Gabriel and Gabriel - [2018] FCCA 2306

FEDERAL CIRCUIT COURT OF AUSTRALIA

GABRIEL & GABRIEL

[2018] FCCA 2306

Catchwords:
FAMILY LAW - Parenting – whether children aged 13 and 11 who are living with their father should relocate to live with the mother several hours away – finely balanced case - where the preponderance of the evidence suggests that the children strongly wish to live with their mother – where the 13 year old has been cutting herself and mentioning suicide since she was returned to the father’s care twelve months ago and has recently reported hearing voices telling her to cut herself and commit suicide – where there are concerns about the mother’s parenting capacity, her willingness to foster the children’s relationship with the father and her choice of partner – where the father has a keen desire for the children to do well in life and is better at setting boundaries and enforcing rules but where he has not dealt appropriately with his daughter’s self-harm issues and where the evidence suggests that both children are unhappy in the father’s blended household – where on balance it is in the children’s best interests to live with their mother.

Legislation:

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

Cases cited:

Pitman & Bond [2014] FCCA 2126

Applicant:

MR GABRIEL

Respondent:

MS GABRIEL

File Number:

NCC 907 of 2017

Judgment of:

Judge Terry

Hearing dates:

10 and 11 July 2018

Date of Last Submission:

11 July 2018

Delivered at:

Newcastle

Delivered on:

29 August 2018

REPRESENTATION

Counsel for the Applicant:

Mr Bithrey

Solicitors for the Applicant:

Everingham Solomons Solicitors

Counsel for the Respondent:

Mr O’Brien

Solicitors for the Respondent:

Coffs Law Co

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW Tamworth

ORDERS

The mother shall have sole parental responsibility for all issues concerning the residence and health of the children [X] born 2004 (“[X]”) and [Y] born 2006 (“[Y]”) (“the children”).
The mother and father shall have otherwise shared parental responsibility for the children.
The children shall live with the mother.
The children shall spend time with the father for the first half of New South Wales school holiday periods commencing in odd numbered years and in the second half of such school holiday periods commencing in even numbered years.
[Y] shall spend time with the father on the third and seventh weekend after the commencement of each school term from 9.00am on Saturday until 4.00pm on Sunday. [X] may attend on these occasions if she wishes to do so.
Both children shall spend time with the father in the Town A area on the first and fifth weekend after the commencement of school each term from 9.00am on Saturday until 3.00pm on Sunday. The father shall confirm to the mother by text message by 4.00pm on the Thursday before such time if it is to take place and in the absence of such confirmation, the weekend time for that weekend shall be suspended.
If any time which the father is to spend with either or…

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 Gabriel and Gabriel

Details

AGLC: Gabriel and Gabriel [2018] FCCA 2306
Case: [2018] FCCA 2306
Decision Date: 29 August 2018

CaseChat Overview and Summary

The case of *Gabriel and Gabriel* concerned parenting orders for two children, [X] and [Y]. The dispute involved the parents' differing views on the children's living arrangements and time spent with each parent. The matter was heard by Judge Terry.

The court was required to determine the best interests of the children, specifically balancing the benefit of a meaningful relationship with both parents against the need to protect them from harm. Key issues included the potential impact of geographical distance on the children's relationship with the father, the mother's perceived reluctance to support the father's relationship with the children, and concerns raised by the father regarding the children's potential exposure to abuse or family violence.

Judge Terry's reasoning focused on the paramount consideration of the children's welfare. The court acknowledged the benefit of both parents having a meaningful relationship with the children, noting the strengths of each parent. However, the court expressed significant concern that if the children lived with the mother, their relationship with the father might be jeopardised due to the mother's negative views of the father and her potential to yield to the children's reluctance to spend time with him. Conversely, the court found that if the children lived with the father, their relationship with the mother was likely to be maintained, as he did not denigrate her to the children and generally adhered to rules. The court also considered the father's concerns about potential abuse or family violence, though it noted that allegations against the mother related to parenting capacity rather than direct harm.

The court made detailed orders regarding parental responsibility, the children's residence with the mother, and specific arrangements for the children to spend time with the father, including during school holidays and term time weekends. The orders also stipulated communication protocols, notification requirements regarding medical care and addresses, and prohibitions against denigration of either parent. Provisions were included for family counselling and dispute resolution services, and the orders incorporated particulars of obligations and consequences of contravention under the *Family Law Act 1975*.

Orders

Orders of the court

The mother shall have sole parental responsibility for all issues concerning the residence and health of the children [X] born 2004 (“[X]”) and [Y] born 2006 (“[Y]”) (“the children”).

The mother and father shall have otherwise shared parental responsibility for the children.

The children shall live with the mother.

The children shall spend time with the father for the first half of New South Wales school holiday periods commencing in odd numbered years and in the second half of such school holiday periods commencing in even numbered years.

[Y] shall spend time with the father on the third and seventh weekend after the commencement of each school term from 9.00am on Saturday until 4.00pm on Sunday. [X] may attend on these occasions if she wishes to do so.

Both children shall spend time with the father in the Town A area on the first and fifth weekend after the commencement of school each term from 9.00am on Saturday until 3.00pm on Sunday. The father shall confirm to the mother by text message by 4.00pm on the Thursday before such time if it is to take place and in the absence of such confirmation, the weekend time for that weekend shall be suspended.

