FLAST CASE SUMMARY: Gilmot 2019: Procedural Fairness - Inconsistency Between Order
Gilmot & Gilmot [2019] FamCAFC 10 (24 January 2019)
FACTS
- On November 2018, the primary judge made various orders providing for the child of both parties to reside with the Mother in a specified suburb of NSW.
- It was ordered the Mother could not relocate out of the specific suburb with the child without the fathers written consent or court order.
- There was no such restriction that was sought by either of the parties.
- Both parties seek that the geographical reference should be removed from order 3 and for the one in order 4 should be changed to “Sydney Metropolitan area”
- Both parties also seek for correction of the time that specifies - Saturday 11.00 am until Sunday 1.00 pm, there is a mention to that being for a period of six hours.
ISSUE
- Is there a lack of procedural fairness?
- Is there an internal inconsistency in another order?
HELD
Appeal allowed – Orders varied.
It was established there was a clear error of the words ‘for a period of six hours’ and the times that were provided.
Furthermore, it was determined there was a lack of procedural fairness for the orders on the restriction of relocating out of the suburb, this was not an issue raised by both parties, nor was it mentioned by the judge before making the orders.
Additionally it was determined that her honours reasons will be harmonised by removing the specific suburb of order 3 and varying the order 4 to state “Sydney Metropolitan area” for there was no reference to the specific suburb in them.