GILBERT-SIDDON & GILBERT-SIDDON - [2009] FamCAFC 190

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:

2009

FILE NUMBER:

CRC

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…

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.

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Details

AGLC: GILBERT-SIDDON & GILBERT-SIDDON [2009] FamCAFC 190
Case: [2009] FamCAFC 190
Decision Date: 16 October 2009

CaseChat Overview and Summary

In the Family Court of Australia, Gilbert-Siddon and Gilbert-Siddon was the subject of an appeal brought by the husband against a decision rendered by a Federal Magistrate. The primary dispute pertained to the procedural aspects of the family law proceedings, specifically the handling of an application for a change of orders concerning child arrangements. The Federal Magistrate's decision was to be reviewed by the Family Court of Australia.

The court was tasked with determining whether the Federal Magistrate correctly exercised her discretion in summarily dismissing the husband's Notice of Appeal. The central issue revolved around whether the Notice of Appeal demonstrated arguable grounds or had a reasonable prospect of success. Additionally, the court had to consider whether the husband was adequately provided with an opportunity to formulate his grounds of appeal.

The court found that the Notice of Appeal did not present any arguable grounds or show prospects of success, which justified the Federal Magistrate's decision to dismiss it summarily. The court further noted that the husband had been given a reasonable opportunity to articulate his grounds of appeal either in writing or orally. Given these findings, the court upheld the dismissal of the Notice of Appeal. The court also made a minor amendment to the original orders concerning the timing of notice for any future changes in child arrangements.

The court's orders included a variation to the original orders concerning the notice period for any future changes in child arrangements. The dismissal of the Notice of Appeal was upheld as it did not demonstrate arguable grounds or a reasonable prospect of success.

Orders

Orders of the court

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.

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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