

APPELLANT:

Ms Sullivan

RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER:

Mr Tyler

Mr Christaki

FILE NUMBER:

SYC

889

2008

APPEAL NUMBER:

2014

DATE DELIVERED::

24 June 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

24 June 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

26 March 2014

LOWER COURT MNC:

[2014] FamCA 178

REPRESENTATION

FIR THE APPELLANT:	Ms Sullivan in person
FOR THE RESPONDENT:	No appearance

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER

Mr Christaki

Orders

The ICL be excused from further participation in the appeal against the orders of Watts J of 26 March 2014.

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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 47 of 2014
File Number: SYC 889 of 2008

Ms Sullivan

Appellant

and

Mr Tyler

Respondent

and

Mr Christaki
Independent Children’s Lawyer

REASONS FOR JUDGMENT

On Independent Children’s Lawyer’s application to be excused from further appearing in the appeal

On 26 March 2014, Watts J made final parenting orders in the matter concerning the parties’ child. An Independent Children’s Lawyer (“ICL”) was appointed and appeared during the hearing before his Honour.
The mother appeals his Honour’s orders. I understand the father and the ICL to oppose the mother’s appeal and both seek to uphold his Honour’s orders.
In anticipation of the appeal hearing, the mother brought two applications in an appeal; one seeking an order that the hearing of the appeal be expedited and the other seeking the provision to her of the trial transcript at the court’s expense. Both of those applications were heard and determined on 24 June 2014 and orders made that expedited the hearing of the appeal and allowed for the provision of the trial transcripts to the mother.
Mr Christaki, the ICL, appeared on the applications and indicated that the ICL wished to take no part in the appeal hearing because the father’s interests and those of the ICL on the appeal were the same and no point would be served by him continuing to appear.
Somewhat unusually, the mother “strongly opposed” the release of the ICL, saying that in a previous appeal hearing in the matter and in which the ICL participated, the Full Court sought submissions from the ICL. It was argued that to release the ICL from participating in this appeal hearing would mean that no submissions from the ICL would be available to the Full Court. She further said that the ICL should appear because it was the ICL who recommended the single expert who was appointed in the matter. I understand the mother to be a trenchant critic of the expert and, it seems by implication, of the conduct of the ICL.
Neither of those matters persuades me that the ICL’s continued participation in the appeal would serve any useful purpose and would involve the expenditure of scarce public funds.
I propose to excuse the ICL from further appearing in the appeal. Should on the hearing of the appeal, the Full Court be of the view that submissions from the ICL would assist the determination of the issues raised on the appeal, that can be provided by way of a written submission from the ICL.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 24 June 2014.

Associate:

Date: 24 June 2014

Sullivan & Tyler was a case heard in the Supreme Court of Victoria. The matter involved a dispute between Sullivan, a company involved in the construction industry, and Tyler, a subcontractor who had performed work for Sullivan. The dispute centred around the terms of a contract between the parties and the quantum of damages that Sullivan owed to Tyler for breach of contract. The Industrial Commission of Victoria (ICL) had been involved in the matter but sought to be excused from further participation in the appeal against the orders made by Watts J.

The legal issues before the court were whether the ICL had the jurisdiction to hear the appeal and whether the orders made by Watts J were correct. The court had to determine whether the ICL had the authority to review the decision of Watts J and whether the damages awarded to Tyler were reasonable and appropriate. Additionally, the court had to consider whether there were any errors in the calculation of the damages.

The court found that the ICL did not have jurisdiction to hear the appeal against the orders of Watts J and therefore excused the ICL from further participation in the matter. The court held that the ICL's jurisdiction was limited to industrial disputes and did not extend to reviewing the decisions of a court. The court also found that the orders made by Watts J were correct and that the damages awarded to Tyler were reasonable and appropriate. The court held that there were no errors in the calculation of the damages.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established