Gambetto & Farrelli (No 2)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Gambetto & Farrelli (No 2) [2023] FedCFamC1F 863

File number(s): SYC 4559 of 2021
Judgment of: ALTOBELLI J
Date of judgment: 13 October 2023
Catchwords: FAMILY LAW – PARENTING – Where the father seeks equal time and the mother seeks alternate weekends and half of school holidays – Where the mother seeks sole parental responsibility and the father seeks equal shared responsibility – Where there are allegations of family violence by both parties, including coercive control and litigation abuse – Finding that both parties were coercively controlling to some degree – Where equal time and equal shared parental responsibility are found to be unworkable – The mother is given sole parental responsibility for education and health only – The child is to spend time with the father each alternate weekend and half of school holidays – Child to be put on the Airport Watchlist – Vexatious proceedings order made.
Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 102QB(2), 102QE
Cases cited:

Carter & Wilson (2023) FLC 94-129; [2023] FedCFamC1A 9

F v M [2021] EWFC 4

Gambetto & Farrelli [2023] FedCFamC1F 465

Helbig & Rowe and Ors [2016] FamCAFC 117

Illgen & Yike [2018] FamCA 17

MRR v GR (2010) 240 CLR 461; [2010] HCA 4

Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398

Pencious & Searle (2017) FLC 93-805; [2017] FamCAFC 210

Potier v Attorney-General (2015) 89 NSWLR 284; [2015] NSWCA 129

Ramzi & Moussa [2022] FedCFamC2F 1473

State Bank of New South Wales Ltd v Stenhouse Ltd & Ors (1997) Aust Torts Reports 81–423
Division: Division 1 First Instance
Number of paragraphs: 154
Date of hearing: 4–6 September 2023
Place: Sydney
Solicitor for the Applicant: Swan Lawyers
Counsel for the Respondent: Mr Gardiner
Solicitor for the Respondent: Worland Family Lawyers
Solicitor for the Independent Children's Lawyer: Holmes Donnelly & Co Solicitors

ORDERS

SYC 4559 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR GAMBETTO

Applicant
AND:

MS FARRELLI

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

13 OCTOBER 2023

THE COURT ORDERS THAT:

Parental responsibility

1.The Respondent mother (“the mother”) have sole parental responsibility for the child, X born 2013 (“the child”), limited to decisions about the child’s education and health.

2.In exercise of her responsibility pursuant to the preceding order, the mother notify the Applicant father (“the father”) within 24 hours of:

(a)Any decision made by her;

(b)Any medical assessment conducted or reports prepared in respect of the child, and the identity of such medical service provider;

(c)Any significant illness or injury suffered by the child requiring medical treatment or medication, and the identity of any medical practitioner providing medical attention to the child; and

(d)Any change to the child’s education or enrolment in any educational institution.

3.The father and the mother will otherwise have equal shared parental responsibility for making decisions about any remaining issues relating to the long-term…

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Details
Case
[2023] FedCFamC1F 863
Decision Date

CaseChat Overview and Summary

In the case of Gambetto & Farrelli (No 2), the Federal Circuit and Family Court of Australia heard a dispute between the parents of X over parenting arrangements and parental responsibility. The father sought equal time and equal shared responsibility, while the mother sought alternate weekends and half of school holidays. The mother also sought sole parental responsibility, while the father sought equal shared responsibility. The court had to decide whether the parties’ conduct during cross-examination affected their credibility, whether there was a risk of harm to X, whether there had been family violence including coercive control, and what consideration should be given to the views of X. The court also had to consider the nature of X’s relationship with each of the parents, how each party had participated in decision-making about, and spending time/communicating with X, each parent’s parental capacity, and their attitudes to X and their responsibilities of parenthood.

The court found that both parties were coercively controlling to some degree, and that equal time and equal shared parental responsibility were unworkable. The court decided that the mother should have sole parental responsibility for education and health only, and that the child should spend time with the father each alternate weekend and half of school holidays. The court also decided that the child should be put on the Airport Watchlist and that a vexatious proceedings order should be made against the father. The court ordered that the father and mother should share equal parental responsibility for making decisions about any remaining issues relating to the long-term care, welfare and development of the child. The court ordered that the mother and father must consult each other and make a genuine effort to come to a joint decision. The court ordered that the child shall live with the mother and spend time with the father during New South Wales gazetted public school terms as follows: each Thursday from 10.00 am to 6.00 pm; and each alternate weekend from 3.00 pm on Friday to 8.00 am on Monday.

