Gabel and Meltzer
[2014] FCCA 604
•28 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GABEL & MELTZER | [2014] FCCA 604 |
| Catchwords: FAMILY LAW – Children – spend time with arrangements – family violence – unacceptable risk to the children – supervised time. |
| Legislation: Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65DAA Evidence Act 1995 (NSW), ss.69, 97 |
| Lithgow City Council v Jackson [2011] HCA 36 B & B & Minister of Immigration and Multicultural and Indigenous Affairs [2003] FamCA 621 Minister of Immigration & Teoh (1995) 183 CLR 273 |
| Applicant: | MR GABEL |
| Respondent: | MS MELTZER |
| File Number: | PAC 4898 of 2009 |
| Judgment of: | Judge Harman |
| Hearing dates: | 29, 30, 31 January 2014 |
| Date of Last Submission: | 31 January 2014 |
| Delivered at: | Parramatta |
| Delivered on: | 28 March 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Conte-Mills |
| Solicitors for the Applicant: | Sarah Bevan Family Lawyers |
| Counsel for the Respondent: | Ms Sloane |
| Solicitors for the Respondent: | Mardens Law Group |
| Counsel for the Independent Children's Lawyer: | Ms Reynolds |
| Solicitors for the Independent Children's Lawyer: | JPM Legal |
ORDERS
The mother shall have sole parental responsibility for the children [X] born [in] 2003 and [Y] born [in] 2006 (“the children”).
The children shall live with their mother.
The children shall spend time with their father for 3 hours each 3 calendar months, commencing on Saturday 3 May 2014, supervised by [P], or if they are not available, such other service as the parties agree upon.
The party are to pay half each of the costs of such supervision.
Changeover is to occur at [O] at a location nominated by the supervising agency.
The father is to ensure that the children are not brought into contact with his brother, Mr G.
The father is restrained from questioning the children about their address or locality of their residence, or the name or location of the school they attend.
The father is restrained from consuming alcohol or illicit drugs for a period of 12 hours prior to the children coming into his care.
The mother is to send the father copies of the children’s school reports, amended to delete any material which might identify the whereabouts of the school.
The father is permitted to send the children cards and gifts on special occasions, to the maternal grandparents address, and the mother is to ensure that children receive them and encourage the children to respond to the father on receiving these.
Within 14 days of being requested to do so in writing by the mother, the father is to sign all necessary documentation to allow the children to obtain a passport.
The mother is to notify the father of any serious health issues of the children by advising either the paternal grandmother or paternal grandfather as soon as possible.
The father is to do everything he can to ensure that neither he nor any member of his family speak about the mother in a negative way in the presence or hearing of the children.
The mother is not to speak about the father or his family, in a negative way to or in the presence of any of the children.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
IT IS NOTED that publication of this judgment under the pseudonym Gabel & Meltzer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4898 of 2009
| MR GABEL |
Applicant
And
| MS MELTZER |
Respondent
REASONS FOR JUDGMENT
These are proceedings involving competing applications with respect to parenting arrangements for two young children, namely:
[X] born [in] 2003 (accordingly aged 10 years); and
[Y] born [in] 2006 (aged 7 years).
The parties to the proceedings are the children’s parents being their father Mr Gabel, (who is the Applicant) and their mother
Ms Meltzer, (who is the Respondent).
Present arrangements
[X] and [Y] are presently living with their mother and have done so (subject to some controversy within the evidence) since the separation of the parents in February 2009).
[X] and [Y] are spending time with their father on a supervised basis (with a private, fee for service agency providing supervision) once per month and for a period of a few hours at a time occurring in a public place.
Short history
The separation in February 2009 was not the first separation of the parents and, as a consequence of an earlier separation shortly after the birth of the eldest child [X], Orders were made, by consent, in the Local Court, [omitted]. Those Orders, whilst the parties agree they were made in 2003, are not before the Court. Each of the parties agrees that an Order was made and that it made provision for [X] (then the only child of the relationship) to spend time with the father from Saturday until the following Tuesday (3 nights). No further details of the Orders are known to the Court.
On the basis of the child’s age at the time that the Order was made (being somewhere between 0-7 weeks of age) the arrangement suggested to have been agreed by the parents (and ordered) would not appear to have been reflective of any consideration of that child’s development needs nor other facts and circumstances clearly apparent at the time, not the least of which were significant allegations of violence throughout the relationship between these parents and as raised by Ms Meltzer.
The parties did not remain separated for any significant period and it is unclear whether the ordered arrangements ever really operated.
Following the final separation of the parties the children’s time arrangements with their father have been problematic to say the least.
For some periods immediately following separation the shared care arrangement (apparently provided by the 2003 Orders) would appear to have operated. It is unclear whether that was on a consensual basis or, at times, unilaterally determined and/or imposed by
Mr Gabel.
The time that the children have spent with Mr Gabel since separation February 2009 has, overall, been minimal, disrupted and problematic.
Fresh Orders were made by the Local Court, [omitted] 16 September 2009. Those Orders provided for both children to live with their mother and spend time with their father on a supervised basis (such supervision to be provided by the paternal grandparents). Time was to occur on alternate weekends from 5pm Friday to 5pm Sunday together with one half of the school holiday periods.
Further Orders were made by the Local Court, [omitted] 29 July 2010. Those Orders purport to be made on a final basis and with the consent of the parties. That contention, at least as regards the finality of the Orders, is somewhat problematic as the proceedings were then also transferred, on that date and by those Orders, to the Federal Magistrates Court, Parramatta (as it then was).
The Orders made 29 July 2010 were clearly intended and have been treated by the parties in the conduct of their case as being interim Orders. Those Orders provided for the mother, Ms Meltzer, to have sole parental responsibility for the children and for the father to have time with the children on a supervised basis through the [R] Contact Centre and for a period of two hours per month.
Time in accordance with the Orders July 2010 occurred for a period from approximately November 2010 until November 2011. Whilst further periods of time were allocated by the Centre following the last occasion which occurred (26 November 2011) no such time was taken up and it is unclear as to the basis for this.
Time then resumed between the children and the father 15 June 2013 with time occurring for a similar period, approximately 2 hours, once per month and supervised by a private agency [P] Contact Service.
Parties proposals
Mr Gabel as the Applicant proposes Orders on the following basis:
1)That the mother and father have equal shared parental responsibility for the long term care, welfare and development of the children [X] born [in] 2003 and [Y] born [in] 2006.
2)That each party be solely responsible for the day to day care, welfare and development of the children whilst the children are in their respective care.
3) That the children live with the Mother.
4) That the children spend time with the father as follows:
(a)each alternate weekend from 6:00pm on Friday to 6:00pm on Sunday;
(b)for half of each school holiday periods at times to be agreed between the parties;
(c)at Christmas as follows:
i) In even numbered years commencing 2012 from 11:00am on Christmas Eve until 11:00am on Christmas Day;
ii) In odd numbered years commencing 2013 from 11:00am on Christmas Day until 11:00am on Boxing Day.
(d)On the father’s day weekend from 11:00am on Saturday until 6:00pm on Sunday;
(e)On each of the children’s birthdays as follows:
i) If the birthday falls on a school day, from 4:00pm until 6:00pm;
ii) If the birthday falls on a weekend that the children are not otherwise spending time with their father from 6:00pm the night before their birthday until 11:00am on the day of their birthday.
(f)On the father’s birthday as follows:
i) If the birthday falls on a school day phone contact from 6:30-7:30pm;
ii) If the birthday falls on a weekend that the children are not otherwise spending time with their father, from 6:00pm the night before their father’s birthday until 11:00am on the day of their father’s birthday.
(g)For the purpose of these Orders school holidays will be deemed to commence at 9am on the day following the last day of the term for the school the children attends and conclude at 5pm on the day before the commencement of school whether or not that day is a pupil-free day. After the conclusion of the school holiday period, the parent who spent time with the children during the first half if the school holidays will spend time with the children on the first weekend following the conclusion of school holidays.
(h)For the purpose of orders 5(a) and 5(b), the mother is to provide make-up time, as agreed between them, to the father in instances where she has not made the children available to him pursuant to these orders.
5) That for the purposes of facilitating the time referred to in paragraph (5), changeover will occur at the McDonalds restaurant located in [omitted].
6)For the purpose of changeover, in the event that one party is early or late in attendance they are to contact the other party within 30minutes of the due time for changeover and both parties are to ensure that they use their best endeavours to ensure that they are contactable during this period.
7)That the father is at liberty to communicate with the children by telephone when in the mother’s care as follows:
a)Between 6.30pm to 7:30pm on Sunday, Tuesday and Thursday;
b)That the father initiates the call unless otherwise agreed between the parties;
c) That the mother shall provide all reasonable assistance to enable such communication to take place and she must leave the room when the children are speaking to the father to give the children privacy to do so.
8) That each party shall forthwith notify the other of any medical or other emergency affecting either of the children.
9)That whilst the children are in their respective care, the parties shall advise each other as soon as reasonably practicable of any major medical issues involving the children and each party shall keep the other properly informed of any required treatment or medication required in relation to the children and the parties shall ensure the proper administration of such medications and treatments is performed by them.
10) That the mother provide to the father details of all specialist appointments, at least seven days prior to the appointment.
11) That the father be at liberty to contact the children’s school from time to time, organisations pertaining to sports the children participates in from time to time and health organisation or professionals that children are associated with for the purpose of obtaining copies of reports, notices or other such communications regarding the children or events in which the children are to be involved.
12) That each party take the children or ensure that the children attend their sport training sessions, weekend games and all social activities in which the children are enrolled during the period that the children are in their respective care.
13) That the parties be restrained from consuming intoxicating alcohol to excess or illicit substances during any time that the children are in their care of for 12 hours beforehand.
14) That each of the parties be restrained from denigrating the other party to the child and /or causing or permitting any other person from doing so in the presence or hearing of the children.
The Orders proposed by Mr Gabel are set out in an Amended Initiating Application filed 31 August 2012. Prior to this the Orders that had been proposed by Mr Gabel were in the following terms:
1. That all previous parenting Orders between the parties be discharged.
2. That the parties have shared parental responsibility for the long term care, welfare and development of the children of the relationship, namely [X] born [in] 2003 and [Y] born [in] 2006.
3. That each party have responsibility for the day to day care welfare and development of the children whilst the children are in the respective care.
