CABANEL & GABBAIR
[2019] FCCA 3497
•6 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CABANEL & GABBAIR | [2019] FCCA 3497 |
| Catchwords: FAMILY LAW – Parenting – relocation – whether the mother should be permitted to relocate with two young children from Region A to Far North Queensland. |
| Legislation: Evidence Act 1995 (Cth), s.140 |
| Cases cited: Cowley v Mendoza [2010] FamCA 597 |
| Applicant: | MR CABANEL |
| Respondent: | MS GABBAIR |
| File Number: | DGC 1087 of 2017 |
| Judgment of: | Judge Small |
| Hearing dates: | 16 - 18 January 2019 |
| Date of Last Submission: | 18 January 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 6 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Howe |
| Solicitors for the Applicant: | Connley McInnes Lawyers Pty Ltd |
| Counsel for the Respondent: | Mr Gates |
| Solicitors for the Respondent: | Julie Taylor |
| Counsel for the Independent Children's Lawyer: | Mr Easteal |
| Solicitors for the Independent Children's Lawyer: | Talko Nicholas Family Law Pty Ltd |
ORDERS
All previous parenting orders in relation to the children X born … 2010 (“X”) and Y born … 2013 (“Y”) (collectively “the children”) are hereby discharged.
The mother shall have sole parental responsibility for the children in the areas of education, health and medical treatment, and otherwise the parties shall have equal shared parental responsibility for the children.
In the exercise of her sole parental responsibility in the areas of education, health and medical treatment, the mother shall ensure that the father is informed within 48 hours of any major decision she makes in those areas, including but not limited to any change in the children’s school or schools, or any decision that either of the children is to have surgery, or that a child needs specialist medical treatment.
The children shall live with the mother.
The mother is hereby restrained by injunction from relocating the children’s place of residence more than 200 kilometres from Town M, Victoria without the express agreement of the father having first been obtained in writing, save that should the father relocate his place of residence in the future, the mother shall not be required to move within 200 kilometres of his home.
The children shall spend time and communicate with the father as follows:
(a)Until the end of the 2019 school year:
(i)On Wednesday 11 December 2019 from the conclusion of school until 7:00 p.m. with the father to collect the children from school at the commencement of time and return them to the mother at the McDonalds restaurant in Town M at the conclusion having given them their evening meal;
(ii)On the weekends commencing on Friday 6 December 2019, and Friday 20 December 2019 from the conclusion of school on Friday to 6:00 p.m. on Saturday;
(b)During the long summer school holidays in 2019-2020:
(i)From 4:00 p.m. on Christmas Day 2019 to 4:00 p.m. on Boxing Day 2019;
(ii) From 9:00 a.m. to 6:00 p.m. on New Year’s Day 2020;
(iii)For three periods of two nights to be agreed between the parties, and failing agreement, from 6:00 p.m. on Monday 6 January 2020 to 6:00 p.m. on Wednesday 8 January 2020, from 6:00 p.m. on Wednesday 15 January 2020 to 6:00 p.m. on Friday 17 January 2020, and from 6:00 p.m. on Friday 24 January 2020 to 6:00 p.m. on Sunday 26 January 2020;
(iv) At other times by agreement between the parties in writing;
(c)During the 2020 school terms:
(i)Provided that the mother lives no more than 50 kilometres from Town M, on each alternate Wednesday from the conclusion of school until 7:00 p.m. with the father to collect the children from school at the commencement of time and return them to the mother at the McDonalds restaurant in Town M at the conclusion having given them their evening meal;
(ii)On each alternate weekend commencing from the conclusion of school on Friday, or 4:00 p.m. if not a school day, to 6:00p.m. p.m. on Sunday;
(d)For three nights in each of the school term holidays in 2020 by agreement between the parties and failing agreement from the conclusion of school on the last Friday of the term to 6:00 p.m. on the following Monday;
(e)From Christmas 2020:
(i)From 4:00 p.m. on Christmas Eve to 4:00 p.m. on Christmas Day 2020 and in each alternate year thereafter;
(ii)From 4:00 p.m. on Christmas Day to 4:00 p.m. on Boxing Day in 2021 and in each alternate year thereafter;
(f)For two periods of five nights in the long summer holidays in 2020-2021 by agreement between the parties and failing agreement, from 6:00 p.m. on 29 December 2020 to 6:00 p.m. on 2 January 2021, and from 6:00 p.m. on 16 January 2021 to 6:00 p.m. on 21 January 2021;
(g)During school terms from the commencement of the 2021 school year:
(i)Provided that the mother lives no more than 50 kilometres from Town M, on each alternate Wednesday from the conclusion of school until 7:00 p.m. with the father to collect the children from school at the commencement of time and return them to the mother at the McDonalds restaurant in Town M at the conclusion having given them their evening meal;
(ii)On each alternate weekend from the conclusion of school on Friday, or 6:00 p.m. if not a school day, to the commencement of school on Monday, or 6:00 p.m. on Monday if the Monday is a public holiday save that, if the mother relocates more than 100 kilometres from Town M, the children’s time with the father shall conclude at 6:00 p.m. on the Sunday, or 6:00 p.m. on Monday if the Monday is a public holiday;
(h)From the commencement of the 2021 school year for half of all school term holidays by agreement between the parties and failing agreement from the conclusion of school on the last day of term to 6:00 p.m. on the second Saturday in odd-numbered years and from 6:00 p.m. on the second Saturday to the commencement of school on the first day of the next school term in even-numbered years;
(i)On a week about basis in the long summer holidays in 2021-2022 by agreement between the parties, and failing agreement commencing at 6:00 p.m. on the first Saturday;
(j)For half of the long summer holidays by agreement between the parties and failing agreement, for the second half in 2022-2023 and in each alternate year thereafter, and the first half in 2023-2024 and in each alternate year thereafter, and for the purposes of this sub-paragraph, the long summer holidays shall be deemed to commence at noon on the first Saturday and to conclude at noon on the last Saturday;
(k)From the conclusion of school on the day before Good Friday to 6:00 p.m. on Easter Saturday in even-numbered years and from 6:00 p.m. on Easter Saturday to 6:00 p.m. on Easter Monday in odd-numbered years;
(l)For three hours on the father’s birthday each year commencing at the conclusion of school if a school day and from 4:00 p.m. if not a school day;
(m)For the children’s birthdays:
(i)If the birthday falls on a school day, from the conclusion of school or 4:00 p.m. to 7:00 p.m. on the day before the birthday in even-numbered years and from the conclusion of school to 7:00 p.m. on the birthday in odd-numbered years;
(ii)If the birthday does not fall on a school day, then from 10:00a.m. to 2:00 p.m. on the birthday in even-numbered years and from 3:00 p.m. to 7:00 p.m. in odd-numbered years;
(n)From 6:00 p.m. on the day before Father’s Day to 6:00 p.m. on Father’s Day each year;
(o)At such other times as the parties might agree in writing.
When the father’s time with the children is expressed to commence from the conclusion of school, he shall collect the children from their school/s, and when his time is expressed to conclude at the commencement of school he shall deliver them to their school/s, and otherwise all changeovers shall take place at the McDonalds restaurant in Town M, save that if the mother relocates more than 100 kilometres from Town M, then changeovers that do not take place at the children’s school or schools shall take place at the McDonalds restaurant or other public venue closest to the mid-point between the parents’ homes.
All time the children spend with the father pursuant to paragraphs 6(a), 6(c) and 6(g) hereof shall suspend during school holidays and recommence after the holidays as if the holidays had not intervened.
If necessary, the children’s time with the father shall suspend on the following occasions:
(a)From 4:00 p.m. on Christmas Eve to 4:00 p.m. on Christmas Day 2019 and in each alternate year thereafter;
(b)From 4:00 p.m. on Christmas Day to 4:00 p.m. on Boxing Day 2020 and in each alternate year thereafter;
(c)From the conclusion of school on the day before Good Friday to 6:00 p.m. on Easter Saturday in odd-numbered years and from 6:00p.m. on Easter Saturday to 6:00 p.m. on Easter Monday in even-numbered years;
(d)From 6:00 p.m. on the day before Mother’s Day each year;
(e)For the children’s birthdays:
(i)If the birthday falls on a school day, from the conclusion of school or 4:00 p.m. to 7:00 p.m. on the birthday in even-numbered years and from the conclusion of school to 7:00p.m. on the day before the birthday in odd-numbered years;
(ii)If the birthday does not fall on a school day, then from 10:00a.m. to 2:00 p.m. on the birthday in odd-numbered years and from 3:00 p.m. to 7:00 p.m. in even-numbered years;
(f)For three hours on the mother’s birthday each year commencing at the conclusion of school if a school day and from 4:00 p.m. if not a school day;
(g)At other times by agreement between the parties in writing.
