SULLIVAN & TYLER (NO. 3) - [2013] FamCAFC 144

FAMILY COURT OF AUSTRALIA

SULLIVAN & TYLER (NO. 3)

[2013] FamCAFC 144

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Whether appeals against interim parenting orders and listing of trial date orders should be expedited so to be heard before the date of final hearing– Where the gravity of the issues in the appeal are such that it should displace other matters awaiting trial dates – Whether appeals against publication orders should be expedited – Where there is no obvious nexus between the disposition of those orders and the capacity of the court to determine the living arrangements of the child, the appeal is not to be expedited

Family Law Act 1975 (Cth): ss 118, 94

British American Tobacco Australia Limited v Secretary, Department of Health and Ageing [2011] FCA 718
Sullivan & Tyler (No. 2) [2013] FCAFC 136

APPELLANT:

Ms Sullivan

FIRST RESPONDENT:

Mr Tyler

SECOND RESPONDENT:

(in EA22, 62 and 128 of 2013)

Legal Aid NSW

SECOND RESPONDENT:

(in EA51/2013)

Ms B

FILE NUMBER:

SYC

889

2008

APPEAL NUMBER:	EA	22	of	2013
APPEAL NUMBER:	EA	51	of	2013
APPEAL NUMBER:	EA	62	of	2013
APPEAL NUMBER:	EA	128	of	2013

DATE DELIVERED:

16 September 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

16 September 2013

REPRESENTATION

FOR THE APPELLANT:

Ms Sullivan appeared in Person

SOLICITOR FOR THE FIRST RESPONDENT:

KDB Holmes Solicitors

SOLICITOR FOR THE SECOND RESPONDENT:

(in EA22, 62 and 128 of 2013)

Legal Aid NSW

SOLICITOR FOR THE RESPONDENT:

(in EA51/2013)

No appearance

Orders

That the hearing of Notices of Appeal EA 22 of 2013 and EA 128 of 2013 be expedited.
The appeals referred to in Order 1 are listed for hearing to commence at 2.00 pm on 23 September 2013.
IT IS NOTED that the Appeals Bench is likely to be constituted by Ainslie-Wallace, Ryan and Fowler JJ.
To the extent that Order 1 dated 25 July 2013 consolidated Appeal No EA 22 of 2013 with Appeals No EA 51 of 2013 and EA 62 of 2013, the order is discharged.
That in relation to Appeal EA 22 of 2013, Orders 9, 10, 11, 12 and 14 dated 25 July 2013 are varied so that:
(a)the appellant mother shall file and serve the Appeal Books, Summary of Argument and List of Authorities on or before 10.00 am on 19 September 2013;
(b)the respondent father shall file and serve a Summary of Argument and List of Authorities on or before 4.00 pm on 20 September 2013; and
(c)the Independent Children’s Lawyer shall file and serve a Summary of Argument and List of Authorities by 10.00 am on 23 September 2013.
That in relation to Appeal EA 128 of 2013 the following orders and directions are made:
1. That the appeal books for the appeal comprise each of the following documents arranged in the following order:
(1)Notice of Appeal filed 3 September 2013;
(2)Order of the Honourable Justice Watts made on 15 August 2013;
(3)Transcript…

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.

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Details

Case: [2013] FamCAFC 144
Decision Date

CaseChat Overview and Summary

In the matter of Sullivan & Tyler (No 3) [2013] FamCAFC 144, the Family Court of Australia considered two applications in appeal by Ms Sullivan, the mother, seeking the expedition of four appeals related to interim parenting orders, trial directions, and publication orders. The appeals, namely EA 22 of 2013, EA 51 of 2013, EA 62 of 2013, and EA 128 of 2013, were argued before Ryan J. The father and the Independent Children's Lawyer opposed the applications for expedition. The court found that the appeals concerning interim parenting orders and trial directions should be expedited, while the appeals concerning the publication orders should not be expedited.

The court's reasoning was based on the nature of the issues involved in each appeal. For the interim parenting and trial directions appeals, the court agreed with the mother's submission that the gravity of the issues in the appeals warranted their expedition to be heard before the final hearing. On the other hand, the court found that there was no obvious nexus between the disposition of the publication orders appeal and the capacity of the court to determine the living arrangements of the child. The court also noted that the publication order appeal could properly await the completion of the interim parenting orders appeal.

As a result of the court's decision, the hearing of appeals EA 22 of 2013 and EA 128 of 2013 was expedited, and they were listed for hearing to commence on 23 September 2013. The appeals EA 51 of 2013 and EA 62 of 2013 were not expedited. Further, the amended application in an appeal filed on 6 September 2013 was dismissed. The costs of and incidental to the hearing were reserved to the Full Court.

Orders