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…
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- CABANEL & GABBAIR [2019] FCCA 3497
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- [2019] FCCA 3497
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CaseChat Overview and Summary
The court was required to determine whether the mother should be permitted to relocate the children to Far North Queensland, and consequently, what parenting orders should be made in relation to the children's residence, parental responsibility, and time with each parent. A key issue was the assessment of the children's best interests, particularly in light of the primary considerations outlined in section 60CC(2) of the *Family Law Act 1975* (Cth), namely the benefit of a meaningful relationship with both parents and the need to protect the children from harm.
In reaching its decision, the court considered the evidence presented, including reports from a children's contact centre and a family report. The court acknowledged that the children had a meaningful relationship with both parents, describing the relationship with the mother as primary carer and the relationship with the father as "important, significant and valuable," despite the father's time with the children having been irregular and at times supervised. The court also noted allegations of psychological harm by both parents and a specific allegation of assault by the father, which had been investigated by authorities without further action. The court applied the principle that the need to protect a child from harm must be given greater weight than the benefit of a meaningful relationship, as stipulated in section 60CC(2A) of the *Family Law Act 1975* (Cth).
The court ordered that all previous parenting orders be discharged. The mother was granted sole parental responsibility for the children's education, health, and medical treatment, with a requirement to inform the father of major decisions in these areas within 48 hours. The parties were to have equal shared parental responsibility otherwise. The children were ordered to live with the mother, who was restrained by injunction from relocating them more than 200 kilometres from Town M, Victoria, without the father's written agreement. Detailed provisions were made for the children's time with the father, including specific arrangements for weekends, school holidays, and future relocations. The court also made orders regarding communication between parents, the conduct of parents in the presence of the children, and the father's obligation to seek psychological treatment.
Orders
Orders of the court
1.
All previous parenting orders in relation to the children X born … 2010 (“X”) and Y born … 2013 (“Y”) (collectively “the children”) are hereby discharged.
2.
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.
3.
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.
4.
The children shall live with the mother.
5.
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.
6.
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.
7.
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.
8.
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.
9.
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.
10.
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.
11.
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.
12.
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.
13.
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.
14.
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.
15.
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.
16.
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.
17.
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.
18.
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.
19.
The order of Judge O’Sullivan of 31 May 2017 appointing the Independent Children’s Lawyer is hereby discharged.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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. 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. 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.