Gabbard & Kelleher

Case [2021] FCCA 363

FEDERAL CIRCUIT COURT OF AUSTRALIA

Gabbard & Kelleher [2021] FCCA 363

File number(s): BRC 3130 of 2019
Judgment of: JUDGE CASSIDY
Date of judgment: 26 February 2021
Catchwords: FAMILY LAW – children – final orders – where one child has special needs – where there is significant conflict between the parents – where the father raises concerns over the mother’s ability to adequately care for the special needs of one of the children – where the mother says the father is coercively controlling – where no current risks identified in either household – where the children have primarily resided with the mother.  
Legislation: Family Law Act 1975 (Cth) s 60CC.
Number of paragraphs: 137
Date of last submission/s: 4 February 2021
Date of hearing: 1 – 4 December 2020 and 4 February 2021
Place: Brisbane
Solicitor for the Applicant: McInnes Wilson Lawyers
Counsel for the Applicant: Mr Slade-Jones
Counsel for the Respondent: Mr Hanlon
Solicitor for the Respondent: Queensland Legal Practice
Solicitor for the Independent Children's Lawyer: Legal Aid Queensland
Counsel for the Independent Children's Lawyer: Ms Lyons

ORDERS

BRC 3130 of 2019
BETWEEN:

MR GABBARD

Applicant
AND:

MS KELLEHER

Respondent

ORDER MADE BY:

JUDGE CASSIDY

DATE OF ORDER:

12 FEBRUARY 2021

THE COURT ORDERS ON A FINAL BASIS:

1.That the children Y born in 2017 and X born  in 2014 (‘the children’):

(a)Live with the mother; and

(b)Spend time with the father each alternate weekend from after school/kindy Friday until before school/kindy Monday commencing on Friday, 5 March 2021.

2.That the mother have sole parental responsibility for the major-long-term decisions for the children.

3.That for the purpose of exercising her sole parental responsibility, the mother shall:

(a)Inform the father in writing of any major long-term decision to be made;

(b)Allow him seven (7) days to respond in writing; and

(c)Make the decision after considering his response and provide the outcome to him within 24 hours of a decision being made.

4.Commencing once Y has started Grade one (1), the children shall spend time with each parent during Queensland school holidays on a week-about basis, commencing with the parent whose weekend falls after the end of the school term.

5.That changeovers occur at the children’s school/kindy and when changeovers cannot occur there, they shall occur at the Contact Centre, with the costs of any supervised changeover to be shared equally between the parents.

6.Where the Contact Centre is not available (eg during special days), the changeover shall occur at a McDonalds Restaurant, nominated by the non-resident parent, which is approximately equidistant between the parent’s residences.

7.That during changeover and any other time the parents interact with each other, neither parent shall:

(a)record these interactions,

(b)discuss adult matters, such as disputes regarding parenting arrangements,

(c)denigrate the other parent or use abusive language towards the other parent.

8.That the children shall communicate with the parent they are not with at 6pm each Wednesday and each alternate Friday (when with the resident parent), by Facetime, with the resident parent to initiate the call…

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AGLC
Gabbard & Kelleher [2021] FCCA 363
Case
[2021] FCCA 363
Decision Date

CaseChat Overview and Summary

This matter concerned parenting arrangements for the children Y and X, with Mr. Gabbard as the applicant and Ms. Kelleher as the respondent, before Cassidy J of the Federal Circuit and Family Court of Australia. The dispute centred on the children's living arrangements, time spent with each parent, and parental responsibility, particularly in light of X's special needs and the high level of parental conflict.

The court was required to determine the primary caregiver for the children, the schedule for the children to spend time with the non-resident parent, and the allocation of parental responsibility for major long-term decisions. Additionally, the court needed to establish protocols for communication between the parents regarding the children's welfare, medical care, and changeovers, as well as address issues of parental conflict and its impact on the children. The court also had to consider the specific needs of X, who has a rare medical condition, and the potential impact of the parents' differing views and behaviours on his care.