If the children, or either of them, is too ill to spend time with the father pursuant to these Orders, the mother shall ensure that the child or children attend upon a medical practitioner and obtain a medical certificate setting out the precise nature of the child’s illness and why he/she/they are unable to spend time with the father and she shall provide that medical certificate to the father within 24 hours.
For the sake of clarity, if only one child is too ill to spend time with the father, the other child shall spend time with him in accordance with these Orders.
The parties are hereby restrained by injunction from:
(a) abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other’s family or household in the presence or hearing of the children or either of them, and from allowing them to remain in the presence or hearing of any third party who is engaging in such conduct;
(b) discussing these proceedings or any parenting disputes or issues in the presence or hearing of the children or either of them, save to explain any changes in their living arrangements to them as a result of these Orders, and from allowing either of them to remain in the presence or hearing of any third party who is engaging in such conduct;
(c) using any form of corporal punishment on the children or either of them;
(d) allowing the children or either of them to read, have read to them, or otherwise access any part of the Court’s Reasons for Judgment in this matter.
Each party shall notify the other as soon as practicable in the event of the children or either of them suffering any serious illness or injury while they are in their respective care and each shall authorise any medical or dental practitioner who treats the children or either of them to communicate and consult with the other parent, and the father shall inform any medical or dental practitioner treating the children or either of them that the mother holds sole parental responsibility for the children’s health and medical treatment.
Each party shall advise the other of any medication prescribed for the children or either of them while in their respective care, including the dosage and frequency prescribed, and each shall ensure that such medication travels between their houses with the child or children as the case may be, and that any such medication is taken in accordance with its prescription.
The mother shall authorise any school or extra-curricular activity in which the children or either of them is enrolled to provide to the father at his expense all information, notices, photographs, reports and like materials, and he shall be named as a contact person in the records of such school or organisation in the event of any emergency involving the children or either of them.
Both parties shall be at liberty to attend any school functions, extra-curricular activities or events to which parents are usually invited and the father shall inform the mother of his intention to attend such a function or event no later than 48 hours prior.
The father shall attend upon his general practitioner within seven days of the date of these Orders to obtain a referral to a clinical psychologist or psychiatrist for intensive psychotherapy in relation to his diagnosis of Autism Spectrum Disorder and associated issues, and he shall continue to attend upon that clinical psychologist or psychiatrist until that practitioner determines that he is no longer in need of such treatment.
At his first appointment, the father shall provide a copy of the following documents to the clinical psychologist or psychiatrist specified in Order 17 hereof:
(a)these Orders;
(b)the Court’s Reasons for Judgment in this matter;
(c)the Family Report of Ms B;
(d)the psychiatric assessment report of Dr C; and
(e)the psychological assessment report of Dr D.
The order of Judge O’Sullivan of 31 May 2017 appointing the Independent Children’s Lawyer is hereby discharged.
IT IS NOTED that publication of this judgment under the pseudonym Cabanel & Gabbair is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DGC 1087 of 2017
| MR CABANEL |
Applicant
And
| MS GABBAIR |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting matter between Mr Cabanel (“Mr Cabanel” or “the father”) and Ms Gabbair (“Ms Gabbair” or “the mother”).
There are two children of the relationship, namely X born … 2010 (“X”) and Y born … 2013 (“Y”) (collectively known as “the children”).
The children live with the mother and spend time with the father each Sunday between 9:00am to 3:00pm pursuant to Orders made by consent on 8 November 2018.
The mother seeks orders that:
· she have sole parental responsibility for the children
· the children live with her
· she be permitted to relocate the children to Town N in Far North Queensland, and
· if the Court determines that the children are not at an unacceptable risk of abuse in the care of the father, the children spend time and communicate with the father for two periods each year during school terms for three days in May and November.
The father seeks orders that:
· the parties have equal shared parental responsibility for the children
· the children live with the mother
· the children spend time and communicate with the father during school terms each alternate weekend from after school, kindergarten or preschool on Friday to 5:00pm on Sunday, each alternate week from after school, kindergarten or preschool on Wednesday to Friday at 8:30am, every week for one day from 10:00am to 3:00pm with Y until she starts primary school, half school holidays and special occasions
The father opposes the relocation of the children to Town N, Queensland.
The Independent Children’s Lawyer seeks orders that:
· the mother have sole parental responsibility for the children in areas of education and medical treatment, with the parents to otherwise share that responsibility
· require the father to continue with his psychotherapy
· provide for increasing time between the father and the children
· the mother be restrained from moving to Far North Queensland but that she be permitted to move to anywhere in Victoria.
The issues to be decided in this case are:
A.Who should exercise parental responsibility for the children?
B.Whether the mother should be permitted to relocate the children’s residence from Town M, Victoria to Town N, Queensland.
C.Whether the father poses an unacceptable risk to the children in his care;
D.If the father does not pose an unacceptable risk to the children, what kind of time should the children spend with him?
Background
Mr Cabanel was born on … 1960 and is currently 59 years of age. He lives in Town O, Victoria and is in receipt of a Disability Support Pension.
Mr Cabanel suffers from cervical spine osteoarthritis, headaches and impaired memory as a result of a major motor vehicle accident. He sometimes experiences some dizziness and vertigo. He was assessed as having impaired hearing in December 2017 and was provided with hearing aids.
He has been diagnosed as falling within the autism spectrum (“ASD”), and with an adjustment disorder with anxious mood. He also deposes to having also been diagnosed with post-traumatic stress disorder (“PTSD”) and to having had a traumatic childhood.
Ms Gabbair was born on … 1969 and is currently 50 years of age. She lives in Town M, Victoria and is currently working as a health care worker at Employer P. She is in good health.
The parties are in dispute about the nature of their relationship and its history, but what is clear is that they met in 2006, and commenced an intimate relationship in … 2009. They lived together and apart from then until their final separation in 2010, before X was born.
As far as the court is aware, neither party has re-partnered, and neither has any other children from previous or subsequent relationships.
X attends Town M Primary School and will commence Grade 4 in 2020. He suffers from eczema, a peanut allergy, asthma and a propensity to bruise very easily.
Y commenced school at Town M Primary School in 2019. She attends sports lessons, although the mother’s evidence at trial was that she could no longer afford to pay for both of those activities.
The children have lived in the primary care of the mother all their lives. They spend unsupervised time with their father every Sunday from 9:00a.m. to 3:00 p.m. pursuant to Interim Orders made by consent on 8 November 2018.
Final Hearing commenced on 16 January 2019 and the matter ran for three days. The mother, the father and the Independent Children’s Lawyer were all represented by counsel.
Witnesses at trial included the father, Dr D (the clinical psychologist who prepared a psychological assessment of the father) (“Dr D”), the mother, her aunt Ms E (“Ms E”), and Ms B, the Family Consultant who had prepared the Family Report (“Ms B”).
Dr C (“Dr C”), who prepared psychiatric assessments in relation to both parents, was not required for cross-examination.
Nor were Ms F, the mother’s treating psychologist, Ms G, the manager of Employer W, City H, Ms J, a friend of the mother who lives in Town N, or Ms K, the operator of Employer Q in Town M, all of whom swore Affidavits in support of the mother.
The evidence of all those witnesses is therefore untested and stands unchallenged.
Following the conclusion of evidence and submissions on 18 January 2019, I reserved my decision.
Issues and Evidence
It is not possible to refer to every fact and/or matter raised in the trial of these proceedings and nor is it necessary to do so. The parties should understand that I have had regard to the whole of the evidence, including my notes, the full transcript of the three days of trial, and the demeanour of the parties at trial, and if I have not referred to a particular fact or matter it does not mean that I have not considered it.
Issue A: Who should exercise parental responsibility for the children?
The Law
Section 61DA(1) of the Act states that, when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) states that the presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in abuse of the child or family violence.
Section 61DA(4) states that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to equally share parental responsibility for that child.
In this case, both parties allege family violence in the form of physical, emotional and psychological abuse perpetrated by the other.
The father alleges that the mother became irritable and physically violent on at least two occasions while she was pregnant with X.
On the first occasion, the father says that the mother punched him in the face during an argument, and on the second, she hit him several times about the head and body with her handbag, and then threw the handbag at a glass frame on the wall, shattering the frame and causing lacerations to his feet.
He further alleges that the mother has emotionally and psychologically abused the children by making his relationship with them extremely difficult.
Further, he says that the mother’s religious beliefs put the children at risk of being “brainwashed”.
The mother admits that she punched Mr Cabanel in the face on the date alleged, but says she was acting in self-defence because he was towering over her and intimidating her while they were arguing. It is her evidence that Mr Cabanel had her “trapped at the kitchen sink by his body” at the time and she felt that the only way to escape from him was to punch him.
