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…
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- Gabel and Meltzer [2014] FCCA 604
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- [2014] FCCA 604
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CaseChat Overview and Summary
The court was required to determine the extent of parental responsibility, where the children would live, and the nature and frequency of the father's time with the children. Further issues included the father's contact with his brother, restrictions on the father's questioning of the children about their residence and schooling, and prohibitions on alcohol and illicit drug consumption by the father prior to contact. The court also had to consider obligations regarding the exchange of school reports, the provision of gifts and cards, passport applications, notification of health issues, and mutual restraints on negative commentary about each other and their respective families in the presence of the children.
Judge Harman ordered that the mother have sole parental responsibility for the children and that they live with her. The father was granted limited supervised time with the children for three hours every three months, with specific arrangements for supervision and changeovers. The father was restrained from contact with his brother and from questioning the children about their address or school. He was also prohibited from consuming alcohol or illicit drugs for 12 hours before contact. The mother was ordered to provide redacted school reports, and the father was permitted to send gifts via the maternal grandparents. Both parents were ordered to refrain from speaking negatively about each other or their families in the children's presence. The court also made orders regarding passport applications, notification of health issues, and the return of exhibits.
Orders
Orders of the court
1.
The mother shall have sole parental responsibility for the children [X] born [in] 2003 and [Y] born [in] 2006 (“the children”).
2.
The children shall live with their mother.
3.
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.
4.
The party 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 to ensure that 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.
15.
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.
16.
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.
17.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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