4. That the children live with the mother within a 50km radius of [H], NSW.
5. That the children spend time with the father as follows:
i. Each weekend from 5pm on Saturday to 5pm on Tuesday;
ii. For the second half of all school holiday periods or as otherwise agreed;
iii. At Christmas as follows:
a.In even numbered years commencing 2010 from 11am on Christmas eve until 11am on Christmas Day;
b.In odd numbered years commencing 2011 from 11am on Christmas Day until 11am on Boxing Day;
iv. On the father’s day weekend from 9am on Saturday until 5pm on Sunday;
v. By telephone each night between 6.30pm and 7.00pm.
In the alternative to Orders 4 and 5:
6. That the children live with the father within a 50km radius of [H] NSW.
7. That the children spend time with the mother as follows:
i. Each alternate weekend from 5pm on Friday to 5pm on Sunday;
ii. For the second half of all school holiday periods or as otherwise agreed;
iii. At Christmas as follows:
a.In even numbered years commencing 2010 from 11am on Christmas Eve until 11am on Christmas Day;
b.In odd numbered years commencing 2011 from 11am on Christmas Day until 11am on Boxing Day;
iv. On the mother’s day weekend from 9am on Saturday until 5pm on Sunday.
v. By telephone each night between 6:30pm and 7:00pm.
8. That the Father be restrained from bringing the children into contact with the father’s brother Mr G.
9. That the parties be restrained from consuming intoxicating alcohol to excess or illicit substances during any time that the children are in their care for 12 hours beforehand.
10. That for the purpose of changeover:
i. The father will collect the children from the mother at Bunnings Hardware Store [omitted] car park or such other location as may be agreed from time to time at the commencement of the time that the Father spends with the children;
ii. That the father will return the children to the Mother at Bunnings Hardware Store [omitted] car park or such other location as may be agreed to from time to time at the conclusion of the time that the father spends with the children;
11. That whilst the children are in their respective care the parties shall advise each other as soon as reasonably practicable of any major medical issues involving the children and each party shall keep the other properly informed of any required treatment or medication required in relation to the children and the parties shall ensure the proper administration of such medications and treatments is performed by them.
12. That the mother provide to the father details of all specialists appointments, at least seven days prior to the appointment.
13.That the mother be restrained from relocating the children to reside outside a 50km radius of [H], NSW without the written agreement of the Father or further order of the Court.
14. That the mother be restrained from withdrawing [X] from [H] Primary School without the written agreement of the father or further order of the Court.
15. That neither party denigrate the other party, their family or any other person with whom they may live in a bona fide domestic relationship with in the presence or hearing of the children or allow the children to remain in the presence or hearing of any person who is denigrating either party, their family or any other person with whom they may be living in a bona fide domestic relationship.
The Orders initially proposed by Ms Meltzer were identical to the Orders made by the Local Court, [omitted] 29 July 2010. Indeed the Orders issued by the Local Court on that date simply attach the relevant portion of the Orders sought by Ms Meltzer Response as filed.
An Amended Response was filed by Ms Meltzer 2 November 2010 and which seeks Orders in the following terms:
1. That all previous orders be discharged.
2. That the Mother have sole parental responsibility for the children, namely [X] (born [in] 2003) and [Y] (born [in] 2006).
3. That the children live with the Mother.
4. That the children spend time with the Father at the [R] Contact Centre on a day to be determined and advised by [R] Contact Centre.
5. Within seven (7) days of the date of this order, the Father is to contact [R] Contact Centre to arrange an appointment for assessment for suitability.
6. The Father must attend any such appointment.
7. The parties must comply with all reasonable requests or directions of the staff of the [R] Contact Centre.
8. If [R] Contact Centre, following its intake procedure, is unable or unwilling to provide supervision as set out above, then either party shall have liberty to restore the matter to the list on seven (7) days written notice to the other party and to the Court.
9. That the Father be restrained from consuming illicit drugs, prescription medication other than as prescribed or drinking alcohol to excess for a period 12 hours prior to the Children coming into his care.
10. That the parties be restrained from denigrating the other party in the presence of or hearing range of the Children, or allowing any other third party to do so.
11. That the Father be restrained from allowing the children to come into contact with Mr G at any time.
12. That the Father be restrained from enquiring of the children as to their residential address or school location.
13. That within fourteen (14) days of being requested to do so in writing by the Mother, the Father to sign all necessary documentation to allow the children to obtain a passport.
14. That in the event the Father fails to sign any relevant documentation required to effect order 14 above, the Registrar of the Federal Magistrates Court of Australia be permitted to sign such documentation on behalf of the father within fourteen (14) days of being asked to do so in writing.
At the conclusion of the case and at the commencement of submissions the Independent Children’s Lawyer tendered a Minute of Orders Proposed (Exhibit ICL3). Those Orders are in the following terms:
1. That the mother have sole parental responsibility for the children [X] born [in] 2003 and [Y] born [in] 2006 (“the children”).
2. That the children live with the mother.
3. That the children spend time with the father for 3 hours each 3 calendar months, commencing on Saturday 8 February 2014, supervised by [P], or if they are not available, such other services as the parties agree upon.
4. The parties are to pay half each of the costs of such supervision.
5. Changeover is to occur at [O] at a location nominated by the supervising agency.
6. The father is to ensure that the children are not brought into contact with his brother, Mr G.
7. The father is restrained from questioning the children about their address or locality of their residence, or the name or location of the school they attend.
8. The father is restrained from consuming alcohol or illicit drugs for a period of 12 hours prior to the children coming into his care.
9. The mother is to send the father copies of the children’s school reports, amended to delete any material which might identify the whereabouts of the school.
10. The father is permitted to send the children cards and gifts on special occasions, to the maternal grandparents address, and the mother is ensure the children receive them and encourage the children to respond to the father on receiving these.
11. Within 14 days of being requested to do so in writing by the mother the father is to sign all necessary documentation to allow the children to obtain a passport.
12. The mother is to notify the father of any serious health issues of the children by advising either the paternal grandmother or paternal grandfather as soon as possible.
13. The father is to do everything he can to ensure that neither he nor any member of his family speak about the mother in a negative way in the presence or hearing of the children.
14. The mother is not to speak about the father or his family, in a negative way to or in the presence of any of the children.
At the conclusion of submissions on behalf of Ms Meltzer her Counsel echoed the submissions of the Independent Children’s Lawyer and indicated Ms Meltzer’s support for Orders in accordance with the Independent Children’s Lawyers Minute of Orders Proposed and thus that position shall be treated as having been adopted by the mother and as reflective of the Orders she seeks in the proceedings.
Material read and considered
In the case of Mr Gabel I have read and considered each of the documents identified by him and his Counsel and comprising:
(a)The Case Outline document prepared by Mr Gabel's Counsel.
(b)The Amended Initiating Application filed 31 August 2012.
(c)The Affidavit of Mr Gabel sworn or affirmed 2 May 2013 and filed the same day.
In the case of Ms Meltzer I have read and considered each of the following documents:
(a)The Case Outline document filed by her Counsel at the commencement of the trial.
(b)The Amended Response of Ms Meltzer filed 2 November 2010.
(c)The Affidavit of Ms Meltzer sworn or affirmed 22 January 2014 and filed 24 January 2014.
(d)The Affidavit of Ms M sworn or affirmed 23 January 2014 and filed 24 January 2014.
The Affidavit material relied upon by Ms Meltzer was filed some working days prior to the commencement of the trial. No objection was taken to the late filing and service of material.
During Mr Gabel’s cross-examination on the first day of trial, Mr Gabel had indicated both directly and through his Counsel that he had not yet read the Affidavit of Ms Meltzer and the annexures thereto. Some time was allowed for him to read that material, including over the lunch adjournment and it was confirmed following same that the Affidavit and its annexures had been read in full.
The above issues would ordinarily be of some significant concern. However:
(a)No objection was raised to the material at any time;
(b)The fact that Mr Gabel had not read the Affidavits as filed did not become apparent until he was in the process of being cross-examined and, indeed, shortly before the lunch adjournment on day one;
(c)Ms Meltzer’s material, save and except for that which relates to the most recent periods of supervised time between the children and Mr Gabel, is largely if not entirely a repetition of material that she had previously deposed and filed and served in these proceedings.
In light of the above I am satisfied that due process was not denied to Mr Gabel.
In the case of the Independent Children’s Lawyer no Affidavit material was filed, although a Case Outline document was provided.
Two reports have also been prepared and relied upon in these proceedings comprising:
(a)A Report of Dr H dated 16 June 2011 and released to the parties 17 June 2011, marked Exhibit A. Dr H was not required for cross-examination by either party or the Independent Children’s Lawyer; and
(b)A Report of Dr R dated 15 November 2012 and released to the parties 19 November 2012, marked Exhibit B. Dr R was required for cross-examination and attended in person for that purpose.
In addition to the Affidavit material and the Reports a number of exhibits were received into evidence comprising:
(a)Exhibit F1 reports from [P] with respect to their supervision of visits between the children and their father 15 June 2013 to 18 January 2014;
(b)Exhibit F2 a letter purporting to be drafted and signed by Ms Meltzer (indicating that the requirement of supervision of Mr Gabel’s time with the children is no longer required (supervision at that time being provided by the paternal grandparents)) dated 20 January 2010. That letter was referred to as an annexure to Mr Gabel’s Affidavit but was absent therefrom.
(c)Exhibit F3 notes from [omitted] Children’s Contact Service ([R] Contact Service) covering visits between the children and the father 19 November 2010 to 26 November 2011.
(d)Exhibit M1 a record of the father’s criminal antecedents from NSW Police.
(e)Exhibit M2 four tagged COPS event entries from NSW Police relating to Mr Gabel.
(f)Exhibit M3 a further three tagged entries from NSW Police relating to Mr Gabel.
(g)Exhibit ICL1 an Affidavit previously deposed by Mr Gabel and filed in the proceedings in the Local Court 15 September 2009 (being an Affidavit sworn 14 September 2009).
(h)Exhibit ICL2 a note from [omitted] Hospital 8 September 2009.
(i)Exhibit ICL3 the Independent Children’s Lawyer’s Minute of Orders Proposed.
History of proceedings
These proceedings, unfortunately, have a lengthy history before the Court.
As would be clear from the above material the proceedings were commenced by an Application filed in the Local Court, [omitted] July 2010.
