Gilshannon & Giles - [2008] FamCAFC 31

FAMILY COURT OF AUSTRALIA

GILSHANNON & GILES

[2008] FamCAFC 31

FAMILY LAW - APPEAL – From decision of Federal Magistrate – CHILDREN – Consent orders were made that the children live with the mother and that the parties have equal shared parental responsibility for major long term issues – Children spending time with the father – Less than three months after the consent orders were made the father filed an application seeking major changes to them – Consideration by the Federal Magistrate of the rule in Rice and Asplund on the papers – Father’s application dismissed – Whether the Federal Magistrate failed to find that the alleged denial by the mother of a meaningful relationship to the father with the children and the mother’s alleged neglect of the children in relation to their medical conditions, constituted a significant change of circumstance – Whether Rice and Asplund in now “old law” because of the 2006 amendments to the legislation – Whether the Federal Magistrate failed to deal with the application on the merits and did not apply the paramountcy principle – Whether the Federal Magistrate erred in applying his discretion by considering the time that had elapsed since the consent orders as a relevant factor – Appeal dismissed

FAMILY LAW - APPEAL – From decision of Federal Magistrate – Application to adduce further evidence – Application abandoned

Family Law Act 1975 (Cth)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

Norbis v Norbis (1986) FLC 91‑712
Rice and Asplund (1979) FLC 90-725
SPS and PLS [2008] FamCAFC 16

APPELLANT:

MR GILSHANNON

RESPONDENT:

MS GILES

APPEAL NUMBER:

2008

FILE NUMBER:

ROC

626

2007

DATE DELIVERED:

20 March 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Warnick J

HEARING DATE:

28 February 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

30 November 2007

LOWER COURT MNC:

[2007] FMCAfam 1152

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Baston

SOLICITOR FOR THE APPELLANT:

COUNSEL FOR THE RESPONDENT:

Mr Jordan

SOLICITOR FOR THE RESPONDENT:

Baldwin Cartwright Lawyers

Orders

That the appeal be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Gilshannon & Giles is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 1 of 2008

File Number: ROC 626 of 2007

MR GILSHANNON

Appellant

And

MS GILES

Respondent

REASONS FOR JUDGMENT

On 30 April 2007, Federal Magistrate Slack made orders, with the consent of these parties, providing in great detail arrangements for the care of their two children, Andrew and David, born in 2001 and 2005 respectively. The matter had been listed for trial before the Federal Magistrate, considerable material had been filed and each party was represented by a solicitor and barrister. The orders provided that the children live with the mother and that the parties have equal shared parental responsibility for major long term issues. Andrew was to immediately commence spending time with the…

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.

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Details

AGLC: Gilshannon & Giles [2008] FamCAFC 31
Case: [2008] FamCAFC 31
Decision Date: 20 March 2008

CaseChat Overview and Summary

The appeal before the Family Court was brought by the father, seeking to overturn a decision made by a Federal Magistrate concerning the custody and care of his children. The mother and father had previously entered into consent orders, which stipulated that the children would live with the mother and that both parents would share equal responsibility for major long-term issues. Shortly after the orders were made, the father filed an application for significant changes, citing the mother's alleged denial of a meaningful relationship with the children and neglect of their medical conditions as a substantial change in circumstances. The Federal Magistrate considered the matter on the basis of the rule in Rice and Asplund but dismissed the father's application. The father appealed, arguing that the Magistrate failed to appropriately address the alleged changes in circumstances and did not apply the paramountcy principle correctly. Additionally, the father contended that the Magistrate improperly considered the elapsed time since the consent orders as a relevant factor.

The primary legal issues before the court were whether the Federal Magistrate erred in finding that the alleged denial by the mother of a meaningful relationship with the father and the neglect of the children's medical conditions did not constitute a significant change in circumstances. The father also argued that the rule in Rice and Asplund was no longer applicable due to legislative amendments in 2006. Furthermore, he contended that the Magistrate did not adequately apply the paramountcy principle and incorrectly exercised discretion by taking into account the time elapsed since the consent orders. The court was required to determine whether the Magistrate's decision was in error and if the appeal should be upheld.

The court found that the Federal Magistrate did not err in his assessment of the significant change in circumstances. The evidence presented did not support the father's claims of meaningful relationship denial and neglect, and thus there was no basis to alter the original consent orders. The court further determined that the rule in Rice and Asplund remained valid and applicable, despite the 2006 amendments, and that the paramountcy principle was correctly applied. The court held that the time elapsed since the consent orders was a legitimate consideration in the exercise of discretion, as it was relevant to the stability and best interests of the children. The appeal was dismissed, and the original orders remained in effect.

No further orders were made as the appeal was dismissed, and the Federal Magistrate's decision was upheld. The father's application to adduce further evidence was abandoned during the appeal process.

Orders

Orders of the court

That the appeal be dismissed.

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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