Gillard & Gillard

Case [2015] FamCAFC 169


FAMILY COURT OF AUSTRALIA

GILLARD & GILLARD [2015] FamCAFC 169

FAMILY LAW – APPEAL – CHILDREN – Where father appeals against final parenting orders – Where the majority of the grounds of appeal challenge the weight which the primary judge gave to various factors – Where the primary judge was satisfied that the father engaged in a pattern of emotionally abusive behaviour which undermined the children’s relationships with the mother – Family violence – Where the dynamic of abuse which existed prior to separation continued but in a different form after separation – Where it was in all respects insidious and warranted the strong criticisms made by the primary judge – Where the orders made by the primary judge were largely consistent with expert recommendations and were designed to maintain the children’s relationship with both parents and minimise the risk of harm – Where the orders for the children to live with the mother and have limited time with the father were contrary to a child’s strongly stated views – Approach to treatment of children’s views discussed – Where no error demonstrated – Appeal dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence –Where the admission of such evidence would be manifestly unfair to the respondent and would impermissibly blur the distinction between original and appellate jurisdiction – Application dismissed.

FAMILY LAW – COSTS – Where the appellant was wholly unsuccessful – Costs ordered.

Family Law Act 1975 (Cth): ss 4AB, 60CC, 65DA(1)
Harrison and Woollard (1995) FLC 92-598
Maldera & Orbel (2014) FLC 93-602
R v R (Children’s wishes) (2002) FLC 93-108
Rollings & Rollings (2009) 230 FLR 396
APPELLANT: Mr Gillard
RESPONDENT: Ms Gillard
INDEPENDENT CHILDREN’S LAWYER: Ms Soliman
FILE NUMBER: PAC 383 of 2008
APPEAL NUMBER: EA 14 of 2015
DATE DELIVERED: 4 September 2015
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Bryant CJ, Ryan and Kent JJ
HEARING DATE: 1 May 2015
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 23 January 2015
LOWER COURT MNC: [2015] FamCA 18

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Jackson
SOLICITOR FOR THE APPELLANT: Rachel Stubbs & Associates
COUNSEL FOR THE RESPONDENT: Ms Saw
SOLICITOR FOR THE RESPONDENT: Law Society of New South Wales
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Dart
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW, Parramatta

Orders

  1. The Application in an Appeal filed on 1 May 2015 be dismissed.

  2. The appeal be dismissed.

  3. The appellant father pay the respondent mother’s costs of and in relation to the appeal (but not the Application in an Appeal) within twenty eight (28) days of agreement or assessment of the quantum of costs.

  4. The appellant father pay the Independent Children’s Lawyer’s costs of the appeal (but not the Application in an Appeal) within twenty eight (28) days of agreement or assessment of the quantum of costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gilliard & Gilliard has been approved by…

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Gillard & Gillard [2015] FamCAFC 169
Case
[2015] FamCAFC 169
Decision Date

CaseChat Overview and Summary

The appeal was brought by the father, contesting the final parenting orders made by the Family Court. The mother and father had separated, and the dispute centred on the living arrangements of their children, as well as the level of contact they would have with their father. The primary judge had ordered that the children live primarily with the mother and have limited time with the father. The Full Court was tasked with determining whether the primary judge had erred in making these orders, and whether additional evidence could be considered in the appeal.

The court examined the primary judge's assessment of the father's emotionally abusive behaviour, which was found to have continued after the separation, albeit in a different form. The Full Court concluded that the primary judge's findings were well-supported and did not demonstrate any error. The court also considered the children's wishes, which were strongly against the ordered parenting arrangements, but ultimately found that the primary judge's orders were consistent with expert recommendations and aimed to safeguard the children's welfare. The Full Court found that the proposed additional evidence in the application to adduce further evidence would be manifestly unfair and would blur the distinction between the original and appellate jurisdictions. Consequently, the application was dismissed.

The Full Court upheld the primary judge's orders, dismissing the father's appeal. Given the father's complete lack of success, the court ordered him to pay the mother's and the Independent Children's Lawyer's costs of the appeal. The court's decision highlighted the importance of ensuring the safety and well-being of children in family law matters, particularly in cases involving family violence and abuse.

The orders of the court were as follows: the application to adduce further evidence was dismissed; the appeal was dismissed; the father was ordered to pay the mother's and the Independent Children's Lawyer's costs of the appeal within 28 days of agreement or assessment of the quantum of costs.

Orders

Orders of the court

1.

The Application in an Appeal filed on 1 May 2015 be dismissed.

2.

The appeal be dismissed.

3.

The appellant father pay the respondent mother’s costs of and in relation to the appeal (but not the Application in an Appeal) within twenty eight (28) days of agreement or assessment of the quantum of costs.

4.

The appellant father pay the Independent Children’s Lawyer’s costs of the appeal (but not the Application in an Appeal) within twenty eight (28) days of agreement or assessment of the quantum of costs.

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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