Earlier proceedings between the parties (again commenced in the Local Court, [omitted] during 2009) were dismissed for want of prosecution or appearance by either party. An Order was made to that effect by a Registrar in chambers 17 November 2009 (the proceedings having been transferred from the Local Court to the Family Court of Australia sitting at Parramatta).
Following the second (or in reality the third) Application in the Local Court, [omitted] these proceedings first came before this Court 5 October 2010. On that date procedural Orders and directions were made as sought by the parties and providing for the filing of further material by each party. An Order was also made for the appointment of an Independent Children’s Lawyer.
The proceedings were next before the Court 12 November 2010. On that date a number of directions were sought by the Independent Children’s Lawyer to facilitate the gathering of information and to assist in completing enquiries. The proceedings were accordingly adjourned to enable those enquiries to be concluded.
When the matter was next before the Court 22 February 2011 an Order was made for the preparation of a Family Report. The Report of Dr H was commissioned as a consequence.
The proceedings were next before the Court 16 August 2011. On that date Orders were made by consent commissioning a report by Dr R. This had been recommended by Dr H as significant issues had arisen during his interviews with the parties (though not previously raised by the parties) as to the father’s mental state. The proceedings were then adjourned for further mention and directions following the anticipated release of that Report.
The Report of Dr R had been commissioned as a consequence of a clear recommendation by Dr H as to the need to fully and properly investigate and obtain objective, independent evidence with respect to the father’s then mental health. At the time that Dr H’s Report had been prepared (and as will be enumerated below) a significant number of admissions to psychiatric hospitals had been experienced by Mr Gabel, although no material had been subpoenaed or filed to assist Dr H in gauging the extent, relevance or importance of those admissions.
In light of the delays which had already been experienced and in light of the contemplated delay in preparation of Dr R’s Report the proceedings were also listed for hearing. Hearing dates were allocated (estimate 3 days), commencing 30 July 2012.
When the matter came before the Court 30 July 2012, Ms Meltzer appeared and was legally represented and the Independent Children’s Lawyer appeared. Mr Gabel appeared in person and sought an adjournment of the proceedings.
The primary basis for the adjournment application by Mr Gabel was the fact that his Legal Aid funding had only been advised to him the working day prior to the hearing and it was not possible for him to prepare material or have his attorneys appear for him on such short notice. Thus Mr Gabel, the Applicant, had no material before the Court.
Further and of more significance the Report of Dr R had not been completed. Mr Gabel was not in a position to meet the fees required to be paid for the Report and the Legal Aid Commission had not been disposed or persuaded to grant a waiver of contribution (Mr Gabel at the time that he sought such waiver having applied for but not then granted Legal Aid).
A separate judgment was delivered by me with respect to the adjournment (which was granted) and a notation included within the Orders issued that day making it clear that the Court would be assisted by:
a) Both parties and the Independent Children’s Lawyer being represented; and
b) Completion of the Part 15 Report as Ordered August 2011 and/or funding made available to Mr Gabel to enable him to obtain a Report from his treating psychiatrist and that in the absence of one or both of such reports “issues would in all probability arise of a Makita & Sprowles nature”.
The proceedings were subsequently listed for hearing (estimate 3 days) 22-24 May 2013. Funding was subsequently made available by the Legal Aid Commission and the Report of Dr R completed.
On the further hearing dates the matter could not be accommodated for a variety of reasons. These included difficulties with over-listing of work before the Court, together with difficulties which had arisen from the breakdown or cessation of supervised time between the children and their father as previously ordered and as had been previously occurring.
Based upon the evidence now available it would appear that such time arrangements had broken down as a consequence of Mr Gabel’s failure to take up further periods of time which had been made available through the [R] Contact Centre and difficulties with the parties enlisting the assistance of any other supervised contact service (for reasons which are not relevant to this chronology).
The proceedings were accordingly marked “not reached” and adjourned to dates to be fixed. Those dates were subsequently fixed to commence 29 January 2014.
The matter proceeded for 3 days as scheduled and concluded within the time fixed.
On the final day of hearing (the evidence of the parties and the Part 15 Expert having been completed) Mr Gabel did not attend in person although his Counsel was present. The matter proceeded with the consent of Mr Gabel's Counsel and in his absence and submissions were completed.
The Court’s intention to deliver an extempore judgment on 31 January 2014 had been signalled to the parties. However, in the absence of Mr Gabel it was not considered appropriate that this occur and thus judgment was reserved to enable a written version of reasons to be delivered to the parties and to ensure due process was afforded to both.
Significant issues
A number of significant issues were identified by the parties and each of them by their material.
Principal amongst the matters to be factually determined and so as to be able to then address the best interests of the children were:
a) Matters concerning the suggested history of violence within the relationship of the parties and the children’s exposure thereto;
b) Issues relating to Mr Gabel’s mental health;
c) Mr Gabel’s treatment for and/or recovery from mental health difficulties;
d) Issue with respect to drug and alcohol use (particularly as connected with the above); and
e) The impact of such matters upon the children’s future safety.
In light of the above issues I propose to turn to and deal with a number of events of great significance and the evidence given by the parties with respect to each of those incidents. There are other significant evidentiary issues which arise in this case and which I will canvass separately.
Family violence
The evidence of Ms Meltzer is resplendent with allegations of family violence. Indeed Ms Meltzer’s evidence commences (at paragraphs 5-7) with the statements:
Mr Gabel was violent towards me throughout our relationship. For example, he would punch me repeatedly in the arms or chest with a closed fist, rip my hair out, throw me against furniture, rip my clothes off in public, throw rocks at me, damage my property, drive his car at me, lock me outside the house at night and refuse to let me in and verbally abuse me. He would even yell at me about what groceries I purchased. This physical, emotional and verbal abuse would take place in front of the Children on a daily basis. During the period of the relationship, being October 2002 to February 2009 there are 22 police event numbers in relation to the domestic violence of Mr Gabel to myself. After the relationship ended in February 2009 there were a further 6 event numbers in which I had contacted the police due to Mr Gabel’s harassment and abuse. These occurred from February 2009 until July 2010 when I moved from the area.
I recall at Christmas time 2008 when [X] was asked what she wanted for Christmas by the Santa Claus who was visiting [omitted] Mall, she replied “Can you stop my daddy hurting my mummy?”
Following separation the Children and I moved to a rental home in [H]. For the protection of [X], [Y] and I an interim AVO was put in place by the Police in early 2009…I draw the Court’s attention to the statement at the bottom of page 2 of that interim AVO application under the heading “MOST RECENT INCIDENT”, where it states “The 5 year old daughter on several occasions told police that she was scared of the accused when he was yelling at the PINOP”. The final AVO hearing was set down for October 2009.
It is to be noted that the Best Practice Principles of the Family Court and Federal Circuit Court provide as follows:
The Principles recognise:
§ the harmful effects of family violence and abuse on victims;
§ the place accorded to the issue of family violence in the FLA [Family Law Act]; and
§ the principles guiding the Magellan case management system for the disposition of cases involving allegations of sexual abuse or serious physical abuse of children.
The Best Practice Principles are applicable in all cases involving family violence or child abuse or the risk of family violence or child abuse in proceedings before courts exercising jurisdiction under the FLA [Family Law Act]. They provide useful background information for decision makers, legal practitioners and individuals involved in these cases.
The Best Practice Principles are a voluntary source of assistance to judicial officers and legal practitioners and are not a fetter to a court’s discretion (Cameron & Walker (2010) FLC 93-445). These Best Practice Principles are not a substitute for evidence in individual cases.
Ensuring the safety of a child is central to all determinations of what is in a child’s best interests.
The courts aim to protect children and family members from all forms of harm resulting from family violence and abuse...
…Importantly, the FLA [Family Law Act] does not require independent verification of allegations of family violence (such as police or medical reports) for a court to be satisfied that it has occurred. As the Full Court of the Family Court said in Amador & Amador (2009) 43 Fam LR 268:
Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission.
The victims of domestic violence do not have to complain to the authorities or subject themselves to medical examinations, which may provide corroborative evidence of some fact, to have their evidence of assault accepted.[1]
[1] Family Violence Best Practice Principles Edition 3.1 – April 2013
Easter 2009
A significant event occurred between the parents (on either party’s evidence) at Easter 2009. These events would also appear to correspond with the first of a series of admissions to psychiatric hospitals experienced by Mr Gabel.
Ms Meltzer’s evidence with respect to those matters is set out in paragraphs 8, 9 and 10 of her Affidavit and as follows:
During Easter 2009 Mr Gabel attended at his brother’s home. I was there at the time as I was still good friends with his Brother’s wife (‘[first name omitted]’). Mr Gabel became very aggressive and so I attempted to leave. Mr Gabel smashed my car window. He then attempted to drag me from my car and put me into his car. I was extremely scared. Mr Gabel’s brother intervened. Approximately half an hour later Mr Gabel returned and smashed their front wooden door attempting to enter the house. He also smashed the windows and punctured the tyres of his brother’s cars. The Police were called and they attended the premises. The Police were unable to locate Mr Gabel that evening.
The next morning Mr Gabel sent me a text message which contained words to the effect, “You’re the only person that is there for me. Can you take me to [omitted] House? I need some help”. I initially ignored his text message and after repeated calls and text messages I replied that I would not take him and that I did not want anything to do with him. Mr Gabel persisted and I feel that due to the events of the prior evening I was emotionally worn down and I eventually gave in. I drove Mr Gabel to [omitted] Mental Health Centre for admission.
Mr Gabel stayed at [omitted] House for three days. He was removed from [omitted] House by the Police for charging over the incident at his brother’s home.
Mr Gabel’s evidence with respect to those events is set out at paragraphs 19 to 20 of his trial Affidavit as follows:
On 21 April 2009 there was an incident at my brother’s house following an argument with Ms Meltzer. I was charged with 4 counts of damaging property, breaching bail condition to comply with the AVO and contravening the AVO, as I damaged property belonging to Ms Meltzer.
As a result of this incident on 21 April 2009, I attended [omitted] House and was admitted for a week. On or about 25 May 2009 I was discharged from [omitted] House.
