Gilmot and Gilmot

[2019] FamCAFC 10

FAMILY COURT OF AUSTRALIA

GILMOT & GILMOT [2019] FamCAFC 10

FAMILY LAW – APPEAL – Parenting – Relocation – Where the primary judge’s order provided for the child to live with the mother in a specified suburb in Sydney – Where no such geographical restriction was sought by either of the parties – Lack of procedural fairness – Internal inconsistency in another order – Appeal allowed – Orders varied.

APPELLANT: Ms Gilmot

RESPONDENT: Mr Gilmot

FILE NUMBER: CAC 295 of 2018

APPEAL NUMBER: EA 5 of 2019

DATE DELIVERED: 24 January 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 24 January 2019

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 22 November 2018

LOWER COURT MNC: [2018] FCCA 3377

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Maitland solicitor

SOLICITOR FOR THE APPELLANT: Legal Aid New South Wales

THE RESPONDENT: In person (by telephone)

Orders

1. The appellant is granted leave to:

   (a)amend the Notice of Appeal filed 20 December 2018 to include order 5(c)(ii) in the orders being appealed; and

   (b)add a further ground of appeal to the Notice of Appeal stating that the primary judge erred in that order 5(c)(ii) is internally inconsistent.

2. Dispense with any need to file an engrossed Amended Notice of Appeal.

3. The appeal is allowed.

4. Order 3 of the orders made on 22 November 2018 be varied by deleting the words “in [Suburb D], New South Wales”.

5. Order 4 of the orders of 22 November 2018 be varied by substituting the word “[Suburb D]” with the words “Sydney Metropolitan”.

6. Order 5(c)(ii) of the orders of 22 November 2018 be varied by deleting the words “for a period of six hours”.

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 Gilmot & Gilmot 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 5 of 2019
File Number: CAC 295 of 2018

Ms Gilmot

Appellant

And

Mr Gilmot

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 22 November 2018, a judge of the Federal Circuit Court of Australia made a suite of orders providing for the child of the parties to live with the appellant in Sydney.

2. Included amongst those orders were orders 3 and 4 which state:

   (3)[X] shall live with his mother in [Suburb D], New South Wales.

   (4)The mother is restrained from changing [X]’s residential address from the [Suburb D] area without the written consent of the father or court order

3. The parties agree that the reference to “Suburb D” in those orders is an error in that no such geographical restriction was an issue in the proceedings and that the primary judge did not raise it before making the orders.  There has accordingly been a lack of procedural fairness.

4. The parties are agreed that the geographical reference should be removed from order 3 and that the one in order 4 should be changed to “Sydney Metropolitan area”.  That accords with her Honour’s reasons as there was no reference to Suburb D in them.

5. Further, in order 5(c)(ii), which provides for the child to spend time with the respondent from Saturday 11.00 am until Sunday 1.00 pm, there is a reference to that being for a period of six hours.  There is an obvious inconsistency and the words “for a period of six hours” should be deleted as an error.

6. It follows then that the appeal should be allowed and the orders proposed by the parties made.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 24 January 2019.

Associate: 

Date:  25 January 2019