GAFFREY & GESTEL - [2020] FCCA 1137

FEDERAL CIRCUIT COURT OF AUSTRALIA

GAFFREY & GESTEL

[2020] FCCA 1137

Catchwords:
FAMILY LAW – Interim Parenting – Recovery order application – best interests of children – recovery order made.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 65D

Cases cited:

Goode & Goode (2006) FLC93-286

Marvel & Marvel [2010] FamCA 240
Eaby & Speelman [2015] FamCAFC 104
Rice & Asplund (1979) FLC 90-725

Applicant:

MR GAFFREY

Respondent:

MS GESTEL

File Number:

PAC 1502 of 2020

Judgment of:

Judge Newbrun

Hearing date:

6 May 2020

Date of Last Submission:

6 May 2020

Delivered at:

Parramatta

Delivered on:

12 May 2020

REPRESENTATION

Solicitors for the Applicant:

Mr Dickson

Counsel for the Respondent:

Mr Kenny of Counsel

Solicitors for the Respondent:

Rowlandson & Co Solicitors

ORDERS PENDING FURTHER ORDER

That a recovery order issue for the children X born in 2005, Y born in 2006, and Z born in 2008 (hereinafter referred to as the children), pursuant to section 67Q of the Family Law Act 1975.
That the Marshall of the Court, all officers of the Australian Federal Police and all state and territory police officers be authorised and directed, with such assistance as they require, to find and recover the children and deliver the children to the father, Mr Gaffrey, and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the children may be found.
The children shall live with the father.
The children shall spend time with the mother on alternative weekends from Friday 3:30 PM to Sunday 5 PM, and they shall also spend half the school holidays with her.
The Court appoints an Independent Children’s Lawyer (the ICL) to represent the children in these proceedings.
Leave is granted to the parties and the ICL to issue more than 5 subpoena for production of documents.
The proceedings are listed for mention on 6 July 2020 at 11.30am. The ICL is requested to attend this mention.
The Mother shall cause the children to be delivered to the Father on Sunday 17 May 2020 at 12pm in the foyer of the Town A Police Station.
Direct that the above recovery order lie in the Registry and not issue pending the Mother causing the children to be delivered to the Father pursuant to the above order. Should the Mother fail to cause the delivery of the children to the Father pursuant to the above order, then the recovery order shall immediately issue.
The Father’s costs in relation to the recovery order interim hearing are reserved.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1502 of 2020

MR GAFFREY

Applicant

And

MS GESTEL

Respondent

REASONS FOR JUDGMENT

Introduction

This is the determination of the father’s urgent application for a…

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 GAFFREY & GESTEL

Details

AGLC: GAFFREY & GESTEL [2020] FCCA 1137
Case: [2020] FCCA 1137
Decision Date: 12 May 2020

CaseChat Overview and Summary

In the matter of *Gaffrey & Gestel*, Newbrun J of the Family Court of Australia considered an application for an interim parenting order and a recovery order concerning the best interests of the children. The dispute involved the location and return of the children to a particular parent.

The central legal issue before the court was whether a recovery order should be made in favour of the applicant parent, and what interim parenting arrangements were in the best interests of the children pending further determination. This required the court to assess the immediate welfare and safety of the children and the circumstances surrounding their current whereabouts.

Newbrun J applied the principles enshrined in the *Family Law Act 1975* (Cth), particularly those relating to the paramountcy of the best interests of the child. The court considered evidence presented regarding the children's living situation and the potential risks or benefits associated with different arrangements. After careful consideration of all material before it, the court determined that making a recovery order was necessary to ensure the children's safety and well-being, and to facilitate the implementation of appropriate interim parenting arrangements.

The court made orders for the recovery of the children and set out specific interim parenting arrangements to apply until a final hearing or further order of the court.

Orders