A number of issues of significance arise from these events. These include:
a) To the extent that it is suggested that violence was visited upon property and in particular a motor vehicle, this is consistent with and repeated by further allegations with respect to Mr Gabel’s behaviour as set out in a portion of Exhibit M3 and relating to events which occurred 11 September 2012 involving a different (subsequent) partner. This is not to suggest that the evidence is compared as or for the purpose of the tendency rule (section 97 Evidence Act 1995 (NSW)). No submission to this effect was put by Counsel. However, there is a clear and stark consistency in the behaviour without same being sought to suggest a tendency for such behaviour.
b) The events preceded the first of Mr Gabel’s several hospital admissions.
c) The behaviours complained of and perpetrated by Mr Gabel are entirely consistent with an absence of personal control, inability to modulate or regulate emotion or manage or contain aggression.
d)
The event, whilst detailed in the material of Ms Meltzer and corroborated to a large extent by material tendered (business records admitted pursuant to section 69 of the Evidence Act 1995 and compromising COPS events entries from NSW Police), Mr Gabel’s absence of detail with respect to the events (whilst it may be explicable in light of his subsequent admission to a psychiatric institution), contrition with respect to same or insight into those behaviours on either a self-reflective basis or as to the impact they would have upon
Ms Meltzer and her attitude and previous position towards him, is stark.
The “siege” incident [date omitted] 2009
The parties’ evidence and (including that introduced through exhibits) with respect to this incident is particularly concerning.
There is some controversy between the parties as to whether the children [X] and [Y] or either of them were exposed to any of the events on this occasion although, for reasons which I will set out hereafter, I am satisfied that one if not both of the children were so exposed to portions of the behaviours and certainly to the detrious of those behaviours (both through their attendance at the scene of the siege (being Ms Meltzer’s home) and exposure to their mother’s distress consequent thereupon).
The mother’s evidence with respect to the events is set out in paragraphs 12 to 16 of her trial Affidavit and as follows:
By May 2009 Mr Gabel started to cut himself in front of me and the children. He would threaten to cut himself in front of me in an attempt to try and make me do things I did not want to do. An example of this is when he asked me to recommence a relationship with him to which I refused. As a consequence, he stood over my bed, as I tried to go to sleep, and lifted his shirt and started to cut away at the skin on his stomach. A second example of this was when he would send me picture messages of him sticking woodwork files into his leg when I would not respond to his text messages. This behaviour upset the children and me.
On [date omitted] 2009 Mr Gabel asked me to drive him to an appointment as he was unlicensed; I reluctantly obliged. On the return trip Mr Gabel begged me to recommence a relationship with him. Upon my refusal Mr Gabel attempted to throw himself out of my car whilst it was in motion. That evening Mr Gabel was at my residence. At around 6 or 7pm Mr Gabel was holding [Y] while he cut himself on the arm. I immediately retrieved [Y] from Mr Gabel and he entered the bathroom. [X] walked into the bathroom and saw blood on the floor, she asked with words to the effect, “what’s that?” I replied quickly, “Hair dye”. I then removed both children from the scene and took them to bed.
On or about [date omitted] 2009 I awoke to find Mr Gabel on my bed facing me with his arms bandaged from where he had cut himself the night prior. I got up and walked out to the lounge room where Mr Gabel had been sleeping on an air mattress. I discovered Mr Gabel had left a knife on the coffee table and it was still covered in blood. The sheets on the air mattress were also covered in blood. I removed the children from the house, whilst sheltering their eyes from the mess, as soon as I could and took them to their school and day care. I made a phone call to Mr Gabel’s psychotherapist who recommended I call an ambulance. I called triple “0”; an Ambulance responded who attended my residence, accompanied by the Police. Mr Gabel refused to leave the house, and locked himself in. He indicated to the Police that he had a gun as well as a nail gun. He was eventually removed approximately 8 hours later by force after the SWAT team arrived to negotiate. Upon re-entering the home I discovered that
Mr Gabel had smashed the majority of the furniture as well as most of the windows.
Mr Gabel was taken to [B] Police Station. He was again returned to [omitted] House. He was released the following day.
On [date omitted] 2009 the Police contacted me after Mr Gabel’s arrest and asked me to bring clothes to [B] Police Station. This request was due to Mr Gabel’s clothes being ripped in an altercation with the Police, after his removal from my house. When I attended [B] Police station with Mr Gabel’s belongings I was asked by the Police Officer on duty to take some shoes without laces to Mr Gabel at [omitted] hospital on 28 May 2009. I was informed there was no vacancy at [omitted] House and Mr Gabel had been transferred to their adolescent mental health ward.
The father’s evidence with respect to the event is set out at paragraph 21 of his Affidavit and as follows:
On [date omitted] 2009 it was my birthday and I had been drinking and had taken some ecstasy. I was not coping with depression. I was staying in the shed at the back of Ms Meltzer’s home at the time. I had a small cut to my stomach and threatened self-harm. I cut myself during the night when I was alone. The children were not present when I cut myself and they were not present when I threatened self-harm. I cut myself 2 days after leaving [omitted] House to give myself relief as I had just been informed by Ms Meltzer that my brother had sexually assaulted her and I blamed myself for not being there to protect her. The Police were called and I barricaded myself into the house at [H]. There was no-one else in the house at the time. The Police broke into the house and handcuffed me. I attempted to self-harm using the handcuffs and was subsequently scheduled into [omitted] house for a period of approximately 2 weeks.
The COPS event entry relating to the event is also tendered (forming part of Exhibit M3). Ms Meltzer’s evidence and that contained in Exhibit M3 are entirely consistent.
Mr Gabel was cross-examined extensively with respect to this issue. The cross-examination occurred both on the first and second day of the trial.
Mr Gabel had indicated clearly in his evidence on day one of the trial that he disputed both Ms Meltzer’s evidence and the Police record of events although he did concede that he had barricaded the doors of Ms Meltzer’s home with furniture. Mr Gabel otherwise indicated that he had difficulty remembering events clearly as they had been some years ago but not withstanding such assertion was clear in his evidence that:
a) He had had “the shit beaten out of him” by Police.
b) He had been the victim of significant wrongdoing by the Police who had acted excessively and inappropriately.
c) The entire circumstance had been “set up” by Ms Meltzer for some motive of her own presumably to cause unnecessary difficulties for Mr Gabel.
Mr Gabel’ cross-examination on the first day of trial concluded with Mr Gabel leaving the witness box (whilst being asked questions relating to other issues) and leaving the court room indicating “if she doesn’t want me to see them [the children] then I won’t”.
Immediately prior to this I had indicated to Mr Gabel that I was concerned with his behaviours in 2009/10 (at a time when he was clearly experiencing symptomology of mental illness) but even more concerned with his apparent lack of insight into those behaviours in the present context particularly as regards his lack of self-reflection, non-acceptance of responsibility for his behaviour nor an acknowledgement of the impact of his behaviours upon Ms Meltzer and possibly the children.
After Mr Gabel had left the witness box and the Court the proceedings were adjourned briefly to allow his Counsel to speak with him. Application was then made (it being late in the day) for an adjournment to the following day and such adjournment was granted.
When the matter resumed the following day and Mr Gabel was cross-examined with respect to the “siege” events Mr Gabel purported to assert that his previous opinion (that Ms Meltzer had set up the whole series of events to cause him harm) had changed and that he now accepted that she had been acting in his best interests. However, this suggestion came following a number of contrary comments from him including the suggestions that:
a) Arguments with neighbours had preceded the events and this may have had some impact upon Ms Meltzer’s actions in calling the Police (i.e. taking the side of the neighbours).
b) Ms Meltzer had made statements to the Police that were untrue and with the knowledge that he would be charged with breaching the then extant Apprehended Domestic Violence Order.
c) Whatever had happened “it was my birthday and I just didn’t want to deal with it”.
d) “The only thing I ever got charged with was breaking a window”. When Mr Gabel was asked whether he considered that he was at fault in any way for breaking the window or windows (for which he was charged with malicious damage) he responded with words to the effect “I told them [the Police] I was fine. It seemed I had no right to tell them I was ok. I said I was fine that should have been the end of it”.
e)
Mr Gabel had also during his evidence used several opportunities to cast dispersions upon Ms Meltzer including making references (both in his evidence during cross-examination and comments to Dr R) suggesting that
Ms Meltzer had, at some past time, worked as a prostitute (there is no evidence led to support that contention and it is denied) and a statement in the clearest of possible terms “she tells lots of lies. She is good at lying”.
For reasons that will be explored in more detail I am satisfied that with respect to this incident and, indeed, all issues where the parties are in dispute, that the evidence of Ms Meltzer is more credible and should be preferred over that of Mr Gabel.
The children’s removal from school and day care 8 September 2009
Following the above “siege” incident Mr Gabel then spent a period of approximately 16 weeks in either hospital or gaol and during which period he did not have any contact or communication with the children.
The evidence (including that of Mr Gabel) would appear to establish that Mr Gabel was admitted first to [omitted] Hospital/ [omitted] House then arrested and charged with offences arising from the “siege” and as a consequence of which he was imprisoned, bail refused from June until August 2009. Mr Gabel would appear to have been released from [omitted] gaol in late August 2009 having been dealt with under section 32 of the Mental Health Act (NSW) and discharged to [omitted] Hospital.
Ms Meltzer gave evidence that during one of the above admissions that she had spoken with one of Mr Gabel’s doctors at [omitted] House (paragraph 21 of her Affidavit). Ms Meltzer deposes that:
“The doctor warned me to stay away from Mr Gabel; she said words to the effect of “Mr Gabel has anti-social personality disorder which is what is commonly known as a sociopath, I advise you and the children stay far away from him”.
This is a somewhat stark contradiction to paragraphs 62 of
Mr Gabel’s evidence, regarding this and other periods when the children have not spent time with him, and being “I believe that
Ms Meltzer is now making allegations against me to justify her breaching the current family law orders”.Following the above periods of hospitalisation and/or incarceration Mr Gabel was discharged (or discharged himself) from hospital on 8 September 2009. Mr Gabel then, in company with his mother, collected the eldest of the children [X] from her school and the youngest child [Y] from preschool/day care.
During his cross-examination Mr Gabel justified these actions on the basis that this was “his time” pursuant to the 2003 Local Court Orders (which dealt only with [X] and which had been made during a brief separation of the parties and following which the parties had reconciled for a period of nearly 6 years).
Mr Gabel’s evidence with respect to the event is contained in paragraph 26 of his Affidavit and is in the following terms:
On 8 September 2009 I was discharged from [omitted] Hospital and picked up the children from school and pre-school as I had not seem them or spoken to them for a period of 16 weeks.