Cassidy J ordered that the children live with the mother and spend time with the father on alternate weekends, commencing from March 2021. The mother was granted sole parental responsibility for major long-term decisions, with a specific process outlined for the father to be informed and to respond to proposed decisions. The court also detailed arrangements for school holiday time, changeovers, communication, and the sharing of information regarding the children's medical care, including specific provisions for X's treatment. The orders also stipulated that both parents attend a Parenting Co-ordinator for at least 12 months to assist with managing X's medical needs, with costs shared equally. The court further mandated that parents refrain from denigrating each other in the children's presence and use a designated app for non-urgent communication.

Orders

Orders of the court

BRC 3130 of 2019

BETWEEN:

MR GABBARD

Applicant

AND:

MS KELLEHER

Respondent

ORDER MADE BY:

JUDGE CASSIDY

DATE OF ORDER:

12 FEBRUARY 2021

THE COURT ORDERS ON A FINAL BASIS:

1. That the children Y born in 2017 and X born in 2014 (‘the children’):

(a) Live with the mother; and

(b) Spend time with the father each alternate weekend from after school/kindy Friday until before school/kindy Monday commencing on Friday, 5 March 2021.

2. That the mother have sole parental responsibility for the major-long-term decisions for the children.

3. That for the purpose of exercising her sole parental responsibility, the mother shall:

(a) Inform the father in writing of any major long-term decision to be made;

(b) Allow him seven (7) days to respond in writing; and

(c) Make the decision after considering his response and provide the outcome to him within 24 hours of a decision being made.

4. Commencing once Y has started Grade one (1), the children shall spend time with each parent during Queensland school holidays on a week-about basis, commencing with the parent whose weekend falls after the end of the school term.

5. That changeovers occur at the children’s school/kindy and when changeovers cannot occur there, they shall occur at the Contact Centre, with the costs of any supervised changeover to be shared equally between the parents.

6. Where the Contact Centre is not available (eg during special days), the changeover shall occur at a McDonalds Restaurant, nominated by the non-resident parent, which is approximately equidistant between the parent’s residences.

7. That during changeover and any other time the parents interact with each other, neither parent shall:

(a) record these interactions,

(b) discuss adult matters, such as disputes regarding parenting arrangements,

(c) denigrate the other parent or use abusive language towards the other parent.

8. That the children shall communicate with the parent they are not with at 6pm each Wednesday and each alternate Friday (when with the resident parent), by Facetime, with the resident parent to initiate the call to the non-resident parent.

Medical Treatment

9. That both parents will inform the other parent of any medical emergency, serious illness, hospitalisation or accident involving the children as soon as practicable and shall inform the other parent of the treating hospital/medical practice involved with the children.

10. That the mother will inform the father in relation to X’s medical care of the following additional information:

(a) Any appointments made with any health or welfare practitioners, with both parents at liberty to attend appointments with the father to attend by telephone,

(b) Any medication prescribed to X, the practitioner who prescribed it and the details of administration of that medication,

(c) Any relevant testing or test results that the father may not be aware of.

11. This Order operates as an authority for any professional care provider of the children, including school, hospital, doctor, therapeutic or welfare professional, to release any information concerning the care, welfare and development of the children to either parent at their request.

Special Days

12. The children shall spend time during the Christmas period, being from 8:30am Christmas Eve until 8:30am on 27 December, with the father in even numbered years and with the mother in odd numbered years.

13. The children shall spend time during the Easter period, being from 8:30am Good Friday until 8:30am the Tuesday after Easter Monday, with the mother in even numbered years and with the father in odd numbered years.

14. The children shall spend time with the parent they are not living with on their birthdays as follows:-

(a) Should the birthday fall on a weekday, from 3:30pm or after school/kindy until 5:30pm, and

(b) Should the birthday fall on a weekend, from 1pm to 5pm.

Other Matters

15. That both parents keep each other informed of their contact details including residential address, telephone number and email address and they shall inform the other parent of any change within 48 hours.

16. Should either parent seek any documentation in relation to the children, including school photographs or reports, the requesting parent shall be responsible for any associated costs.

17. The parents shall not denigrate the other parent or their family in the presence or hearing of the children and shall not expose the children to any person denigrating the other parent or their family.

