Family Court Rules on Security of Costs in Family Extradition Proceedings

Keywords: Family law, Family Law Act 1975, section 65Y, section 121, section 68B, child taken overseas, publication, restriction on publication, injunction, sequestration order, costs, appeal.

Introduction

The case of Sullivan & Tyler and Anor (No. 2) [2016] FamCAFC 131 (20 July 2016) (‘Sullivan & Tyler’) was an appeal held in the Full Court of the Family Court of Australia.  The presiding Judges were Thackray, Strickland & Austin.  Ms Sullivan (‘Applicant’), and Mr Tyler (‘Respondent’) had been involved in lengthy parenting proceedings.  During these proceedings the Applicant took their only child overseas in breach of the Family Law Act 1975 (“Family Law Act”).  Ms Banks (‘Second Respondent’), an author, published a book about their experiences with the absence of the child and made the publication available online.

On 12 April 2013, the Applicant unsuccessfully applied for orders to prevent publication of the book.  The Applicant then appealed against the orders dismissing her application.  Upon appeal, the Second Respondent asked the Family Court that the Applicant be required to pay security for the Second Respondent’s costs.  The Family Court agreed and made an Order for security for costs.  The Application failed to pay the security for costs on time and the matter was dismissed.

Background

The Applicant and Respondent had parenting proceedings underway to determine the care of their children.  The proceedings were long running.  Once proceedings had commenced, in 2008 the Applicant took the child from Australia without the consent or permission of the First Respondent or the Court.  In December 2008, an order was made by Judge Watts allowing details of the Applicant and the child to be published.  This was to allow the search for the missing child.  Sometime around September 2010, in Europe, the Applicant and the child were found.  They were extradited to Australia where the Applicant was prosecuted and sentenced for breaching section 65Y of the Family Law Act 1975 (“Family Law Act”).  Section 65Y prohibits a party to proceedings involving children from taking or sending the children outside of Australia under some circumstances.

Subsequently the Second Respondent had published a book on the events of the child being taken overseas which was released on the Internet.  In July 2012, the Applicant became aware of the publication and claimed the Applicant and child could be identified from the publication.  The Applicant attempted to have the Second Respondent restrained from further publication under section 68B and section 121 of the Family Law Act.

Section 68B allows for the granting of an injunction to protect the child or another person.  Section 121 restricts publications about any account of proceedings that identifies the parties, a related person or a witness.

The Applicant’s case was heard by Judge Loughnan and was subsequently dismissed.  The Second Respondent was free to continue making the publication available to the public.  On 2 September 2013 the Applicant filed a Notice of Appeal.  In October 2013 the Second Respondent filed an Application in an Appeal requesting that the Applicant give security for costs for the Second Respondent’s costs in the appeal proceedings.

The terms of the Second Respondent’s Application in an Appeal were:

1. That the Second Respondent would have the publication removed from the Internet;
2. That the Applicant pay $12,000.00 to be held on security for any costs awarded to the Second Respondent in relation to the proceeding; and
3. If the Applicant fails to lodge the security then the Applicant’s appeal shall be dismissed.

The Second Respondent’s application was agreed to by the Family Court in the terms above.  The Order provided that the Applicant had until 18 September 2015 to pay the secured sum.  In the meantime, the Applicant filed for special leave to appeal with the High Court.  Then the Applicant lodged an Application in an Appeal in the Family Court proceedings to have the Second Respondent’s security costs order stayed until the High Court determined the Applicant’s appeal application.  The Family Court agreed, stipulating that in the case the High Court declined the special leave to appeal application, the Applicant would have 14 days to lodge the security sum.

The High Court dismissed the Applicant’s special leave to appeal on 17 December 2015.  The Applicant then had 14 days to pay the security sum for the Second Respondent’s costs.  No payment for security was made by the due date and the matter was dismissed.

Decision

Before the 14 days had expired, the Applicant lodged two Applications in an Appeal.  The first application requested the appeal hearing be reinstated and listed as soon as possible.  The second application attempted to stay the requirement to pay the security costs if the appeal was reinstated.

In considering the Applicant’s Application in an Appeal for reinstatement of the matter without security costs for the Second Respondent, the Court considered that the Applicant was impecunious.  However, the Court found that this was not a reasonable excuse to prevent the requirement for the security for the Second Respondent’s costs.  As the Applicant could not pay the security for costs, the Family Court dismissed the Applicant’s Application in an Appeal.