In relation to the second alleged incident, the mother states, at paragraph 48 of her Affidavit of Evidence-in-Chief[1]:
At paragraph 18 of his first affidavit, Mr Cabanel says that once when I was angry I “completely destroyed” a glass frame on the wall in our house. I recall this incident. On this occasion I was angry and frustrated and growing increasingly afraid of Mr Cabanel. I was pregnant and emotional and very unhappy. I did lose my temper and broke the picture frame, but I was not violent to him.
[1] Affidavit of the mother affirmed 17 and filed 18 December 2018.
It must be said that breaking a picture frame in the presence of one’s partner in a fit of temper might well come under the definition of family violence as set out in s.4AB of the Family Law Act,[2] particularly if Mr Cabanel was close enough for the broken glass to cause lacerations to his feet.
[2] Family Law Act 1975 (Cth), s 4AB.
Mr Cabanel reported both incidents to the police at the time, although he did not press for charges to be laid as Ms Gabbair was pregnant, and, he says, he did not wish to cause any further stress to her. It became clear at trial that his motive for reporting the incidents included having those reports on record should he himself later be accused of committing family violence.
I note that when the mother was interviewed by Dr C for the purposes of a psychiatric assessment in November 2017, she specifically denied those two allegations.
Ms Gabbair alleges that the father behaved in a coercive and controlling manner during their relationship, and that she felt intimidated by that behaviour. She alleges that he stood over her during arguments, that he screamed abuse at her, that he controlled her use of his car, that he separated her from family and friends, that he monitored her phone, that he insisted on being present when she had friends over, and that he was “obsessed” by her, even after she had made it clear to him that their relationship (which she says was never more than one of casual friends who were intimate at times) was over.
There is also an allegation, made by the mother’s aunt, Ms E, that the father physically assaulted X in September 2012, when X was two years old. Ms E filed an Affidavit about that incident, and gave evidence at trial, and I found her to be an honest and credible witness.
On the basis of all of that evidence, I am satisfied that there are reasonable grounds for the Court to believe that the parties have each engaged in family violence such that the presumption of equal shared parental responsibility does not apply in this case. I will return to the issue of family violence later in these Reasons for Judgment.
However, even if the presumption does not apply pursuant to s.61DA(2), the question of who should bear parental responsibility for a child is a parenting order under s.64B of the Act, which states that a parenting order is one which deals with any of the following:
“(2) A parenting order may deal with one or more of the following:
(a) the person or persons with whom a child is to live;
(b) the time a child is to spend with another person or other persons;
(c) the allocation of parental responsibility for a child;
(d) if 2 or more persons are to share parental responsibility for a child--the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e) the communication a child is to have with another person or other persons;
(f) maintenance of a child;
(g) the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i) a child to whom the order relates; or
(ii) the parties to the proceedings in which the order is made;
(h) the process to be used for resolving disputes about the terms or operation of the order:
(i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.”
When making any parenting order, s.60CA requires the Court to take the children’s best interests as its “paramount consideration”.
S.60CC of the Act then sets out the framework, or pathway, that the Court must follow in order to determine what orders might be in a child’s best interests, and I will address each of those matters in turn later in these Reasons.
Decision: Issue A
On the basis of the evidence set out below in paragraphs 69 to 254 of these Reasons, and in circumstances where the parties find communication between them very difficult, for whatever reason, I find that it cannot be in the children’s best interests for their parents to be forced to communicate about the two major issues in children’s lives: their education; and their health and medical treatment.
To force these parties to negotiate over these important matters, where a decision simply must be made at certain times, would merely provide further fertile ground for the disputes between them, which are many, to flourish and cause even more stress both to the parents and to the children.
In those circumstances, I will make orders that provide for the mother, who is the undisputed primary carer of the children, to have sole responsibility in those two most important areas, while the parties will equally share parental responsibility for the children in all other matters.
Issue B: Whether the mother should be permitted to relocate the children’s residence from Town M, Victoria to Town N, Queensland
It is pertinent to say at the outset that while there is much talk about “relocation cases” in the family law arena, it is well settled law in Australia that cases involving applications to relocate a child’s place of residence are not to be decided on any different principles than any other parenting case. In particular, it is not the case that the question of relocation is to be decided before any other parenting orders can be made.
In Taylor v Barker [2007] FamCA 1246, Bryant CJ and Finn J said at [53]:
[W]hen dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child's future living arrangements, at least in so far as that approach is possible (see U v U (2002) 211 CLR 238 ; (2002) FLC 93–112 and Bolitho & Cohen (2005) FLC 93-224).
In Cowley v Mendoza [2010] FamCA 597, Murphy J stated at [30]:
A "relocation case" is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances. A relocation case falls to be determined like any other parenting case.
Referring to relocation cases, Kent J in Heath & Hemming (No.2) [2011] FamCA 749 at paragraph [101] stated:
Whilst the statutory framework does not deal differently or specifically with cases involving a proposed relocation from other parenting cases, such cases attract the description of “relocation cases"” because they bring into sharp focus the central issue of balancing statutory imperatives concerning children's best interests in the context of the legitimate and competing interests of parents. The task is to achieve, by the application of the law, Orders which are legitimate by reference to both “best interests" considerations and the rights of parents, including a right to choose where the parent lives. In some cases, the determination of “best interest” may well mean that one party's choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child's “best interest” being served by Orders which do not give one parent “optimal” arrangements or outcomes.
In other words, such cases are to be treated as parenting cases which have a relocation component to them, and that is how I approach these proceedings.
As already stated, the mother wishes to relocate with the children to Town N, a small village-like town behind City H in Far North Queensland.
The father and the Independent Children’s Lawyer resist that application, although the Independent Children’s Lawyer seeks orders that would allow the mother to relocate to anywhere in Victoria.
To fully address the issues that arise for consideration at this stage, it is timely to set out the history of the relationship and these proceedings in some detail.
The relationship between these parties was a little unusual, in that it was sporadic and irregular, with the parties only living together for a short time before X’s birth.
Ms Gabbair’s evidence is that she never intended to have a committed relationship with Mr Cabanel and never considered that the parties had such a relationship.
Mr Cabanel’s evidence is that the relationship between him and Ms Gabbair was a committed one as far as he was concerned, at least insofar as they intended to raise the children together, and that he had loved Ms Gabbair. He accepted at trial that the parties had different views of the relationship.
The parties agree that they began to live together in Adelaide in … 2009 after meeting through a group called “…”,which both attended. Ms Gabbair needed a place to live and Mr Cabanel offered her a room in the house he was renting.
Their relationship was not intimate until … 2009, after which Ms Gabbair went to Country R for a short time. When she returned to Adelaide, Ms Gabbair unexpectedly fell pregnant, and friends persuaded the parties to stay living together as friends for the sake of the expected child.
However, the father alleges that the mother assaulted him while she was pregnant in 2009 or 2010, while she accuses him of coercive and controlling behaviour, and she left the home they shared in Adelaide and went to live with her sister in Town S, Victoria, remaining there until after X was born on … 2010.
It is the father’s evidence that he did not know where the mother had gone, and that he was not aware of X’s birth until well after the fact.
In mid-April 2010, the father asserts that the mother wrote to him warning that she would seek an Intervention Order against him if he made any attempt to contact her or her family. He says he respected that wish.
In late July 2010, the mother, through her then lawyers, sought to initiate mediation concerning arrangements for time between X and the father. I note that that was when X was only one month old.
Although mediation did not take place, the parties came to an informal agreement in late 2011 after they attended the same “…” conference in Sydney in … of that year. At that time, X was 13 months old, and Mr Cabanel met him for the first time for 15 minutes prior to a seminar and for one hour after the event.
It is his evidence that he moved to Melbourne in order to be closer to X after that first meeting, and that the mother allowed four or five more visits at her home in Town S between October 2011 and February 2012.
In March 2012, the father helped the mother relocate to Town M as she wished to take care of her mother, who was terminally ill and expected to live only another 12 months. In fact, Ms Gabbair’s mother lived another three years, dying in … 2015.
The father remained living in Melbourne, but travelled to Town M to see X several times, he says almost every second week.
In July 2012, the parties’ relationship became intimate again and the mother became pregnant with Y.
After the parties discovered that Ms Gabbair was pregnant again, the father says the mother was very hostile towards him and restricted his time with X. The father deposes to only seeing X intermittently from about November 2012 to early January 2013 when the mother told him that he was no longer welcome at her home.
The father deposes to not having seen X between January and late May 2013, when the mother invited him to visit so that X (and Y, who had been born on … 2013) could spend time with him.
