GINGHAM & GINGHAM - [2013] FamCAFC 30

FAMILY COURT OF AUSTRALIA

GINGHAM & GINGHAM

[2013] FamCAFC 30

FAMILY LAW – APPEAL – CHILDREN – Where the appellant mother appealed against orders inter alia providing for the child to live with the respondent father and spend no face-to-face contact with her unless the child might so otherwise request – Where there was evidence of the child expressing the view that he did not wish to have any face-to-face contact with the appellant mother – Where the appellant mother had absented herself from the child’s life for a significant period of time – Where the appellant mother was self-represented on the appeal – Where the appellant mother brought a number of complaints against the orders of the trial Judge – No appealable error established.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

APPELLANT:

Ms Gingham

RESPONDENT:

Mr Gingham

INDEPENDENT CHILDREN’S LAWYER:

Ms Cleeland

APPEAL NUMBER:

2011

FILE NUMBER:

BRC

2720

2010

DATE DELIVERED:

13 March 2013

PLACE DELIVERED:

Sydney

DATE HEARD:

6 September 2012

PLACE HEARD:

Brisbane

JUDGMENT OF:

May, Strickland &
Ainslie-Wallace JJ

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

13 May 2011

LOWER COURT MNC:

[2011] FamCA 223

REPRESENTATION

FOR THE APPELLANT:

Ms Gingham in person

COUNSEL FOR THE RESPONDENT:

Mr Hamwood

SOLICITOR FOR THE RESPONDENT:

Crowley Greenhalgh Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Page SC

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Sarah Cleeland Family Lawyers

Orders

The appeal is dismissed.
The application in an appeal filed by the appellant mother on 16 May 2012 is dismissed.
The appellant mother pay the respondent father’s costs of and incidental to the appeal as agreed by the parties or, failing such agreement, as assessed on a party-party basis by a Registrar of the Family Court of Australia.

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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 46 of 2011
File Number: BRC 2720 of 2010

Ms Gingham

Appellant

And

Mr Gingham

Respondent

REASONS FOR JUDGMENT

Introduction

By Notice of Appeal filed 10 June 2011, Ms Gingham (“the mother”) appeals from parenting orders made by Murphy J on 13 May 2011 in relation to X (“the child”) who was born in November 1997. The child is now 15. Mr Gingham (“the father”) is the respondent to the appeal and he opposed the same.
An Independent Children’s Lawyer appeared before his Honour at trial. Subsequently there was a change in that representation. Senior Counsel for the Independent Children’s Lawyer appeared on the appeal. Explaining that aid had only recently been granted he sought and was granted leave to file submissions out of time and then, with leave, withdrew.
On 13 May 2011, his Honour made the following declaration and orders (as relevant to the appeal):
IT IS DECLARED…

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 & GINGHAM

Details

AGLC: GINGHAM & GINGHAM [2013] FamCAFC 30
Case: [2013] FamCAFC 30
Decision Date: 13 March 2013

CaseChat Overview and Summary

In the case of GINGHAM & GINGHAM, the mother appealed against the decision of a Family Court judge who had ordered that the Independent Children's Lawyer should issue subpoenas to the child’s school for documents that would identify individuals who had collected the child from after school care. The mother argued that these documents would provide evidence that the child was not being properly cared for by the father, who had been granted custody of the child. The father contended that the Independent Children’s Lawyer had already made efforts to obtain the relevant information, and that the school records were available to the mother and had been tendered in the trial.

The legal issues that the court needed to decide included whether the Independent Children's Lawyer had adequately fulfilled their duty in seeking to obtain the required information, and whether the mother had shown that the additional evidence she sought was necessary and could not be obtained by other means. The court considered the arguments of both parties, including the mother’s insistence that the records of the child’s school attendance would have assisted her in proving that the father was not properly attending to the child’s medication. The court concluded that the mother had not demonstrated that the absences were excessive or that they were due to a failure to medicate, and that the after school care documents were already available and had been tendered in the trial.

The court rejected the mother's appeal, dismissing the application in an appeal filed by the mother on 16 May 2012. The judge found that the Independent Children's Lawyer had made reasonable efforts to obtain the information requested, and that the mother had not shown that the additional evidence she sought was necessary. The court ordered that the mother pay the father’s costs of and incidental to the appeal.

Orders

Orders of the court

The appeal is dismissed.

The application in an appeal filed by the appellant mother on 16 May 2012 is dismissed.

The appellant mother pay the respondent father’s costs of and incidental to the appeal as agreed by the parties or, failing such agreement, as assessed on a party-party basis by a Registrar of the Family Court of Australia.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The mother complained to his Honour that although he made an order requiring the Independent Children’s Lawyer to issue subpoenas on her behalf, the Independent Children’s Lawyer had not issued subpoenas to the child’s school seeking the identity of the people who had collected the child from after school care. There was the following exchange between his Honour and the Independent Children’s Lawyer: HIS HONOUR: Well, there has been an ongoing debate issue about whether the father discloses the names of carers and the like. It has been going on forever.MS BRASCH: That’s right. Your Honour, the independent children’s lawyer has done their darndest, done their best, to find them – the three people, even though the order is only concerning Ms [J]. But as I understand the mother’s case, she wishes to assert that other people – these three identities – are dropping the child to school, picking the child up. We have been able to secure the sign in and sign out records for the child, which – a tally has been done. So in my submission, the relevant evidence will be able to be before the court, being how many times the father, or Ms [K], or [D] or anybody else, drops the child to before or after school care and collects the child. (our emphasis) The mother also persisted in seeking to issue subpoenas to the people who, she said, would be able to give evidence that the child was not medicated on instructions from the father. His Honour declined to permit subpoenas to be issued to them. The after school care documents were available to the mother and tendered in the trial. Copies of them were attached to her affidavit in support of the application in an appeal to adduce further evidence. She did not refer to any other documents that would have assisted her to disprove the father’s assertion and which were unavailable. The mother asserted that the records of the child’s school attendance would have assisted her in proving that, once the father had taken on the care of the child, his school attendance dropped markedly. His Honour referred to the issue of the child’s absences from school and to the mother’s submission that the absences were as a result of the father not attending properly to the child’s medication. His Honour rejected both that the absences were excessive and that they were as a result of a failure to medicate (at [132 and following]). The mother cross-examined the father on the school records. She showed him documents produced by the school which set out the child’s absences and the reason for the particular absence, if given. The documents established, and it was agreed, that in 2009 and 2010 the child had been absent from school for 24 days. In respect of some of those absences, notes were given, on others, none. In suggesting to the father that while the child was in her care he only had five days absent from school, a proposition that the father rejected, the mother asserted that the “documents will show” that he only had five days away from school. The mother conceded to his Honour that these documents were not “under subpoena”.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.