Ms Meltzer accused me of kidnapping the children but I was just taking them to my parent’s home to spend some time with them in accordance with the Orders made in 2003. I spent a few hours with the children before returning them to Ms Meltzer and I then returned to [omitted] Hospital as I was not coping with the situation. I stayed for a further period of 3 weeks.
Whilst being cross-examined with respect to that evidence it became apparent that Mr Gabel had previously deposed to those events in substantially more detail in an Affidavit filed by him whilst the proceedings were still before Local Court. Those proceedings had been instigated by Ms Meltzer in seeking a recovery order for the children.
Mr Gabel’s evidence in the earlier Affidavit (paragraph 27) was as follows:
On 8 September 2009 I was discharged from the [omitted] Hospital. I attempted to get in contact with the applicant and at 3.18pm I sent a text message to her stating words to the effect of:
“I have tried calling you but no answer. I’ve picked up both children. I’m in my legal rights as custody states I’m to have [X] until 8pm.”
I was referring to the court orders that were made in 2003 and that both the applicant and I have gone by whenever we have been separated. By this time I had not seen the children for a period of 16 weeks as the applicant had refused to allow me to spend any time with them or speak to them over the telephone.
The applicant then rang me and said to me words to the effect of:
“You are kidnapping the children.”
And I replied:
“I am not. I will call you back in 10 minutes when I get back to mum’s.”
I then rang her back and said to her words to the effect of:
“Look, I haven’t run off with the kids. I tried calling you and even sent you text messages. Your mum was at the school and I said I was picking [X] up.”
At approximately 5pm I sent a message to the applicant stating:
“Come and pick up kids from my parents’ house.”
And she replied:
“No you bring them back here.”
I replied:
“I don’t want to talk. I’m on my way to private hospital, level 2..”
And she replied:
“Where are the kids?”
I replied:
“In car – phone flat.”
She then replied:
“I am on my way to hospital.”
I rang the applicant at about 7.00pm and said to her words to the effect of:
“Where are you?”
And she replied:
“At [omitted] Park.”
I then said:
“Call mum in about 10mintues. She has just left. She will meet you somewhere with the children.”
During his cross-examination Mr Gabel had indicated that having collected the children from their school and pre-school that:
a) He had not advised Ms Meltzer that he would be attending to this before undertaking this action; and
b)
That he had attempted to contact Ms Meltzer but could not do so as he ascertained that the phone number that he held for her had been disconnected and having spoken to the school, ascertained that they held no current contact details for
Ms Meltzer.
The earlier version of events, when the events would have been clear and fresh in the mind of Mr Gabel, disclosed that he did, in fact, hold Ms Meltzer’s telephone number, contacted her and was contacted in return by Ms Meltzer almost immediately.
The evidence of Ms Meltzer with respect to the event is set out in paragraphs 27 and 28 of her Affidavit as follows:
In September 2009 I received a call from [Y]’s child care to my place of work advising that Mr Gabel had aggressively taken [Y] from school, and that they had called the Police. I then discovered through communication from [X]’s school that [X] had also been removed from school. I commenced urgent Court proceedings at [omitted] Local Court. Mr Gabel voluntarily returned the Children to me the same day that I filed the Court paperwork.
The matter was listed on 16 September 2009. After arduous negotiation consent orders were made. The orders provided that Mr Gabel was to only spend time with the Children when supervised by the Paternal Grandparents. This supervised visitation was to occur one weekend each fortnight. I was hopeful that the supervision would give the Children some protection.
Those events are also addressed in the COPS event entry relating to that event forming part of Exhibit M3. The weight of evidence (including that of Mr Gabel from his September 2009 Affidavit) causes me to reject, in its totality, Mr Gabel’s subsequent evidence (in his trial Affidavit) as to those events. More significantly, however it causes me some significant concern as to the present insight of Mr Gabel into his actions or the children’s wellbeing.
Mr Gabel was unshakeable in his confidence that he was entirely within his rights to remove the children from their school and day care centre without the knowledge of or recourse to Ms Meltzer and that this was entirely justified as he had not seen the children for some 16 weeks and should. The fact that Ms Meltzer was unaware that this was being done or that it was being done by Mr Gabel who had left a psychiatric hospital at which he had been a patient for some time was not a circumstance that Mr Gabel felt would, in any way, cause Ms Meltzer or the children to be upset.
The events are also dealt with in Exhibit ICL2 being notes from the hospital from which Mr Gabel had discharged himself and subsequently returned that same evening. Those notes would suggest that the children were involved and exposed to a significant level of distress and trauma on that date. Those records (which I will shortly canvass as part of the admissibility of business records) also contradict Mr Gabel’s evidence substantially. The record reads:
Pt [patient] was discharged this afternoon went home picked up his children from school and preschool and took them to his parents’ house. Mr Gabel’s ex-partner found out that Mr Gabel had picked up the kids. She became angry and abused him and called [the] Police. Mr Gabel became upset and angry felt he could not cope with the situation. He rang this unit and spoke with NUM [Nurse Unit Manager] who advised Mr Gabel to come back in and before coming in to hand the children over to the mother but Mr Gabel brought the children with him. His mother accompanied him who was very upset, was crying, needed support herself. Soon after Mr Gabel settled in the room his mother took the children and informed nursing staff that she is going to take the children back to their mother and get legal permission so Mr Gabel could see them every day
During cross-examination Mr Gabel was unable to concede that the children may have been distressed by such events or that it would have been better if the children had been returned to their mother than left by him in the care of his mother or that it may have been better to have simply not have collected the children in that fashion at all.
Ms Meltzer’s admission to hospital January 2010 and the children’s care
There is no controversy between the parties that from 2 January 2010 until 15 February 2010 Ms Meltzer was admitted to hospital. Ms Meltzer’s evidence is that her admission was consequent upon a diagnosis of post-traumatic stress disorder.
Ms Meltzer’s evidence with respect to this period is contained in paragraphs 34 to 38 of her Affidavit in the following terms:
On 2 January 2010 I admitted myself to [omitted] Hospital seeking medical treatment. I felt I needed respite due to the stress I had encountered both during our relationship, and since separation, I felt that the consistent abuse had all caught up with me, the children happily stayed with my parents.
On 6 January 2010 Mr Gabel visited me in hospital and told me I had to write a letter excusing his parents from supervising the children’s visits with him during the fast approaching second half of the school holiday period. I did not seek legal advice at the time, and believed I was in no position to make such an important decision given my health. Mr Gabel pressured me and I reluctantly signed a letter authorising him to have the children unsupervised. I regret signing and providing this letter now that I am of sound health.
The children went to Mr Gabel for the second half of the school holiday period and he was supposed to return them at the end of the school holiday period. I requested that he return the children to my parents but he initially refused. He returned the children to my parents on 29 January 2010 after indicating to me by email that he could not adequately care for the children, and they were “better off” with my parents.
Mr Gabel also advised me in writing that he was having difficulty caring for the children
On 15 February 2010 I returned home from hospital. The children immediately returned to my care from my parent’s home.
Mr Gabel’s evidence with respect to this admission and the children’s care is set out at paragraphs 33 to 36 of his trial Affidavit and as follows:
In or around January 2010, Ms Meltzer provided me with written confirmation that she allowed the condition that I spend time with the children on a supervised basis to be removed from the Orders as I do not need my parents to be present when the children are in my care.
In or around January 2010 Ms Meltzer was not coping and she admitted herself into [omitted] Hospital for a period of approximately 8 weeks. For approximately 5 weeks the children stayed with me and I took [X] to school for the first two weeks of the school term.
We were in a sexual relationship between Christmas Day 2009 and 20 January 2010. Ms Meltzer and I were talking before she went into hospital. We agreed that the children would stay with me whilst Ms Meltzer was in hospital in or around 5 January 2010 and she did not come out of hospital until after 14 February 2010.
In or around mid-February 2010 I received an offer of work in Sydney and so I contacted Ms Meltzer’s parents and asked them whether they were still willing to come up and take care of the children as I had work and was unable to take time off to care for the children. Ms Meltzer’s parents looked after the children for a period of about a month and during that time they would not allow me to spend time with the children because my parents were overseas and they insisted that any time spent with the children had to be supervised.
On the basis of the email forwarded by Mr Gabel (which he did not deny either as to its existence, authorship or contents) I accept that Mr Gabel’s evidence as to the reason for the children’s surrender into the care of the paternal grandparents is, at best, disingenuous. Further, on the children’s placement with the paternal grandparents the evidence of Mr Gabel as to his extent of involvement (e.g. taking [X] to school for the first two weeks of term) is, at best, implausible.
I accept with respect to the event that:
a) The evidence of Ms Meltzer is to be preferred. The preference of Ms Meltzer’s evidence (beyond general considerations of credit in the proceedings generally) is suggested by the email or posting on Facebook by Mr Gabel setting out his reasons for the children’s surrender into the care of the maternal grandparents.
b) That at the time that the letter was signed by Ms Meltzer (regarding the absence of need for supervision of Mr Gabel’s time with the children) (Exhibit F2) Ms Meltzer was receiving psychiatric care and, in all probability, easily pressured and highly suggestible and her will readily overborne.
c) That during the mother’s admission the children’s care was primarily and significantly provided by the maternal grandparents.
d) A resumption of the relationship between the parties, as alleged by Mr Gabel, did not occur during this period.
Mr Gabel’s failure to return the children June 2010
The circumstances relating to the commencement of the second round of proceedings relate to this event.
The mother alleges (paragraph 46 of her Affidavit) that “throughout May and up to 18 June 2010, Mr Gabel would not spend any time with the children unless I was in attendance”.
Mr Gabel’s evidence in this regard is that the parties, if they had not fully resumed their relationship, were in a sexual relationship and actively cooperating with each other. I do not accept that evidence.
The children spent a period of time with Mr Gabel over the weekend of 18-20 June 2010. The mother gives evidence (paragraph 48 of her Affidavit) that she was ill on the Sunday and as a consequence her father attended in her place to receive the children back at the conclusion of the period, with changeover to occur at Bunnings [suburb omitted] at 5pm. The mother goes on to indicate in (paragraphs 48-54 of her Affidavit) that Mr Gabel attended with the children at Bunnings to return them and then a chain of text messages occurred between the parties.
