FEDERAL CIRCUIT COURT OF AUSTRALIA
| GABLES & GABLES | [2020] FCCA 1780 |
| Catchwords: FAMILY LAW – Children – dysfunctional parenting relationship – four children – oldest child alienated from father – expert evidence – parenting capacity – expert evidence – change of primary care considered – best interests of children – parallel parenting. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CG, 61DA, 65D, 65DAA. |
| Cases cited: Goode & Goode [2006] FamCA 1346 Muldoon & Carlyle (2012) FLC 93-513 Baghti & Baghti & Ors [2015] FamCAFC 71 Goldman & Goldman [2018] FamCAFC 65 |
| Applicant: | MS GABLES |
| Respondent: | MR GABLES |
| File Number: | ADC 2985 of 2013 |
| Judgment of: | Judge Kelly |
| Hearing dates: | 24-27 February, 5 March 2020 |
| Date of Last Submission: | 5 March 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 3 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms I Green |
| Solicitors for the Applicant: | Phillips Green & Associates |
| Counsel for the Respondent: | Ms J Miller |
| Solicitors for the Respondent: | Boylan Lawyers |
| Counsel for the Independent Children's Lawyer: | Ms M Ross |
| Solicitors for the Independent Children's Lawyer: | CN Family Law |
ORDERS
The child X
That all previous parenting orders are discharged in relation to the child X born in 2007.
The mother have sole parental responsibility for the long term care welfare and development of the child X provided that:
(a)the mother consult with the father in writing prior to making any significant decision in relation to X’s care, education, health, welfare and development;
(b)the father respond to the mother in writing within seven (7) days, setting out his views on the issue in question; and
(c)the mother consider the father’s response before reaching her decision and then notify the father in writing of her decision.
X live with the mother.
X spend time with the father at such times as may be agreed between the parties in accordance with X’s wishes.
The father is permitted to send cards, letters or gifts to X and the mother shall ensure these items are given to him and encourage X to acknowledge the father’s gesture.
The father and X communicate by telephone or other electronic means in accordance with X’s wishes.
The children B, C and D
All previous parenting orders in relation to the children B born in 2008, C born in 2010 and D born in 2011 (“the children”) are discharged as and from Monday 13 July 2020.
Thereafter the father have sole parental responsibility for the long term care, education, health, welfare and development of the children B, C and D provided that:
(a)the father consult with the mother in writing prior to making any significant decision in relation to the children’s care, education, health, welfare and development;
(b)the mother respond to the father in writing within seven (7) days, setting out her views on the issue in question; and
(c)the father consider the mother’s response before reaching his decision and then notify the mother in writing of his decision.
The children’s living arrangements in the father’s primary care
The children…
Continue reading GABLES & GABLES
Sign in free to access the full text
- AGLC
- Gables and Gables [2020] FCCA 1780
- Case
- [2020] FCCA 1780
- Decision Date
CaseChat Overview and Summary
The court's reasoning focused on the paramount consideration of the children's welfare. It acknowledged the expert evidence presented, which informed the decision regarding parenting arrangements. The court applied the principles of the *Family Law Act 1975* (Cth) concerning the best interests of the child, which includes considerations such as the child's right to a meaningful relationship with both parents, the need to protect the child from harm, and the capacity of each parent to provide for the child's needs. The court's orders reflect a carefully considered shift in primary care for some children and a structured approach to shared parenting and communication.
The court ordered the discharge of previous parenting orders for all four children. The mother was granted sole parental responsibility for the oldest child, X, with specific provisions for consultation with the father and consideration of X's wishes regarding living arrangements and communication. For the younger three children, B, C, and D, the father was granted sole parental responsibility for their long-term care, education, health, welfare, and development, also with provisions for consultation with the mother. The court established a phased transition of living arrangements for B, C, and D, moving towards equal shared care between the parents from the fourth term of 2020, with detailed arrangements for school holidays and special occasions. The orders also included provisions for communication, health matters, counselling support, and injunctions to ensure the children's safety and well-being.
Orders
Orders of the court
The child X
1.
That all previous parenting orders are discharged in relation to the child X born in 2007.
2.
The mother have sole parental responsibility for the long term care welfare and development of the child X provided that:
(a) the mother consult with the father in writing prior to making any significant decision in relation to X’s care, education, health, welfare and development;
(b) the father respond to the mother in writing within seven (7) days, setting out his views on the issue in question; and
(c) the mother consider the father’s response before reaching her decision and then notify the father in writing of her decision.
3.
X live with the mother.
4.
X spend time with the father at such times as may be agreed between the parties in accordance with X’s wishes.
5.
The father is permitted to send cards, letters or gifts to X and the mother shall ensure these items are given to him and encourage X to acknowledge the father’s gesture.
