GAHEN & GAHEN
[2013] FamCAFC 211
FAMILY COURT OF AUSTRALIA
| GAHEN & GAHEN | [2013] FamCAFC 211 |
| FAMILY LAW - APPEAL – CHILDREN – Appeal against trial judge’s decision not to stay orders pending substantive appeal – Where stay appeal resolved by consent between parties – Appeal dismissed. FAMILY LAW – APPEAL – CHILDREN – Application for expedition of substantive appeal – Where the appellant alleges sexual abuse of the child – Where the appellant submits that that the trial judge made serious errors in conducting the trial – Where the respondent and independent children’s lawyer do not oppose expedition -Application granted. |
| APPELLANT: | Ms Gahen |
| RESPONDENT: | Ms Gahen |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | NCC | 1953 | of | 2010 |
| APPEAL NUMBER: | EA 145 of 2013 EA 173 of 2013 |
| DATE DELIVERED: | 6 December 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | May, Murphy and Benjamin JJ |
| HEARING DATE: | 6 December 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 September 2013 |
| LOWER COURT MNC: | [2013] FamCA 730 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Gould |
| SOLICITOR FOR THE APPELLANT: | Nolan Commercial |
| COUNSEL FOR THE RESPONDENT: | Mr Graham |
| SOLICITOR FOR THE RESPONDENT: | Powe & White Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Rugendyke |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
IT IS ORDERED THAT:
The application in an appeal in EA 173 of 2013 filed on 4 December 2013 seeking leave to adduce further evidence of Dr NN, Dr W, Ms D and the appellant wife is dismissed.
The appeal no EA 173 of 2013 is dismissed.
The application in an appeal in EA 145 of 2013 filed on 4 December 2013 seeking to expedite that appeal is allowed and the appeal be listed for hearing on 6 February 2014 at 10:00am.
IT IS ORDERED BY CONSENT PENDING FURTHER ORDER AND WITHOUT ADMISSION THAT:
Paragraphs 4 to 8 of the orders of Austin J made on 20 September 2013 be varied and the following paragraphs be inserted in lieu thereof:
(a)The child, N (born in January 2008) (“the child”) spend time with the father commencing 7 December 2013 on each Saturday between 9:00am and 5:00pm and on Christmas Day between 10:00am and 5:00pm and on the child’s birthday between 1:00pm and 5:00pm and by telephone each Wednesday between 6:00pm and 6:30pm.
(b)For the purposes of implementing the preceding paragraph the parties shall meet at McDonalds Restaurant at Suburb G and to implement telephone time, the father telephone the mother’s mobile telephone number.
The costs of and incidental of each party to appeals EA 145 and EA 173 of 2013 are reserved to the Full Court.
IT IS FURTHER ORDERED THAT SUBJECT TO THE FURTHER DIRECTIONS OF THE APPEAL REGISTRAR:
The appeal books for the appeal EA 145 of 2013 comprise each of the following documents arranged in the following order:
(a)Notice of Appeal filed 18 October 2013;
(b)Order of the Honourable Justice Austin made on 20 September 2013;
(c)Reasons for Judgment of the Honourable Justice Austin delivered 20 September 2013;
(d)Order of the Honourable Judge Myers made on 6 February 2013;
(e)Amended Initiating Application by Ms Gahen filed 26 July 2013;
(f)Initiating Application by Ms Gahen filed 13 December 2012;
(g)Response to Amended Initiating Application by Mr Gahen filed 9 August 2013;
(h)Response to Initiating Application by Mr Gahen filed 24 December 2012;
(i)Affidavit of Ms Gahen sworn 12 December 2012 filed 13 December 2012;
(j)Affidavit of Ms Gahen sworn 16 August 2013 filed 16 August 2013;
(k)Affidavit of Ms L sworn 16 August 2013 filed 16 August 2013;
(l)Affidavit of Mr M sworn 16 August 2013 filed 16 August 2013;
(m)Affidavit of Ms Gahen sworn 9 October 2013 filed 9 October 2013;
(n)Affidavit of Mr Gahen sworn 21 December 2012 filed 24 December 2012;
(o)Affidavit of Mr Gahen sworn 16 August 2013 filed 16 August 2013;
(p)Affidavit of Mr R sworn 16 August 2013 filed 16 August 2013;
(q)Family Report dated 28 June 2013;
(r)Magellan Report dated 11 April 2013;
(s)Case Outline of Ms Gahen filed 21 August 2013;
(t)Case Outline of Mr Gahen filed 22 August 2013;
(u)Case Outline of the Independent Children’s Lawyer filed 21 August 2013;
(v)Notice of Child Abuse or Family Violence by Ms Gahen filed 21 January 2013;
(w)Transcript of Proceedings before the Honourable Justice Austin on 18 July 2013;
(x)Transcript of Proceedings before the Honourable Justice Austin on 12 August 2013;
(y)Transcript of Proceedings before the Honourable Justice Austin on 26 August 2013;
(z)Transcript of Proceedings before the Honourable Justice Austin on 27 August 2013;
(aa)Transcript of Proceedings before the Honourable Justice Austin on 28 August 2013;
(bb)Transcript of Proceedings before the Honourable Justice Austin on 29 August 2013;
(cc)List of Exhibits
The appellant mother be responsible for the preparation of the appeal books.
