Gaddy & Gaddy - [2022] FedCFamC2F 1544

Federal Circuit and Family Court of Australia
(DIVISION 2)
Gaddy & Gaddy [2022] FedCFamC2F 1544

File number(s): NCC 124 of 2021

Judgment of: JUDGE KEARNEY

Date of judgment: 11 November 2022

Catchwords: FAMILY LAW – Parenting – where the Independent Children’s Lawyer applied for the appointment of a Litigation Guardian for the Respondent Mother – where the Mother opposed the appointment – where Father supported the application but in the event the application is dismissed sought that the defended hearing proceed – where the Court considers the Mother has capacity to instruct her legal representatives.

Legislation:
Family Law Act 1975 (Cth), Pt VII

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Cases cited:
Keir & Ramsay [2022] FedCFamC1F 362 (‘Keir & Ramsay’)

L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114 (‘L v HREOC’)

Division: Division 2 Family Law

Number of paragraphs: 63

Date of last submission/s: 10 November 2022

Date of hearing: 10 November 2022

Place: Newcastle

Solicitor for the Applicant: Fielden & Associates – Family & Relationship Lawyer

Solicitor for the Respondent: Self Represented

Solicitor for the Independent Children’s Lawyer Legal Aid NSW – Newcastle Family Law

ORDERS

NCC 124 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR GADDY

Applicant

AND:
MS GADDY

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE KEARNEY

DATE OF ORDER:

11 NOVEMBER 2022

THE COURT ORDERS THAT:
1.The application in a proceeding filed by the Independent Children’s Lawyer on 2 November 2022 is dismissed.
2.By 12.00noon today the Independent Children’s Lawyer shall serve the following solicitors with a copy of the Judgment pronounced by the Court today –
(a)SCB Legal; and
(b)Inner West Solicitors Pty Ltd.

3.By 12.00noon today, an authorised officer of the Court shall provide a copy of the Orders and the Judgment pronounced by the Court today upon an authorised officer of Legal Aid NSW who is responsible for administering the Commonwealth Family Violence and Cross-Examination of Parties Scheme.
4.Within 24 hours of being served with any Notice of Address for Service filed by a solicitor on behalf of the mother, the Independent Children’s Lawyer shall serve that solicitor with a copy of the Judgment pronounced by the Court today.
5.The four-day trial is confirmed to commence on Monday 5 December 2022.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED…

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 Gaddy & Gaddy

Details

AGLC: Gaddy & Gaddy [2022] FedCFamC2F 1544
Case: [2022] FedCFamC2F 1544
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia dismissed the Independent Children's Lawyer's application for the appointment of a litigation guardian for the mother in a parenting dispute. The father supported the application while the mother opposed it and wished to instruct a solicitor to prepare for the trial. The court found that the mother had the capacity to instruct her legal representatives and conduct the proceedings herself, despite her emotional state and past behavior. The court dismissed the application and confirmed the four-day trial set to commence on December 5, 2022.

The court considered the applicable law, including the overarching purpose of the civil practice and procedure provisions, the appointment of a litigation guardian, and the principles for conducting child-related proceedings. The court found that the medical evidence relied upon by the Independent Children's Lawyer to support a finding of the mother's incompetency to manage her affairs was unsatisfactory. The court also found that dismissing the application would support the efficient use of the court's resources and provide for the just determination of the dispute as quickly, inexpensively, and efficiently as possible. The court further found that dismissing the application would ensure that the proceedings conclude in a timely manner and without undue delay, in line with the principles for conducting child-related proceedings.

Orders