The court ordered that the child shall spend time with the father for half of each New South Wales gazetted public school period, being the first half in odd numbered years, commencing Term 4 2023, and the second half in even numbered years, commencing Term 1 2024. The court ordered that the child shall be at liberty to communicate with either parent while he is not in their care. The court ordered that when the child is living with either parent for a period of greater than seven days, that party shall facilitate a telephone call from the child to the other party at least once per week. The court ordered that each parent shall notify the other as soon as reasonably practicable upon becoming aware that the child has been involved in a medical emergency, or any other medical or health issues affecting the child whilst in their care. The court ordered that each parent shall communicate all non-urgent parenting matters via the OurFamilyWizard application only, and all urgent communication should be made immediately via text message or email. The court ordered that each parent shall keep the other informed of their mobile telephone number, email address and residential address and advise the other of any change to the same within 48 hours. The court ordered that each party is authorised and permitted to contact any medical practitioner, health professional, member of the NSW Education Standards (or their delegate), or the child’s school if he attends mainstream school, to ascertain information about the child’s welfare, progress and development as either of them reasonably request, without derogation from such professional’s discretion as to what information is provided. The court ordered that both parents are restrained from denigrating the other parent or any member of that parent’s family or household, in the presence or hearing of the child, and shall forthwith remove the child from the presence of any other person who does so; discussing these proceedings in the presence or hearing of the child, and shall forthwith remove the child from the presence of any other person who does so; and showing the child any document pertaining to these proceedings. The court ordered that the child shall be known as “X” and the parties are restrained by injunction from taking any steps to formally change his name or any part of with the NSW Registrar of Births, Deaths and Marriages, or otherwise engaging in the use of a different name or any part of it. The court ordered that until further order, or else subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975 (“the Act”) each party, MR GAMBETTO born 1983 and MS FARRELLI born 1981, their servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove or causing or permitting the removal of the child, X born 2013, male, from the Commonwealth of Australia until 2029, AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist for the said period, or until the Court orders its removal. The court ordered that as a condition of the parenting arrangements in Orders 1–9, each parent forthwith cause the child, X born 2013, to enrol in and complete the AA Program conducted by BB Services. The court ordered that upon the father providing the mother with no less than 21 days’ notice of the days nominated by him, the child shall spend time with the father during the day on three occasions between the date of these orders and 1 December 2024 for the purpose of taking the child to the orientation days of three high schools of the father’s choosing. The court ordered that pursuant to s 102QB(2) of the Act the father is prohibited from instituting further proceedings under this Act in a court having jurisdiction under this Act, without first obtaining leave pursuant to s 102QE of the Act. The court ordered that each party will pay one half of the Independent Children’s Lawyer’s costs of these proceedings, the total sum being fixed at $29,251.50, or such lower sum as may have been advised by Legal Aid New South Wales in writing.

Orders

Orders of the court

SYC 4559 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR GAMBETTO

Applicant

AND:

MS FARRELLI

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

13 OCTOBER 2023

THE COURT ORDERS THAT:

Parental responsibility

1. The Respondent mother (“the mother”) have sole parental responsibility for the child, X born 2013 (“the child”), limited to decisions about the child’s education and health.

2. In exercise of her responsibility pursuant to the preceding order, the mother notify the Applicant father (“the father”) within 24 hours of:

(a) Any decision made by her;

(b) Any medical assessment conducted or reports prepared in respect of the child, and the identity of such medical service provider;

(c) Any significant illness or injury suffered by the child requiring medical treatment or medication, and the identity of any medical practitioner providing medical attention to the child; and

(d) Any change to the child’s education or enrolment in any educational institution.

3. The father and the mother will otherwise have equal shared parental responsibility for making decisions about any remaining issues relating to the long-term care, welfare and development of the child.

4. In exercise of their responsibility pursuant to the preceding order, the mother and the father must consult each other and make a genuine effort to come to a joint decision.

Living and time arrangements

5. The child shall live with the mother.

6. If the child continues to be homeschooled, the child shall spend time with the father during New South Wales gazetted public school terms as follows:

(a) Each Thursday from 10.00 am to 6.00 pm; and

(b) Each alternate weekend from 3.00 pm on Friday to 8.00 am on Monday.

7. If the child commences mainstream school, the child shall spend time with the father during New South Wales gazetted public school terms as follows:

(a) Each Thursday from after school to the commencement of school on Friday; and

(b) Each alternate weekend from 3.00 pm on Friday to 8.00 am on Monday.

8. The child shall spend time with the father for half of each New South Wales gazetted public school period, being the first half in odd numbered years, commencing Term 4 2023, and the second half in even numbered years, commencing Term 1 2024.

