GAGLIO & WALBURNS

Case [2020] FCCA 2739


FEDERAL CIRCUIT COURT OF AUSTRALIA

GAGLIO & WALBURNS [2020] FCCA 2739
Catchwords:
FAMILY LAW – Parenting – unacceptable risk – alleged sexual abuse – supervised time – FaceTime communication – injunction.

Legislation:

Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 65D, 65DA,

65DAA, 65DAB, 68L & 69ZT

Federal Circuit Court Act 1999 (Cth), ss.68, 70 & 71

Evidence Act 1995 (NSW), ss.55, 56, 57, 69 & 140

Cases cited:

Goode & Goode [2006] FamCA 1346

M & M (1988) 166 CLR 69
B & B (1993) FLC 92-357
Johnson & Page [2007] FamCA 1235
NapiervHepburn  (2006) 36 Fam LR 395
N & S& The Separate Representative (1996) FLC 92-655
W & W Abuse Allegations: Unacceptable Risk [2005] FamCA 892
Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768
Re David [1997] FamCA 48
Re B(Alleged Apprehension of Bias) [2003] FamCA 1298
Hall & Hall (1979) FLC 90-713
Khalil & Tahir-Ahmadi [2012] FamCAFC 68
Maluka & Maluka [2012] FamCAFC 373
Britt & Britt [2017] FamAFC 27
Kennon v Kennon (1997) FLC 92-757
IMM v The Queen (2016) 330 ALR 382
Sigley v Evor (2011) Fam LR 239
Mazorski v Albright [2007] FamCA 520
McCall v Clark (2009) FLC 93-405
M v S (2007) FLC 93-313
Godfrey v Sanders (2007) FamCA 102
Chamness v Hanson (2009) FLC 93-407
R & R: Children’s Wishes (2000) FLC 93-000
Russell & Close [1993] FCA (Unreported, Fogarty, Baker and Lindenmayer JJ, 25 June 1993)
In the marriage of A (1998) 22 Fam LR 756
Murphy & Murphy [2007] FamCA 795
Chappell & Chappell [2008] Fam CAFC 143
Newlands & Newlands (2007) 37 Fam LR 103
Sieling & Sieling (1979) FLC 90-627

Applicant: MR GAGLIO
Respondent: MS WALBURNS
File Number: SYC 7474 of 2018
Judgment of: Judge Kemp
Hearing dates:

29 & 30 April and 1 & 18 May, 10 June & 3

July 2020

Date of Last Submission: 3 July 2020
Delivered at: Sydney
Delivered on: 7 October 2020

REPRESENTATION

Counsel for the Applicant: Mr Maurice
Solicitors for the Applicant: Fox & Staniland
Counsel for the Respondent: Mr Kelly
Solicitors for the Respondent: Coppertree Family Law
Counsel for the Independent Children's Lawyer: Mr Murray
Solicitors for the Independent Children's Lawyer: Coast Law

THE COURT ORDERS THAT

  1. By consent, all previous orders made in relation to X born in 2013 (“the child”), pursuant to the Family Law Act 1975 (Cth) (“the Act”), be vacated and discharged.

  2. By consent, the mother have sole parental responsibility for the child.

  3. By consent, the mother inform the father in writing of any major decision that she makes in relation to the child’s medical treatment, education and religion.

  4. By consent, the child live with the mother.

  5. The father spend supervised time with the child as follows:-

    (a)For twelve (12) months from the date of these orders, for three (3) hours every two (2) months;

    (b)Commencing twelve (12) months from the date of these orders, for three (3) hours every three (3)…

Continue reading GAGLIO & WALBURNS

Sign in free to access the full text

Details
AGLC
GAGLIO & WALBURNS [2020] FCCA 2739
Case
[2020] FCCA 2739
Decision Date

CaseChat Overview and Summary

In the matter of *Gaglio & Walburns*, heard by Judge Kemp, the dispute concerned parenting arrangements for a child born in 2013. The orders indicate allegations of sexual abuse were a significant factor in the proceedings, leading to a focus on ensuring the child's safety and managing the risk posed by the father.

The court was required to determine the appropriate parenting orders, including the allocation of parental responsibility, the child's living arrangements, and the nature and extent of the father's contact with the child. A key issue was the establishment of a framework for supervised time and communication between the father and the child, designed to mitigate any unacceptable risk. The court also considered the discharge of previous orders and the appointment of an Independent Children's Lawyer.

The orders were made by consent of the parties. The mother was granted sole parental responsibility and the child was to live with her. The father was permitted supervised time with the child, with the frequency and duration of this time increasing after twelve months. This supervised time was to be facilitated by an external organisation, with the father bearing the costs. The father was also permitted limited written communication with the child on specific occasions, subject to strict conditions designed to ensure the content was age-appropriate and did not refer to the parents' arrangements or family members. The mother retained the right to review this communication. The father was restrained from any contact beyond that expressly permitted by the orders.

By consent, the mother and father were to provide each other with contact details and inform of any changes. Both parents were granted liberty to obtain information from the child's school. The Independent Children's Lawyer was discharged, and the matter was removed from the active pending cases list.

Orders

Orders of the court

1.

By consent, all previous orders made in relation to X born in 2013 (“the child”), pursuant to the Family Law Act 1975 (Cth) (“the Act”), be vacated and discharged.

2.

By consent, the mother have sole parental responsibility for the child.

3.

By consent, the mother inform the father in writing of any major decision that she makes in relation to the child’s medical treatment, education and religion.

4.

By consent, the child live with the mother.

5.

The father spend supervised time with the child as follows:-

(a) For twelve (12) months from the date of these orders, for three (3) hours every two (2) months;

(b) Commencing twelve (12) months from the date of these orders, for three (3) hours every three (3) months;

(c) The father’s time be supervised by the staff of the organisation known as either B Families or C Families or such other Contact Service (“the supervisor”) as agreed between the parties in writing;

(d) The day, date and time for such contact to occur, is to be determined by the mother, in consultation with the supervisor;

(e) The father be solely responsible for the costs of the supervisor;

(f) The mother and the father forthwith contact and complete any intake assessment or procedures required by the supervisor;

(g) The parties shall comply with all reasonable requests and directions of the supervisor; and

(h) The father’s sister(s) and the father’s mother are permitted to attend the father’s supervised time.

6.

By consent, the father be at liberty to communicate with the child in writing on the child’s birthday, Easter and Christmas.

7.

Such communication, referred to in order 6, may be by a letter or a card and/or a gift on each occasion subject to the following conditions:

(a) the father shall ensure at all times:

(i) that the contents of his communications with the child and gift for the child are age-appropriate;

(ii) that he not refer in such communications to the mother or any member of the mother's family; and

(iii) that he not make any comment which refers to the previous or existing living arrangements for the child or propose changes to those arrangements.

8.

The father is restrained from contacting the child other than as provided for by orders 5, 6 and 7, above.

9.

Up until the child turns 13 years of age, the mother shall be entitled to read any written communication and examine any gift herself or by arrangement with any adult nominated by her have that person review correspondence and gifts and, in the event that she considers the communication does not comply with these orders, shall return the material to the father.

10.

The mother provide to the father, within 14 days of today’s date, a copy the child’s National Disability Insurance Scheme (“NDIS”) plan.

11.

By consent, the mother and the father provide each other with their address, telephone number and email address and inform the other in writing of any change thereto.

12.

Both parties be at liberty to obtain any information they may require from the child’s school such as school reports, school photographs and newsletters and these orders are sufficient authority for such purpose.

13.

The appointment of the Independent Children’s Lawyer is discharged.

14.

The matter is, otherwise, removed from the active pending cases list.

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.