FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)Gibbs & Gibbs [2021] FedCFamC2F 41
File number(s): DUC 555 of 2020 Judgment of: JUDGE OBRADOVIC Date of judgment: 16 September 2021 Catchwords: FAMILY LAW – Interim parenting – assessment of risks – allegations family violence – best interest of the children. Legislation: Family Law Act 1975 (Cth) s 69ZL Cases cited: Goode v Goode [2006] FamCA 1346
Keats & Keats [2016] FamCAFC 156Division: Division 2 Family Law Number of paragraphs: 28 Date of hearing: 7 September 2021 Place: Parramatta (via video link) Appearing for the Applicant: Ms Drewe Solicitor for the Applicant: Campbell Paton & Taylor Counsel for the Respondent: Ms Otrebski Solicitor for the Respondent: Osborne Legal ORDERS
DUC 555 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS GIBBS
AND:
MR GIBBS
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
16 SEPTEMBER 2021
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
(1)All previous parenting orders be discharged.
(2)The parties shall have joint parental responsibility for the children X born in 2008 and Y born in 2012 (“the children”) and for the purposes of giving effect to this Order:
(a)That should the parties not reach agreement prior to the undertaking of any non-urgent medical, dental, psychology or specialist treatment for the children, the Mother shall make a decision but must genuinely consult with the Father in a timely way prior to making any significant long-term decisions and consider any alternate views expressed by the Father; and
(b)That the Mother shall arrange all medical, dental, psychology and specialist appointments for the children and inform the Father of the relevant details and, in the event the Father does not attend the appointment, inform the Father of the outcome of that appointment.
(3)The children shall live with the Mother.
(4)The children shall spend time with the Father:
(a)During school terms, from the conclusion of school (or 3:00pm if a non-school day) on Friday until the commencement of school (or 9:00am if a non-school day) on Monday in alternate weeks with such time to recommence in the first week of each school term;
(b)During each mid-term school holiday period, from the conclusion of school on the last day of school term until 3:00pm on the middle Saturday of the school holiday period;
(c)For 3 weeks during the 2021/2022 summer holidays as follows:
(i)from 4:00pm on 26 December 2021 to 4:00pm 2 January 2022;
(ii)from 4:00pm on 9 January 2022 to 4:00pm on 16 January 2022;
(iii)from 4:00pm on 23 January 2022 to 4:00pm on 30 January 2022.
(5)The children shall spend time with each of the parties for special occasions as follows:
(a)On the parents’ birthdays, in the event the parent is not otherwise spending overnight time with the children, from the conclusion of school (or 3:00pm if a non-school day) to 7:00pm;
(b)On the children’s birthdays, the parent not otherwise spending overnight time with the children shall spend time with the children from the conclusion of school (or…
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CaseChat Overview and Summary
The court assessed the evidence and submissions from both parties, considering factors such as the allegations of family violence, the children's needs, and the capacity of each parent to provide for those needs. The court concluded that the best interest of the children would be served by awarding joint parental responsibility to both parents, with the children residing primarily with the mother. The court outlined specific arrangements for time-sharing and decision-making to ensure that both parents could participate meaningfully in the children's lives while mitigating risks.
Judge Obradovic ordered that the parties share joint parental responsibility, with the children residing primarily with the mother. The court detailed specific arrangements for time-sharing, including regular contact with the father during school terms and school holidays, and special occasions such as birthdays and public holidays. The court also imposed restraints on the father to protect the children from exposure to family violence and other harmful influences. The decision emphasised the importance of communication and cooperation between the parents for the children's benefit.
The final orders included provisions for joint decision-making, specific time-sharing schedules, and restrictions on the father's conduct to protect the children. The court also mandated regular communication between the parents and outlined procedures for changeovers and contact arrangements. These orders were designed to provide stability and safety for the children while allowing both parents to remain involved in their lives.
Orders
Orders of the court
DUC 555 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS GIBBS
AND:
MR GIBBS
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
16 SEPTEMBER 2021
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
(1) All previous parenting orders be discharged.