If any time which the father is to spend with either or both children falls on a weekend which includes Mother’s Day the father’s time is suspended on that weekend and shall occur on the following weekend at the time and in the same circumstances as it would have taken place on the Mother’s Day weekend.

The father’s time with the children pursuant to Order (5) shall include the weekend of Father’s Day and for that purpose if Father’s Day does not fall on the third or seventh week of Term 3 then the father shall forego time with the children on the third or seventh weekend and spend time with them on the Father’s Day weekend. The father must confirm to the mother by text message sent no later than 4.00pm on the third Thursday of Term 3 which weekend the he intends to forego.

The children shall spend such further or other time with their father as may be agreed between the parties.

10.

To effect the time that the children spend with the father in school holiday periods commencing in odd numbered years, the mother shall deliver the children to the father at the McDonald’s Restaurant at Town B at 11.00am on the first Saturday of each such holiday period and the father shall return the children to the mother at the McDonald’s Restaurant at Town B at 2.00pm on the midpoint day of that holiday period.

11.

To effect the time that the children spend with the father in school holiday periods commencing in even numbered years, the mother shall deliver the children to the father at the McDonald’s Restaurant at Town B at 11.00am on the midpoint day of each such holiday period and the father shall return the children to the mother at the McDonald’s Restaurant at Town B at 2.00pm on the final Saturday of that holiday period.

12.

To effect the time that [Y] and if she wishes [X] spends with the father on the third and seventh weekend of each school term, the mother shall deliver the children to the father at the McDonalds Restaurant at Town B at the commencement of that time and the father shall return the children to the mother at the McDonalds Restaurant at Town B at the conclusion of that time.

13.

To effect the time that the children are to spend with the father in the Town A area on the first and fifth weekend of each school term, the mother shall deliver the children to the father at the McDonalds Restaurant at Town A at the commencement of the time and the father shall return the children to the mother at the McDonalds Restaurant at Town A at the conclusion of that time.

14.

To effect the time that the children are to spend with the father on Father’s Day weekend the mother shall deliver the children to the father at the McDonalds Restaurant at Town B at the commencement of the time and the father shall return the children to the mother at the McDonalds Restaurant at Town B at the conclusion of the time.

15.

The children shall have telephone communication with the parent with whom they are not living or spending time with on that day between 7.00pm and 7.30pm:

(a) on each Thursday;

(b) on each of the children’s birthdays;

(d) on Christmas Day; and

(e) on such further or other days or at such further or other times as may be agreed between the mother and the father.

16.

Telephone communication shall be effected by the parent with whom the children are not living or spending time with on that day telephoning the children on a number provided by the other parent and the parent with whom the children are the living or spending time with ensuring that the children are available to speak on the telephone.

17.

Each parent shall keep the other advised of the names and addresses of any medical practitioner, hospital or allied health professional consulted by either child.

18.

Each parent shall advise the other of their residential address and contact telephone number and shall advise the other within 24 hours of any such change in those details.

19.

Neither parent shall denigrate the other or any member of the other parent’s family nor shall either parent allow the children or either of them to remain in the presence or hearing of any other person denigrating the other parent or members of the other parent’s family.

20.

Each parent shall notify the other in the event that either child becomes seriously ill, is seriously injured or is hospitalised whilst the child is living with or spending time with that parent.

21.

Pursuant to s.62B of the Family Law Act 1975 information about the family counselling services, family dispute resolution services and other courses, programs and services available is set out in the Fact Sheet attached.

22.

Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

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

The primary considerations are the benefit to the children of having a meaningful relationship with both of their parents and the need to protect the children from physical or psychological harm from being exposed to or subjected to abuse, neglect or family violence. It was not in dispute that the children would benefit from having a meaningful relationship with both of their parents. The parents both have their weaknesses but they also have their strengths; for example the father is a hard worker and a good role model for the children in that regard and the mother is a warm and loving parent. In theory children can have a good relationship with both of parents even if they live at a distance from one of them; in theory. But if the children’s primary carer does not support the relationship with the other parent there is a heightened risk that the relationship with the other parent will founder if distance is added to the mix. If children miss a visit with the distant parent it may be a long time before the next visit is due, allowing resistance to build up; and the court is also not always able to deal speedily with complaints that a parent is breaching a court order, again allowing problems to fester and to become very difficult to solve. Last time the mother withheld the children from the father the problem took seven months to fix. If the mother withholds them again the problem may become unfixable. I have considerable concern that if the children live with the mother their relationship with their father may be at risk. There was no evidence of the mother denigrating the father to the children but she does not think well of him, is suspicious that he is drinking heavily on weekends and is fixed in her view that the children are reluctant to spend time with him. It could be that after what happened when she withheld the children last time that she will be cautious about withholding them again but she is soft hearted and if the children were to say something convincing to her about not wanting to see their father there is a considerable risk that she might fall in with their request and not to make them travel to Town C. The father in his turn does not think well of the mother. When he was asked in cross-examination about her parenting strengths he responded:I’ve no idea. I didn’t see too many parenting strengths. For most of the time she was drunk and passed out. However he does not denigrate her to the children and he is someone who tends to obey the rules. If the children live with him their relationship with their mother is likely to be maintained. I must consider the need to protect the children from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence. There is no risk of the mother abusing the children or neglecting them; allegations that she has failed to properly attend to their education in the past and allegations about her alcohol consumption are best treated as parenting capacity issues. However the father raised a concern that the children might be abused by Mr S or exposed to family violence as a result of Mr S’s conduct.