GILBERT-SIDDON & GILBERT-SIDDON
[2009] FamCAFC 190
•16 October 2009
FAMILY COURT OF AUSTRALIA
| GILBERT-SIDDON & GILBERT-SIDDON | [2009] FamCAFC 190 | |
| FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – PRACTICE AND PROCEDURE – Provided opportunity to appellant to formulate grounds of appeal in writing or orally – Summary dismissal of Notice of Appeal as it showed no arguable grounds or had little prospects of success | ||
| APPLICANT: | Mr GILBERT-SIDDON |
| RESPONDENT: | Ms GILBERT-SIDDON |
| INDEPENDENT CHILDREN’S LAWYER: | BURRIDGE HARRIS & FLYNN LAWYERS |
| APPEAL NUMBER: | NA | 71 | of | 2009 |
| FILE NUMBER: | CRC | 9 | of | 2008 |
| DATE DELIVERED: | 16 October 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Warnick J |
| HEARING DATE: | 16 October 2009 |
REPRESENTATION
| APPLICANT: | Applicant appeared in person |
| SOLICITOR FOR THE RESPONDENT: | Ms Corcoran |
| SOLICITORS FOR THE RESPONDENT: | Legal Aid NSW |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms Steiner |
| SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER | Burridge Harris & Flynn Lawyers |
Orders
IT IS ORDERED BY CONSENT:-
That Order 6 (i) of the orders made by Federal Magistrate Cassidy on 4 September 2009 be varied so that the words “within seven (7) days of the change” are deleted and the words “not less than seven (7) days prior to any change” are inserted.
IT IS FURTHER ORDERED:-
That the Notice of Appeal filed 22 September 2009 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Gilbert-Siddon & Gilbert-Siddon is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| IN THE APELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
APPEAL NUMBER: NA71 of 2009
FILE NUMBER: CRC 9 of 2008
| Mr GILBERT-SIDDON |
Applicant
And
| Ms GILBERT-SIDDON |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
On 22 September 2009, Mr Gilbert-Siddon filed a Notice of Appeal against orders made by Cassidy FM on 4 September 2009. Those orders were parenting orders relating to Mr Gilbert-Siddon’s children with Ms Gilbert-Siddon: four children, still under the age of 18. Orders gave the mother sole parental responsibility for them, provided that they live with the mother and provided arrangements designed to permit the father to spend time with the children for two hours every three months at a contact centre. There were quite a few other orders made governing certain aspects relating to the children.
The father nominated in his Notice of Appeal that he wished to appeal five orders. The first of these, Order 5, provided that the father be at liberty to send the children birthday and Christmas gifts and cards at an address provided by the mother. The father took that order to limit him to only giving gifts at those times; whereas, all parties or other parties agree that there is nothing in the orders to prevent the father giving gifts or cards to the children when he sees them in person.
Order 6 was also challenged because it provided that the mother notify the father in writing of any change in school within seven days of the change. That issue has been resolved by the making of an order by consent varying it. The father does not then wish to appeal Orders 5 and 6.
Order 12 provided that the Court authorised copies of the family report to be provided to the contact centre and to a nominated person or other person treating the father from time to time. The father has resiled from his challenge to that order.
His Notice of Appeal then currently goes to Orders 9 and 10. Order 9 is that:
The mother shall ensure that she is present at all times when the children are in the presence of their maternal grandfather or [Mr A] [a friend of the mother].
The father's Notice of Appeal refers to that order in these terms ..... the same order, grandfather and Mr A, and be not be looked after by the mother but at a contact centre.
In short, he says that those persons ought not be allowed to see the children merely in the presence of the mother. This is because, at other times the mother has failed to protect them or, at least, the father fears that the mother has failed to protect them. The father is quite uncertain about what evidence touching on that matter was before the Federal Magistrate. He is unable, apart from repeating his fear that the children will be at risk, to identify any asserted error in the Magistrate's treatment of the matter.
Moreover, the order can be seen as connected to an order that the mother have counselling relating to sexual abuse in her own past and thus it can also be seen as addressing a change of circumstance from whatever existed at other times when the children might have been in the presence of the maternal grandfather or Mr A.
It might be that, by examining the reasons, one could craft an apparently arguable ground of appeal in relation to Order 9, but I do not think that the Court ought attempt to do that, partly because the onus is on Mr Gilbert-Siddon. In that regard, I think he is at some disadvantage being unfamiliar with the Court system and perhaps not being a good writer. Because of that, I have endeavoured to give him time and the opportunity to think about proposed grounds of appeal and even simply to articulate them verbally, but he is not able to do that.
I have also considered whether there is sufficient hint of arguable grounds of appeal against Order 9 to allow the matter to advance. To do so would place the other parties, I think, at considerable disadvantage and it would seem unlikely that a Court would even have before it the transcript of proceedings before the Federal Magistrate, because Mr Gilbert-Siddon is not able to afford it.
The court, from time to time, will arrange for transcript to be provided for the purposes of an appeal, but, commonly, when asked to do so, will examine the prospects of appeal and the nature of the orders appealed, and my view is that it is unlikely that the court would provide a transcript in this case.
Order 10 provides that the father is restrained from attending at any schools that the children attend. The ground of appeal is simply that the father would like to take part in the children’s schooling. He has referred to having taken part in the children’s schooling on past occasions, which may be some indication that he might be able to argue inappropriate weight was given to that evidence, but he is unable to satisfy me that that evidence was even before the Federal Magistrate.
The dilemmas in relation to order 10 are similar to those that I have expressed in relation to order 9 and, in those circumstances, I consider that the proper course is to dismiss the notice of appeal on a summary basis, as disclosing no arguable grounds or as having no arguable prospects of success.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick
Associate:
Date: 26 October 2009
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