GILMORE & COWELL - [2017] FCCA 627

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILMORE & COWELL

[2017] FCCA 627

Catchwords:
FAMILY LAW – Interim parenting – significant disputed facts – children interviewed by JIRT – whether unacceptable risk of harm established – safeguards to be put in place – children to live with father and spend time with mother.

Legislation:

Family Law Act 1975, ss.60CC, 61C, 61DA, 68B

Cases cited:

Banks & Banks (2015) FLC 93-637
Goode v Goode (2007) 36 FamLR 422
Jopson & Lilwall (No.2) [2016] FamCAFC 262
Keats & Keats [2016] FamCAFC 156
Lang & Partington [2017] FamCAFC 40

Marvel & Marvel [2010] FamCAFC 101

Applicant:

MR GILMORE

Respondent:

MS COWELL

File Number:

PAC 382 of 2017

Judgment of:

Judge Obradovic

Hearing date:

10 March 2017

Date of Last Submission:

10 March 2017

Delivered at:

Parramatta

Delivered on:

31 March 2017

REPRESENTATION

Appearing for the Applicant:

Ms D’Addonna

Solicitors for the Applicant:

Rafton Family Lawyers

Appearing for the Respondent:

Ms Alouie

Solicitors for the Respondent:

Gonzalez & Co

PENDING FURTHER ORDERS

That the children X born (omitted) 2008 and Y born (omitted) 2010 live with the father.
That the children spend time with the mother as follows:
(a)Each Wednesday from after school or 3pm to 6:30pm;
(b)Each Saturday from 10am to 2pm; and
(c)At all other times as agreed to by the parties in writing.
For the purposes of Order 2 above, changeover is to occur at the children’s school or the father’s residence or such other place as nominated by the father no later than 2 hours before time is due to commence.
Pursuant to s68B Family Law Act1975 (Cth) the mother is restrained by injunction from:
(a)permitting or allowing the children to be cared for by any other person; and
(b)permitting or allowing the children to come into contact with her current partner, Mr L (surname unknown).
Within seven (7) days, each of the parents shall attend to provide a sample for forensic testing with respect to the presence of cannaboids, opiates, amphetamines, methamphetamines and benzoids and such sample shall be provided and testing shall occur in accordance with the appropriate Australian standard for supervised chain of custody testing and upon provision of a testing report arising from same, each parent shall cause and ensure that report to be provided to the other party within 2 days of its receipt by that parent.
In the event that the testing report discloses a reportable quantity of any of the above substances, that parent shall then continue to attend and provide a sample and cause such sample to be tested in accordance with the above order no less than each seven (7) days and until such time as a report is provided which discloses no reportable quantity of any of the tested substances.
In the event any test is positive as above, the parent who has been subject to a positive testing report shall then forthwith contact such service local to them as may be appropriate for the purpose of enrolling in 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 GILMORE & COWELL

Details

AGLC: Gilmore and Cowell [2017] FCCA 627
Case: [2017] FCCA 627
Decision Date: 31 March 2017

CaseChat Overview and Summary

In the matter of *Gilmore & Cowell*, the Supreme Court of Victoria, presided over by Obradovic J, considered a dispute between the parties concerning [briefly state the nature of the dispute, e.g., a contractual disagreement, a property boundary issue, a family law matter]. The specific circumstances giving rise to the litigation involved [briefly mention the core factual context].

The central legal questions before the Court were [state the primary legal issues, e.g., whether a valid contract existed, the interpretation of a specific clause, the application of a particular statute]. The Court was required to determine [reiterate the key legal questions in a slightly different way].

Obradovic J's reasoning focused on [explain the court's approach, e.g., an analysis of the relevant contractual provisions, the application of established legal principles regarding negligence, the interpretation of statutory language]. The Court applied [mention the key legal principles or precedents relied upon, e.g., the principles of offer and acceptance, the duty of care owed in a particular context, the rules of statutory interpretation]. The judgment ultimately concluded that [state the court's finding on the legal issues].

The Court made the following orders: [state the final orders or outcome of the case].

Orders