GABRIELLI and O'DOYLE - [2017] FCWA 46

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: GABRIELLI and O'DOYLE [2017] FCWA 46

CORAM: THACKRAY CJ

HEARD: 31 OCTOBER 2016 & 1 NOVEMBER 2016 &
WRITTEN SUBMISSIONS (LAST SUBMISSION RECEIVED 5 JANUARY 2017)

DELIVERED : 5 APRIL 2017

FILE NO/S: PTW 1558 of 2008

BETWEEN: MR GABRIELLI
Applicant
AND
MS O’DOYLE
Respondent

Catchwords:

CHILDREN - With whom a child spends time - Orders - Contravention - Three contraventions by the mother made out - One breach considered a "more serious contravention" pursuant to Subdivision F of the Family Law Act 1975 (Cth) - Penalty in the form of a bond imposed - Parties agreed variation of orders appropriate - Orders varied

Legislation:

Family Law Act 1975 (Cth), s 60CC, s 70NFE(5), s 70NFF(3)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant
Respondent: Ms Hossen

Solicitors:

Applicant: Self Represented Litigant
Respondent: DCH Legal Group

Case(s) referred to in judgment(s):

Elspeth v Peter (2007) 212 FLR 214
Stevenson v Hughes (1993) FLC 92‑363

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1[Ms O’Doyle] (“the mother”) and [Mr Gabrielli] (“the father”) separated 10 years ago. They have two daughters, [Child A], who will soon be 16, and [Child B], who recently turned 14 years of age.
2I am required to determine:
•the father’s applications for the mother to be found to have contravened parenting orders made in October 2015; and
•the mother’s application for a variation of the orders insofar as they deal with the time the girls spend with their father.

Background

3The parties have had more than 70 appearances in the Family Court.
4In April 2011, Martin J made orders providing for the girls to live eight nights each fortnight with the mother and six nights with the father. After difficulties developed in the girls’ relationship with their father, the girls commenced spending time with him more or less in accordance with their wishes. The father was unhappy and sought a variation of the orders so that the girls would spend equal time with him. His application came on for trial before Jordan AJ in October 2015. The disputed evidence was not the subject of cross-examination and there was no evidence of the girls’ wishes, apart from that given by their parents.
5The cause of the difficulties in the relationship between the girls and their father is controversial, with each parent blaming the other for the problems that have arisen. Whatever the cause, there is no doubt that Child A and the father often clashed. While Child A says that she felt she was able to manage the conflict, Child B found it very distressing. Following an incident in January 2015, Child B expressed anxiety about spending any overnight time with the father. In February/March 2015, the father went overseas for a month. On his return, the girls stayed with him for a few days. On the day after she…

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.

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Details

AGLC: Gabrielli and O'Doyle [2017] FCWA 46
Case: [2017] FCWA 46
Decision Date: 5 APRIL 2017

CaseChat Overview and Summary

Division 2A of Part VII of the Family Law Act 1975. The Court was satisfied that the mother had contravened a parenting order. The mother's contraventions of a parenting order were considered under Subdivision F of Division 2A of Part VII of the Family Law Act 1975. The Court found that the mother's actions constituted three contraventions of the parenting order. The Court found that one of the contraventions was of a more serious nature than the other two. The Court considered the nature of the contraventions, the impact on the child, and the circumstances surrounding the contraventions in determining the seriousness of the contraventions.

The Court found that the mother's actions had a significant impact on the child, and that the contraventions were not isolated incidents. The Court found that the mother's actions were deliberate and intentional, and that she had not taken steps to rectify the situation. The Court considered the mother's history of non-compliance with parenting orders, and found that this was a relevant factor in determining the seriousness of the contraventions. The Court found that the mother's actions constituted a serious breach of the parenting order, and that the contravention was of a more serious nature than the other two contraventions. The Court ordered that the mother pay a fine and that the matter be referred to the Family Law Council for consideration of further action.

Orders