18. The parents shall communicate about non-urgent matters regarding the children via the Our Family Wizard app.

19. In the case of an emergency or urgent medical issue, the parents shall communicate by text and phone.

20. That both parents are permitted to attend the children’s medical/allied health appointments, day care centre and school, pursuant to the guidelines of the organisation/centre with the father to attend medical/allied health appointments by telephone.

21. That the parents attend on a qualified Parenting Co-Ordinator, for a period of at least 12 months, to specifically assist with their management of X’s medical needs, with the costs of the Co-Ordinate to be shared equally.

Background

Background to the litigation

The third position was if neither parent poses an unacceptable risk of harm than the court would need to assess the parents considering the relevant s60CC factors in the Family Law Act 1975. I note the orders the Independent Children’s Lawyer tendered provided for the children to live with the father in that circumstance.BACKGROUND The mother and father began living together in 2006. They married in 2011. The separation occurred on 4 June 2018. The parties divorced on 19 November 2019.Parenting arrangements There is no dispute the mother remained at home with the children while the parties were living together and the father worked. He was self-employed and ran his own company. When the parents returned to Australia from overseas I accept both parents were involved in the care of these children.Post-Separation Parenting Arrangements The family report writer provided a summary of the parenting arrangements post separation:Following separation in May 2018, the children and mother left the former matrimonial home. The father alleges the mother did not allow him time with the children until 12 June 2018 when the parents attended mediation. The parents reached an agreement at mediation for the children to spend time with the father for short day time visits up to three times per week.[2][2] Family Report filed 31 October 2019 at page 7. From 3 July 2018 until 29 July 2018 the father withheld X and the father proposed the mother’s time with X be supervised by the paternal uncle. After a Department of Children, Youth Justice and Multicultural Affairs (herein ‘the Department’) investigation, the child X as returned to the mother’s care. Between October and December 2018:… the parents had agreed to X spending up to 3 nights a week with the father, with Y spending similar day times and returning to the mother’s care to sleep.On 25 March 2019 the father filed his Initiating Application and interim orders were made on 28 March 2019 after the matter was listed urgently. The interim orders provided for the children to live with the mother and spend time with the father in Week 1, from 12noon Wednesday until 5pm Friday and in Week 2, from 9am Wednesday to 5pm Thursday...The mother filed her Response material on 30 August 2019 and the father s Application was heard on 4 September 2019. Consent orders were made on this day increasing the children’s time with the father to time in Week 1, from 8:30am Wednesday to 5pm Friday and in Week 2, from 8 30am Friday to 5pm Sunday[3][3] Ibid at page 8. Education History of the Children There have been some disputes about where X should attend school. He attends School B at the moment. He will move to a school closer to where he resides at the conclusion of this trial. The mother enrolled Y in Kindergarten C in 2021. The mother did not consult the father prior to enrolling the child. Health and Special Needs of the ChildrenX X is a special needs child. He has been diagnosed with a rare medical condition. The testing by Dr E, provided the following results:Testing identified a pathogenic (disease causing) variant.[4] [4] Affidavit of Mr Gabbard filed 4 November 2020 at annexure -2.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The father raises a concern the maternal grandmother has unconventional views about medical issues. This may be the case but her evidence was she supported X being treated by conventional medical practitioners. I accept she lives with the mother and the children from time to time in the home the grandparents purchased to house the mother and the children. The Mother’s Unilateral Decisions I accept the mother’s unilateral decision to relocate the children to their current residence that is a significant distance from where the father lives in Suburb W and up to 45 minutes from the Hospital V. However, the maternal grandfather gave evidence they purchased the home to provide a home for the mother and the children. The evidence he gave was that the cost of the property was a significant factor in choosing the location. The inner city properties near Suburb W where the father was renting were higher than he could afford. Y’s Behaviour The father’s evidence is: In the past eight month’s Y’s behaviour has seriously declined. I do not consider Y’s behaviour to be the result of one parent's conduct. I am concerned Y’s behaviour is deteriorating as a result of the high degree of parental conflict between Ms Kelleher and I which stems largely from medical decisions relating to X. I have repeatedly raised this with Dr P.[22][22] Affidavit of Mr Gabbard filed 4 November 2020 at paragraph 105. Dr Q has been engaged by the parents to assist them in managing Y’s behaviour. I note Dr Q records: … He was articulate and child focused in his discussions. Informal observations of him interacting with X and Y shown (sic) that he displayed a high level of affection, patience and parenting ability with the children. He was attentive, kind and highly attuned to their needs. Mr Gabbard reported that he was extremely concerned regarding the behaviours exhibited by Y and was worried regarding the impact of the separation and current time arrangements on his functioning. He reported concerns that Y’s difficulties were linked to co-parenting conflict, inappropriate time arrangements, and his attachment style with his mother. Mr Gabbard indicated that he is not willing to continue to watch Y in the state of heightened distress that is currently occurring and wished to seek options to improve the current situation…Ms Kelleher presented reserved, non-direct at times and paced in her processing speed. Informal observations showed that she was attentive to the children, however at times she was not attuned to their behaviours or the appropriate impact of their actions on those around. The children were less controlled and managed in her care at my office. Ms Kelleher presented as patient and kind towards each child. Ms Kelleher presented as concerned regarding Y’s displayed behaviours, however offered minimal suggestions regarding what may be contributing to his difficulties. She did often mention that she felt Y was on the Autism Spectrum which maybe (sic) the reason he is experiencing the reported difficulties in his behaviours, and the emotional regulation and adjustment issues during change. Both parties confirmed that there is a lack of an effective and respectful co-parenting relationship with each blaming the other for highly inappropriate behaviours at change over in the presence of the children including ignoring the other parent, saying “fuck off” and giving each other “the finger”.

