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…
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- AGLC
- Gabrielli and O'Doyle [2017] FCWA 46
- Case
- [2017] FCWA 46
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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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