FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gallion & Kaplin [2024] FedCFamC2F 621
File number(s): MLC 3557 of 2022 Judgment of: JUDGE GLASS Date of judgment: 20 May 2024 Catchwords: FAMILY LAW – PARENTING – arrangements for two year old child to spend with her father – allocation of parental responsibility Legislation: Family Law Act 1975 (Cth), ss 4AB, 60B, 60CA, 60CC, 61C, 61CA, 61DA, 65DAC, 70NAD
Family Law Amendment Act 2023 (Cth), sch 1, items 12, 25
Cases cited: Boyle & Zahur & Anor (2017) FLC 93-814
Denham & Newsham (2021) FLC 94-043
Eastley & Eastley (2022) FLC 94-094
French & Fatala [2014] FamCAFC 57
Maclean & Greenwood (2022) FLC 94-117
Muldoon & Carlyle (2012) FLC 93-513
Oberlin & Infeld (2021) FLC 94-017
Vigano & Desmond (2012) FLC 93-509
Division: Division 2 Family Law Number of paragraphs: 90 Date of hearing: 29-30 January 2024 & 9 May 2024 Place: Melbourne Counsel for the Applicant: Self-Represented Litigant Counsel for the Respondent: Mr Moore Solicitor for the Respondent: Wightons Lawyers ORDERS
MLC 3557 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GALLION
Applicant
AND: MS KAPLIN
Respondent
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
20 MAY 2024
THE COURT ORDERS THAT:
Amended pursuant to sub-rule 10.13(h) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
1.All previous parenting Orders in relation to X born in 2021 be discharged.
2.X live with the Mother.
3.X spend time with the Father as agreed and failing agreement as follows:
(a)from the date of these Orders:
(i)each Tuesday from 12.00pm until 5.00pm;
(ii)each Thursday from 8.00am until 12.00pm in the event the Father is able to make appropriate arrangements with his employer or, in the event the Father is unable to make appropriate arrangements for time to occur on a Thursday, then such time shall otherwise occur on a Friday; and
(iii)each alternate weekend from 8:30am Saturday until 12.00pm Sunday;
(b)from 30 September 2024:
(i)each Tuesday from 12.00pm until 5.00pm;
(ii)each Thursday from 8.00am until 12.00pm in the event the Father is able to make appropriate arrangements with his employer or, in the event the Father is unable to make appropriate arrangements for time to occur on a Thursday, then such time shall otherwise occur on a Friday; and
(iii)each alternate weekend from 8:30am Saturday until 5.00pm Sunday;
(c)from 30 March 2025:
(i)each Tuesday from 12.00pm until 8:00am Wednesday; and
(ii)each alternate weekend from 8:30am Saturday until 5.00pm Sunday, extending to 8:00am Monday in the event Monday is a public holiday;
(d)from 30 September 2025:
(i)each Tuesday from 12.00pm until 8:00am Wednesday; and
(ii)each alternate weekend from 8:30am Saturday until 8:00am Monday;
(e)from 1 January 2027:
(i)during school term:
A.each Tuesday from after school (or 12.00pm if a non-school day) until before school (or 8:00am if a non-school day) Wednesday; and
B.each alternate weekend from after school (or 3:00pm if a non-school day) Friday until before school (or 8:00am if a non-school day) Monday;
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- Gallion & Kaplin [2024] FedCFamC2F 621
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- [2024] FedCFamC2F 621
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CaseChat Overview and Summary
The court's reasoning involved a detailed consideration of the evidence presented by both parties, focusing on the child's welfare and the ability of each parent to meet her needs. The judge emphasised the importance of maintaining stability and predictability in X's life, while also allowing for flexibility to accommodate the child's evolving needs as she grows. The court concluded that the proposed arrangements provided a balanced and fair approach, allowing X to maintain a close relationship with both parents while ensuring her primary residence with her mother. The detailed schedule for time spent with Mr Gallion was designed to gradually increase over time, reflecting the child's development and the parents' capacity to manage the arrangements.
The court issued orders that discharged all previous parenting orders, with X to live primarily with her mother. The father was granted specific visitation rights, with the schedule of time spent with him increasing over time. Special occasions such as Christmas, Easter, and birthdays were allocated between the parents in a rotating fashion. The orders also included provisions for communication between the parents and X, the use of a parenting app for coordination, and the sharing of educational and medical information. Restrictions were placed on the parents to prevent them from negatively influencing X's perception of the other parent and to ensure the child's safety and well-being. The father was specifically restrained from leaving X in the care of certain individuals without the mother's consent. All extant applications were dismissed, and the orders were designed to be reviewed periodically to adapt to X's changing needs.
Orders
Orders of the court
MLC 3557 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR GALLION
Applicant
AND:
MS KAPLIN
Respondent
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
20 MAY 2024
THE COURT ORDERS THAT:
Amended pursuant to sub-rule 10.13(h) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