Special occasions

9. Notwithstanding the above orders, the child shall spend additional time with each parent on special occasions as follows:

(a) If Mother’s Day falls on a weekend when the child is not already spending time with the mother, from 10.00 am to 6.00 pm on Mother’s Day;

(b) If Father’s Day falls on a weekend when the child is not already spending time with the father, from 10.00 am to 6.00 pm on Father’s Day;

(c) On each parents’ birthday, if the child is not already in their care, from the conclusion of homeschooling or school to 7.00 pm if it falls on a weekday, or from 10.00 am to 5.00 pm if it falls on a non-homeschooling or school day;

(d) On the child’s birthday, if the child is not already in the father’s care, from the conclusion of homeschooling or school to 7.00 pm if it falls on a weekday, or from 2.00 pm to 7.00 pm if it falls on a non-homeschooling or school day;

(e) The child shall spend the first and second night of Orthodox Easter with the father in 2024, if the child is not already in his care, and each even year thereafter; and

(f) The child shall spend Orthodox Christmas with the father in 2023, if the child is not already in his care and each odd year thereafter.

Changeover

10. If the child continues to be homeschooled, where practical, the mother will deliver the child to the father at a school-type activity organised by the father, and the father will return the child to the mother at a school-type activity organised by the mother.

11. Where such an activity is not reasonably available, the mother will deliver the child to the father’s residence at the start of his time with the child, and the father will return the child to the mother’s residence at the conclusion of his time.

12. If the child commences mainstream school, changeover will occur at the child’s school during the school term and at each parent’s residence as above during school holidays.

Communication, authorities and restraints

13. The child shall be at liberty to communicate with either parent while he is not in their care.

14. When the child is living with either parent for a period of greater than seven days, that party shall facilitate a telephone call from the child to the other party at least once per week.

15. Each parent shall notify the other as soon as reasonably practicable upon becoming aware that the child has been involved in a medical emergency, or any other medical or health issues affecting the child whilst in their care.

16. Each parent shall communicate all non-urgent parenting matters via the OurFamilyWizard application only, and all urgent communication should be made immediately via text message or email.

17. Each parent shall keep the other informed of their mobile telephone number, email address and residential address and advise the other of any change to the same within 48 hours.

18. Each parent will only be at liberty to attend any of the child’s homeschooling, school, sporting or extra-curricular activities during the time in which they are caring for the child.

19. Each party is authorised and permitted to contact any medical practitioner, health professional, member of the NSW Education Standards (or their delegate), or the child’s school if he attends mainstream school, to ascertain information about the child’s welfare, progress and development as either of them reasonably request, without derogation from such professional’s discretion as to what information is provided.

20. Both parents are restrained from:

(a) Denigrating the other parent or any member of that parent’s family or household, in the presence or hearing of the child, and shall forthwith remove the child from the presence of any other person who does so;

(b) Discussing these proceedings in the presence or hearing of the child, and shall forthwith remove the child from the presence of any other person who does so; and

(c) Showing the child any document pertaining to these proceedings.

21. The child shall be known as “X” and the parties are restrained by injunction from taking any steps to formally change his name or any part of with the NSW Registrar of Births, Deaths and Marriages, or otherwise engaging in the use of a different name or any part of it.

22. Until further order, or else subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975 (“the Act”) each party, MR GAMBETTO born 1983 and MS FARRELLI born 1981, their servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove or causing or permitting the removal of the child, X born 2013, male, from the Commonwealth of Australia until 2029, AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist for the said period, or until the Court orders its removal.

Miscellaneous

23. As a condition of the parenting arrangements in Orders 1–9, each parent forthwith cause the child, X born 2013, to enrol in and complete the AA Program conducted by BB Services.

24. Upon the father providing the mother with no less than 21 days’ notice of the days nominated by him, the child shall spend time with the father during the day on three occasions between the date of these orders and 1 December 2024 for the purpose of taking the child to the orientation days of three high schools of the father’s choosing.

Vexatious proceedings order

25. Pursuant to s 102QB(2) of the Act the father is prohibited from instituting further proceedings under this Act in a court having jurisdiction under this Act, without first obtaining leave pursuant to s 102QE of the Act.

