GABERT & GABERT - [2020] FCCA 27

FEDERAL CIRCUIT COURT OF AUSTRALIA

GABERT & GABERT

[2020] FCCA 27

Catchwords:
FAMILY LAW – Parenting – disputed primary residence and spend time regimes for 10 and 6 year old children – elder child autistic but mother exaggerating and father not accepting the condition – father abandoning residence claim during hearing – orders made as proposed by the family report and Independent Children’s Lawyer.

FAMILY LAW – Property – wife seeking lion’s share of property pool, equalisation of superannuation and ongoing spousal maintenance – husband not able to pay spousal maintenance – Court deciding 70/30 division just and equitable.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA, 75(2)

Cases cited:

Best & Best (1993) FLC 92-418
Bucknell & Bucknell [2009] FamCAFC 177
Clauson & Clauson [1995] FamCA 10
Goode v Goode [2006] FamCA 1346
Scott & Scott (1994) FLC 92-45
Stanford v Stanford [2012] HCA 52

Applicant:

MR GABERT

Respondent:

MS GABERT

File Number:

MLC 1520 of 2019

Judgment of:

Judge Burchardt

Hearing dates:

25-26 November 2019

Date of Last Submission:

26 November 2019

Delivered at:

Dandenong

Delivered on:

7 February 2020

REPRESENTATION

Counsel for the Applicant:

Ms Bryan

Solicitors for the Applicant:

Taussig Cherie Fildes

Counsel for the Respondent:

Mr Stanley

Solicitors for the Respondent:

Fair Family Law

Counsel for the Independent Children’s Lawyer:

Mr Myles

Solicitors for the Independent Children’s Lawyer:

Victoria Legal Aid

ORDERS

PARENTING

All previous parenting orders be discharged.
The Mother and the Father have equal shared parental responsibility for the children X born in 2009 and Y born in 2012 (“the children”).
The children live with the Mother.
The children spend time and communicate with the Father as follows:
(a)During school terms:
(i)In week one, from the conclusion of school Thursday (or 3:00pm if not a school day) to the commencement of school Monday (or Tuesday if Monday is a public holiday); and
(ii)In week two, from the conclusion of school Thursday (or 3:00pm if not a school day) to the commencement of school Friday (or 5:00pm if Friday is a public holiday).
(b)For one half of all school term holidays and long summer school holidays as agreed between the parties, and in default of agreement for the first half of such school holiday period in even numbered years and the second half in odd numbered years;
(c)From 4:00pm on Easter Thursday until 2:00pm on Easter Sunday in even numbered years;
(d)From 2:00pm on Easter Saturday until 5:00pm on Easter Monday in odd numbered years;
(e)From 4.00pm on Christmas Eve until 2.00pm Christmas Day in even numbered years;
(f)From 2.00pm on Christmas Day until 4.00pm on Boxing Day in odd numbered years;
(g)From 4.00pm on New Year’s Eve until 2.00pm New Year’s Day in even numbered years;
(h)From 2.00pm on New Year’s Day until 4.00pm on the day immediately following New Year’s Day commencing in odd numbered years;
(i)On the weekend of Father’s Day, from 10.00am on Saturday until 5.00pm on Father’s Day;
(j)On the children’s birthday as agreed between the parties, and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading GABERT & GABERT

Details

AGLC: GABERT & GABERT [2020] FCCA 27
Case: [2020] FCCA 27
Decision Date: 7 February 2020

CaseChat Overview and Summary

In the matter of *Gabert & Gabert*, Judge Burchardt of the Federal Circuit and Family Court of Australia considered parenting and property disputes between a mother and father concerning their two children, aged 10 and 6. The parenting dispute involved contested primary residence and time arrangements, with the court noting discrepancies in how each parent perceived the elder child's autism. The property dispute involved the wife seeking a significant portion of the asset pool, superannuation equalisation, and spousal maintenance, while the husband contended he was unable to pay maintenance.

The court was required to determine appropriate parenting orders for the children, including their residence and time spent with each parent, taking into account the family report and the Independent Children’s Lawyer’s recommendations. In relation to property, the court needed to decide on a just and equitable division of the parties' assets and address the wife's claim for spousal maintenance, considering the husband's financial capacity.

Regarding parenting, the father abandoned his claim for the children to reside with him during the hearing. The court ultimately made orders reflecting the proposals of the family report and the Independent Children’s Lawyer, establishing equal shared parental responsibility and ordering that the children live with the mother. The orders detailed specific time arrangements for the children to spend with the father, including during school terms and holidays, and outlined communication protocols and provisions for school-related matters. For the property division, the court found a 70/30 split in favour of the wife to be just and equitable, and determined that the husband was not able to pay spousal maintenance.

Orders

Orders of the court

PARENTING

All previous parenting orders be discharged.

The Mother and the Father have equal shared parental responsibility for the children X born in 2009 and Y born in 2012 (“the children”).