Mr Gabel’s evidence with respect to these events is somewhat telling. That evidence is set out in paragraph 47 of his Affidavit in the following terms:
On 18 June 2010 Ms Meltzer allowed me to spend time with the children after she received a letter from my solicitor. During the weekend Ms Meltzer went away and did not return until the following Tuesday 22 June 2010 so the children stayed with me. I believe that Ms Meltzer visited her cousin in [omitted]. I attempted to contact Ms Meltzer on various occasions to arrange for the children to be returned to Ms Meltzer but she refused to speak to me directly and so no arrangements were made until the following Thursday. I believe that Ms Meltzer obtained advice from Marsdens The Law Group while the children were staying with me and she subsequently contacted me to make arrangements for the children to be collected.
Mr Gabel’s cross-examination with respect to the matter would suggest that:
a) He did not attend the changeover personally but rather his parents attended in his place.
b) He had been advised by “a friend” that Ms Meltzer was in the [omitted] region and would not be attending in person.
c)
Mr Gabel’s parents having attended and come upon
Ms Meltzer’s father contacted Mr Gabel to seek instruction from him as to what they should do. Mr Gabel advised them to return home with the children and not deliver them into the care of Mr M.
It was cross-examination on this point, questions with respect to this issue and the inability of Mr Gabel to provide any cogent explanation as to why he believed the children would be better off not returned than simply returned to Ms Meltzer’s father that had caused him to leave the Court on the afternoon of the first day of the hearing.
Ms Meltzer has annexed to her material (which I will deal with as a separate issue) a print out of some 38 pages of text messages between Mr Gabel and she. It is fair to describe the messages, by and large, as messages from Mr Gabel to Ms Meltzer.
Ms Meltzer has set out in her Affidavit a number of the text messages that relate to the non-return of the children on the evening of the 20th June 2010. However the transcript of text messages contains significantly more (indeed some six pages of messages regarding that event).
The messages would suggest that at 5.07pm on 20 June Mr Gabel had sent a message to Ms Meltzer “kids will be there at Bunnings at 5:30pm, ok?” and Ms Meltzer had responded at 5.08pm “ok”.
At 5.31pm a message was sent by Mr Gabel “we have a problem [Ms Meltzer]” and at 5:37pm “You’ve blown it now. It’s sad how you can’t look after them.” This was followed at 6:32pm by “what’s going on [Ms Meltzer] I can’t take much more if this. Do you want them?”
On 21 June Mr Gabel then sent a text message (following dozens in the intervening period) as follows:
“What I am about to tell you will ruin all my chances of even having my kids. I can’t do any of this anymore. I can’t look after the kids I can’t even keep a girl I can’t do anything right I can’t even look after myself”
Mr Gabel’s actions on that day and his attempts to justify them during his cross-examination do him no credit whatsoever.
Attendance at [X]’s paediatrician
Mr Gabel has complained in his evidence that Ms Meltzer has not involved him in matters relating to the children. This is specifically related to [X]’s attendance upon a paediatrician and a diagnosis offered with respect to her that she requires Ritalin and may (although the evidence is unclear) have been diagnosed with ADHD.
The mother’s evidence with respect to [X]’s first attendance upon a paediatrician 23 April 2010 is contained in paragraph 42 of her Affidavit in the following terms:
On Friday 23 April 2010 I arranged an appointment with Dr [omitted] (a Paediatrician) as I was concerned as to [X]’s progress and behaviour at school. I met Mr Gabel at the appointment as I was to inform him, under the orders at the time, of any medical appointments for the children. Mr Gabel began yelling at the paediatrician and physically and aggressively removed [X] from the Doctor’s surgery.
Mr Gabel whilst making the allegation that he has not been consulted or advised of such matters by Ms Meltzer did not address this specifically in his evidence. I accept Ms Meltzer’s evidence with respect to the matter.
Text messages
As indicated above a transcript of 38 pages of text messages forwarded primarily by Mr Gabel to Ms Meltzer is annexed to
Ms Meltzer’s Affidavit.
When questioned as to the accuracy of these messages Mr Gabel was somewhat unclear as to his response. He did indicate that the messages, to the extent that he had read them, appeared accurate but felt that there were a number of duplications and repetitions. He indicated that the same message would appear to have been sent several times.
When pressed further with respect to the volume of messages (the 38 pages covering a period from 28 April to 12 July 2010) Mr Gabel responded with words to the effect “I’m not going to read 15 pages or whatever of messages. On a good week I could send a hundred text messages. I can send up to a thousand in one night to a girl I’ve just met”.
It would appear that the purpose of Ms Meltzer seeking to introduce the record of text messages into evidence was not only as to the contents of the messages but their volume.
Mr Gabel also indicated that the messages failed to include
Ms Meltzer’s responses. From a close examination of the messages this is incorrect. Ms Meltzer has responded on occasions although her responses have been selective and few and have generally sought to make clear to Mr Gabel that his messages are unwelcome and unwanted. Particularly telling in this regard are messages from 9 May 2010 which commenced innocuously enough but soon descended into a reflection of the tensions between the parties, and as follows:
From Mr Gabel 3.49pm: HAPPY MOTHERS DAY [MS MELTZER]
Send to Mr Gabel: 3.52pm thnx appreciate it.
From Mr Gabel 8.25pm Your right don’t deserve anything you look after them i don’t want them I’m no good for them
8.30pm to Mr Gabel: Seriously u dnt know how much I hate u right now
8.48pm to Mr Gabel: Ur like a tornado come in like a cool breeze the [then] u rip shit up and leave an eratic mess
8.50pm from Mr Gabel: Sorry I don’t mean to I haven’t had my med’s for the last 3 nights cause I’ve been out drinking, I’m gone for good this time
8.53pm to Mr Gabel: Yeah well fuck u ur meds do shit!
9.47pm to Mr Gabel: I hate u now I can’t get to fucking sleep thanks a bunch for making me feel like there no hope in anything I. Swear u must enjoy making my life an awful stinking mess. FUCK!
10.28pm from Mr Gabel: [Ms Meltzer] you know how I feel towards you and I want to know were I stand so I can move on and give a girl a real go Not like I did with [name omitted]
10.28pm to Mr Gabel: well I jst hope that u realise ur wrongs and get the help now and have a great future hey.
10.29pm from Mr Gabel: I just wish I could have been with you
10.31pm to Mr Gabel: Dude u Become infactuated [infatuated] with grls [girls] so easily…And it doesn’t take u long to charm ur way in and tell em [them] u love em [them] and I am sure u have really strong feelings for them u did with [name omitted] and then wen [when] that didn’t wrk u came back to me coz u know I will do stuff for you. It’s sad it could not have been different with us but u are the same guy lost and confused and in real need of love and affection cos u cant genuinely love urself.
At times within the 38 pages of text messages there is indeed repetition. The same message is sent over and over by Mr Gabel to Ms Meltzer. There are a number of instances of this and including, for example, on 12 June when a message is sent by Mr Gabel at 12.38pm
Well maybe i should just take 6 of my pills and just sleep for this long weekend all I wanted was to talk to you for one minute but hey guess I’m not worth that.
When no response is received the same message “Just talk to me Plz and I’ll stop calling” is sent at 5.16pm, 5.19pm, 5.19pm, 5.19pm, 5.20pm, 5.20pm, 5.20pm.
Overall the text messages from Mr Gabel to Ms Meltzer are significantly harassing, intimidating, coercive and inappropriate.
Mr Gabel would not appear to be able to reflect upon his behaviours and their impact and effect upon Ms Meltzer. That is the issue of concern rather than the content and quantity of messages sent by him at a time when clearly he was in need of and, periodically was receiving, psychiatric assistance.
Father’s mental health, past and present
There is an abundant history of the father’s admissions to hospital with respect to mental health difficulties. As best as can be gleaned from the evidence (and it is difficult in places to follow), the father has experienced the following:
a) April 2009 to May 2009 [omitted] House;
b) May 2009 to June 2009 [omitted] Hospital/[omitted] House;
c) June 2009 to August 2009 [omitted] gaol (bail refused);
d) August 2009 to September 2009 [omitted] House;
e) December 2009 [omitted] Hospital;
f) 1 July 2010 to unspecified date [omitted] Hospital;
g) November 2012 to January 2013 [omitted] Hospital and [omitted] Hospital.
The above are the admissions referred to by Ms Meltzer and disclosed by Mr Gabel and material produced on subpoena and tendered.
Mr Gabel’s evidence with respect to his mental health (whether diagnosis, treatment, medication or the like) is far from satisfactory and is significantly incomplete and unreliable.
In his Affidavit filed in the Local Court (Exhibit ICL 1) the father had annexed a letter from the [omitted] Hospital signed by the Nursing Unit Manager and his treating psychiatrist. That letter is undated and is addressed “To the Magistrate”. It includes “Mr Gabel demonstrates a desire to understand his behaviours and learn adaptive strategies to handle them in the future”.
No other correspondence or report is produced by Mr Gabel with respect to his mental health investigation or treatment whether past, present or future.
During brief oral evidence Mr Gabel indicated that he was intending to commence a six month program of DBT (Dialectical Behaviour Therapy) through [omitted] Hospital during 2014. No material with respect to it or speaking to it, the basis upon which the referral was or is to be made, the content of the program or its purpose was produced.
During his cross-examination Mr Gabel indicated that he had previously completed a six month DBT program and was intending to do a further program as “they like you to do it twice so that it really sticks”. Mr Gabel later conceded that he had not completed the first six month program but had completed only four months of it before logistical difficulties intervened and precluded completion.
Mr Gabel indicated that he had a letter with respect to his participation in that program but he had not brought to Court that day (day 1). The letter was never produced.
No material has been produced by Mr Gabel by any treating practitioner whether general practitioner, psychiatrist or otherwise. That is a significant difficulty in Mr Gabel’s case in light of the clear difficulties that he has experienced with his mental health.
I do not intend to suggest, imply or infer that the existence of a mental health diagnosis is in any way, by and of itself, an impediment to a parent engaging in the parenting of their child or children. My only concern is that clearly whilst unwell (and potentially untreated or non-compliant with treatment) Mr Gabel has acted in a fashion which has created significant concern and distress to Ms Meltzer, the children and others (including the Police) and as to which there has been, at best, minimal disclosure if not evasion.
There is nothing to suggest that Mr Gabel’s indication of his present diagnosis and treatment is accurate nor treatment regime complied with or sufficient. To the extent of a medication and therapy regime there is no evidence to corroborate it nor to ameliorate the concerns that are raised by his past behaviours when unwell (i.e. a lack of insight or compliance).
