Gingham and Gingham - [2013] FamCA 727

FAMILY COURT OF AUSTRALIA

GINGHAM & GINGHAM

[2013] FamCA 727

FAMILY LAW – PRACTICE AND PROCEDURE – Rice & Asplund – Whether there has been a significant change in circumstances – Summary disposal – Whether the application is frivolous or vexatious – Whether the application has a reasonable likelihood of success – Where there is no significant change in circumstances which would warrant further litigation of the parenting matter.

Evidence Act 1995 (Cth).
Family Law Act 1975 (Cth) s69ZN, s69ZQ(1), s69ZR, s69ZT(1).
Family Law Rules 2004 (Cth) r10.12(c), r10.12(d).

Bennett and Bennett (1991) FLC 92-191.

Caracini & Paglietta [2009] FamCAFC 188.
CDJ v VAJ (1998) 197 CLR 172.
DL & W [2012] FamCAFC 5.
Freeman and Freeman (1987) FLC 91-857.
G & G [2000] FamCA 12.
Goode and Goode (2006) FLC 93-286.
King and Finneran (2001) FLC 93-079.

Marsden v Winch [2009] FamCAFC 152.

McEnearney and McEnearney (1980) FLC 90-866.
Miller & Harrington (2008) FLC 93-383.
Rice v Asplund (1979) FLC 90-725.

SPS and PLS (2008) FLC 93-363.
APPLICANT:	Ms Gingham

RESPONDENT:

Mr Gingham

FILE NUMBER:

BRC

2720

2010

DATE DELIVERED:

17 September 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

17 June 2013

REPRESENTATION

APPLICANT:

In person

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Mr Hamwood of Counsel

SOLICITOR FOR THE RESPONDENT:

Crowley Greenhalgh

Orders

The Application in a Case filed on 27 September 2012 is dismissed.
In the event that the Respondent seeks an order that the Applicant pay his costs of and incidental to the Application in a Case filed on 27 September 2012:
(a)the Respondent file and serve brief written submissions in support of such application for costs within 14 days of the date hereof;
(b)the Applicant file and serve any brief written submissions in answer to any submission filed and served by the Respondent within a further 14 days thereafter;
(c)the Respondent file and serve any brief further written submissions strictly in reply to the submission served by the Applicant within seven (7) days of its service,
and such application for costs shall be determined in Chambers.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gingham & Gingham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2720 of 2010

Ms Gingham

Applicant

And

Mr Gingham

Respondent

REASONS FOR JUDGMENT

On 27, 28 & 29 October 2010, 15, 16 & 17 February 2011, 12 April 2011 and 14 April 2011, the parents of X, born in 1997, (“the child”) conducted a trial (“the trial”) before Murphy J. At that time, the mother had not seen the child for no less than about three (3) years.
On 13 May 2011, his Honour made the current operative Order (“the May 2011 Order”) and delivered extensive Reasons for Judgment (“the May 2011 Reasons”).
The May 2011 Order…

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 Gingham and Gingham

Details

AGLC: Gingham and Gingham [2013] FamCA 727
Case: [2013] FamCA 727
Decision Date: 17 September 2013

CaseChat Overview and Summary

In *Gingham and Gingham*, Hogan J of the Federal Court of Australia considered an Application in a Case filed on 27 September 2012. The specific nature of the dispute between the parties, the Applicant and the Respondent, is not detailed in the provided text, nor is the underlying cause of action.

The primary legal issue before the Court was whether to grant the Applicant's Application in a Case. The Court was also required to determine the appropriate procedure for dealing with any subsequent application for costs by the Respondent, should they choose to pursue it.

Hogan J dismissed the Applicant's Application in a Case. The Court then outlined a detailed process for the Respondent to make submissions in support of an application for costs, followed by the Applicant's opportunity to respond and the Respondent's right to file brief further submissions in reply. The determination of any costs application will occur in Chambers.

Orders

Orders of the court

The Application in a Case filed on 27 September 2012 is dismissed.

In the event that the Respondent seeks an order that the Applicant pay his costs of and incidental to the Application in a Case filed on 27 September 2012:

(a) the Respondent file and serve brief written submissions in support of such application for costs within 14 days of the date hereof;

(b) the Applicant file and serve any brief written submissions in answer to any submission filed and served by the Respondent within a further 14 days thereafter;

(c) the Respondent file and serve any brief further written submissions strictly in reply to the submission served by the Applicant within seven (7) days of its service,

and such application for costs shall be determined in Chambers.

Background

Background to the litigation

Full text does not contain this section.

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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