Jaeger & Gaspari

FEDERAL CIRCUIT COURT OF AUSTRALIA

Jaeger & Gaspari [2021] FCCA 1466

File number:

CAC 1776 of 2019

Judgment of:

JUDGE W J NEVILLE

Date of judgment:

30 June 2021

Catchwords:

FAMILY LAW – parenting jurisdictional contest following Orders made in the NSW Children’s Court – Mother seeking permissions from the Minister to commence proceedings – limited consent initially given – Mother later changed Application to re-visit wider suite of Orders – Ministerial consent then withdrawn – where Mother had option to seek a review of Orders in the Children’s Court but instead sought change in parenting Orders in this Court – improper course by Mother to pursue in the light of the Minister’s denial of consent to the proceedings under s.69ZK – Application dismissed

Legislation:

Children and Young Persons (Care and Protection) Act 1998 NSW, s 90

Family Law Act 1975 (Cth), s 69ZK

Cases cited:

Dunstan & Jarrod [2009] FamCA 480

Number of paragraphs:

24

Date of last submission/s:

22 April 2021

Date of hearing:

1 April 2021

Place:

Canberra

Counsel for the Applicant:

Mr L O’Reilly

Solicitor for the Applicant:

Farrar Gesini Dunn Sydney

Solicitor for the Respondent:

Self-Represented

Solicitor for the Independent Children's Lawyer:

Legal Aid ACT

ORDERS

CAC 1776 of 2019

BETWEEN:

MS JAEGER

Applicant

AND:

MR GASPARI

Respondent

ORDER MADE BY:	JUDGE W J NEVILLE
DATE OF ORDER:	30 JUNE 2021

THE COURT ORDERS THAT:

1.The Mother’s Initiating Application filed 6 September 2019 be dismissed.

2.Absent any Application in relation to costs being filed within 21 days of the date of these Orders, being by 21 July 2021, there be no Order as to costs.

3.The Independent Children’s Lawyer be discharged.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE W J NEVILLE:

Introduction

1. This is an Application by the Mother to vary orders that were made under child welfare legislation in New South Wales regarding the care and welfare of nine-year-old X. The Application is brought under section 69ZK of the Family Law Act1975 (Cth) (“the Act”).

2. For the reasons that follow, the Application was futile, and because of the precise terms of section 69ZK, it was doomed to fail. It should never have been brought. This is especially so since the Mother could have pursued a review Application in New South Wales under the child welfare legislation referred to later in these reasons.

3. Moreover, the Mother, through her experienced solicitors in Sydney, were advised multiple times by the New South Wales Department of Communities and Justice that the delegate of the Minister did not relevantly consent to the Application in the form that was brought. As an observation only, the Mother seems to have been ill-advised in…