Gilligan and Addison & Ors
[2018] FamCAFC 211
•1 November 2018
FAMILY COURT OF AUSTRALIA
| GILLIGAN & ADDISON AND ORS | [2018] FamCAFC 211 |
| FAMILY LAW – APPEAL – CHILDREN – Where the appellant is not biologically related to the subject children – Where the trial judge found the appellant poses an unacceptable risk of harm to the children – Where the appellant appealed against orders eliminating him from the children’s lives – Where the trial judge canvassed the relevant evidence thoroughly and gave cogent reasons for the conclusions reached – Where the overarching risk of sexual abuse posed by the appellant was an overwhelming feature of the evidence – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the fourth respondents and the Independent Children’s Lawyer sought costs against the appellant – Where the appellant would suffer financial hardship if ordered to pay costs – Where the fourth respondents and the Independent Children’s Lawyer did not comply with procedural orders – Costs applications dismissed. |
| Family Law Act 1975 (Cth) s 117(4)(b) Family Law Rules 2004 (Cth) | |
| House v The King (1936) 55 CLR 499; [1936] HCA 40 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 Sansom v Sansom [1956] 1 WLR 945 Scrymegeour & Scrymegeour (2014) FLC 93-600; [2014] FamCAFC 130 State of New South Wales v Nash [2016] NSWCA 98 | |
| APPELLANT: | Mr Gilligan |
| FIRST RESPONDENT: | Ms Addison |
| SECOND RESPONDENT: | Ms Illingworth |
| THIRD RESPONDENT: | Mr Jenkins |
| FOURTH RESPONDENTS: | Mr and Ms Williams |
| INDEPENDENT CHILDREN’S LAWYER: | Foat Roberts Lawyers |
| FILE NUMBER: | NCC | 2695 | of | 2012 |
| APPEAL NUMBER: | EAA | 50 | of | 2018 |
| DATE DELIVERED: | 1 November 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Ryan & Austin JJ |
| HEARING DATE: | 1 November 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 6 March 2018 |
| LOWER COURT MNC: | [2018] FamCA 131 |
REPRESENTATION
| THE APPELLANT: | In person |
| FIRST RESPONDENT: | No appearance |
| SECOND RESPONDENT: | No appearance |
| THIRD RESPONDENT: | No appearance |
COUNSEL FOR THE FOURTH RESPONDENTS: | Ms McMahon |
| SOLICITOR FOR THE FOURTH RESPONDENTS: | Little & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Ticehurst |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Foat Roberts Lawyers |
Orders
The appeal be dismissed.
The oral applications for costs made by the fourth respondents and by the Independent Children’s Lawyer be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gilligan & Addison and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth). |
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 50 of 2018
File Number: NCC 2695 of 2012
| Mr Gilligan |
Appellant
And
| Mr Addison |
First Respondent
And
| Ms Illingworth |
Second Respondent
And
| Mr Jenkins |
Third Respondent
And
| Mr and Ms Williams |
Fourth Respondents
And
| Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
Austin J
By Notice of Appeal filed on 3 April 2018, Mr Gilligan (“the appellant”) appeals against parenting orders made by Cleary J on 6 March 2018 pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) in relation to two children, who are now 16 and 15 years of age.
The orders made by the trial judge provided for the children to live with a married couple (the fourth respondents), who are members of the extended maternal family, and for that couple to have parental responsibility for the children. One particular order, in the form of an injunction, restrains the children from either spending time or communicating with the appellant.
Although the appellant is not biologically related to either child, he contested the trial by seeking orders which would give him unfettered control over the children. He wanted them to live with him (as they had been before the trial) and to exercise exclusive parental responsibility for them. His application for residence was resisted by each other party and was repugnant to the Family Consultant’s recommendation. Although the Independent Children’s Lawyer supported the appellant’s application at trial, he did not support the appeal.
The principal issue in the case was the risk of harm the appellant poses to the children. The trial judge found, based on both the factual evidence and the Family Consultant’s opinion evidence, that the appellant poses an unacceptable risk of harm to the children and, since the risk could not be satisfactorily attenuated, made orders which effectively eliminated him from the children’s lives.
The appeal faces several insuperable impediments and will be dismissed, but first, some more history and context is required to explain why.
Background
The eldest child is “globally delayed”, including some degree of intellectual impairment. He needs and receives educational support and he functions at the level of a much younger child.
The youngest child “struggles with learning and literacy” and her misbehaviour at school has been the subject of complaint.