The father was not informed of or invited to Y’s birth. However, he was present during pregnancy scans so he knew the child was a girl, and that her birth was due in about early … 2013. The father first met Y in late … 2013.
From May 2013 until February 2015, the father spent time with the children on weekends at the mother’s home in Town M. That time took place irregularly, with gaps of several months at a time, each party blaming the other for the sporadic nature of those visits.
The father asserts that the mother would not agree to regular weekend time and he had to ask the mother if he could see the children on any particular weekend.
The mother’s evidence is that the father was not prepared to commit to a regular regime for his visits, that he would contact her to say he wished to see the children at particular times, and that she would accommodate that request whenever possible.
After the maternal grandmother died in … 2015, the father saw the children from 9:00am to 5:00pm during the day only, and always in Town M.
Mr Cabanel moved to Town M in mid-2016, again, he says, to be closer to X and Y. He says he continued to experience difficulties in getting Ms Gabbair to allow him to see the children to his satisfaction, and after several failed mediation attempts, he issued these proceedings on 9 April 2017.
After orders were made by consent on the first return date of 31 May 2017, the children began to stay with their father on each alternate weekend from 9:00 a.m. on Saturday till 4:00 p.m. on Sunday, that regime beginning on 24 June 2017.
It is the mother’s evidence in paragraph 24 of her Affidavit affirmed and filed on 18 January 2018 that she was “advised by my former lawyers that I must consent to regular time spent Orders, to bolster the prospects of success of my relocation Application even though I had serious reservations about implementing a regular time spent regime given the limited contact that the father had had with the children, and my concerns about his mental health”.
The children spent time with their father pursuant to the 31 May 2017 orders until the mother unilaterally suspended their time after X allegedly disclosed that his father had physically abused him on the weekend of 16-17 December 2017. Mr Cabanel then spent no time with the children until orders were made on 20 March 2018 allowing him to do so on a supervised basis. Because of delays in obtaining a place at the Anglicare Children’s Contact Centre at Town T, Mr Cabanel did not see the children again until late July 2018.
I note that Ms Gabbair had attended upon Dr C for a psychiatric assessment on 15 November 2017, and that Mr Cabanel was assessed by Dr C on 22 November 2017.
It is the mother’s evidence that she had become increasingly concerned about the father’s behaviour while he was caring for the children, including that he had yelled at them, exposed them to inappropriate video material, fed them sugary foods, and that he had not properly supervised Y at a playground.
The mother says that the children were becoming increasingly reluctant to spend time with their father during that period.
She then states:
90. The children were at their father’s house overnight on Saturday, 16 December 2017 and I picked them up on Sunday, 17 December 2017.
91. When we arrived home Y was acting strangely. She would start crying and having meltdowns that she doesn’t normally have.
92. X said to me “Mummy, daddy hurt me on the weekend and I have a bruise”. He told me that the father was yelling at him because he was fighting with Y over a toy.
93. X then said he was sitting down and that his father had pushed his head down towards the ground and this caused X’s elbow to push into his leg and cause bruising. He said that the father also pushed him to the ground and then yelled at him to get back up.
94. I asked X if this hurt and he said that it did and that he was crying.
95. X then told me that his father continued to yell mean things at me (sic) and say mean things about me.
96. I observed that X had a small bruise on his knee. In my view, both children are extremely traumatised by the incident.
Ms Gabbair says that she then reported the matter to police and made a statement about what X had told her. She then spoke to the Department of Health and Human Services (Child Protection) (“DHHS”) who, she says, told her that she should not make the children available to their father unless he was supervised during their time with him.
The mother also says that Y’s behaviour regressed significantly after this incident and that she was arranging “play therapy for both children to assist with their trauma”.
Victoria Police made an Application for a full Intervention Order against Mr Cabanel naming the mother and both children as Affected Family Members. However, when the matter came before the Magistrates Court on 18 December 2017, only an order preventing the father from committing family violence against the three Affected Family Members was made.
On 19 January 2018, the mother filed an Application in a Case seeking that any further time spent between the children and their father be supervised at “the Anglican Supervised Contact Centre”.
On 23 January 2018, Mr Cabanel filed an Affidavit in response sworn on that day.
He says at paragraph 48, that he “absolutely den(ies) that (he) hurt or assaulted X on the weekend of 16 and 17 December”.
The father says that when X got out of the car at the commencement of time on 16 December 2017, he noticed that X had three bruises on his lower legs.
He then sets out the events of 16 and 17 December 2017, stating, inter alia:
51.0 I understand that the children may have had bruises but I deny that I have caused them. We usually do many activities on the weekend and they are all opportunities where the children may bruise themselves. I did notice on this weekend that X did have bruises already whilst in the mother’s care. I put this down to X being a boy and being a lot more active than Y and getting the bruises from playing on swings or climbing trees.
He then states the following in providing his version of the alleged incident on 17 December 2017 as follows:
53.0 […] At about 3.00pm when we were at home X took Y’s toy and would not give it back to her. Y had asked several times for X to return it to her but he refused.
54.0 I asked X to return the toy to Y. I then noticed that the toy was accidentally dropped on the ground and both children went to pick it up but bumped each others head in doing so. At this time I was sitting in a lounge chair and I could reach and pick the toy up which I did and then gave it to Y.
55.0 Whilst sitting I reached for X’s arm and directed him to my chair and sat him down on my lap so that I could talk through with him what just happened. We discussed that it was Y’s toy, that she had nicely asked for it back and he should have returned the toy to her when she asked.
56.0 At no stage did I hurt X, I did not yell at him and I did not push his head down on the floor and I certainly did not hold him down on the floor. At no stage was he on the ground as he was either on my lap or standing up.
Neither parent resiled from their evidence about that incident at trial, but of course, Ms Gabbair’s evidence was based on what X told her.
The psychiatric assessment reports of Dr C in relation to both parties, and dated 17 November and 22 November 2017 respectively, were filed on 14 February 2018.
The Family Report of Ms B was released on 19 February 2018.
The Victoria Police Intervention Order Application was struck out on 30 April 2018 when the mother did not attend the Magistrates’ Court.
Time between the children and the father recommenced at the Anglicare Supervised Contact Centre in Town T (“the Contact Centre”) on 30 July 2018. For the next four months Mr Cabanel spent time with the children at the Contact Centre for periods of 2 ½ hours per fortnight.
On 8 November 2018, orders were made for short periods of unsupervised time between the father and the children. The children have therefore not had overnight time with the father since December 2017. The children had supervised time with the father between 13 July 2018 and November 2018.
The mother says she acknowledges the benefits for the children in having a meaningful relationship with the father provided that they are protected from physical or psychological harm. She asserts that a meaningful relationship between the children and the father can be facilitated if she is permitted to relocate them to Town N, although she proposes no overnight time.
The father says that the children have been assessed as having a positive and loving relationship with him by the family report writer, Ms B, and that Dr C’s report discloses no reason why the children should not spend time with him overnight. In those circumstances, he says, it would be highly detrimental for that relationship if the children were to move to Far North Queensland.
It is against that background that the matter came to trial on Wednesday, 16 January 2019.
As this Issue concerns a parenting order, the Court must take the children’s best interests as its “paramount consideration” (see paragraph 44 above).
In s.60CC, the Act sets out 16 separate matters that the Court must have in mind when deciding what orders might be in a child’s best interests, and I will address each of those matters in turn.
The first two matters are called “primary considerations” and are found in s.60CC (2) which reads:
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) states that in applying those primary considerations the court must give greater weight to the need to protect a child than to the benefit to the child of having a meaningful relationship with both parents.
That is, while I must make orders which allow for meaningful relationships between the children and their parents to flourish as much as is possible, my main concern must be to ensure that the children are protected from any harm.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
The meaning of the term “meaningful relationship” has been addressed in several cases that have come before this court and the Family Court of Australia.
In an oft quoted passage from the judgment of Brown J in Mazorski v Albright [2007] FamCA 520, Her Honour said at paragraph 26:
A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
It is not in dispute that the children have a meaningful relationship with the mother. She has been their primary carer all their lives.
The father’s time with the children has been irregular for most of their lives, and much of the time he spent with them in the six months prior to trial was supervised.
Nevertheless, the evidence before the Court, in the form of the report from the Children’s Contact Centre at which first the father’s time and then changeover has taken place, and of the family report, indicates that the children have a relationship with their father which is “important, significant and valuable”. I will return to the nature of that relationship later in these Reasons, but it would appear that the children do have a meaningful relationship with Mr Cabanel, and that they benefit from that relationship.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There are allegations on both sides of this dispute that the children are at psychological harm from the behaviour of the other parent.
