Gilligan and Addison & Ors - [2018] FamCAFC 211

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

2012

APPEAL NUMBER:

EAA

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…

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.

Continue reading Gilligan and Addison & Ors

Details

AGLC: Gilligan and Addison & Ors [2018] FamCAFC 211
Case: [2018] FamCAFC 211
Decision Date: 1 November 2018

CaseChat Overview and Summary

The appellant, who was not biologically related to the children in question, brought an appeal against the orders made by the trial judge which excluded him from the children's lives. The court was required to determine whether the trial judge's decision was correct and whether the appellant posed an unacceptable risk of harm to the children. Additionally, the court had to decide whether costs should be awarded to the fourth respondents and the Independent Children's Lawyer against the appellant.

The court found that the trial judge had canvassed the evidence thoroughly and provided cogent reasons for concluding that the appellant posed an unacceptable risk of harm to the children. The risk of sexual abuse posed by the appellant was a significant factor in the evidence. The court held that the trial judge's findings were supported by the evidence and dismissed the appeal. The court also found that the fourth respondents and the Independent Children's Lawyer did not comply with procedural orders, and as such, their applications for costs against the appellant were dismissed.

The court dismissed the appeal and held that the trial judge's decision was supported by the evidence. The court found that the risk of sexual abuse posed by the appellant was an overwhelming feature of the evidence. The court dismissed the applications for costs made by the fourth respondents and the Independent Children's Lawyer due to their non-compliance with procedural orders.

The appeal was dismissed, and the oral applications for costs made by the fourth respondents and the Independent Children's Lawyer were dismissed.

Orders

Orders of the court

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.

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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