The appellant is the maternal grandmother’s former de facto partner. The children lived with the two of them instead of the parents for many years and, after their relationship ended, the children remained living with the appellant. In July 2013, in former proceedings between the parties over the children, consent orders were made for the children to live with the appellant, and for him and the maternal grandmother to have equal shared parental responsibility for the children. The children regularly spent time with the maternal grandmother up until May 2016 when, following an argument, the appellant severed the children’s interaction with her. Dissatisfied with that situation, the maternal grandmother commenced fresh proceedings in November 2016 against the appellant, the mother, and the father.
The parties and the children conferred with the Family Consultant in March and June 2017, following which the Family Consultant reported that, effectively, “there was no safe place for the children” with any of the parties and she strongly recommended that the Court invite the child welfare authority to intervene in the proceedings. In August 2017, the Court did invite the child welfare authority’s intervention, but it did not eventuate.
Following the release of the Family Report containing the Family Consultant’s dire opinion about the risks of harm posed to the children by the parties, the fourth respondents expressed their willingness to engage in the litigation and, in September 2017, they were joined as parties to the proceedings. The fourth respondents are the maternal great aunt (the maternal grandmother’s sister) and her husband. Once they joined the proceedings, they sought orders for the children to live with them and for them to be vested with parental responsibility, which were the orders ultimately made by the trial judge. The fourth respondents were already the permanent residential carers of the mother’s three youngest children (who are half-siblings to the subject children) pursuant to a welfare order made by the Children’s Court of New South Wales in May 2015.
The appellant sought orders that the children live with him and that he have sole parental responsibility for them. He also sought injunctions precluding the children’s contact with all other parties other than the maternal grandmother.
The injunction, which was eventually made to preclude the children’s contact with the appellant, was premised upon the risk of harm he poses to them in two particular respects: first, the risk he may cause them harm by sexual abuse, and second, the risk he may cause them emotional harm by destroying their relationships with members of the maternal family. The trial judge found as follows (at [225]):
I have come to the conclusion that there has been and continues to be unacceptable risk of harm to the children of both a sexual and emotional nature.
As to the risk of harm through sexual abuse, there was abundant evidence of the appellant’s past sexual activity. Relevantly, the trial judge found:
(a)The appellant served a sentence of two years imprisonment for his sexual assault upon the young woman who was his former partner. Although he pleaded guilty to the offence, in these proceedings he falsely asserted the sexual intercourse was consensual. He was released in September 1995, before he met the maternal grandmother (at [12], [145]-[147], [225(a)]).
(b)In 1998, the appellant may have engaged the mother in sexual intercourse on her 16th birthday after plying her with alcohol, though there was no finding it occurred without her consent (at [18], [167], [187]-[189], [225(c)], [225(e)]).
(c)In 2004, the appellant may have surreptitiously entered a room in which the mother was sleeping, removed her pyjama pants and had sexual intercourse with her, at which time she froze. There was no finding she did not consent (at [27], [225(c)], [225(e)]).
(d)From about 2002, the appellant probably watched the mother’s younger sister (who was then aged 16 years) in the shower while he was hidden in the roof void of the house (at [31], [169]-[170], [193]-[194], [225(e)]).
(e)In 2004, the appellant may have had sexual intercourse with the mother’s younger sister in her own bed on the morning after her 18th birthday. There was no finding she did not consent (at [34], [225(c)], [225(e)]).
Although allegations were made of other sexualised misconduct by the appellant, no findings were expressly made about whether he:
(a)Tried to kiss the mother on the face and mouth, hug her and touch her, while she was a child, including in 2003 (at [24], [225(b)]).
(b)Sexually molested the mother’s younger sister from the time she was aged 10 years, by touching her genitals and fondling her (at [40], [225(b)]).
(c)Told the mother’s youngest sister, whilst she was a child, he was in love with her and, on one occasion, spiked her drink (at [31], [225(b)]).
As to the risk of the children’s emotional harm due to the appellant’s destruction of their relationships with maternal family members, the trial judge found:
(a)The maternal grandmother’s separation from the appellant caused him distress, which later changed to anger and bitterness (at [58], [160], [172], [174]). The reports made to police in early 2016 by the mother and her younger sister about their sexual molestation by the appellant probably contributed to him feeling embattled, embittered and vengeful (at [67], [225(i)], [240]).
(b)In May 2016, the appellant severed the children’s contact with the maternal grandmother to punish the maternal grandmother, but the effect of which was punitive to the children (at [69]).
(c)The orders proposed by the appellant at trial revealed the antipathy he felt towards members of the maternal family (at [94]-[95], [161]).