The children live with the Mother.

The children spend time and communicate with the Father as follows:

(a)During school terms:

(i) In week one, from the conclusion of school Thursday (or 3:00pm if not a school day) to the commencement of school Monday (or Tuesday if Monday is a public holiday); and

(ii) In week two, from the conclusion of school Thursday (or 3:00pm if not a school day) to the commencement of school Friday (or 5:00pm if Friday is a public holiday).

(b) For one half of all school term holidays and long summer school holidays as agreed between the parties, and in default of agreement for the first half of such school holiday period in even numbered years and the second half in odd numbered years;

(d) From 2:00pm on Easter Saturday until 5:00pm on Easter Monday in odd numbered years;

(e) From 4.00pm on Christmas Eve until 2.00pm Christmas Day in even numbered years;

(f) From 2.00pm on Christmas Day until 4.00pm on Boxing Day in odd numbered years;

(g) From 4.00pm on New Year’s Eve until 2.00pm New Year’s Day in even numbered years;

(h) From 2.00pm on New Year’s Day until 4.00pm on the day immediately following New Year’s Day commencing in odd numbered years;

(i) On the weekend of Father’s Day, from 10.00am on Saturday until 5.00pm on Father’s Day;

(j) On the children’s birthday as agreed between the parties, and in default of agreement, from the conclusion of school until 7:30pm, or 10:00am to 2:00pm if not a school day; and

(k) As may otherwise be agreed between the parties.

Any period the child is to spend with the Father be suspended as follows:

(a) For one half of all school term holidays and long summer school holidays as agreed between the parties, and in default of agreement for the second half of such school holiday period in even numbered years and the first half in odd numbered years;

(b) From 4:00pm on Easter Thursday until 2:00pm on Easter Sunday in odd numbered years;

(d) From 4.00pm on Christmas Eve until 2.00pm Christmas Day in odd numbered years;

(e) From 2.00pm on Christmas Day until 4.00pm on Boxing Day in even numbered years;

(f) From 2.00pm on New Year’s Eve until 2.00pm New Year’s Day in odd numbered years;

(g) From 2.00pm on New Year’s Day until 4.00pm on the day immediately following New Year’s Day commencing in even numbered years;

(h) On the weekend of Mother’s Day, from 10.00am on Saturday until 5.00pm on Mother’s Day; and

(i) As may otherwise be agreed between the parties.

Changeovers occur at the children’s school where possible, and otherwise the mother deliver the children to the father’s residence at the commencement of time and the father deliver the children to the mother’s residence at the conclusion of time, or such other location as may be agreed between the parties in writing from time to time.

Each of the Mother and Father be at liberty to communicate with the child at reasonable times and by reasonable means (including by FaceTime, etc.) when the children are in the other party’s care, including, but not limited to, between 7.00pm and 7.30pm each Monday and Wednesday night.

The parties each be, and is hereby, authorised to obtain, directly from any school attended by the children, details of the children’s progress at school; copies of all school reports; photographs; notices of parent-teacher interviews; and notices of other functions which parents normally attend.

Both parties be permitted to attend parent/teacher interviews and other school activities/functions normally attended by the parents.

10.

Neither party enrol the children, in any extra-curricular or sporting activity which is to occur during the time the child spends with the other parent, save with the consent of such parent.

11.

Each of the parties keep the other informed of any illness or injury occurring to the children, whilst in their care which requires medical attention, such notice to be provided as soon as practicable and not more than 24 hours following the child attending upon a medical practitioner.

12.

Each of the parties shall authorise any treating medical practitioners who are caring for the children to speak to the other about the children’s treatment.

13.

Each of the parties keep the other informed of any change in their residential address and contact mobile phone number within 48 hours of such change.

14.

The parties attend Lifeworks at Suburb B for mediation or Ms C or another agreed therapist for assistance with the parental communication and support for the children.

15.

Both parties complete a Post Separation Parenting Course through Lifeworks or another service provider, and provide evidence of completion to the other party within 7 days of completion.

16.

Both parties be permitted to travel interstate and overseas with the children upon the provision of 60 days written notice to the other parent, together with an itinerary including accommodation and flight details to be provided 14 days prior to the proposed travel date.

17.

The parties be restrained by injunction from changing the children’s school without the written consent of the other party, or order of the Court.

18.

The parties, by themselves, their servants and/or agents be and are hereby restrained by injunction from:

(a) Abusing, insulting, belittling, rebuking or otherwise denigrating the other party, their partner or their family; and

(b) Discussing these proceedings,

to or in the presence or hearing of the children and from permitting any other person to do so.

PROPERTY

19.

The parties are to confer and forward agreed Minutes of Orders effecting these Reasons for Judgment within 14 days, or in the absence of agreement, each party’s proposed minutes.

20.

The matter will then be determined on the papers unless otherwise ordered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.