1. All previous parenting Orders in relation to X born in 2021 be discharged.
2. X live with the Mother.
3. X spend time with the Father as agreed and failing agreement as follows:
(a) from the date of these Orders:
(i) each Tuesday from 12.00pm until 5.00pm;
(ii) each Thursday from 8.00am until 12.00pm in the event the Father is able to make appropriate arrangements with his employer or, in the event the Father is unable to make appropriate arrangements for time to occur on a Thursday, then such time shall otherwise occur on a Friday; and
(iii) each alternate weekend from 8:30am Saturday until 12.00pm Sunday;
(b) from 30 September 2024:
(i) each Tuesday from 12.00pm until 5.00pm;
(ii) each Thursday from 8.00am until 12.00pm in the event the Father is able to make appropriate arrangements with his employer or, in the event the Father is unable to make appropriate arrangements for time to occur on a Thursday, then such time shall otherwise occur on a Friday; and
(iii) each alternate weekend from 8:30am Saturday until 5.00pm Sunday;
(c) from 30 March 2025:
(i) each Tuesday from 12.00pm until 8:00am Wednesday; and
(ii) each alternate weekend from 8:30am Saturday until 5.00pm Sunday, extending to 8:00am Monday in the event Monday is a public holiday;
(d) from 30 September 2025:
(i) each Tuesday from 12.00pm until 8:00am Wednesday; and
(ii) each alternate weekend from 8:30am Saturday until 8:00am Monday;
(e) from 1 January 2027:
(i) during school term:
A. each Tuesday from after school (or 12.00pm if a non-school day) until before school (or 8:00am if a non-school day) Wednesday; and
B. each alternate weekend from after school (or 3:00pm if a non-school day) Friday until before school (or 8:00am if a non-school day) Monday;
(ii) during school holidays commencing in 2027 each alternate week from 3:00pm on the Friday when X would otherwise commence her weekend time with her father until 3:00pm the following Friday;
(iii) during school holidays commencing in 2028:
A. for one half of the regular school term holidays at such times as the parents may agree in writing and in default of agreement the first half in odd numbered years and the second half in even numbered years; and
B. for one half of the long summer holidays at such times as the parents may agree in writing and in default of agreement the first half in odd numbered years and the second half in even numbered years.
4. Notwithstanding anything contrary in these Orders, X spend time with each parent on special occasions agreed, and failing agreement, as follows:
(a) for Christmas:
(i) X spend time with the Mother in even years from 12.00pm Christmas Eve until 3.00pm Christmas Day;
(ii) X spend time with the Father in even years from 3.00pm Christmas Day until 12.00pm Boxing Day;
(iii) X spend time with the Father in odd years from 12.00pm Christmas Eve until 3.00pm Christmas Day; and
(iv) X spend time with the Mother in odd years from 3.00pm Christmas Day until 12.00pm Boxing Day;
(b) for Easter:
(i) X spend time with the Father in even years from 4:00pm Good Friday until 3.00pm Easter Saturday;
(ii) X spend time with the Mother in even years from 3:00pm Easter Saturday until 4:00pm Easter Sunday;
(iii) X spend time with the Mother in odd years from 4:00pm Good Friday until 3.00pm Easter Saturday; and
(iv) X spend time with the Father in odd years from 3:00pm Easter Saturday until 4:00pm Easter Sunday;
(c) for X’s birthday:
(i) X spend time with the Mother in even years from 5.00pm the day before X's birthday to 12.00pm on X's birthday;
(ii) X spend time with the Father in even years from 12.00pm on X's birthday until 8.30am the following day;
(iii) X spend time with the Father in odd years from 5.00pm the day before X's birthday to 12.00pm on X 's birthday; and
(iv) X spend time with the Father Mother in odd years from 12.00pm on X's birthday to 8.30am the following day;
(d) on Father's Day X spend time with the Father from 3.00pm the day preceding Father's Day until 3.00pm Father's Day; and
(e) on Mother's Day X spend time with the Mother from 3.00pm the day preceding Mother's Day until 3.00pm Mother's Day.
5. Unless otherwise agreed between the parties in writing, save for changeovers that occur at X’s childcare, kindergarten or school, changeovers take place at Suburb C McDonald’s.
6. X be permitted to telephone or video call either parent if reasonably requested, and the parent with whom she is with will facilitate such call via an agreed video calling application.
7. The parties shall do all such acts to download the "AppClose" parenting app (or such other agreed application) and thereafter the parties shall use such parenting app to communicate in relation to any issues pertaining to X.
8. The parties do all such acts and things and sign all such documents to consent and authorise any childcare, kindergarten or school at which X attends from time to time to provide copies of all reports, notices, information, newsletters, photographs, invitations for parent teacher interviews and other information relating to X’s education to both parents at their own expense.
9. The Father be authorised to access the B Application or any other parent information application used by X’s childcare, kindergarten or school, relating to X’s education.
10. The parties both be permitted to attend all childcare, kindergarten and school activities normally attended by parents, including but not limited to school concerts, school plays, excursions and parent-teacher interviews.
11. The parties do all such acts and things required to list the Father as secondary contact at any childcare, kindergarten or school at which X attends.
12. The parties shall immediately (or as soon as is reasonably practicable) inform the other of any serious injury or illness sustained by X whilst in their care and further provide any particulars of any treatment required or received by X together with the names and addresses of the treatment provider and/or the location at which X is a patient.
13. Each parent be authorised to liaise with and obtain information in relation to X from any medical and/or allied health professional X attends upon and each parent give all necessary consents and authority to enable the other party together with the names and addresses of the treatment provider and/or the location at which the child is a patient.
14. The parties shall each make available to the other any medication prescribed for X to enable the other party to administer such medication to X and the other party shall thereafter administer the medication as prescribed or required and the medication shall pass between the parties so as to ensure that it is in the possession of the party with whom X is living or spending time.
15. Without admitting the necessity for same, the parties, their servants and/or agents be and are hereby restrained from:
(a) denigrating the other parent to or in the presence of or hearing of X or allowing any third person to engage in such a conduct in the presence of or hearing of X;
(b) physically disciplining X;
(c) verbally abusing X; and
(d) discussing the family law proceedings, or intervention order proceedings or child support issues with X in the presence of or hearing of X.
16. The Father be restrained from bringing X into contact with or leaving X in the care of Ms D or Mr E without the Mother's written consent.
17. Each party be at liberty to provide a copy of these Orders to any childcare, kindergarten or school X attends and any of X’s treating medical or health practitioners.
18. All extant applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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