(d)The appellant cut the children off from members of the maternal family (at [225(h)], [240]).
(e)The appellant has not shielded the children from his adverse feelings about members of the maternal family (at [319]).
There is no doubt the trial judge weighed those adverse considerations against others which favoured the appellant. The children lived with him for three years prior to the trial (at [136]). Her Honour found the children love him and refer to him as “dad” (at [7], [134]). They regarded him as their father and believed he was the only adult they could rely on to care for them (at [249]-[251], [265]). Her Honour also acknowledged the children expressed their desire to remain living with the appellant (at [264]).
However, those countervailing considerations did not weigh as heavily as the appellant expected they would or should. He asked the children directly if they wanted to see the mother and, although they informed him they did not (at [162]), he seemed oblivious to the prospect they simply gave him the answer they suspected he wanted to hear. The appellant said he would allow the children to see members of the maternal family if they wanted, but the trial judge found that he did not believe they did now or would ever want to do so (at [166]). His firm belief to that effect would be a strong deterrent to the children ever expressing a contrary wish, since the Family Consultant asserted, and the trial judge accepted, they are aligned with him (at [261]). Their loyalty to him would account for why they told the Independent Children’s Lawyer they wished “no further time with the [fourth respondents]” (at [268]). Despite their age, the trial judge considered that the children’s relative immaturity, their lack of sophistication, and their absolute dependence upon the appellant warranted less weight being reposed in their views (at [285]-[289]).
The Family Consultant remained convinced that the children were not safe in the appellant’s care, for which reason she recommended they live with the fourth respondents and that their relationships with the appellant be severed (at [218]-[219]). The trial judge recognised the serious repercussions of their removal from his care, which her Honour described as a “huge” change (at [303]-[304], [308]). Had only the eldest child been at issue, her Honour would have left him in the care of the appellant, but it was more desirable for the children to remain together and the youngest child’s predicament required her removal from the appellant’s care (at [312], [342]). The children’s relationships with the appellant required severance to guard against their new residence with the fourth respondents being undermined (at [314]-[317]).
The grounds of appeal
The recognised grounds of appeal against a discretionary judgment are well known (House v The King (1936) 55 CLR 499 at 504-505) and, given the generous ambit within which a trial judge’s discretion may be legitimately exercised (Norbis v Norbis (1986) 161 CLR 513 at 539-540), unless an appeal can be categorised within those recognised grounds, it will be futile.
Once an appellant properly isolates the grounds on which the trial judge’s decrees will be lawfully challenged, it is then necessary to carefully articulate them so the court understands the nature of the complaint and the respondents know the case they must meet. Unlike the court rules in other jurisdictions, the Family Law Rules 2004 (Cth) do not prescribe the manner in which grounds of appeal must be pleaded, but the standard form Notice of Appeal requires that they be stated “briefly”. Observations to the same effect about the need for brevity and precision have been made by this Court before (Scrymegeour & Scrymegeour (2014) FLC 93-600 at [23]-[26])
In this instance, the appellant’s Notice of Appeal contained 11 grounds of appeal, almost all of which were beset by procedural and substantive anomalies. The contents of the Notice obfuscated rather than illuminated the basis of the appeal. The individual grounds each comprised long paragraphs, which amounted to discursive submissions about what the trial judge should or should not have done. They were not succinct statements of asserted error readily capable of identification as competent grounds within the House principles. Measured against the intended objective of eliminating points not in controversy and leaving only an intelligible and coherent core to be litigated (see Sansom v Sansom [1956] 1 WLR 945; State of New South Wales v Nash [2016] NSWCA 98 at [21]), the grounds of appeal were hopelessly inadequate.
Had any respondent applied to have the grounds of appeal struck out (as distinct from the appeal dismissed), the application would most likely have been granted and the appellant ordered to file an Amended Notice of Appeal. However, that course was not taken.
Doing the best that can be done with the existing grounds of appeal, the appellant’s complaints appear capable of the following characterisation.
First, he objects to the trial judge’s findings about his sexual interest in the mother and her younger sister (Grounds 1, 2) and he contends the finding about him posing an unacceptable risk of harm to the children was wrong (Ground 11).
Second, he contends the trial judge failed to give him sufficient credit for the way in which he historically provided the children with residential care (Grounds 3, 4, 5, 10).
Third, he contends the trial judge gave insufficient weight to the children’s expressed wish to remain living with him (Ground 9).
Other grounds, which asserted support for his cause from the Independent Children’s Lawyer (Ground 7) and the later need for the issue of a recovery order in respect of the children (Ground 8), did not advance the appeal.
