FEDERAL CIRCUIT COURT OF AUSTRALIA
| GANTRY & CHISWICK | [2020] FCCA 362 |
| Catchwords: FAMILY LAW – Parenting – application for change of residence – embroilment of the children in the parental dispute – Father’s inappropriate involvement of the children in adult issues – questions as to the Mother’s mental health – Mother’s refusal to obtain a psychiatric assessment – non-compliance with orders – ruptured relationship between eldest children and the Mother – best interests of the children. |
| Legislation: Family Law Act 1975 (Cth), Pt.VII, ss.60B, 60CA, 60CC(2), 61DA, 65D, 65DA, 121 |
| Cases cited: Beckham & Desprez [2015] FamCAFC 247 Grella & Jamieson [2017] FamCAFC 21 |
| Applicant: | MR GANTRY |
| Respondent: | MS CHISWICK |
| File Number: | MLC 13489 of 2018 |
| Judgment of: | Judge Carter |
| Hearing dates: | 7, 8, 9 & 10 October 2019, 26 November 2019 and 13 December 2019 |
| Date of Last Submission: | 13 December 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 21 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Trim |
| Solicitors for the Applicant: | Taylor Splatt and Partners |
| Counsel for the Respondent on 7, 8, 9 & 10 October 2019: | Ms Fisken |
| Solicitors for the Respondent: | Farrar Gesini Dunn |
| Solicitor Advocate for the Respondent on 26 November 2019: | Mr Buckley |
| The Respondent appeared in person on 13 December 2019. |
ORDERS
All previous parenting orders in relation to the children X born 2005, Y born 2006 and Z born 2009 (“collectively, “the children”) be and are hereby discharged.
The parties have equal shared parental responsibility for the children.
The children live with the Father.
The children spend time with the Mother as follows:-
(a)each alternate weekend from the conclusion of school (or 3.30pm) Thursday until the commencement of school (or 9.00am) on the following Monday, (or Tuesday if Monday is a non-school day);
(b)from the conclusion of school (or 3.30pm) each Thursday until the commencement of school (or 9.00am) on Friday; and
(c)at such further or other times as may be agreed between the parties from time to time.
Changeover occur as follows:-
(a)at school on the days that the children are attending school;
(b)on a non-school day, the Father to deliver the children to the Mother’s residence at the commencement of the Mother’s time and the Mother to deliver the children to the Father’s residence at the conclusion of her time; and
(c)otherwise as may be agreed between the parties from time to time.
Each parent shall allow the children to communicate with the other parent when they are in their respective care at reasonable times and each will facilitate same.
Notwithstanding any other order, the children spend time with each of the parents as follows:-
(a)for half of each of the school holidays as agreed, and failing agreement, as follows:-
(i)for the school term holidays with the Father for the first half and the Mother for the second half in even numbered years;
(ii)for the school term holidays with the Mother for the first half and the Father for the second half in odd numbered…
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- GANTRY & CHISWICK [2020] FCCA 362
- Case
- [2020] FCCA 362
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were to determine the best interests of the children in light of the parental dispute and the mother's mental health concerns, and to make appropriate parenting orders regarding residence, time spent with each parent, and parental responsibility. The court was required to assess the impact of the parental conflict and the mother's conduct on the children's welfare.
Judge Carter reasoned that the mother's mental health concerns, as evidenced by a GP referral detailing significant distress and confusion regarding past events, and her subsequent statements about these events, raised serious questions about her capacity to provide a stable and safe environment for the children. The mother's refusal to obtain a psychiatric assessment and her inconsistent explanations regarding her past experiences further contributed to the court's concerns. The court considered the principle that the best interests of the children are paramount and that parental conflict and a parent's mental health can significantly impact a child's well-being. The court also noted the mother's admission that she now knew that certain events she had recalled had not occurred, but her continued focus on the perceived actions of a man who looked like her ex-partner indicated ongoing distress and potential impact on her judgment.
The court ordered that all previous parenting orders be discharged. It was ordered that the parties have equal shared parental responsibility, and the children live with the Father. The Mother was granted specific time with the children, including alternate weekends and Thursday evenings, with detailed provisions for school holidays, Christmas, and birthdays. The court also issued injunctions restraining both parents from denigrating the other in the presence of the children and from discussing the proceedings with them. Further orders mandated communication between parents regarding the children's welfare and education, and required the Father to enrol in a Parenting Orders Program.
Orders
Orders of the court
1.
All previous parenting orders in relation to the children X born 2005, Y born 2006 and Z born 2009 (“collectively, “the children”) be and are hereby discharged.
2.
The parties have equal shared parental responsibility for the children.
3.
The children live with the Father.
4.
The children spend time with the Mother as follows:-
(a) each alternate weekend from the conclusion of school (or 3.30pm) Thursday until the commencement of school (or 9.00am) on the following Monday, (or Tuesday if Monday is a non-school day);
(b) from the conclusion of school (or 3.30pm) each Thursday until the commencement of school (or 9.00am) on Friday; and
(c) at such further or other times as may be agreed between the parties from time to time.
5.
Changeover occur as follows:-
(a) at school on the days that the children are attending school;
(b) on a non-school day, the Father to deliver the children to the Mother’s residence at the commencement of the Mother’s time and the Mother to deliver the children to the Father’s residence at the conclusion of her time; and
(c) otherwise as may be agreed between the parties from time to time.
6.
Each parent shall allow the children to communicate with the other parent when they are in their respective care at reasonable times and each will facilitate same.
7.