In addition, the mother alleges that the father assaulted X during an overnight stay on the weekend of 16-17 December 2017. As stated above, those allegations of physical abuse were reported to and investigated by the DHHS and Victoria Police and no further action was taken, as the mother was seen to be acting protectively by not allowing the children to spend time with the father.
At that time the DHHS was recommending that time between the children and their father be supervised. I note that that time was supervised between July and November 2018, and that as a result of a report by the supervisor, the requirement for supervision was removed from interim orders, although time was restricted to day time only.
The mother also cites concern about the father’s criminal history, as he was found guilty without conviction of an assault on the partner of his then landlady in 2017. Mr Cabanel denies that assault, saying that he was acting in self-defence after the landlady’s partner confronted him aggressively. He says that he would not talk to the partner because the partner was “not my landlady”, and the interaction became physical when the partner “chested” him and he then pushed the partner away.
He vehemently denies all allegations of emotional, psychological or physical violence made against him in relation to either Ms Gabbair or the children.
It is the father’s case that the children are at risk of psychological harm as a result of the mother:
· denying the children time and communication with the father without any sufficient cause;
· falsely alleging X was physically assaulted by the father in September 2012 and again on 16 December 2017;
· subjecting both children to unnecessary and harmful interviews by DHHS;
· falsely suggesting that Y had been sexually abused by the father; and
· proposing to remove the children from Town M where they are settled and have the support of family and school and relocate them to Town N where neither party has ties or significant support.
I will return to the issue of family violence in more detail later in these Reasons.
In the circumstances described above, it will be necessary to craft orders which protect the children, who are still young, from the animus that clearly exists between their parents (and shows no sign of abatement), while providing for them to have time with their father which is meaningful and positive for them.
Section 60CC(3) contains a further 14 factors or considerations which the court must bear in mind. They are:
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The family report assessment was conducted by Ms B on 26 January 2018. The family report is dated 19 February 2018.
X, aged 7 years and 7 months at the time of the assessment, was “willing to participate following and (sic) age appropriate explanation of the process”.[3]
[3] P34 of Family Report
At paragraph 38 of the Family Report, Ms B stated that “X said he had been wanting to see his father and that Y had been asking “when are we going to Daddy’s”.
Ms B reported that X did not respond to the hypothetical question about spending time with his father from after school Friday until return to school Monday or to his mother on Sunday evening.[4]
[4] P42 of Family Report
At paragraph 43 of the Family Report, Ms B states that X indicated that if he and Y moved with their mother to Town N he would “only see his dad on school holidays”. X said that he wanted to see his father and he thought it would be “okay” to see him in school holidays.
Ms B asked X how he would feel if hypothetically it was necessary for him to live with the father. X indicated that “he would feel sad about the loss of his mother but would be fine about living with his father”.[5]
[5] P46 of Family Report
At paragraph 66 of the family report, Ms B stated that:
Even though X seemed happy about the possibility of relocation he also said he wishes to spend time with his father. That suggests it is important to him to know his father or he does not want to offend his father. He gave an answer that suggested he would cope with a situation if he was required to live with his father, but he also expressed fear if he was to say what happens in the father’s home when he is disciplined. There is a possibility that X is treading warily about what he says about his father because he believes one way or another he will need to spend time with him even if that is school holiday time and he fears repercussions if he says what he fears. It is also noted that Mr Cabanel used a blaming approach with X when he allegedly “bullies” Y, according to what he reported about his disciplinary approach. It may be that X is being cautious in what he says to avoid being blamed by Mr Cabanel.
Y, aged 4 years and 6 months at the time of the assessment interviews, was not interviewed individually.
I note that X and Y presented to the Contact Centre as being very happy to see their father on each occasion over the four month period when their time with Mr Cabanel was being supervised.
Material supplied by DHHS after the December 2017 incident in response to a s.69ZW Order also records X as saying that he wanted to spend time with his father, and that DHHS were unable to substantiate that Mr Cabanel had harmed X.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
The father is reported to have a loving relationship with both children. However, the nature of that relationship differs from that between the mother and the children, as the children’s primary bond is with the mother.
Notwithstanding suspension of the father’s time both before and during these proceedings, he believes both children are bonded with and love him. The father asserts that he enjoys a more active life than the mother and that the children benefit from different experiences to which they are exposed in his care. It is his evidence that the more exuberant activities that occur when the children are spending time with him mean that the children inevitably incur bruises, predominantly on the legs.
Ms B reports that X seemed happy to see his father at the assessment interview. Significantly, she reports that neither child appeared fearful of their father.
Ms B describes Y as being very excited and affectionate with her father and as appearing to try to dominate his attention.
At paragraph 50 of the family report, Ms B describes Y being increasingly aggressive with the father and that she seemed to become “increasingly dysregulated”. She reported that the father “distracted her at first and eventually became directive with her when she began to hit him”. Ms B was particularly concerned about that behaviour and the father’s apparent lack of ability to regulate it.
Overall though, the interactions between the children and their father at the assessment interview are generally described in very positive terms.
The mother clearly has a close and loving relationship with both children. She has been the primary care giver for the children for their whole lives. She returned to the workforce in a part-time capacity after Y started kindergarten.
At paragraph 52 of the family report, Ms B describes her observations of the children with Ms Gabbair:
X seemed happy and relaxed with his mother. Y appeared much more settled and relaxed with her mother than she had been by the end of the observation with her father. Y sat close to her mother…there was no aggression by either child with their mother.
Ms B identifies no concerns when observing the mother and children.
At paragraph 65 of the family report, Ms B writes that X was notably more outgoing and assertive with his mother.
Having considered the evidence of both parties, as well as the evidence of Ms B and of the supervisor at the Anglicare Children’s Contact Centre, I accept that the children are primarily attached to their mother, although the reports of both Ms B and the children’s contact centre supervisor indicate that their relationship with their father is also warm and close.
I specifically note that Ms B does not record either child as showing any fear of the father at all.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child.
(i) Participation in making decisions about major long-term issues in relation to the children
In the circumstances set out above, it is the mother who has made all major long term decisions in relation to the children. She has taken care of their health, she has decided which school they will attend, and has generally made all decisions about their ongoing welfare without significant input from the father. It is her evidence that the father showed no interest in being involved in making those decisions, although she did say under cross-examination at trial that she had sent X to a State school rather than a Catholic school because that was the father’s preference.
However, for the first year of X’s life, the father did not know anything about X – where he was born, for instance, or where he and the mother were living.
He first met his son when he was 13 months old on … 2011 for 15 minutes prior to and one hour after a seminar in Sydney organised by the “…” organisation.
He is not listed on X’s birth certificate as his father.
Similarly, he deposes to having received no information about or been invited to Y’s birth.
The father says he has had no involvement with respect to major long-term issues for the children, namely education and health, because the mother has deliberately excluded him from any involvement in those (or indeed any other) decisions.
The father says that he is fully supportive of the mother in her role as primary carer of the children. He asserts that the mother seeks to deny him any significant role in the children’s lives.
Given that the father has lived in Town M since 2016, and that by default the parties have held equal shared parental responsibility for the children since their births (see s.61C of the Act), it is concerning that he has had little or no role in making decisions about the children’s lives.
(ii) Opportunity to spend time with and communicate with the children
Both parents seek to maximise the time the children spend in their respective households.
The mother says she has been limited in her willingness to facilitate a relationship between the children and the father because of her significant and substantial concerns as to his conduct towards her and the children, incidences of inappropriate behaviour, and concerns about his mental health.
It is her evidence that when the father was living in Melbourne and she was living first in Town S and then in Town M, the father was irregular and erratic in exercising time with the children, and that he would simply tell her when he wanted to see the children and she would either comply or not depending on her plans at the particular time. There were times, she says, when arrangements would be made for Mr Cabanel to come to Town M but he would cancel with little notice.
It was her evidence at trial that she only agreed to parenting orders being made by consent in this Court on 31 May 2017 because she believed, upon legal advice, that that consent would assist her application to relocate to Town N.
The mother believes that it is not appropriate for the children to have any extended time with the father, and that there should be an Order for daytime only into the foreseeable future. Indeed, I gained the impression that if she had her way, the father would spend no time with the children at all.
The father says that he has always wanted to be fully involved in his children’s life, education and activities. He argues that after the children were born, and until orders were made in May 2017, he was controlled by the mother as to when he could spend time and communicate with the children.
The father asserts that the mother was reluctant to commit to regular time between him and the children before orders were made in May 2017, and when she did commit, she changed her mind and varied arrangements unilaterally without reason or notice. The father believes the mother controlled him through his desire to spend time with the children, namely, by requiring him to ask for time via text message and then only allowing time when it suited her.
The father’s evidence is that he would love to attend Y’s sports lessons, for instance, but the mother has made it clear that she does not want him involved in any aspect of either child’s life outside of court-mandated time.