Ratio Decidendi

Legal Principle Established

There is no dispute the mother remained at home with the children while the parties were living together and the father worked. He was self-employed and ran his own company. When the parents returned to Australia from overseas I accept both parents were involved in the care of these children.Post-Separation Parenting Arrangements The family report writer provided a summary of the parenting arrangements post separation:Following separation in May 2018, the children and mother left the former matrimonial home. The father alleges the mother did not allow him time with the children until 12 June 2018 when the parents attended mediation. The parents reached an agreement at mediation for the children to spend time with the father for short day time visits up to three times per week.[2][2] Family Report filed 31 October 2019 at page 7. From 3 July 2018 until 29 July 2018 the father withheld X and the father proposed the mother’s time with X be supervised by the paternal uncle. After a Department of Children, Youth Justice and Multicultural Affairs (herein ‘the Department’) investigation, the child X as returned to the mother’s care. Between October and December 2018:… the parents had agreed to X spending up to 3 nights a week with the father, with Y spending similar day times and returning to the mother’s care to sleep.On 25 March 2019 the father filed his Initiating Application and interim orders were made on 28 March 2019 after the matter was listed urgently. The interim orders provided for the children to live with the mother and spend time with the father in Week 1, from 12noon Wednesday until 5pm Friday and in Week 2, from 9am Wednesday to 5pm Thursday...The mother filed her Response material on 30 August 2019 and the father s Application was heard on 4 September 2019. Consent orders were made on this day increasing the children’s time with the father to time in Week 1, from 8:30am Wednesday to 5pm Friday and in Week 2, from 8 30am Friday to 5pm Sunday[3][3] Ibid at page 8. Education History of the Children There have been some disputes about where X should attend school. He attends School B at the moment. He will move to a school closer to where he resides at the conclusion of this trial. The mother enrolled Y in Kindergarten C in 2021. The mother did not consult the father prior to enrolling the child. Health and Special Needs of the ChildrenX X is a special needs child. He has been diagnosed with a rare medical condition. The testing by Dr E, provided the following results:Testing identified a pathogenic (disease causing) variant.[4] [4] Affidavit of Mr Gabbard filed 4 November 2020 at annexure -2. This diagnosis was made in 2019. The NDIS Review Report dated 25 April 2020 summarises the child’s disabilities: X has a large number of medical professionals assisting with his care: Y does not have the special needs that his brother has although there is a question about whether he has autism. This will no doubt have to be investigated by the parent who has sole parental responsibility for the boys once the judgment is handed down. Domestic Violence