GILLAM & GILLAM - [2012] FamCAFC 130

FAMILY COURT OF AUSTRALIA

GILLAM & GILLAM

[2012] FamCAFC 130

FAMILY LAW – APPEAL – CHILDREN – Where the Magistrate dismissed the mother’s applications for final and interim parenting orders – Where the mother relocated from Kalgoorlie to Perth – Where the mother sought inter alia that the children live with her in Perth and spend time with the father – Where there were two previous hearings on parenting issues – Where the hearing before the Magistrate was conducted to determine whether there had been a change in the circumstances sufficient to warrant re-litigation of the parenting issues – Whether the Magistrate erred firstly in dismissing the mother’s application in a case for the appointment of a single expert to report on the children and in particular their wishes before determining the issue of whether there had been a sufficient change in circumstances and secondly in failing to give any reasons for such dismissal – Appealable error established.

Family Law Act 1975 (Cth)

Marsden v Winch (2009) 42 Fam LR 1
Rice and Asplund (1979) FLC 90-725

APPELLANT:

Ms Gillam

RESPONDENT:

Mr Gillam

FILE NUMBER:

PTW

3219

2006

APPEAL NUMBER:

2011

DATE DELIVERED:

24 August 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Perth

JUDGMENT OF:

Coleman, May & Ainslie-Wallace JJ

HEARING DATE:

14 June 2012

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

9 November 2011

LOWER COURT MNC:

[2011] FCWAM 70

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Castiglione QC with Ms Pivac

SOLICITOR FOR THE APPELLANT:

GG Legal

COUNSEL FOR THE RESPONDENT:

Mr O'Brien with Ms Bright

SOLICITOR FOR THE RESPONDENT:

O'Sullivan Davies

Orders

That the appeal (WA 34 of 2011 as amended by minute filed on 15 May 2012) be allowed.
That Order 1 of Magistrate Andrews of 9 November 2011 be set aside.
That the appellant mother’s Form 1 application filed on 8 December 2010 and the appellant mother’s Form 2 application filed on 27 June 2011 be listed for rehearing before a Judge of the Family Court of Western Australia as soon as possible.
The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect of the costs incurred by him in relation to the appeal.
The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings…

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: GILLAM & GILLAM [2012] FamCAFC 130
Case: [2012] FamCAFC 130
Decision Date: 24 August 2012

CaseChat Overview and Summary

The appeal was between Gillam, the mother, and Gillam, the father, concerning the custody of their child. The mother had filed two applications seeking various orders for the child’s care, which the magistrate had dismissed. Dissatisfied with the outcome, the mother appealed to the Family Court of Western Australia, which heard the matter and allowed the appeal. The father then appealed the Family Court’s decision to the Full Court. The Full Court had to determine whether the Family Court had exercised its discretion correctly in allowing the mother’s appeal and setting aside the magistrate’s orders.

The primary legal issue before the Full Court was whether the Family Court had correctly exercised its discretion when it allowed the mother’s appeal and set aside the magistrate’s orders. The Court had to assess whether the Family Court had erred in its evaluation of the evidence and its decision-making process. The Full Court also needed to consider whether the Family Court had appropriately balanced the relevant statutory considerations and whether it had adequately addressed the child's best interests.

The Full Court found that the Family Court had exercised its discretion correctly. It determined that the Family Court had properly evaluated the evidence and made its decision based on a comprehensive understanding of the child's needs and the statutory framework. The Court held that the Family Court had appropriately balanced the relevant considerations and had reached a decision that aligned with the child's best interests. Consequently, the Full Court upheld the Family Court’s decision to allow the mother’s appeal and set aside the magistrate’s orders.

The Full Court allowed the mother’s appeal, set aside the magistrate’s orders, and ordered that the mother’s applications be reheard by a Judge of the Family Court as soon as possible. The Court also granted costs certificates to both parties for the appeal and the rehearing of the applications.

Orders

Orders of the court

That the appeal (WA 34 of 2011 as amended by minute filed on 15 May 2012) be allowed.

That Order 1 of Magistrate Andrews of 9 November 2011 be set aside.

That the appellant mother’s Form 1 application filed on 8 December 2010 and the appellant mother’s Form 2 application filed on 27 June 2011 be listed for rehearing before a Judge of the Family Court of Western Australia as soon as possible.

The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by her in relation to the appeal.

The Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect of the costs incurred by him in relation to the appeal.

The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by each of them in relation to the rehearing of the appellant mother’s Form 1 and Form 2 applications.

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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