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child
The mother has fulfilled her obligations to maintain the children in every way since their birth.
The father pays child support as assessed by the Department of Health and Human Services (Child Support), although his dependence on Centrelink benefits means that he pays at the minimum rate. He also says that he buys them clothes when necessary and that he feeds them when they are in his care.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
either of his or her parents; or
any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The mother’s case throughout the trial was that she sought to relocate the children’s primary residence to Town N, Queensland and that the children should spend limited daytime with the father in City H or Town N.
The current parenting orders made by consent on 8 November 2018 provide for the father to spend time with the children from 9:00am to 3:00pm each Sunday.
The mother seeks a significant reduction of the father’s time with the children. The father seeks an increase to overnight time.
Clearly, if the mother and the children move to Town N, there would be extremely significant consequences for these children. They would be separated from their father by some 3000 kilometres, meaning that, as a matter of practicality, the only time they could spend with him face-to-face would be in school holidays. As the mother proposes only daytime between the children and Mr Cabanel, it is unlikely that the children’s relationship with their father would be able to flourish and develop if they only see him on five or six days per year.
That might be less significant for older children, whose relationship with a parent could be expected to be more substantial, but for children of X’s and Y’s stages of development, when their mother’s commitment to facilitating their relationship with their father appears to be somewhat equivocal, that separation is likely to have high significance, and to have a detrimental effect on their relationship with their father.
The mother’s evidence that she wishes to have nothing to do with the father, and her insistence that he not spend time overnight with the children would be likely to severely limit their time with him into the foreseeable future.
The mother was questioned for some time under cross-examination at trial about her plans for moving to Town N.
Essentially, it was her evidence that:
· she would have to borrow $10,000 either from a bank or from her father to pay for the costs of her relocation and establishment in Town N. If she were to borrow from a bank, she would use her current part-time casual income as a health care worker to support her application, despite the fact that she would no longer be working in that capacity once she relocated.
· while she has been to Town N, and has spoken to a couple of people there in relation to her prospects, she does not have established work or accommodation to go to in Town N or the surrounding area.
· her plans for setting up a business in a house that she would rent in Town N do not include any business plan (and I note with some concern here that the mother appeared to be unaware that she would need to obtain insurance in order to operate such a centre), and she significantly overestimated the potential income she might make from such an enterprise.
· on the income that she might practically expect to make in Town N – and especially if she were to send the children to the local U School as she wishes, and she were also paying off a $10,000 loan – she is highly unlikely to be able to afford to pay for Mr Cabanel’s airfares to City H on two weekends a year so that he can spend day time with the children, which is her proposal. I note that that proposal does not provide for any accommodation costs for Mr Cabanel, and the time Ms Gabbair proposes is not in school holidays, as she says school holiday fares are considerably higher than fares during school terms. On her proposal, the children would miss a Monday of school in each of the second and fourth school terms so that they could spend the day with Mr Cabanel.
· The mother says that X suffers from respiratory complaints and asserts that moving to Far North Queensland would greatly assist him in dealing with those conditions. Unfortunately, the only evidence she provides to support that contention is a two line letter from her general practitioner which is attached to her affidavit sworn 26 May and filed 29 May 2017. That letter, to which I could not give any significant weight, merely states:
This is to certify that X has an eczematous dermatitis which is an ongoing condition and he would be beneficial (sic) to live in areas with warmer weather.
The mother submits that the father is free to move to Far North Queensland himself, as she submits he has no “ties” to Town M.
Ms B reported that the mother appeared unconcerned about relocating the children again. She also reported that X seemed confident he would easily make new friends.
The mother was, until about April 2018, a devotee of a spiritual movement previously known as the ‘…’. She proposes to relocate to Town N as she says it is a community of like-minded people, some ‘…’ devotees and some not, who, she asserts, will provide her with spiritual support.
The father is a former devotee of the ‘…’ movement, and believes that the children are too young to be exposed to its teachings, which he now sees as exploitative.
He contends that it is essential that the children remain in Town M where, quite apart from their relationship with him, they enjoy the support of their school and extended maternal family. I note that Ms Gabbair’s father and other members of her family live in Town M or the surrounding area.
The father asserts that the respondent has a history of impulsive short term moves for “spiritual reasons”. He does not believe that a move to Town N will be longer lasting than any of her previous moves.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The father’s case is that it would be exceptionally difficult for the father to spend time with the children, if the children relocated to Town N and he remained in Town M which places, as already stated, are some 3000 kilometres apart.
The father pays child support as assessed, which is at the minimum rate. He is in receipt of a Disability Support Pension and is in a poor financial position. He has no ability to undertake paid work. The father says he would not be able to afford the cost of relocating to Town N, or to transport himself to Town N or the children to Town M so that they can spend time with him.
It is his evidence that while he has drawn down on his superannuation entitlements in the past in order to travel to Country V to pursue his spiritual beliefs, he is no longer able or willing to do so in order that he might visit the children for day time only in Far North Queensland. Given his precarious financial position, and the fact that his superannuation entitlements amount only to about $60,000, I do not criticise him for that decision.
He seeks regular contact with his children and is concerned that he will not have this if they move.
He cites the mother’s financial position, and her precarious potential for future work should she move to Town N as another matter which would seriously affect the children’s rights to maintain their relationship and direct contact with him on a regular basis.
There is little doubt that the children would face very significant issues of both distance and expense in maintaining their relationship with their father should they move to Town N with their mother.
Section 60CC(3)(f) the capacity of:
each of the child’s parents; and
any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
The father has been diagnosed with Post-Traumatic Stress Disorder (“PTSD”) incurred as a consequence of the quite horrific family violence perpetrated on his mother by his father during his childhood, and I note that Mr Cabanel became distressed and emotional in the witness box when describing that situation. I note that Dr C’s diagnosis was that the father was suffering not from PTSD, but from an adjustment disorder with anxious mood.
It is the father’s evidence that he was determined not to be the kind of father he experienced as a child and that he would never harm either of his children.
He says that his PTSD was triggered in 2010 by the mother’s violence towards him during the relationship (see paragraphs 29, 30, 35 and 36 above), and that he has sought treatment for that condition at various times.
He has also being diagnosed with “Asperger’s Syndrome”[6] (“ASD”) by Dr D, the clinical psychologist who conducted a comprehensive psychological assessment of Mr Cabanel in the course of these proceedings and who gave oral evidence by telephone at the trial. Mr Cabanel said at trial that he concurred with most of Dr D’s diagnosis, and that he had gained a further understanding of his personality and behaviours in accepting that he is on the autism spectrum.
[6] The DSM-V "Bible" in relation to psychiatric diagnoses no longer recognises the term “Asperger’s Syndrome”, stating: "individuals with a well-established DSM–IV diagnoses of autistic disorder, Asperger's disorder or pervasive developmental disorder not otherwise specified should be given the diagnosis of autism spectrum disorder”.
The mother alleges that the father’s parenting capacity is limited by his “mental health issues” and what she sees as his propensity for violence in stressful situations. She alleges that the father has had a minimal role in the children’s lives and therefore his capacity to provide for their needs is compromised.
The father’s case is that while the mother has capacity to provide for the children’s material and intellectual needs, she is not meeting their emotional needs, and he provides the following as examples :
· She does not acknowledge the importance to the children of the father having a meaningful role in their lives and has consistently sought to undermine the father’s relationship with the children;
· She does not acknowledge the importance of the children growing up in a mainstream culture and being protected from sects such as the “…” group’s beliefs until they are old enough to form their own views;
· She cannot prioritise the children’s need for community, stability and for a relationship with the father and their extended family, over her search for life in a community more spiritually aligned with her own beliefs ;
· He believes the mother’s proposal for relocation to Town N is reckless and exposes the children to a high risk of poverty; and
· She is unaware or careless of the harm that the children may suffer as a consequence of the false allegations of physical and sexual abuse that she has made against the father.
It is the father’s evidence that he seeks to support the mother in her role as primary carer of the children. He describes himself as insightful and as having a balanced view as to the children’s social, physical, emotional and intellectual needs. He asserts that he is able to provide the children with exposure to mainstream values and education without undermining the mother’s role as primary carer.
I note that, in an effort to improve his parenting skills, Mr Cabanel enrolled in and successfully completed a Parenting after Separation course with Relationships Australia.
It is noted that Dr C, while recommending psychological and medical monitoring of Mr Cabanel, did not believe that his PTSD or his diagnosed adjustment disorder meant that he was unable to care for the children appropriately. As Dr C was not required for cross-examination at trial, we do not have his opinion of Dr D's ASD diagnosis.
