Sullivan & Tyler (No. 2) - [2013] FamCAFC 136

FAMILY COURT OF AUSTRALIA

SULLIVAN & TYLER (NO. 2)

[2013] FamCAFC 136

FAMILY LAW – APPEAL – Stay pending an application for Special Leave – Extraordinary Jurisdiction –Whether there are exceptional circumstances – Where the court must consider the merits for the application for special leave.

FAMILY LAW – APPEAL – Leave to Appeal - Appeal from an interlocutory order - prescribed decrees - interlocutory decree.

FAMILY LAW – JURISDICTION – Whether the court has the jurisdiction to order a single expert – where the court has the jurisdiction to order a single expert.

FAMILY LAW – EVIDENCE – Family Report – Expert Evidence – whether the process to appoint a single expert is flawed – where the application for special leave regarding the appointment of a single expert is entirely without merit.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Family Law Regulations 1984 (Cth)

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
House v The King (1936) 55 CLR 499
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No. 1] (1986) 161 CLR 681
Norbis v Norbis (1986) 161 CLR 513
Sexton & Sexton [2012] FamCAFC 218

APPELLANT:

Ms Sullivan

RESPONDENT:

Mr Tyler

INDEPENDENT CHILDREN’S LAWYER:

Christos Christaki

FILE NUMBER:

SYC

889

2008

APPEAL NUMBER:

2013

DATE DELIVERED:

5 September 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

HEARING DATE:

Bryant CJ, Ainslie-Wallace & Murphy JJ

21 August 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

19 June 2013

LOWER COURT MNC:

[2013] FamCA 472

REPRESENTATION

THE APPELLANT:

Ms Sullivan 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 Sydney Central Family Law

Orders

Appeal against the orders made by Watts J on 19 June 2013 be dismissed.
The application in an appeal filed by the father on 14 August 2013 seeking the striking out of the mother’s grounds of appeal be dismissed.
The mother pay the father’s costs of and incidental to the appeal as agreed or assessed.

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 92 of 2013
File Number: SYC 889 of 2008

Ms Sullivan

Appellant

And

Mr Tyler

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

The matter before the Court involves the child of the parties, D, who was born in August 2004. The history of the parties’ relationship, as it involves the child, is somewhat complex. It is important to give some background, both factual and procedural, to the parties’ dispute to give context to the present appeal.

Background

On 24…

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 (No. 2)

Details

AGLC: Sullivan & Tyler (No. 2) [2013] FamCAFC 136
Case: [2013] FamCAFC 136
Decision Date: 5 September 2013

CaseChat Overview and Summary

The matter of Sullivan & Tyler (No. 2) was heard in the Family Court of Australia, with the father, Mr. Sullivan, appealing the orders made by Watts J on 19 June 2013. The mother, Ms. Tyler, filed a cross-appeal against the same orders. The central dispute revolved around parenting arrangements concerning the couple’s two children.

The legal issues that the court had to address involved the interpretation and application of the Family Law Act 1975, specifically focusing on the best interests of the children in determining their residence and the extent of parental responsibility. The father's appeal challenged the primary judge's assessment of the children's best interests and the allocation of parenting time. The mother, on the other hand, cross-appealed on the grounds that the primary judge had inadequately considered her submissions regarding the children's welfare.

In dismissing the father's appeal and the application seeking to strike out the mother's grounds of appeal, the court found that the primary judge's assessment was based on a comprehensive consideration of the evidence and was in line with the statutory requirements. The court held that the primary judge had appropriately balanced the various factors relevant to the children's best interests and had not erred in her decision-making process. As a result, the mother was ordered to pay the father's costs of and incidental to the appeal as agreed or assessed.

Orders

Orders of the court

Appeal against the orders made by Watts J on 19 June 2013 be dismissed.

The application in an appeal filed by the father on 14 August 2013 seeking the striking out of the mother’s grounds of appeal be dismissed.

The mother pay the father’s costs of and incidental to the appeal as agreed or assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.