6.
The father and X communicate by telephone or other electronic means in accordance with X’s wishes.
The children B, C and D
7.
All previous parenting orders in relation to the children B born in 2008, C born in 2010 and D born in 2011 (“the children”) are discharged as and from Monday 13 July 2020.
8.
Thereafter the father have sole parental responsibility for the long term care, education, health, welfare and development of the children B, C and D provided that:
(a) the father consult with the mother in writing prior to making any significant decision in relation to the children’s care, education, health, welfare and development;
(b) the mother respond to the father in writing within seven (7) days, setting out her views on the issue in question; and
(c) the father consider the mother’s response before reaching his decision and then notify the mother in writing of his decision.
The children’s living arrangements in the father’s primary care
9.
The children live with the father from 12noon on Monday 13 July 2020 until the conclusion of school on Friday 16 October 2020.
10.
The mother deliver the children to the father’s home at 12noon on 13 July 2020, unless otherwise directed by the Independent Children’s Lawyer.
11.
The mother provide the children with sufficient clothes and personal effects to allow them to settle into the father’s care, provided that these items are returned to the mother in good order and repair upon the children commencing time in her care.
12.
B, C and D spend time with the mother as follows:
(a) all time is suspended for a period of four (4) weeks after the children come into the father’s care, other than by way of supervised video or telephone calls facilitated by Ms E in the course of family counselling;
(b) thereafter each alternate weekend from the conclusion of school Friday until the commencement of school Monday commencing Friday 7 August 2020 for the remainder of the third school term;
(c) for the first half of the September/October 2020 school holidays from the conclusion of school on Friday 25 September until 5.00pm on Saturday 3 October 2020.
13.
The mother telephone the children B and D on their respective birthdays, to exchange a birthday greeting.
The children’s long term parenting arrangements
14.
Commencing fourth term 2020 the children live equally with each parent as follows:
(a) in the mother’s care each alternate week commencing Friday 16 October 2020 from the conclusion of school or 4.00 pm until the conclusion of school or 4.00pm on the following Friday;
(b) in the father’s care each alternate week commencing Friday 9 October 2020 from the conclusion of school or 4.00pm until the conclusion of school or 4.00 pm on the following Friday;
15.
Each party has parental responsibility for the children’s day to day care, welfare and development while the children are in that parent’s care.
School holiday parenting arrangements
16.
The week about parenting regime continue during all future short school holidays and during the Christmas 2020 school holidays.
17.
Thereafter the children live with each parent for one half of the Christmas school holidays each year as follows:
(a) commencing in 2021 and each alternate year thereafter:
(i) with the mother for the first week of the school holidays from the conclusion of school on the last day of term until 4.00pm on the following Friday and for two consecutive weeks commencing at 4.00pm on the third Friday and concluding at 4.00pm on the fifth Sunday; and
(ii) with the father at all other times;
(b) commencing in 2022 and each alternate year thereafter:
(i) with the father for the first week of the school holidays from the conclusion of school on the last day of term until 4.00pm on the following Friday and for two consecutive weeks commencing at 4.00pm on the third Friday and concluding at 4.00pm on the fifth Sunday; and
(ii) with the mother at all other times.
Special Occasions
The following orders override the usual parenting orders set out above.
18.
The children spend time with each parent on special occasions as may be agreed between the parties and in default of agreement as follows:
(a) with the father from 12noon Christmas Eve until 3.00pm Christmas Day 2020 and each alternate year thereafter and from 3.00pm Christmas Day until 3.00pm on Boxing Day in 2021 and each alternate year thereafter;
(b) with the mother from 3.00pm Christmas Day until 3.00pm on Boxing Day in 2020 and each alternate year thereafter and from 12noon Christmas Eve until 3.00pm Christmas Day in 2021 and each alternate year thereafter;
(c) with the father from 9.00am until 5.00pm on Father’s Day each year;
(d) with the mother from 9.00am until 5.00pm on Mother’s Day each year;
(e) with the mother on the mother’s birthday from the conclusion of school until 7.30pm;
(f) with the father on the father’s birthday from the conclusion of school until 7.30pm;
(g) with the mother on each of the children’s birthdays from the conclusion of school or 3.00pm until 6.00pm in the event the children would otherwise have been in the father’s care on that day;
(h) with the father on each of the children’s birthdays from the conclusion of school or 3.00pm until 6.00pm in the event the children are in the mother’s care on that day;
(i) with either parent on such other special occasions as may be negotiated between the parties and confirmed in writing.
19.
That handovers take place with the relevant parent collecting the children from school when appropriate.
20.
The parties endeavour to use separate entrances to the school grounds when the father is collecting B, C and D and the mother is collecting X.
21.