Notwithstanding any other order, the children spend time with each of the parents as follows:-
(a) for half of each of the school holidays as agreed, and failing agreement, as follows:-
(i) for the school term holidays with the Father for the first half and the Mother for the second half in even numbered years;
(ii) for the school term holidays with the Mother for the first half and the Father for the second half in odd numbered years; and
(iii) for the long summer school holidays:-
A. with the Father for the first half and the Mother for the second half in even numbered years; and
B. with the Mother for the first half and the Father for the second half in odd numbered years;
with changeovers to occur at 6pm on the middle day of each of the school term and long summer holidays;
(b) at Christmas:-
(i) with the Mother from 4.00pm on Christmas Eve until 4.00pm on Christmas Day and with the Father from 4.00pm on Christmas Day until 4.00pm on Boxing Day in 2020 and each even numbered year thereafter; and
(ii) with the Father from 4.00pm on Christmas Eve until 4.00pm on Christmas Day and with the Mother from 4.00pm on Christmas Day until 4.00pm on Boxing Day in 2021 and each odd numbered year thereafter;
(c) unless otherwise agreed in writing, the children spend time with each of the parties for the children’s and the parties’ birthdays as follows:-
(i) with the non-resident parent from 3.30pm until 6.00pm if a school day, AND THE COURT NOTES THAT the children will have dinner with the parent in whose care they are otherwise residing; and
(ii) with the non-resident parent from 10.00am until 2.00pm if a non-school day;
(d) in the event that the children are with the Father on Mother’s Day, the children spend time with the Mother from 10.00am to 5.00pm on Mother’s Day;
(e) in the event that the children are with the Mother on Father’s Day, the children spend time with the Father from 10.00am to 5.00pm on Father’s Day; and
(f) at such further or other times as may be agreed between the parties from time to time.
8.
The Father forthwith enrol in a Parenting Orders Program with B Service or a similar provider for no less than six weeks, and provide a certificate of completion of same to the Mother upon completion.
9.
Each of the parties and their servants and/or agents be and are hereby restrained by injunction from:-
(a) abusing, insulting, belittling, rebuking or otherwise denigrating the other party; and
(b) discussing these proceedings or the contents therein;
to or in the presence or hearing of the children or any of them and from permitting any other person so to do.
10.
Each of the parties:-
(a) advise and keep the other advised at all times of the current residential address and telephone number of the children and advise the other of any change thereto within 48 hours of such change;
(b) forthwith advise the other in the event that the children or any of them suffers any serious illness or injury;
(c) authorise any medical practitioner upon which the children or any of them may attend from time to time, to communicate with the other in respect to the children’s medical conditions and/or requirements;
(d) authorise any schools at which the children or any of them may attend, from time to time, to:-
(i) provide the other, at the expense of the other, copies of all school reports, school notices and school photograph order forms in relation to the children; and
(ii) communicate with the other, either by telephone, in writing or by personal attendance, in respect to the children’s progress at their respective schools; and
(iii) be at liberty to attend all school functions and extra-curricular activities to which parents are normally invited;
subject to any policy in relation thereto.
11.
All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.
12.
Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The referral from the GP to Dr G is dated 9 September 2017 and was tendered in these proceedings by Counsel for the Father. In that referral, under the heading “Presenting Problem” the following appears:-Patient presenting with deterioration of metal health‘I am remembering pretty disgusting things that have happened to me in the past that I didn’t remember and didn’t know of’Says was drugged and abused and feels was groomed to be abused – believes was rapped whilst was drugged…States was manipulated and feels was with someone was involved with and believed she loved;Talks about event when was in hotel and someone came in and installed technology in the bedroom = believes was recorded without her consent‘I am not the same anymore’‘My memory is not the same’‘Everyone around me seems to know a lot of information about me that I don’t know how they have’Says is devastated these things happened – crying every time thinks about it = feels losing functional capacity Depressed mood and anxious;Says not feeling safe – states has a men that looks much like his ex-partner and states this person has been following her and seems to know her routine etc – says followed him one time and states has nt seen his face – believes might be an imposter instead of actual ex-partner; states he’s not threatening = not feel needs protection from him = denies carrying weapons etc;Believes this man is on upper ranks of police force;Denies suicidal thoughts;[sic] When cross-examined about the contents of the referral, the Mother said that in 2017 she was very confused about what might have happened to her in relation to her concern that she had been drugged, abused and raped. As recorded in my earlier judgment, at paragraphs 38 and 39:-38. …She said she had experienced images going through her mind, or flashing across her mind, and she did not know where those images came from. She said she did not know at the time what may or may not have happened to her, that there were several men in the images that crossed her mind, including a man on top of her who she did not know, in a location she did not recognise. She said at the time she did not know if “it” had happened, was confused and had no explanation as to why those images crossed her mind. She said she now knows that nothing happened to her. 39. She also said that by the time she was about to see [Dr G] for the first appointment she had already “completely worked out the entire first paragraph [of the referral] had not occurred”. She said she asked her GP to delete it, and provide a new referral. She said her GP insisted on keeping the referral as it was. She said she also told [Dr G] to ignore that part of the referral, but [Dr G] thought it was a “good idea” to explore why those images had crossed her mind, to which she agreed. When cross-examined about the reference to those concerns she had had about being followed, the Mother said she did not know the identity of the man or men who had been watching her. She said during a lunchbreak at work and while she was at the park, someone appeared in front of her, approximately 15 metres away. She said he was on his telephone, but was looking directly at her, and grinding or gyrating his hips in her direction. She said she took that to be “sexual harassment” and was confused, as she was not sure whether he was a stranger or someone she knew. She said she thought perhaps the person looked familiar, but she was not sure. She said he had not followed her but had approached her. I gained the impression from the focussed manner in which the Mother gave that evidence that this was an incident about which she had given considerable thought. She seemed clear that the man’s actions were deliberate and aimed at her, and she was trying to understand the meaning behind it.