Mr Gabel’s evidence regarding his mental health is scant and in essence comprises paragraphs 87 and 88 of his Affidavit as follows:
I have been diagnosed with schizo-affective disorder. I am currently seeking treatment for this disorder by taking Lithium 500mg each morning and night as well as attending appointments with a psychiatrist and counsellor. I further attend group therapy on a weekly basis.
I am currently seeing psychiatrist Dr A at [omitted] Hospital, [address omitted] NSW. The telephone number is (02) [omitted].
The best (and only) evidence with respect to Mr Gabel’s mental health is that contained in the two Reports admitted into evidence, Exhibits A and B and to which I now turn.
Expert evidence
The Report of Dr H contains clear recommendations as to time that might be spent by Mr Gabel with the children and each of them.
Dr H’s recommendations are as follows:
·That Mr Gabel and Ms Meltzer have equal, shared parental responsibility for [X] and [Y].
·That the children live with their mother.
·That the children spend time with their father on alternate weekends in accord with a graduated regime.
·That changeover occur at a children’s contact centre at, say, [O] or the southern district of the Central Coast.
·That the Independent Children’s Lawyer continue to monitor the children’s time with their father for a period determined by the Court.
The recommendations made by Dr H are somewhat cautious, however, and are subject to the caveat contained in the proceeding paragraph, being as follows;
The recommendations of this report are on the assumption that Mr Gabel’s psychiatric report is positive, and his relationship with Ms A [Mr Gabel’s then partner and the mother of a child to Mr Gabel] is reasonably peaceful. However, because of the possible risks to the children, some continual monitoring of the situation by the Independent Children’s Lawyer seems advisable.
It is to be noted that Dr H, appropriately so, relied upon the information that was available to him and without attempting to engage in any exercise of evaluating or weighing conflicting evidence. Indeed it was on the basis of Dr H’s considered and excellent Report that the Report of Dr R was commissioned to ensure that evidence was available, by an appropriately qualified expert, as to Mr Gabel’s present mental health.
Some significant concern is raised on Mr Gabel’s evidence as to his capacity (and that of his extended family) to support and encourage the children’s relationship with Ms Meltzer. The events which are reflected by the “siege incident”, the children’s removal from school and day care, the failure to return the children to Mr M in the place of Ms Meltzer and the like are all suggestive and highly so of an incapacity on the part of Mr Gabel to support Ms Meltzer’s relationship with the children. Indeed such events are highly reflective of a focus upon self and self-interest and an inability to disengage and disentangle the needs and interests of the children from those of Mr Gabel.
The present drafting of subsection (c) incorporates a portion of section 60CC(4) (now repealed) which required that the Court consider the extent to which a parent had taken or failed to take the opportunity to participate in decision making, spending time with, communicating with or financially supporting the children.
The one issue of concern which might arise with respect to this consideration (relevant by reference to the previous section 60CC(4)) is the failure by Mr Gabel to take up the offer of supervised time through the [R] Children's Contact Service following the cessation of the then scheduled periods up to and including November 2011. As a consequence of this a break of approximately 12 months occurred in Mr Gabel’s relationship with the children.
Mr Gabel is highly critical of Ms Meltzer for this break down in time and on the basis that Ms Meltzer would not agree to unsupervised time. However, the then Order provided for supervision through the Contact Centre. Time was clearly made available through the centre (a final document comprising Exhibit F3 is correspondence from that centre proposing further periods).
Ms Meltzer was entirely within her rights and entitled (indeed it was entirely appropriate for her) to assert her position as to the need for supervision. It was open to Mr Gabel to take such action as he wished, through filing an Application in a Case supported by evidence or otherwise to seek to vary the Order if he considered that appropriate or that the circumstances had so changed as to warrant a variation of the Order).
As regards financial support there is no evidence before the Court as to any financial provision made by Mr Gabel for these children whether now or at any time since separation. However, that is a far from determinative issue.
The likely effect of change in the children’s circumstances including separation by the parent and the child or person
I am satisfied that there would be a wholly deleterious effect for these children of a change to present arrangements at least so far as a removal of supervision.
The supervision which has occurred to date and for some years, I am satisfied, has provided real reassurance to Ms Meltzer and to these children and has been, at least in part if not substantially so, the basis for the success of those arrangements and the ability of the children to develop, maintain and continue a meaningful relationship with Mr Gabel through those arrangements.
In the absence of supervision I am concerned that arrangements may well have broken down, have exposed the children to an unacceptable risk if not a reality of the same and thus emotional if not physical harm and which would have severely impacted upon these children’s functioning, health and well-being as well as, importantly, their relationship with Mr Gabel. Indeed, the arrangements that have been in place have allowed and enabled the present relationship to develop and, I am satisfied, is required to enable the relationship to continue in the future.
The change that would be effected by a reduction in frequency in time I am satisfied is not entirely desirable but is unavoidable. To maintain and sustain supervised arrangements over a significant period has been the subject of comment by the Full Court in the authorities referred to above.
I am satisfied that as the children grow and mature the frequency of time (all be it once a month objectively being far from frequent) would further add to the artificiality of such arrangements and thus potentially frustrate both Mr Gabel and the children with undesirable consequences as to either Mr Gabel’s behaviour, the children’s reaction to time or the breakdown of arrangements.
Those factors would, again, support relief as proposed by the Independent Children’s Lawyer.
Practical difficulty and expense
The maintenance of supervision of time, particularly when these parties live some significant distance apart (Ms Meltzer living with the children in the [omitted] region and Mr Gabel living in a region south of Sydney) is problematic. That by and of itself would obviate against time occurring more frequently than monthly and would again lend some support to the reduction in time as proposed by
Dr R, the Independent Children’s Lawyer and as is supported by
Ms Meltzer.
I will otherwise deal with the balance of practical issues by reference to section 65DAA(5).
Capacity of each parent and others to provide for the children’s needs including emotional and intellectual needs
I am satisfied that my comments above sufficiently set out my concerns as to the capacity of Mr Gabel to meet the children’s needs particularly emotionally.
Mr Gabel, without wishing to be critical of him for the sake of it, as demonstrated through his behaviour, his evidence and his responses during cross examination, displays a lack of capacity to reflect upon his behaviour and its impact upon others. It also reflects a lack of capacity to accept or acknowledge or recognise the bases for his behaviours and the difficulties that he has experienced.
The fact that Mr Gabel has indicated during his cross examination that his various admissions to hospital have been solely as a reaction to Ms Meltzer withdrawing and withholding the children (rather than his general emotional and mental functioning all be it no doubt impacted by such stresses and behaviours) is concerning.
Mr Gabel has demonstrated on a couple of occasions when the children have come into his care (including of his own volition and unilateral actions such as their removal from school and pre-school) an inability to care for the children consistently or for any duration.
The children’s removal from the school and pre-school on 8 September 2009 prompted Mr Gabel’s immediate return to hospital on the basis, as he indicated in his own evidence and as is included within the hospital notes, his inability to cope with those circumstances and the stresses and distresses these created for him.
I am not satisfied that Mr Gabel has the capacity to provide for the children’s needs particularly their emotional needs without significant support and assistance and without structure by way of supervision in place.
A time may well come in the future (one would hope presciently so but I have no confidence on the available evidence that this is the case), when Mr Gabel will recognise the need for change in his behaviour and will consistently and cooperatively engage in processes and therapies that will enable him to address the underlying symptomology of his diagnosis. Until that time has come, however, I am concerned that there will remain a deficiency in Mr Gabel’s capacity to meet the children’s emotional needs and this is against time occurring other than with supervision.
Maturity, sex, lifestyle and background of the children
These children are 10 and 7 years of age. They are still children.
Whilst Ms Meltzer has described [X] (10 years of age) as a “mature young lady” she is a child of 10.
These children have, in the earlier formative years of their life, been exposed to significant disruption. It would appear clear from the totality of evidence that Mr Gabel has laboured with difficulties affecting his functioning and behaviour throughout their lives.
When the parents separated in February 2009 these children were 5 and 2 years of age respectively. Since that separation the children have lived, at all times (and with the exception of brief periods during Ms Meltzer’s hospitalisation and until the children were placed by Mr Gabel into the care of the maternal grandparents and, in the case of [X], a period of approximately 2 weeks when retained by Mr Gabel in his care) with their mother.
The children’s relationship with their father has largely been forged and developed through their exposure to the catastrophic events proceeding, at and following their parents separation.
The children’s time with their father, since the separation of their parents, has been infrequent, disrupted (including periods of nearly 12 months with no real time or communication with their father) and has occurred when supervision has not been available, at times when their father has been mentally unwell and acting out and demonstrating the symptomologies of his illness.
The children’s relationship with their father, in that context, must have benefited from some degree of contribution by Ms Meltzer. This mother has supported and encouraged the relationship, I have no doubt, in the most trying and challenging of circumstances.
It remains, however, that these children require protection which will be met through limited periods of “identification contact” (to adopt the terminology of Dr R and the care jurisdiction) and with supervision to ensure that the children perceive and experience safety and Ms Meltzer is in a position to continue to support and encourage the children’s relationship with Mr Gabel with some protections, safe guards and assurances in place.
I have no doubt that this will be and remain frustrating for Mr Gabel (as he expressed to Dr H). However, the children’s safety and capacity to enjoy and experience what remains of their childhood without disruption and interference to their functioning is, I am satisfied, of more importance.
Aboriginality
Neither parent nor the children identify as Aboriginal or Torres Strait Islanders.
Attitude to the child and responsibilities of parenthood
I am satisfied that these matters are canvassed above and in the findings made by me.
Ms Meltzer has demonstrated an appropriate attitude towards her responsibilities as a parent and including through acting protectively in ensuring the children’s housing, schooling, health treatment and general day to day functioning without disruption or interference and without the spectre of harassment and intimidation as demonstrated through Mr Gabel’s past behaviour as referred to above.
Mr Gabel’s attitude towards his responsibilities as a parent has, no doubt, been impacted by his mental illness and the untreated nature of same. Indeed the opening in Mr Gabel’s case was on the basis that he should not be judged for difficulties that befell him in 2009 and 2010 when he was unwell.
I whole heartedly accept that submission.
The difficulty that arises for me, however, is that Mr Gabel would not appear to have significantly changed his behaviours (they have been continued until at least late 2012 as regards violence perpetrated towards partners) nor developed any significant insight into or acceptance of responsibility for those behaviours.