For all other handovers the father will deliver the children to the mother at the commencement of their time in her care and the mother will deliver the children to the father at the commencement of their time in his care provided each party does not enter the other party’s property during handover, unless specifically invited.
Communication
22.
Electronic communication between the children and the other parent occur only when initiated by the children in which case each party facilitate the children contacting the other parent via telephone or Skype (or equivalent) at a reasonable time.
23.
The parties communicate by text message in relation to information regarding immediate issues regarding the children, including any delay in handover, or any urgent information regarding the children’s health and welfare.
24.
The parties shall communicate via an agreed Co-parenting App such as Our Family Wizard to exchange information regarding the children’s general wellbeing, care, health and activities.
25.
Each party ensure that all communication with the other parent is conducted in a polite and respectful manner.
26.
Each party keep the other informed of their residential address and mobile phone number and notify the other parent within seven (7) days of any change of these details.
Health issues
27.
Each party keep the other advised in relation to any of the children’s health issues and provide details of medical practitioners, specialist doctors, allied health professionals or therapists attended by any of the children.
28.
Each parent is permitted to contact any of the above mentioned health professionals providing treatment to any of the children.
29.
Each parent keep the other advised in relation to any medication or treatment that is prescribed for any of the children.
30.
Each party notify the other as soon as possible, by text message or telephone call, in the event any of the children, including X, are admitted to hospital for a medical emergency.
31.
Both parents are permitted to attend at the hospital facility where the child or children is receiving treatment, provided that the father’s attendance is subject to X’s wishes at that time.
Counselling support
32.
The Independent Children’s Lawyer request Ms E to prepare a Transition Plan to support the children B, C and D adjust to the father’s primary care and the eventual introduction of week about care, noting Ms E may consult with Ms F in this regard.
33.
Thereafter the father at his sole expense facilitate the children, B, C and D continuing in family therapy with Ms E directed to:
(a) supporting the children’s transition into the father’s primary care;
(b) supporting C’s developing relationship with the father;
(c) supporting the father in his parenting role;
(d) supporting the children as they recommence time in their mother’s care.
34.
The father facilitate the children’s attendance at appointments as requested by Ms E from time to time.
35.
Subject to their wishes, the mother and X participate in family therapy with Ms E, or such other counsellor as the mother may nominate.
36.
The father do all things necessary to obtain a Mental Health Plan for B, C and D to facilitate their attendance upon Ms E, in order to defray the ongoing counselling costs.
37.
The mother do all things necessary to obtain a Mental Health Plan for X to facilitate his attendance upon Ms E, in order to defray the ongoing counselling costs.
38.
The parties obtain their own Mental Health Plans for the purposes of consulting with Ms E, or such other psychologist as they may nominate provided that each party meet their own costs of their attendances with Ms E or any other psychologist for individual counselling.
Injunctions
39.
The mother is restrained from removing the children from school when they are in the father’s care.
40.
Each parent is restrained and an injunction is granted restraining them from:
(a) physically chastising or physically disciplining any of the children;
(b) excessively manhandling any of the children;
(c) consuming alcohol to excess while any of the children are in their care;
(d) denigrating the other party or any member of that party’s family in the presence of any of the children and from allowing any other person to do so (including X);
(e) discussing issues raised within the course of these proceedings with or in the presence of any of the children or allowing anyone else to do so save and except in the course of any family therapy or counselling;
(f) discussing, commenting on or mentioning these proceedings or the outcome of these proceedings on Facebook, Twitter, Instagram or any other social media website and from permitting any other person to do so.
Interaction with the children’s schools or extracurricular activities
41.
Each parent is permitted to attend school events or activities to which parents are usually invited and to obtain copies of notices, newsletters and the children’s school reports and to obtain such documents directly from the school in that regard.
42.
Each parent ensure that they have the necessary school uniform requirements for each child and that any such items from the other parent’s home are returned with the children at the next handover.
43.
Each parent is permitted to enrol the children in one sporting or extracurricular activity that may fall within the other parent’s primary care and both parties shall ensure the children attend such activities.
44.
The parents are otherwise permitted to enrol the children in additional sporting or extracurricular activities that may fall within the other parent’s primary care, provided such activities occur with the consent of both parents.
Additional orders
45.
The Independent Children’s Lawyer and/or her nominee meet with the children X, B, C and D to explain the Court orders to the children as soon as practicable.
46.
The Independent Children’s Lawyer liaise with Ms E in relation to a Transition Plan and her ongoing counselling support if possible.
47.
Liberty to the Independent Children’s Lawyer to forward any relevant reports on the Court file to Ms E together with the Reasons for Judgment delivered this day.
48.
The order for the appointment of the Independent Children’s Lawyer is discharged as and from 30 November 2020.
49.
The proceedings are dismissed as finalised.
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.