The appellant mother prepare a total of ten (10) copies of the appeal books, and file in the Sydney Registry of the Court on or before 19 December 2013, four (4) copies of the appeal books, together with a certificate pursuant to Chapter 22 Rule 22.20(2) of the Family Law Rules 2004, and serve on or before 19 December 2013, two (2) copies of the appeal books on the Respondent Father, together with a copy of the certificate, and serve on or before 19 December 2013, two (2) copies of the appeal books on the Independent Children’s Lawyer, together with a copy of the certificate.
That pursuant to Rule 22.21 the appeal will be taken to be abandoned if the appellant fails to file the appeal books by the due date. If the appellant seeks an extension of time for filing of the appeal books, such extension should be sought with the written consent of the other party, or if such consent is not forthcoming, by filing an application in an appeal, with supporting affidavit, seeking such extension of time, prior to the close of business on the due date for filing of the appeal books being 19 December 2013.
That the appellant mother file and serve her Summary of Argument and List of Authorities with the Appeals Registrar on or before 19 December 2013.
That the respondent father file and serve his Summary of Argument and List of Authorities with the Appeals Registrar on or before 24 January 2014.
That the Independent Children’s Lawyer file and serve his Summary of Argument and List of Authorities, if any, with the Appeals Registrar on or before 31 January 2014.
That each party be at liberty to apply for any further directions regarding any question arising out of the appeal book index to the Appeals Registrar, and regarding any other issue, to a judicial member of the Appeal Division, upon five (5) days notice in writing to the other party and to the Appeals Registrar in the Sydney Registry.
IT IS NOTED THAT
The estimated hearing time of the appeal is 1 day.
Mr Gould is briefed to appear as counsel for the appellant mother.
Mr Graham is briefed to appear as counsel for the respondent father.
Mr Rugendyke is briefed to appear as counsel for the Independent Children’s Lawyer.
In the event either party seeks to rely on an exhibit in the proceedings he or she shall provide photocopies of such exhibit for members of the Full Court.
The Appellant or Legal Representative for the Appellant is to contact the Appeal Registry on 9217 7206 before 4.00 pm on the due date, in order to make arrangements to file the Appeal Books.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gahen & Gahen 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 145 of 2013
EA 173 of 2013
File Number: NCC 1953 of 2010
| Ms Gahen |
Appellant
And
| Mr Gahen |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
May J
A notice of appeal was filed on 29 November 2013 against an order made by Austin J refusing to stay the whole of the orders relating to the arrangements for time between the father and child arising out of substantive proceedings heard by him. There is also an appeal against a number of those substantive orders made on 20 September 2013 (appeal EA 145 of 2013). This morning, the stay appeal has been resolved to the extent that we will make orders dismissing that appeal. By the consent of the parties we will make orders in lieu of some of the orders made by his Honour providing for different arrangements for the child until the hearing and disposition of the appeal.
The remaining matter before us is an application filed on 4 December 2013 that the appeal from the substantive orders be heard with expedition.
The child, N, was born in January 2008. In the trial before his Honour, very serious allegations were raised by the mother, in particular that the child had been sexually abused. His Honour rejected the allegations made by the mother and, in fact, made positive findings that the child had not been abused. The grounds of the substantive appeal in relation to the final orders made by his Honour raise some very serious issues.
The application for expedition is supported by an affidavit of the mother. The concern there raised is the length of time that it might take for an appeal to be heard, and bearing in mind the age of the child and the serious allegations, it is submitted that there should be expedition.
There were a number of serious issues for the trial judge in conducting the trial, including the manner in which he dealt with the evidence before him.
It seems that it is going to be submitted at the appeal that his Honour made some serious errors in his decision in that respect. We have before us the affidavits of three proposed witnesses to a further evidence application, Dr NN, Dr W and Ms D. I understand in the appeal it is going to be said that his Honour did not treat that evidence in the manner that he ought to have done.
The notice of appeal also raises a number of other serious grounds. These include denial of procedural fairness and a challenge to findings made by the trial judge not being available on the evidence before him.
Without dealing with the merits of the appeal in any depth, it seems that there are some very serious matters to be argued. Of course, there are many children’s cases that this Court deals with where serious grounds are raised. It is not possible to give expedition to every case, but it seems at least to me that the circumstances of this case are such that expedition should be granted.
Murphy J
I agree that expedition should be granted. I note in addition to the matters raised by her Honour, the presiding judge, that neither the respondent father nor the Independent Children's Lawyer opposes the expedition of this appeal, and for the reasons advanced by her Honour, the presiding judge, I agree that such an order should be made.
Benjamin J
I agree that the expedition should be granted and I adopt and accept the reasons given by her Honour, May J, and his Honour, Murphy J.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered ex tempore on 6 December 2013.
Associate:
Date: 20 December 2013
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