Gilles & Irby

Case [2016] FamCAFC 13


FAMILY COURT OF AUSTRALIA

GILLES & IRBY [2016] FamCAFC 13

FAMILY LAW – APPEAL – CHILDREN – INTERIM ORDERS – Where the appellant mother reviewed the Senior Registrar’s orders which placed the child on the Family Law Watchlist – Where the trial judge ordered that, in addition to the Senior Registrar’s orders, the mother should also be placed on the Family Law Watchlist – Where the Full Court found that  trial judge had an obligation to clarify the orders sought, an obligation to explain those orders to the self-represented mother as a means of ensuring that the mother understood the additional case she was meeting, and finally, to afford the mother an opportunity to consider the same and respond.

Family Law Act 1975 (Cth) ss, 37A, 68B, 69ZT, 93A, 94, 114(3), 117 and 121
Family Law Rules 2004 (Cth) r 17.02 and r 18.10

Agius & Agius (2010) FLC 93-442
Allesch v Maunz (2000) 203 CLR 172
AMS v AIF (1999) 199 CLR 160
Athens v Randwick City Council (2005) 64 NSWLR 58
Burrell v R (2008) 238 CLR 218
CDJ v VAJ (1998) 197 CLR 172
Chapa & Chapa (2013) FLC 93-538
Cummins v McKenzie & Another [1979] 2 NSWLR 803
DJL v The Central Authority (2000) 201 CLR 226
Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206
Gould v Vaggelas (1985) 157 CLR 215
Harris v Caladine (1991) 172 CLR 84
Ivanhoe Gold Corporation Ltd v Symonds (1906) 4 CLR 642
L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590
Newmont Yandal Operations Pty Ltd v J Aron Corp (2007) 70 NSWLR 411
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Sampson and Hartnett (No 10) (2007) FLC 93-350
Stredwick and Stredwick (1985) FLC 91-724
U v U (2002) 211 CLR 238
Vadisanis & Vadisanis and Anor (2015) FLC 93-671
Zanda & Zanda (2014) FLC 93-607

APPELLANT: Ms  Gilles
RESPONDENT: Mr Irby
INDEPENDENT CHILDREN'S LAWYER: Louise Coady
FILE NUMBER: SYC 7577 of 2010
APPEAL NUMBER: EA 41 of 2015
DATE DELIVERED: 11 February 2016
PLACE DELIVERED: Brisbane
PLACE HEARD: Sydney
JUDGMENT OF: Ryan, Murphy & Austin JJ
HEARING DATE: 20 August 2015
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 9 March 2015
LOWER COURT MNC: [2015] FamCA 259

REPRESENTATION

THE APPELLANT: In person
COUNSEL FOR THE RESPONDENT: Mr C Sperling
SOLICITOR FOR THE RESPONDENT: John Spence & Associates

COUNSEL FOR THE

INDEPENDENT CHILDREN'S LAWYER:

Ms Falloon

SOLICITOR FOR THE

INDEPENDENT CHILDREN'S LAWYER:

Louise Coady Family Lawyers Pty Ltd

Orders

Amended on 16 February 2016 pursuant to rule 17.02 of the Family Law Rules 2004

  1. The mother’s application for leave to appeal the order made by Rees J on 9 March 2015 to the effect that the mother be restrained from leaving Australia be granted.

  2. The appeal against that order be allowed.

  3. The order made by Rees J on 9 March 2015 to the effect that the mother be restrained from…

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AGLC
Gilles & Irby [2016] FamCAFC 13
Case
[2016] FamCAFC 13
Decision Date

CaseChat Overview and Summary

In the case of Gilles & Irby, the appellant mother, Ms Gilles, appealed against the orders made by Rees J on 9 March 2015, which included placing her and her child, B, on the Family Law Watchlist. The appeal was heard by the Full Court of the Family Court of Australia. The mother argued that the trial judge did not adequately explain the orders to her, which she claimed was crucial as she was self-represented.

The primary legal issues before the court were whether the trial judge had an obligation to clarify the orders sought, to explain those orders to the self-represented mother, and to provide her an opportunity to consider and respond. The court examined whether the trial judge's actions complied with the principles of procedural fairness, particularly under the Family Law Act 1975 and relevant case law.