In paragraph 62 of the family report, Ms B reports that:
Mr Cabanel impressed at interview and during the observation as having some deficits in his parenting. He was unable to provide an effective example of his parenting when X fought with Y. There were also concerns about Y’s increasing dysregulation during the observations with Mr Cabanel. While children can sometimes be excited by playing with a parent they have not seen for some time, they will usually regulate when the parent helps them to do so. Mr Cabanel’s attempts to assist Y to regulate were ineffectual. That may be because he might usually use a different strategy with her at home than he tried at interview. X reported his father’s method of discipline was to yell and he was fearful to talk about anything else that happens in his father’s home.
However, under cross-examination at trial, Ms B conceded that Dr D’s diagnosis of ASD, with which she agreed, could account for many of his “quirks”, and it was her evidence that with consistent psychotherapy and support, Mr Cabanel might well be able to improve his capacity to appropriately parent the children.
Neither of these parents can be said to live in the mainstream of modern life.
The mother’s spiritual beliefs guide her life and activities, and while Mr Cabanel no longer shares those beliefs, and is somewhat critical of her, I can find no evidence to indicate that those beliefs impair Ms Gabbair’s parenting capacity in any way.
Ms Gabbair impresses as a loving and devoted mother who wants only the best for her children. However, given the lack of concrete planning in her proposal to relocate the children to Far North Queensland, and her perhaps overoptimistic view of her potential for employment there, the court has some concerns about her ability to put her children’s welfare and best interests ahead of her own desires.
Mr Cabanel is described by various people as “odd”, which is not at all an unusual experience for those living on the autism spectrum. He finds interpersonal relationships difficult, and his communication style is often to continue to put his position until he feels he has been heard, which might understandably be seen by others as annoying and even intimidating, although there was nothing about the way he gave his evidence at trial, and especially under cross-examination, to give the court cause for concern about his behaviour.
He impresses as a man determined to overcome whatever shortcomings he might have as a parent so that he can be the best father possible to these two children.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
I have already discussed the parties’ lifestyle, they having met through their common spiritual practice as part of the ‘ …’ group, and the mother wishing in future to live among like-minded people in what could be called an alternative culture in Far North Queensland.
When asked about her spiritual beliefs at trial, Ms Gabbair said:
[…] They’re about peace and love and connectedness and relationships. They’re seeking to have a connection with God, with the divine.
The children have lived with their mother all their lives, and have no doubt been influenced by what might be called her “lifestyle, culture and traditions”, although there does not appear to be any detrimental effect on the children from those features of their mother’s life.
Ms Gabbair’s lack of concrete planning for and somewhat optimistic view of her proposed relocation does cause the Court to see her as somewhat immature, although again, in terms of her day-to-day life with the children, that characteristic does not appear to be detrimental to their care to date. However, that immaturity is certainly of concern in relation to the children’s long-term care, welfare and development.
I do take into account Mr Cabanel’s diagnosis of ASD, and acknowledge that that poses some obstacles in his life. I also acknowledge that he has some awareness of those obstacles and that he has taken steps and will continue to take steps to minimise the effects of his ASD.
The children do not appear to have any special inherent characteristics that might be relevant in these proceedings apart from X’s eczema, although I note the mother is concerned about Y’s alleged regression after she spends time with her father.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration in these proceedings.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The mother has been the primary carer of the children throughout their entire lives. She has cared for them with minimal financial assistance from the father, and there is no doubt in the Court’s mind that she loves them dearly and is committed to raising them to be kind, engaged, socially and spiritually aware, and successful human beings.
It might be said that her attitude to the children, and to her own responsibilities in relation to their day-to-day care, is very commendable indeed.
However, part of the responsibility of parenthood is to ensure the children are raised in a balanced and inclusive environment, and Ms Gabbair’s attitude to Mr Cabanel’s role in the children’s lives has been negative and undermining, whether unconsciously or deliberately.
The father asserts that the mother is unable to support and encourage a relationship between him and the children, and there is some evidence to support that view. She has excluded him from major decisions and events in their lives, and the overall impression given was that she saw little detriment to the children if they did not see their father at all.
Indeed, she believes him to be a danger to the children both physically and emotionally.
Mr Cabanel says that the mother has demonstrated a lack of insight into the children’s needs, by her several relocations, by refusing time and communication between the children and him, by excluding him from decisions concerning the children, and by making false allegations of violence and sexual abuse against him. I note that the allegations of sexual abuse were not pressed at trial and the evidence in relation to that issue was vague and not at all compelling. I was not asked to decide whether such abuse had taken place or not, and if I had been, I would not have had any real evidence to say that it had.
The father’s evidence is that he loves the children and is committed to their welfare. He says that he has exhausted his financial resources in relocating several times subsequent to moves by the mother so that he can have a relationship with the children. Indeed he has diminished his superannuation entitlements in order to do so.
He seeks to be involved in making decisions concerning the children’s care, welfare and development. He has engaged with the children’s school to the extent permitted by the mother.
There is nothing in the evidence before the Court to indicate any issue in relation to the father’s attitude to his responsibilities as a parent. He pays child support as assessed by the Department of Human Services (Child Support), and it is his evidence that he also buys the children clothes when they need them, and that he cares for them appropriately when they are with him. He denies feeding the children inappropriate foods, as alleged by the mother, and he certainly does not impress as a man who sees children as property or as objects.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
Allegations of family violence form a major part of the mother’s case in these proceedings and I have discussed some of those allegations previously in these Reasons.
It is her evidence that she is afraid of the father as a result of years of coercive and controlling behaviour on his part, and that she wishes to have nothing to do with him.
She submits that the children are at risk of family violence in the care of the father and that the risk is compounded by his mental health issues.
The mother asserts that both children have disclosed fear of the father when he yells at them, and that the child X has disclosed physical assault perpetrated by the father in December 2017. I note again that no charges were laid against the father in relation to those allegations, nor was any legal action taken by the DHHS, although they did recommend supervised time.
The mother also relies upon the evidence of her aunt, Ms E, who filed an Affidavit in the proceedings and gave oral evidence at trial.
Ms E's Affidavit, sworn 15 December and filed 18 December 2018, deposes to her witnessing an incident of significant family violence between the father and X when he was 2 years old in or about September 2012.
That incident allegedly involved the father yelling at X in a supermarket car park, swiping X’s hat off his head, and then roughly picking him up and placing him in his car.
At trial, Ms E could not be shaken in relation to her evidence about the father’s voice having been raised such that she could hear it from inside the supermarket, that she had seen him swipe X’s hat off his head, and that he had picked X up roughly and put him in the car before retrieving X's Ugg boot which had fallen off. It was her evidence that X was crying when he was placed in the car.
It is the evidence of both Ms E and the father that she spoke to him as he was retrieving X's Ugg boot, and while the two parties give different versions of the words used, it is evident that Ms E was critical of the father’s behaviour towards X on that day.
I am satisfied, on the balance of probabilities,[7] that Ms E’s evidence of Mr Cabanel’s behaviour on that day is to be preferred over that of Mr Cabanel, whose insight into his behaviour and its effects in general is less than optimal.
[7] The Evidence Act 1995 (Cth) s 140.
The father asserts that the mother has made false allegations of violence against him, and I note that an Interim Intervention Order was made against the father on the Application of Victoria Police, but that Application was struck out when Ms Gabbair did not attend the Magistrates’ Court for the final hearing. That is most unfortunate, as the father intended to contest her allegations, and had Ms Gabbair attended, there might have been a decision based on tested evidence to refer to in these proceedings.
Mr Cabanel denies that he yelled or yells at the children. It is his evidence that he suffers from a hearing disability and that he naturally spoke loudly before being fitted with hearing aids in January 2018. Dr D records him as speaking significantly loudly, although the report of the supervised contact centre where Mr Cabanel and the children spent time between July and December 2018 does not record any issue in that regard.
It is possible that Mr Cabanel's ASD has resulted in behaviour that has caused Ms Gabbair to be fearful of him, but it is equally likely that he simply resorts to shouting when he does not get his own way. It is clear, however, that Ms Gabbair does not wish to have anything to do with Mr Cabanel, and the challenge will be to craft orders that make her and the children feel safe, while providing for the children to spend time with their father.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
the nature of the order;
the circumstances in which the order was made;
any evidence admitted in proceedings for the order;
any findings made by the court in, or in proceedings for, the order;
any other relevant matter.
On 20 December 2017, Mr Cabanel was served by the police with an Application for an Intervention Order made by a Victoria Police Officer on behalf of the mother and the children with respect to the alleged assault on X on the previous weekend. The father contested that Application.
At the initial hearing, the mother was refused a full Intervention Order, although the magistrate did make an interim order restraining Mr Cabanel from committing family violence against the mother or either of the children.