(2) The parties shall have joint parental responsibility for the children X born in 2008 and Y born in 2012 (“the children”) and for the purposes of giving effect to this Order:
(a) That should the parties not reach agreement prior to the undertaking of any non-urgent medical, dental, psychology or specialist treatment for the children, the Mother shall make a decision but must genuinely consult with the Father in a timely way prior to making any significant long-term decisions and consider any alternate views expressed by the Father; and
(b) That the Mother shall arrange all medical, dental, psychology and specialist appointments for the children and inform the Father of the relevant details and, in the event the Father does not attend the appointment, inform the Father of the outcome of that appointment.
(3) The children shall live with the Mother.
(4) The children shall spend time with the Father:
(a) During school terms, from the conclusion of school (or 3:00pm if a non-school day) on Friday until the commencement of school (or 9:00am if a non-school day) on Monday in alternate weeks with such time to recommence in the first week of each school term;
(b) During each mid-term school holiday period, from the conclusion of school on the last day of school term until 3:00pm on the middle Saturday of the school holiday period;
(c) For 3 weeks during the 2021/2022 summer holidays as follows:
(i) from 4:00pm on 26 December 2021 to 4:00pm 2 January 2022;
(ii) from 4:00pm on 9 January 2022 to 4:00pm on 16 January 2022;
(iii) from 4:00pm on 23 January 2022 to 4:00pm on 30 January 2022.
(5) The children shall spend time with each of the parties for special occasions as follows:
(a) On the parents’ birthdays, in the event the parent is not otherwise spending overnight time with the children, from the conclusion of school (or 3:00pm if a non-school day) to 7:00pm;
(b) On the children’s birthdays, the parent not otherwise spending overnight time with the children shall spend time with the children from the conclusion of school (or 3:00pm if a non-school day) to 7:00pm;
(c) The children shall spend time with the Father for Father’s Day weekend from 5:00pm on the Saturday preceding Father’s Day until 5:00pm on Father’s Day;
(d) The children shall spend time with the Mother for Mother’s Day weekend from 10:00am on Mother’s Day until the commencement of school (or 9:00am) the Monday following Mother’s Day;
(e) The children shall spend Christmas with the parties as follows:
(i) In odd numbered years, 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;
(ii) In even numbered years, 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;
(f) The children shall spend Easter with the parties as follows:
(i) With the Father, from 9:00am on Good Friday until 9:00am on Easter Sunday and with the Mother, from 9:00am on Easter Sunday until 9:00am on the Tuesday following Easter.
(6) Changeover shall occur at the children’s school on school days and at the home of the parent out of whose care the children are going at all other times.
(7) The Father shall use his best endeavours to follow Y’s usual bedtime routine, as may be advised by the Mother from time to time, during his time with the children.
(8) The parties shall jointly follow any recommendations of Y’s paediatrician.
(9) The Father is restrained from:
(a) Denigrating the Mother, a member of the Mother’s household or family in the presence of the children and, further, shall immediately remove the children from the presence of any other person doing so;
(b) Discussing these proceedings or any issue in dispute between the parties with the children and, further, shall immediately remove the children from the presence of any other person doing so;
(c) Exposing the children to family violence;
(d) Allowing the children to come into contact with any drug paraphernalia or persons affected by illicit substances.
(10) The parties shall each inform the other as soon as practicable in the event of the children, or either of them, requiring any emergency medical attention or treatment.
(11) These Orders are sufficient authority for the parties to each obtain information and documents of the kind usually received by parents from the children’s school and treating medical professionals, at the requesting parent’s cost.
(12) The Father shall have telephone contact with the children on Tuesday and Thursday when not otherwise spending time with the children between 5:30pm and 6:00pm and for the purpose of giving effect to this Order:
(a) The Father shall contact the Mother’s telephone; and
(b) In the event the Mother misses a call from the Father, she shall arrange a makeup call at the earliest available opportunity.
(13) The Mother shall have telephone contact with the children on Saturday, Tuesday and Thursday when not otherwise spending time with the children between 5:30pm and 6:00pm and for the purposes of giving effect to this Order:
(a) The Mother shall contact the Father’s telephone; and
(b) In the event the Father misses a call from the Mother, he shall arrange a makeup call at the earliest available opportunity.
(14) Other than in the event of an emergency, the parties shall communicate by text message in a civil manner and only about matters relevant to the children’s care.
(15) The parties shall keep each other informed of their current contact details.
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
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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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