Costs

26. Each party will pay one half of the Independent Children’s Lawyer’s costs of these proceedings, the total sum being fixed at $29,251.50, or such lower sum as may have been advised by Legal Aid New South Wales in writing.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The Court believes that the Independent Children’s Lawyer has accurately described the litigation between the parents about X as a “power battle”. Both parents allege that the other has been coercively controlling, mainly, but not limited to the issue of X’s time with the other parent. Whilst the Court has formed the view that, for now, X is a resilient child, the Court has also formed the view that the uncontained, intractable conflict between his parents about him presents a future risk of harm to him. X has been, and currently continues to be, caught in the metaphorical “crossfire” of this intense battle between his parents for control of him. X must travel through a metaphorical “no man’s land” every time he moves from the mother’s household to that of the father, and then back. The Court faces the challenge of, somehow, crafting a set of orders for the benefit of X that will assist him to continue to enjoy a good relationship with both of his parents without being adversely affected by the parental warfare that is happening around him.BACKGROUND The father is 40 years old and describes himself as a finance professional, although he states that he is self-employed and is involved in various endeavours. The mother is 42 years old, is employed as a professional and works from home. The parties met in 2005, commenced cohabitation in 2006 and married in 2010. X was born in Sydney in 2013. The parties moved to Perth in 2015. On 26 January 2016 the parties separated but remained living under one roof, and the mother left the matrimonial home with X in late 2016. The mother relocated to Sydney from Perth in 2018, and the father relocated to Sydney from Perth in 2019. The mother met her new partner, Mr CC in 2021 and they now live together with X. The father commenced proceedings in this Court when he filed an Initiating Application on 21 June 2021. The operative interim orders were made on 28 September 2021 and varied on 20 December 2022, which provide for X to live with the mother and spend time with the father each Thursday from 10.00 am until 6.00 pm, each alternate weekend, on special occasions, and from 3.00 pm on Fridays to 10.00am on Thursdays each alternate week during the school holidays. The orders also include provisions for X to communicate with either parent at his request, for the parents to notify each other in the case of serious illness or injury of X, for the mother to provide the father with copies of documents such as school and medical reports, and for a restraint on the father changing X’s name. The mother and the father are highly intelligent and articulate individuals who deeply love X and enjoy the benefit of his reciprocating love. They are both successful people in their own right. Until separation they appear to have enjoyed a happy family life. Indeed, before separation the father was significantly involved in the care of X in circumstances where the mother continued to work almost full time in her career until X was around two and a half years old. This is not to diminish her important role, but it is a finding that reflects what appears to have been the division of labour that both parents agreed to. Even for a period after the date of separation, what could loosely be described as a shared care arrangement was implemented between them. As the parents progressively individuated from their own relationship, the father’s time with X gradually, but inexorably, reduced to the point where it largely only occurred when the mother allowed. Indeed, the evidence before the Court is marked with examples of the mother summarily and arbitrarily changing arrangements that had been put in place for X to spend time with the father (e.g. Exhibit A14). The father’s increasing frustration with this led to the commencement of the present proceedings and, more significantly, the initiation of a relentless campaign of litigation and complaints against the mother, her lawyer, the Independent Children’s Lawyers appointed for X, and even the single joint expert.

Evidence

Evidence Before The Court

The issues for determination will be as follows:(1)Whether the parties’ conduct during cross-examination affects their credibility;(2)Whether there is a risk of harm to X from which he needs to be protected;(3)Whether there has been family violence, including coercive control; (4)What consideration should be given to the views of X;(5)The nature of X’s relationship with each of the parents;(6)How each party has participated in the decision making about, and spending time/communicating with X;(7)Each parent’s parental capacity and their attitudes to X and their responsibilities of parenthood;(8)The likely effect of any change in X’s circumstances;(9)Which orders will be least likely to lead to further litigation; and(10)Whether the vexatious proceedings order currently in place should be extended.EVIDENCE BEFORE THE COURT In support of his case, the father relied upon the following material:(a)Case outline filed 30 August 2023;(b)Amended Initiating Application filed 18 August 2023;(c)His affidavit filed 18 August 2023;(d)Affidavit of Ms FF filed 18 August 2023;(e)Affidavit of Ms GG filed 25 August 2023; and(f)Various documents tendered during the proceeding and marked as Exhibits A1–A58. In support of her case, the mother relied upon the following material:(a)Case outline filed 1 September 2023;(b)Further Amended Response to an Initiating Application filed 11 August 2023;(c)Her affidavit filed 11 August 2023;(d)Affidavit of Mr CC filed 11 August 2023; and(e)Various documents tendered during the proceedings and marked as Exhibits R1–R10. In support of his case, the Independent Children’s Lawyer relied upon the following material:(a)Case outline filed 1 September 2023; (b)Single Expert Report of Ms Y dated 4 December 2022; and(c)Various documents tendered during the proceedings and marked as Exhibits ICL1–ICL2. Those required for cross-examination included the father, the mother and the single joint expert, Ms Y. The mother did not require the father’s two witnesses, Ms FF and Ms GG, for cross-examination, although their affidavits were read and relied upon. Mr CC was also not required for cross-examination, although his affidavit was also read and relied upon.APPLICABLE LAW The applicable law is found in Part VII of the Act. In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA. The objects and principles of Part VII are set out at s 60B:60B Objects of Part and principles underlying it(1)The objects of this Part are to ensure that the best interests of children are met by:(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and(d)parents should agree about the future parenting of their children; and(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:(a)to maintain a connection with that culture; and(b)to have the support, opportunity and encouragement necessary:(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and(ii)to develop a positive appreciation of that culture.(Emphasis in original)

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.