When the matter returned for a Directions Hearing on 30 April 2018, it was struck out on the application of the police, who, the father says, had learned that neither X or Y describe the events in the terms attributed to them by the mother, that the mother had not advised them of X’s propensity for bruising, nor of the fact that she was involved in family law proceedings where she was seeking orders to relocate to Queensland.
He annexes a copy of the order to his Trial Affidavit.
I note that Mr Cabanel was also the Respondent in Intervention Order proceedings filed by his former landlady and her partner as a result of the incident where he was found guilty of common assault but without conviction in 2017.
As far as the Court is aware, there are no other Intervention Orders involving either of the parties.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
In the vast majority of parenting cases, it is preferable that orders are made to minimise future proceedings, and the orders I make in these proceedings are certainly intended to be final orders.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
The mother’s evidence is that she is an “alternative” person, spiritual by nature, and that she wishes to impart such values to her children in a supportive and like-minded community. She wishes to move to an area that is more conducive to the lifestyle she wishes herself and the children to live, and to her values. She believes that Town N offers this and would greatly contribute to the children’s wellbeing through this sense of community and belonging.
She asserts that Town N will offer her employment in the field of her work. She proposes to run a business from her home. The mother deposes that she believes there is a high demand for health care workers in Town N.
In her Affidavit sworn on 19 December 2018 and filed 20 December 2018, Ms G, senior co-ordinator/manager (sic) of Employer W, City H, deposes to the mother being “a most suitable health care worker to join our organisation”.
In paragraph 7 of her Affidavit, she deposes that “As soon as Ms Gabbair relocates to this region, she can commence training which is self-paced. Upon completion of the training, she may commence as a health care worker with our service”.
The mother’s affidavit evidence is that she expects to earn a taxable income of $89,000.00 per annum in Town N. She also deposes to only being able to generate an income of $40,000.00 per annum in Town M working full time. She highlights the flexibility of working from home in Town N as opposed to an employer in Town M.
At trial under cross-examination, it became clear that Ms Gabbair could hope to earn income closer to $60,000 per year before tax.
She proposes the children attend the local U School and states that she believes she would be able to afford their school fees and associated costs of some $10,000 per year.
She further asserts that her sister, who currently lives in Victoria, may also wish to relocate and that her sister’s eldest son is soon to relocate to Town L. Neither of those people provided sworn evidence in these proceedings.
Ms Gabbair submits that not being permitted to move will have a “significantly detrimental impact on my happiness and general wellbeing and therefore that of the children, should I not be permitted to relocate in accordance with my application herein”.[8] She repeated the essence of that evidence at trial. She did not file any affidavit from a current treating medical or allied practitioner who might corroborate that assertion.
[8] Paragraph 325 of her Affidavit
Decision: Issue B
The father believes if the mother is successful in her application to relocate to Town N, his relationship with his children will effectively be destroyed.
There is no doubt in my mind that Ms Gabbair would benefit from being permitted to move to Town N, as it is where she wishes to live, and there is some evidence that her emotional health would benefit from living some distance away from Mr Cabanel.
However, the evidence before the Court indicates that the effects upon her two children of being separated from their father and from the life they have known in Town M, may not be in their best interests.
A move from Town M to Town N is unlikely to result in the children being able to consolidate and then maintain their relationship with their father, not only because of the distance, but because the history of the matter indicates ongoing serious animus between the parties, and I have no confidence that Ms Gabbair will either encourage or facilitate that relationship, or indeed have the means to do so.
However, I accept that she wishes to leave Town M, which now holds some difficult memories for her, and therefore will make an Order that she be permitted to relocate from Town M to any location within 200 kilometres of that rural city.
That will allow her some distance from Mr Cabanel while at the same time allowing the children to continue to have a relationship with him.
Issue C: Whether the father poses an unacceptable risk to the children in his care
The mother alleges that the father does pose an unacceptable risk to the children because of his inability to control his anger and his “mental health” issues.
She describes controlling and coercive behaviour on the part of the father during and subsequent to her relationship with him, and I do not doubt that she feels intimidated by him and wants to escape him.
There is plenty of evidence that he yells at the children when he is angry, and I am satisfied that he treated X in an unacceptably violent manner in September 2012.
He was found guilty of common assault against the partner of his then landlady in September 2017, and I note that the finding of guilt was made “beyond a reasonable doubt”, although Mr Gabbair’s explanation of that incident diminishes his culpability to a considerable extent in his mind.
The evidence about the incident that occurred on the weekend of 16-17 December 2017 is conflictual, and I cannot find either that it is more likely to have happened, as the mother claims, or not to have happened as claimed by the father. The father’s explanation of the alleged incident is cogent, and I note that the police did not charge him with any crime as a result of the incident, although they did apply for an Intervention Order on behalf of the mother and the children. That Application was struck out at the instigation of the police on 30 April 2018 when the mother did not attend the Magistrates’ Court of a Directions Hearing. She does not appear to have been asked questions at trial about why she had not attended on that day.
I note that none of the risks reported to DHHS was substantiated under the prevailing child protection legislation in Victoria, and that Mr Cabanel was not charged with any assault as a result of the December 2017 incident.
I note, too, that when asked at trial, Ms Gabbair stated that “it would be a great advantage (for the children) to have a meaningful relationship with the father”. That opinion does not gel with her stated belief throughout the proceedings that the father is an unacceptable risk to the children because of his behaviour towards them when they are in his care.
Mr Cabanel himself, despite doing the best he can, shows little insight into the effect of his behaviour, and while that lack of insight might be somewhat explained by his ASD diagnosis, autism on its own does not cause one to be violent or abusive.
However, he is prepared to explore his behaviour by way of counselling/therapy to learn ways to deal better with the children while they are in his care.
So, what does “unacceptable risk” mean?
That term has been examined many times in cases before this court and the Family Court of Australia.
A review of the jurisprudence on this issue makes clear that a child is at an “unacceptable” risk of harm if there is a “real or substantial risk of such abuse occurring as a matter of practical reality” (see M and M (1988) 166 CLR 69). It is not enough for there to be a suspected risk of harm, or a risk of slight harm. The risk is to be calculated in terms of the seriousness of the allegations and the nature of the evidence adduced in support of them.
Decision: Issue C
On the basis of the evidence set out above, I find that there is some risk to the children from their father in the form of yelling which causes them to be fearful or at very least uncertain about how to respond to him, in the form of his part in the very fractious relationship between him and their mother, and perhaps some small risk of Mr Cabanel losing his temper to the point where he hits one of the children.
There is also some possible emotional risk to the children from their mother, in terms of her part in the parties’ toxic relationship, and of her negative view of their father, which cannot help but be communicated to them, despite the mother’s assertions that she does everything possible to ensure that the children see their father in a positive light.
Mr Cabanel’s mental health diagnoses also cause the Court some concern, but he has shown a willingness and a capacity to seek professional help for those issues, and to benefit from that help, and I will order him to continue his counselling in that regard.
I find that while there is some risk associated with Mr Cabanel’s behaviour, he is not an “unacceptable risk” to X and Y.
I will therefore need to craft Orders that are detailed and specific so that the children are kept as safe as possible when in their father’s care and he is very clear about what is expected of him as a father.
Issue D: If he does not pose an unacceptable risk to the children, what kind of time should the father spend with them?
I have decided that Ms Gabbair should remain living within 200 kilometres of Town M, although there will be some provision for the circumstance where Mr Cabanel himself wishes to relocate. It would not be a just outcome to require Ms Gabbair to remain in Town M if, for instance, Mr Cabanel were to decide that he wished to return to Adelaide.
A 200 kilometre radius from Town M gives Ms Gabbair plenty of choice about where she and the children live, while at the same time ensuring that the children have every opportunity to maintain and develop their relationship with their father.
Therefore, I will make Orders for the children to spend each Wednesday afternoon/evening with their father (provided that Ms Gabbair does not move more than 50 kilometres from Town M), as well as on each alternate weekend during school terms, for school holiday time and for time on special occasions such as Christmas and birthdays.
Conclusion
Ms Gabbair will no doubt be disappointed that she is unable to move to Far North Queensland with the children as a result of these proceedings.
As I have stated, it might well be in her best interests to do so, but I have found that such a relocation would not be in the best interests of the children.
If she wishes to move away from Town M, it is to be hoped that she can find somewhere where she feels comfortable in terms of lifestyle, but which allows the children to experience their relationship with their father to its deepest possible extent.
It is also to be hoped that with further therapy, Mr Cabanel will come to see his behaviour in a more critical light, and will learn ways to control that behaviour so that he can be the father he wants to be.
X and Y deserve no less.
I certify that the preceding two hundred and seventy-two (272) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 6 December 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Natural Justice
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Procedural Fairness
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Remedies
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