The submissions in support of the appeal
The lawyer who filed the appeal for the appellant subsequently withdrew his representation and so the appellant prepared and filed his own written submissions. Without intending disrespect, they are difficult to follow and, although the individual grounds formed sub-headings within the submissions, there appears to be little or no correlation at all between each ground and the submissions supposedly linked to it.
In effect, the submissions are no more than a collection of statements which appear to assert: the appellant’s denial of any “inappropriate” conduct with either the mother or her younger sister; the allegations of sexual impropriety made against him by the mother and her younger sister were “entirely false accusations”; the appellant “respect[s] and protect[s] women and children”; the appellant worries for the children now they no longer live with him; the children are now “being fed dishonest and cruel accusations” against him; and the children would be better off back in his care.
Self-evidently, the appellant was dissatisfied with the trial judge’s decision, which her Honour predicted (at [314]), but merely repeating the same mantra on appeal as he did at trial does not constitute a competent appeal.
Disposition
The first group of grounds, which complain about the trial judge’s ultimate finding that the appellant poses an unacceptable risk of harm to the children on account of the possibility of his subjection of them to sexual abuse, are misconceived. The trial judge canvassed the relevant evidence thoroughly and gave cogent reasons for the conclusion reached. Neither the grounds nor any submission made in support of them adequately identify or explain why the trial judge was or might have been wrong.
The second group of grounds, which assert the trial judge gave him insufficient credit for providing residential care to the children for some years before the trial, were also misconceived. The trial judge acknowledged the children loved him, looked to him as their only source of support, and wanted to remain with him. However, there were other adverse features of his residential care. In his care, the children’s academic needs were largely unmet. Nor was he able to properly provide for their emotional needs, as was demonstrated by the way in which he aligned the children against and cut them off from members of the maternal family. His qualitative care of them was therefore not so compellingly good, even though he fed, clothed, and housed them. The overarching sexual risk he posed to them effectively precluded their continuing residence with him. It was an overwhelming feature of the evidence.
The third group of grounds, which contended the attribution of insufficient weight to the children’s expressed desire to remain living with him, could not succeed because the trial judge was aware of the children’s views and explained why their views were not dispositive. Neither the grounds nor the submissions made in support of them caste any doubt at all upon the way in which the trial judge treated the evidence in relation to that issue. In effect, the complaint was simply that the children’s views should have been determinative of the result, whereas the trial judge was plainly right not to take such a one-dimensional approach.
In my view, the appeal has no merit and should be dismissed.
Ryan J
I agree.
Strickland J
I agree with the proposed order and the reasons provided therefor.
We now have before the Court applications by the fourth respondents and the Independent Children’s Lawyer for costs. They each seek costs in the sum of $3,410 calculated on a party/party basis.
In relation to the application by the Independent Children’s Lawyer we consider that s 117(4)(b) of the Act applies. Namely, that a party to the proceedings would suffer financial hardship, that party being the appellant, if the appellant had to bear a portion of the costs of the Independent Children’s Lawyer. Accordingly, in the circumstances, the Court must not make an order for costs in favour of the Independent Children’s Lawyer.
The other matter in relation to that application is of course that the Independent Children’s Lawyer filed a summary of argument the afternoon before the appeal, and not in accordance with the orders made by the Appeals Registrar on 13 June 2018.
We understand of course that the appellant did not comply with those orders, in that his summary of argument was filed late, namely on 18 October 2018, but that does not absolve the other parties from filing their summaries of argument in accordance with the orders or, at the very least, seeking an extension of time to do so. We add that the Independent Children’s Lawyer’s summary of argument was brief.
For that reason and its lateness, but particularly because of s 117(4)(b), we are not prepared to make any order for costs in favour of the Independent Children’s Lawyer.
In relation to the fourth respondents’ application, we also propose to make no order for costs.
No summary of argument was filed by the fourth respondents in accordance with the orders made by the Appeals Registrar. We understand that there was an issue about notification of the listing of this appeal for hearing. But of course there was still in place the orders made by the Appeals Registrar in relation to the filing of summaries of arguments and the fourth respondents did not comply with those orders.
Thus, in the circumstances, we are not disposed to make an order for costs in favour of the fourth respondents. In addition, there are the financial circumstances of the appellant which we take into account.
The orders of the Court will be:
(1)The appeal be dismissed.
(2)The oral applications for costs made by the fourth respondents and by the Independent Children’s Lawyer be dismissed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ryan and Austin JJ) delivered on 1 November 2018.
Associate:
Date: 13 November 2018
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