Gale and Gale - [2012] FMCAfam 450

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GALE & GALE

[2012] FMCAfam 450

FAMILY LAW – Interim parenting – effect of alcoholism on parenting capacity – consideration of equal time where ADVO proceedings currently before Court of summary jurisdiction.

Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61B, 61C, 61DA, 64B, 65AA, 65DAA

Champness & Hansen (2009) FLC 93-407
Marsdent & Winch (No.3) [2007] FamCA 1364
Collu & Rinaldo [2010] FamCAFA 53
Mazorski v Albright (2007) 37 Fam LR 518
Slater & Light [2011] FamCAFC 1
Aldridge & Keaton (2009) FLC 93-421 at [74]
Mulvany & Lane (2009) FLC 93-404 at [84]
Goode & Goode [2006] FamCA 1346
Chapman & Barton v Tickner, Minister for Aboriginal & Torres Strait Islander Affairs (1995) 55 FCR 316
T & N [2001] FMCAfam 222
Starr & Duggan [2009] FamCAFC 115
Taylor & Barker and Sealey & Archer [2008] FamCAFC 142

Applicant:

MS GALE

Respondent:

MR GALE

File Number:

NCC 398 of 2012

Judgment of:

Myers FM

Hearing date:

31 March 2012

Date of Last Submission:

31 March 2012

Delivered at:

Newcastle

Delivered on:

18 May 2012

REPRESENTATION

Counsel for the Applicant:

Mr Weightman

Solicitors for the Applicant:

Mullane & Lindsay Solicitors

Solicitors for the Respondent:

Peter Hamilton & Associates

PENDING FURTHER ORDERS

The children X born (omitted) 2000 and Y born (omitted) 2002 live with the father.
The parties have equal shared parental responsibility for the children.
The children spend time with the mother contingent upon the mother residing in her parents home as follows:
(a)Each alternate weekend from after-school on Thursday until the commencement of school on Monday;
(b)In the week when the mother returns the children to school on a Monday, from after-school on Thursday until 8.00pm on Friday with the mother collecting the children from school on Friday and the father then collecting the children from the mother’s parent’s home at 8.00pm.
(c)For half of all school holiday periods being the first half in the even-numbered years and the second half in odd numbered years.
(d)from 2.00pm on 24 December until 2.00pm on 25 December in each in each even numbered year.
(e)From 2.00pm 25 December until 5.00pm 26 December in each odd numbered year.
(f)Where the children are not already living with the mother, a period of 4 hours of each of the children's birthdays at times to be agreed between the parties.
(g)From the conclusion of school on Friday immediately before Mother's Day each year until the commencement of school on the Monday immediately following Mother's Day each year.
Despite the provisions of order 3 above the children shall spend time with the father as follows:
(a)from 2.00pm on 24 December until 2.00pm on 25 December in each in each odd numbered year.
(b)From 2.00pm 25 December until 5.00pm 26 December in each even numbered year.
(c)Where the children are not living with the father, a period of 4 hours of each of the children's birthdays at times to be agreed between the parties.
(d)From the conclusion of school…

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 Gale and Gale

Details

AGLC: Gale and Gale [2012] FMCAfam 450
Case: [2012] FMCAfam 450
Decision Date: 18 May 2012

CaseChat Overview and Summary

The case of Gale and Gale involved the parents of two children, X and Y, who were born in 2000 and 2002 respectively. The father was the primary caregiver, with the children living with him. The dispute centred around the allocation of parental responsibilities and time-sharing arrangements, along with broader issues such as the parents' mental health, alcohol consumption, and the need for ongoing supervision and support. The Family Court of Australia was tasked with determining these complex issues to ensure the best interests of the children.

The legal issues before the court encompassed the determination of the primary residence of the children, the allocation of parental responsibilities, and specific time-sharing arrangements. The court also had to address the parents' mental health requirements, including ongoing psychological treatment and the necessity for supervised alcohol testing. Additionally, the court considered the need for both parents to attend parenting courses and refrain from disparaging comments about each other in front of the children. The court's decision had to balance the parents' mental health needs with the children's welfare and stability.

The court ruled that the children would primarily reside with the father, while the mother would have specified visitation times contingent on her residing with her parents. These visitation times included alternate weekends, certain school holidays, and specific periods around Christmas and on the children's birthdays. The court mandated ongoing psychological treatment for both parents and required the mother to undergo supervised alcohol testing. Both parents were also instructed to complete a Parenting after Separation course and to refrain from disparaging the other parent or their families in front of the children. Furthermore, the court outlined detailed communication protocols and responsibilities between the parents to ensure the children's well-being.

Pending further orders, the court vacated previous orders and set specific dates for relisting and a future hearing regarding costs. The final orders ensured that the children's primary residence was with the father, with detailed and structured visitation arrangements for the mother, alongside provisions for ongoing mental health support and supervision for both parents.