The Full Court found that the trial judge had indeed an obligation to clarify the orders sought, to explain those orders to Ms Gilles, and to give her a chance to consider and respond to them. The court emphasised the importance of ensuring that a self-represented party fully understands the implications of the orders being made against them. The Full Court concluded that the trial judge did not fulfil these obligations, leading to a breach of procedural fairness.

As a result, the court granted the mother's application for leave to appeal the order to restrain her from leaving Australia, allowed the appeal against that order, and set it aside. However, the court dismissed the mother's application for leave to appeal the remaining orders made by Rees J. Each party was ordered to pay their own costs of the appeal.

Orders

Orders of the court

Amended on 16 February 2016 pursuant to rule 17.02 of the Family Law Rules 2004

1.

The mother’s application for leave to appeal the order made by Rees J on 9 March 2015 to the effect that the mother be restrained from leaving Australia be granted.

2.

The appeal against that order be allowed.

3.

The order made by Rees J on 9 March 2015 to the effect that the mother be restrained from leaving Australia be set aside.

4.

The mother’s application for leave to appeal the remaining orders of Rees J made on 9 March 2015 (as corrected by this Court) be dismissed.

5.

Each party shall pay their own costs of an incidental to this appeal.

6.

The Appeals Registrar is directed to prepare, seal and issue to each of the parties and the Independent Children’s Lawyer the interim orders forming Annexure A to these orders.

7.

Pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth), an account of these proceedings, namely the non-anonymised reasons of the Full Court herewith, be authorised for publication to:

(a) The Commissioner, Australian Federal Police and all such officers as he might properly authorise including the Officer in Charge of the Family Law Watch list and officers under his or her command; and

(b) The Director, Immigration and Border Protection and any officers whom he or she might properly authorise including all such officers as might be concerned in the maintenance and enforcement of the Family Law Watch list.

NOTATION

A. In order to give clarity to the orders which apply to the parties and to the child by reason of the orders of this Court, Annexure A to these Orders sets out the current interim orders applicable to the parties and the child.

ORDERS OF THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA

ANNEXURE A TO ORDERS MADE 11 February 2016

PENDING FURTHER OR OTHER ORDER IT IS ORDERED THAT:

1. The mother surrender within 7 days of these orders and deliver up to the Registrar of the Family Court of Australia at Sydney, all Country C passports currently held by the mother relating to the child, B, born … 2007, and all passports currently held by the mother that include the child, B, and such passports be retained by the Registrar and not returned to the mother without the prior written consent of the father or further order of the court.

2. The mother within 7 days of these orders surrender and deliver up to the Registrar of the Family Court of Australia, Sydney, all Country C passports and Australian passports currently held by the mother of the child, B such passports be retained by the Registrar and not returned to the mother without the prior written consent of the father or further order of the court, provided that the father give written consent to the release of the passports in the event the mother wishes to return to Country C to visit her family without the child B.

3. The mother forthwith advise the court of any pending application made by her for a Country C passport in the name of the child B.

4. The mother forthwith advise the court of any pending application she has made for a Country C Birth Certificate (the Country C Nationality) for the child B.

5. The father Mr Irby born … 1956, his servants and/or agents and the mother Ms Gilles born … 1969, her servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child B born … 2007 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to the order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the said child’s name on the watch list until the court orders its removal.

6. That the Australian Federal Police be requested to confirm the departure from Australia of the mother, Ms Gilles born … 1969.

7. It is requested that the confirmation be given to the father at [father’s address] or the Independent Children’s Lawyer, [at the ICL’s address].

8. That the mother, Ms Gilles be restrained from spending time with or taking possession of the child, B from the commencement of school Monday to the cessation of school Friday each week which is the time the child lives with the father.

9. The father and/ or the independent children’s lawyer be at liberty to provide a sealed copy of these orders to the child’s school and NSW Police and any other authority to ensure compliance with these orders.

10. The Court requests that to the extent that it is possible, the Australian Federal Police note the name of the respondent mother Ms Gilles, date of birth … 1969, for the purposes of close scrutiny to ensure that the child B, a male born … 2007, does not leave the Commonwealth of Australia, the name of the said child having been placed on the Airport Watch List at the request of this Court made on 12 November 2014.

NOTATION

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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