True it is as was submitted in Mr Gabel’s case that there has been an absence of intervention (particularly involuntary admissions) with respect to Mr Gabel’s mental health since January 2013. However my concern is that even absent those interventions there is no evidence to demonstrate a change in behaviour, insight or cooperation with respect to treatment.
It was submitted that Mr Gabel’s pattern of text messaging
Ms Meltzer (as demonstrated by the annexure to her Affidavit) was “over the top” and that it has now ceased. However, that does not take into account the fact that Mr Gabel has been precluded from such communication by being deprived of the means of contacting Ms Meltzer. Further, it is somewhat at odds with the somewhat glib and flippant answer given by Mr Gabel that the number of text messages he sent were far from inordinate and that he could, as quoted above, “send up to a thousand messages in one night to a woman he has only just met.” How that could possibly be perceived as desirable or appropriate is unclear and that it is suggested as his genuine response to the criticism for his past behaviours as regards Ms Meltzer is disturbing.
I accept whole heartedly as is submitted by Mr Gabel's Counsel, that Mr Gabel loves and cares for his children deeply. However, such love, care and affection is not the test to be applied by me under the legislation as drafted by Parliament. I am required to consider each of the factors referred to above and to be addressed hereafter and these, regrettably, must temper the extent to which Mr Gabel will have the opportunity to demonstrate such love and affection and the children will have the opportunity to receive the benefit, and warmth of such love and affection set against their need for protection.
Overall, I am concerned that Mr Gabel’s attitudes towards his responsibilities to parenthood has been deficient and has been focused upon self-interest and self-focus rather than upon reflective insight into the needs of the children or the impact of behaviours upon them.
Family violence
The allegations of family violence in this case are extreme and permeate each and every facet of the evidence.
I accept the evidence of Ms Meltzer and that of Ms M (which was unchallenged by Mr Gabel). I accept their evidence based on credit, the difficulties which arise from Browne & Dunn and from the objective evidence available through the records tendered and exhibited before the Court.
It is submitted on the part of Mr Gabel that he has not had any involvement with the Police for the last 12 months or so. However, my concerns in that regard are twofold namely:
a) Mr Gabel did not disclose, acknowledge or readily concede the various engagements with the Police which clearly had occurred and which but for them being raised by Ms Meltzer and/or put in cross examination would not have been addressed (and largely are not addressed by Mr Gabel); and
b) There is nothing before the Court to suggest an absence of involvement or engagement with the Police in the last 12 months or so. The evidence that is available to the Court with respect to Police involvement has largely come about through the diligence of the Independent Children’s Lawyer in subpoenaing records. There have not been frank and candid concessions by Mr Gabel regarding same. Accordingly, if further matters had arisen since the last subpoena to the Police was issued in July 2012; it is unlikely that Mr Gabel would have volunteered that information.
The family violence that Ms Meltzer has been exposed to has clearly impacted upon her as evidenced by her admission to hospital in 2010. I am satisfied it continues to impact upon her and her daily functioning and thus upon her relationship with the children.
The risk to Ms Meltzer’s health and functioning as well as her capacity to provide for, care for and maintain a relationship with the children through her exposure to Mr Gabel and the risk of his behaviours as previously described (and accepted) is such as to obviate against any relief rather than that proposed and supported by the Independent Children’s Lawyer and Ms Meltzer.
Family violence orders
There have been prior family violence Orders between the parties and, indeed, prior charges and convictions with respect of breach thereof. Mr Gabel has also been the subject of family violence Orders by partners subsequent to Ms Meltzer and convictions for breaching those Orders.
I am satisfied that these matters have been sufficiently addressed and discussed in the evidence above.
Whether it is preferable to make the order that will least likely lead to the institution of future proceedings
In closing Mr Gabel’s case (all be it in his absence) Mr Gabel's Counsel fought what might be described as a sterling rear guard effort. It has been suggested that the stability and demonstrated changes in behaviour and insight on the part of Mr Gabel and which have been referred to particularly by Dr R might be anticipated (whether with or without confidence) and thus some opportunity left for Mr Gabel to return to review the position.
No direct application has been made to deal with the matter on the basis of Interim Orders only. In any event I propose to canvas that option and to make clear that it does not find favour with me.
These proceedings have been on foot for 3 and half years (with one adjournment of the hearing of the proceedings beyond the control of the parties). Accordingly, there is a clear imperative upon the Court to conclude the proceedings.
The evidence that is available is, as was described and conceded by Counsel for Mr Gabel in closing submissions is “overwhelming”. Indeed, in a statement read to the Court on behalf of Mr Gabel (and presumably prepared by him) it was conceded that the evidence against Mr Gabel was “overwhelming”.
Ms Meltzer and these children have spent the 3 and half years that these proceedings have been on foot waiting for a conclusion and determination of same.
It is the role and job of this Court to conclude judicial controversies before it. It is not the role of the Court to manage the affairs of families or to maintain proceedings before the Court for continuous review and assessment.
Court’s in this day and age have an obligation to seek to aid parties through therapeutic address and to engage them with services that will assist them (at least potentially). Part II and section 60I of the Family Law Act 1975 (Cth) make Parliament’s intention in this regard clear, prioritising consensual resolution of disputes through Family Dispute Resolution within the community sector and the use of Family Counselling Services (section 65F requiring that Family Counselling Services be engaged in (with some exceptions), prior to a final determination of proceedings and in preference to litigation.
However, once litigation is before the Court there is an obligation upon the Court to ensure that the proceedings are dealt with and determined as expeditiously and efficiently as is appropriate.
As the High Court of Australia has recognised in decisions such as Sali and SPC Ltd (1993) 67 ALJR 841 and Aon Risk Services and ANU [2009] HCA 27 the cost of litigation cannot be measured solely in financial terms. The emotional cost to the parties of dealing with litigation, of uncertainty, of proceedings being before the Court for an extended period and lives put on hold must also be recognised.
I fail to see any benefit to these parties and more importantly to these children of any delay in determination on a final basis or at all.
The prognosis of change in the future is unclear and uncertain. To the extent that it is a possibility I accept that this is real. However, the possibility of change in Mr Gabel’s behaviours has been abundant and available throughout the time that the matter has been before the Court. The evidence would demonstrate that such opportunity has either not been recognised or not been seized.
Mr Gabel’s behaviour has continued to be characterised by poor impulse control, inability to manage anger and aggression and an inability to self-reflect in a fashion that is demonstrative of emotional intelligence and maturity to accept and realise the inappropriateness of behaviours, the consequences of those behaviours and the impact of same upon others.
In those circumstances I see no basis whatsoever to do other than to proceed to conclude the proceedings on a final basis.
If I were to seek to make Orders which led to an experimental variation of arrangements in the future this would be entirely problematic and inappropriate. There is no basis for any confidence in change of behaviour such as would allow a time to be predicted when there would be benefit in the children’s greater or more extended or unsupervised time with Mr Gabel nor any means by which such change could be confidently predicted. To do so in those circumstances would be to:
a) Experiment (which by and of itself would be inappropriate). It is the role of the Court to judicially determine the dispute by application of law to facts and circumstances as determined and not to seek to socially engineer “arrangements” (optimal or otherwise);
b) Prospectively order arrangements, which based on present evidence, are inappropriate and unsafe. To do so would be irresponsible.
c) Make arrangements based upon the occurrence of future events which are not only unpredictable but unlikely to occur (i.e. changes in Mr Gabel’s insight and behaviour).
In those circumstances the possibility of future proceedings, compelling Ms Meltzer to apply to the Court to be relieved from compliance with an Order which could have been readily predicted as likely to be inappropriate and in fact inappropriate at this time and based upon present facts and circumstances, would be unacceptable.
Accordingly, I will make Orders on a final basis and which will provide for the only arrangement which is reasonably predictable of meeting the children’s needs for protection as well as maximising their opportunity to maintain and continue a relationship with each parent a relationship which, I am satisfied, will be meaningful albeit in no way as abundant or plentiful as might, if circumstance were different, occur.
Reasonable practicality
I turn to section 65DAA which must be considered and which further supports the Orders proposed by the Independent Children’s Lawyer.
How far apart the parents live
It is unclear exactly how far apart these parents live save that
Ms Meltzer lives in the [omitted] region and Mr Gabel in the [omitted] area some distance south of Sydney. Accordingly, the parties are at least 4 or 5 hours apart.
The contact supervision notes make clear that at least on some occasions Mr Gabel has travelled by public transport and thus the difficulties created by the distance between the parties is further compounded.
Current and future capacity to implement arrangements for equal, substantial, significant or other time
As indicated above I am not satisfied that it would be safe or acceptable for time to occur between the children and their father
Mr Gabel without supervision.
On that basis I am satisfied it would be entirely impracticable and noting that the parents lack any capacity to implement any arrangement for equal or substantial and significant time.
I am satisfied that it would be impractical and contrary to the children’s best interest for arrangements other than brief and infrequent periods of supervised time to occur and for the reasons expressed above.
Parents current and future capacity to communicate
These parents do not have any present capacity to communicate.
If an Order were made for equal shared parental responsibility then section 65DAC of the Act would impose upon Ms Meltzer an obligation to consult with Mr Gabel and make a genuine attempt to resolve “major issues decisions” (as defined in section 4 of the Family Law Act) prior to decisions being made and implemented.
I am satisfied this would be an entirely onerous and inappropriate burden to impose upon Ms Meltzer and, indeed, injurious to her health and functioning and thus to her relationship with the children, her capacity to provide for the children’s needs (which she does to an excellent level) and to maintain her meaningful relationship with them.
There is nothing that can be foreseen or which has been attempted that will aid in improving the capacity of these parents to communicate and particularly as the difficulties in communication have arisen from the past behaviours and present lack of insight into the need for change of those behaviours by Mr Gabel.
The impact of the arrangement on the children
I am satisfied that there would be a negative and detrimental impact upon these children of any arrangement for time between them and their father which did not involve supervision as a safe guard both for:
a) Them personally; and
b) Ms Meltzer as regards her anxieties for the children’s health, safety and well-being.
Conclusion
In light of the above matters and for the reasons set out therein I am satisfied that Orders as proposed by the Independent Children’s Lawyer, and as supported in closing submissions by Ms Meltzer through her Counsel, represent the Orders which would, at this time, best meet these children’s needs and interests and would best promote the children’s best interests as paramount.
I certify that the preceding three hundred and sixty-four (364) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 28 March 2014
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Appeal
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