Orders

Orders of the court

PENDING FURTHER ORDERS

1. The children X born (omitted) 2000 and Y born (omitted) 2002 live with the father.

2. The parties have equal shared parental responsibility for the children.

3. The children spend time with the mother contingent upon the mother residing in her parents home as follows:

(a) Each alternate weekend from after-school on Thursday until the commencement of school on Monday;

(b) In the week when the mother returns the children to school on a Monday, from after-school on Thursday until 8.00pm on Friday with the mother collecting the children from school on Friday and the father then collecting the children from the mother’s parent’s home at 8.00pm.

(c) For half of all school holiday periods being the first half in the even-numbered years and the second half in odd numbered years.

(d) from 2.00pm on 24 December until 2.00pm on 25 December in each in each even numbered year.

(e) From 2.00pm 25 December until 5.00pm 26 December in each odd numbered year.

(f) Where the children are not already living with the mother, a period of 4 hours of each of the children's birthdays at times to be agreed between the parties.

(g) From the conclusion of school on Friday immediately before Mother's Day each year until the commencement of school on the Monday immediately following Mother's Day each year.

4. Despite the provisions of order 3 above the children shall spend time with the father as follows:

(a) from 2.00pm on 24 December until 2.00pm on 25 December in each in each odd numbered year.

(b) From 2.00pm 25 December until 5.00pm 26 December in each even numbered year.

(c) Where the children are not living with the father, a period of 4 hours of each of the children's birthdays at times to be agreed between the parties.

(d) From the conclusion of school on Friday immediately before Father's Day each year until the commencement of school on the Monday immediately following Father's Day each year.

5. For the purposes of facilitating the children’s time with the mother and father pursuant to orders 3 and 4 above the children shall be collected and returned to school in the event that such time falls on a day that is a school day, with the exception of order 3b above. In the event that the time spent is not on a school day then facilitation of this time shall occur by the father delivering and collecting the children from the mother's parents’ residence at Property P.

6. The father must continue to regularly attend on Ms M, or such other a psychologist or counsellor that he chooses from time to time (hereinafter referred to as “FPC”) to obtain assistance and treatment to support him to address issues arising from the breakdown of the relationship and any other issues identified by the FPC which may be affecting the father.

(a) As soon as is practicable the father must provide the FPC a copy of the mothers Initiating Application, Affidavits file on behalf of the mother in these proceedings and a copy of these orders.

7. The father must continue to attend on the FPC on a regular basis as directed by the FPC and follow all recommendations of the FPC.

8. The mother must continue to regularly attend on her treating psychiatrist and counsellor (hereinafter referred to as “MPC”) to obtain assistance and treatment to support her to address issues arising from the breakdown of the relationship and any other issues identified by the MPC which may be affecting the mother.

(a) As soon as is practicable the mother must provide the MPC with a copy of the father's response to initiating application, father’s affidavit filed in these proceedings and a copy of these orders.

9. The mother must continue to attend on the MPC on a regular basis as directed by the MPC and follow all recommendations of the MPC.

10. Within 7 days each party must provide to the other:-

(a) details of the name and contact details of a their respective FPC or MPC;

(b) Any necessary authorities or consent to their respective FPC or MPC to authorise the FPC or MPC to:

(i) advise the legal representative of the other parent in the event that the parent stops acting on the advice of the FPC or MPC;

(ii) advise the legal representative of the other parent if the FPC or MPC forms the belief that the parent is not capable of caring for the children on an unsupervised basis.

(iii) Advise the legal representative of the other parent if the parent stops receiving treatment, and provide details to the other parent as to the reasons that the parent has stopped receiving treatment.

11. In the event that either parent begins consulting a different FPC or MPC that party must immediately:-

(a) Notify the other parent of the name and contact details of the new FPC or MPC; and

(b) do all acts and sign all documents necessary to authorise the new FPC or MPC to communicate with the legal representative of the other parent in all aspects as set out in Order 10 above.

12. Without admission, on a frequency of no more than once per month within 48 hours of the requested in writing by the father's solicitor to do so, the mother must undergo chain of custody supervised carbohydrate deficient transferring testing to test for evidence of excessive consumption of alcohol and provide copies of the results to the father's solicitor as soon as they are available.

13. Both parents do all acts to enrol in a Parenting after Separation course as soon as practicable, and upon completion of the course must provide a copy of the certificate of completion to the other parent’s solicitor.

14. Each parent is restrained from denigrating the other parent or members of the other parent’s families in the presence or hearing of the children, and must use their best endeavours to prevent any other person from denigrating the other parent or members of the other parent’s family in the presence or hearing of the children.

15. Each parent keep the other informed of the current residential address, home telephone number, mobile telephone number and e-mail address and shall provide to the other not less than 24 hours notice of any proposed change of address or telephone number.

16. Each parent will keep the other informed as to all medical, dental or other health-related treatment being undertaken by either of the children and the identity of the treating professional.

17. The parent must telephone the other as soon as practicable upon the happening of any of the following:

(a) Any of the children becoming seriously ill.

(b) Any of the children becoming hospitalised.

18. The parties be granted leave to relist the matter on 7 days notice.

19. The matter is adjourned to 13 June 2012 at 9.30am for a directions hearing and hearing with respect to an argument for costs.

20. The previous orders made are vacated.

IT IS NOTED that publication of this judgment under the pseudonym Gale & Gale is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

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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