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

FAMILY COURT OF AUSTRALIA

SULLIVAN & TYLER (NO. 4)

[2013] FamCAFC 175

FAMILY LAW – .APPEAL – Interim orders – whether there were significant changes - where evidence is untested – where the evidence will be tested at final hearing.

FAMILY LAW – APPEAL – leave to appeal against procedural orders – where trial directions were made – where the trial did not go ahead – where the direction is in relation to an expert witness – where a single expert has already been appointed – where one party does not regard the expert as having the required expertise – where there are criminal proceeding running at the same time – where the mother had legal aid funding for both final hearing in the Family Court of Australia and in criminal proceedings – whether there has been an error of principle and/or a substantial injustice.

FAMILY LAW – COSTS – where the mother was unsuccessful

Criminal Procedure Act 1986 (NSW)
Family Law Act 1975 (Cth) ss 65(Y), 114(3), 118(1)(c)
Family Law Rules 2004 (Cth) r 11.04(1), 15.06

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170

CDJ v VAJ (1998) 197 CLR 172

Langmeil & Grange [2013] FamCAFC 31

Marsden v Winch (2009) 42 Fam LR 1

Rice & Asplund (1979) FLC 90-725

SPS & PLS (2008) FLC 93-363

APPELLANT:

Ms Sullivan

RESPONDENT:

Mr Tyler

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

889

2008

FIRST APPEAL NUMBER:

2013

SECOND APPEAL NUMBER:

128

2013

DATE DELIVERED:

1 November 2013

PLACE DELIVERED:

Perth

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Ryan & Fowler JJ

HEARING DATE:

23 September 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

30 January 2013 (EA 22 of 2013) and 15 August 2013 (EA 128 of 2013)

LOWER COURT MNC:

[2013] FamCA 39

REPRESENTATION

FOR THE APPELLANT:

Ms Sullivan appeared 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

IT IS ORDERED (AS AMENDED PURSUANT TO RULE 17.02):

Appeal EA 22 of 2013 - Order of 30 January 2013

Grant leave to the mother to file an application to adduce further evidence.
Application to adduce further evidence dismissed.
Appeal be dismissed.

Appeal EA 128 of 2013 - Order of 15 August 2013

Refuse leave to the mother to appeal against the procedural orders of Watts J made on 15 August 2013.

Appeal EA 22 of 2013 and EA 128 of 2013

Mother to pay the father’s costs of and incidental to both appeal EA 128 and EA 22 in the sum of $3,800 within 42 days of this order.

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…

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 4)

Details

AGLC: Sullivan & Tyler (No 4) [2013] FamCAFC 175
Case: [2013] FamCAFC 175
Decision Date: 1 November 2013

CaseChat Overview and Summary

Sullivan & Tyler (No 4) involved the mother appealing against two sets of orders made by the Family Court of Australia. The first appeal was against procedural orders made on 15 August 2013, and the second was against the dismissal of an application to adduce further evidence. The mother sought to appeal against the procedural orders, which included the appointment of a single expert witness. She argued that the expert did not have the necessary expertise, and since the trial did not proceed, there was no opportunity to test this evidence. The second appeal was against the dismissal of her application to present additional evidence.

The legal issues the court had to decide were whether there were significant changes in circumstances that warranted a departure from the earlier procedural orders, and whether there was an error of principle or substantial injustice in the appointment of the single expert. The court also needed to determine if there was an error of principle or substantial injustice in dismissing the application to adduce further evidence.

The court held that there were no significant changes in circumstances to warrant a departure from the earlier procedural orders. The evidence presented would be tested at the final hearing, and the appointment of a single expert was not an error of principle or a substantial injustice. The mother had not demonstrated that there was a need for another expert. The court also found that there was no error of principle or substantial injustice in dismissing the application to adduce further evidence. The mother had not shown that the expert's appointment would lead to a different outcome.

The court refused leave to appeal against the procedural orders and dismissed the appeal against the application to adduce further evidence. The mother was ordered to pay the father's costs of and incidental to both appeals in the sum of $3,800 within 42 days of the order.

Orders

Orders of the court

Appeal EA 128- Order of 23 September 2013

1. Refuse leave to the mother to appeal against the procedural orders of Watts J made on 15 August 2013.

Appeal EA 22- Orders of 15 August 2013

2. Grant leave to the mother to file an application to adduce further evidence

3. Application to adduce further evidence dismissed.

4. Appeal be dismissed

5. Mother to pay the father’s costs of and incidental to both appeal EA 128 and EA 22 in the sum of $3,800 within 42 days of this order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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