Gabbard & Kelleher

Case [2021] FedCFamC1A 64

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Gabbard & Kelleher [2021] FedCFamC1A 64

Appeal from: Gabbard & Kelleher [2021] FCCA 363
Appeal number(s): NOA 17 of 2021
File number(s): BRC 3130 of 2019
Judgment of: STRICKLAND, WATTS & HOGAN JJ
Date of judgment: 12 November 2021
Catchwords: FAMILY LAW – APPEAL – PARENTING –Where the elder child has significant additional needs – Where the father raises concerns about the mother’s parenting capacity – Where the primary judge did not misapply the s 60CC considerations – Adequacy of reasons – Where the primary judge did not err in making findings of fact – Appeal dismissed.
Legislation: Family Law Act 1975 (Cth) s 60CC
Cases cited:

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

House v The King (1936) 55 CLR 499; [1936] HCA 40

Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Sun Alliance Insurance Ltd v Massoud [1989] VR 8

Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 134
Date of hearing: 13 July 2021
Place: Heard in Brisbane, delivered in Sydney
Counsel for the Appellant: Ms McDiarmid
Solicitor for the Appellant: McInnes Wilson Lawyers
Counsel for the Respondent: Mr Hanlon
Solicitor for the Respondent: Queensland Legal Practice
Counsel for the Independent Children's Lawyer: Mr Dodd
Solicitor for the Independent Children's Lawyer: Legal Aid Queensland

ORDERS

NOA 17 of 2021
BRC 3130 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR GABBARD

Appellant
AND:

MS KELLEHER

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

STRICKALND, WATTS & HOGAN JJ

DATE OF ORDER:

12 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The Appeal is dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gabbard & Kelleher has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

STRICKLAND, WATTS & HOGAN JJ:

INTRODUCTION

  1. By way of Notice of Appeal filed 26 March 2021, Mr Gabbard (“the father”) appeals parenting orders made by a judge of the Federal Circuit Court (now the Federal Circuit and Family Court of Australia (Division 2)) on 26 February 2021. Ms Kelleher…

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Details
AGLC
Gabbard & Kelleher [2021] FedCFamC1A 64
Case
[2021] FedCFamC1A 64
Decision Date

CaseChat Overview and Summary

The appeal in this matter concerns the determination of the Federal Circuit Court in relation to the parenting arrangements of the children, following the separation of the parents. The mother and father began living together in the United Kingdom in 2006 and married in 2011 before moving to Australia in 2014. They separated on 4 June 2018, and the mother initially withheld the children from the father, leading to mediation and subsequent visitation arrangements. The Department of Children, Youth Justice and Multicultural Affairs investigated the mother’s care of the children, and interim orders were made to increase the children’s time with their father. The primary judge's decision was described as finely balanced and difficult, with both parents seeking sole parental responsibility and similar arrangements for the children's time.

The central legal issues before the court included determining the appropriate parenting arrangements for the children post-separation, considering the best interests of the children, and evaluating the respective roles and proposals of each parent. The court had to weigh the evidence and submissions from both parents and the Independent Children's Lawyer, particularly in light of the Department's investigation and the interim orders already in place. The primary judge had to decide whether to maintain or alter the existing interim orders regarding the children's time with each parent and the administration of medication and immunisation.

The court found that the primary judge's decision was carefully considered and balanced the interests of both parents and the children. The appeal did not succeed as the court found no merit in any of the grounds of appeal. The primary judge's decision was upheld as it appropriately considered the best interests of the children and the evidence presented. The appeal was dismissed, and no order for costs was made as neither the mother nor the Independent Children's Lawyer sought costs in the event of the appeal being dismissed.

Orders

Orders of the court

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Background

Background to the litigation

For reasons which follow, the appeal will be dismissed.BACKGROUND The mother and father began living together in 2006 in the United Kingdom. They married in April 2011 and moved to Australia in 2014. They separated on 4 June 2018. Whilst the parties were together, the mother remained at home with the children whilst the father undertook paid employment. After the parties moved to Australia from the United Kingdom, both were involved in the care of the children. At the time of the separation, the elder child was aged 3 years and the youngest 1 year of age. Initially the mother withheld the children from the father for a short period but after a mediation in June 2018, short visits up to three times a week were instituted. Between 3 July 2018 and 29 July 2018, the father withheld the elder child during which time the Department of Children, Youth Justice and Multicultural Affairs (“the Department”) investigated the mother’s attention to his medical needs including the administration of medication. The child was returned to the mother at the end of July 2018. After this time the mother commenced videoing herself administering medication to the elder child day and night and making a copy available to the father. On 28 March 2019 interim orders were made by a judge of the Federal Circuit Court providing for the children to spend three nights a fortnight with their father. Further interim orders were made (by consent) on 4 September 2019 (amended 10 September 2019) which increased the children’s time with their father to four nights/five days a fortnight and regarding immunisation for both children. That was the parenting arrangement in place at the time of the hearing before the primary judge. Those orders also required both parents to administer medication as recommended by medical professionals and provided a regime for the immunisation for both children. REASONS OF THE PRIMARY JUDGE The hearing before the primary judge took place over three days in December 2020 and one day in February 2021. Her Honour delivered the reasons for judgment three weeks after final submissions and described the proceedings as “a very difficult matter” (at [1]) and “finely balanced” (at [137]). In final submissions to the primary judge, both counsel for the ICL and for the father, on more than one occasion, described the decision her Honour had to make as “feathers on a scale” (see for example transcript 4 February 2021, p.7 lines 7–8 and p.56 line 47). The parents were in dispute about all issues relevant to the decisions her Honour was required to make (at [2]). The primary judge set out the proposals of each parent and the ICL (at [4]–[10]). The proposals of the parents mirrored one another. Each sought sole parental responsibility, that the children live with them and that the children spend alternate weekends and half the school holidays as well as special days with the other parent. In the event the mother’s application was successful, there would be a reduction in the time that the children had been spending with the father on an interim basis, but the father sought the same time for the mother if the children lived with him.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is no merit in this Ground.CONCLUSION Given that there is no merit in any ground, the appeal will be dismissed.COSTS Neither the mother nor the ICL sought an order for costs in the event the appeal was dismissed and no order shall be made.

Ratio Decidendi

Legal Principle Established

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