Gibbs & Gibbs

[2021] FedCFamC2F 41

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 156
Division:	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 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gibbs & Gibbs has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE OBRADOVIC:

1. These are short form reasons pursuant to s.69ZL of the Family Law Act 1975 (Cth).

2. The competing applications before the Court are brought by the parents of X born in 2008 and Y born in 2012 (“the children”). The mother proposes that the children live with her and spend each alternate weekend with the father from Friday to Monday and the father proposes that the children live with each of their parents in a week about arrangement.

3. The mother makes some very serious allegations of family violence, which are set out in detail in her affidavit. The father denies the very serious allegations, and puts before the Court detailed evidence of what occurred on each of the occasions the mother speaks to.  Tendered was a short video which depicted the father pushing the mother out of a room while yelling obscenities at her. The mother submitted that the video related to what occurred on 18 September 2020 when the parties separated. The father on the other hand, submitted that the video was undated, and that the Court could not draw any inference as to when it was taken. The father describes, unsurprisingly a different set of events to have occurred on 18 September 2020 as that depicted on the video and as described by the mother in her affidavit.

4. Part of the allegations made by the mother of coercive and controlling behaviour, are based on her assertions that she found hidden video cameras at her home as she was moving out. The father denies the cameras were hidden, and says that both parties knew about them and that they were installed as a security measure.

5. Neither party was cross-examined, and as usual, the interim hearing was conducted on the papers and with oral submissions.

6. The principles in respect of interim hearings are well known, including that the legislative pathway must at all times be followed (Goode v Goode [2006] FamCA 1346). As interim hearings are curtailed by the absence of cross-examination and testing of evidence in general, the Court, as here, is often in a position where it is unable to make findings of fact. Even in such constrained circumstances, the Court is still required to determine the applications before it.

7. In terms of a risk assessment, the Court is to determine that issue by weighing the probabilities of competing claims and the likely impact on the child in the event that a controversial assertion is acted upon or rejected (Keats & Keats [2016] FamCAFC 156).

8. There are limited agreed facts between the parties, they are as follows:

   (a)The father was born in 1985 and is currently 36 years of age.

   (b)The mother was born in 1989 and is currently 31 years of age.

   (c)The parties commenced cohabitation in 2007 and subsequently married in 2008.

   (d)The parties have two children together, X born in 2008 and Y born in 2012.

   (e)The parties separated on 18 September 2020.

   (f)On 4 December 2020, the mother commenced proceeding in this Court (as it then was).

   (g)In or around February 2021 and by agreement, the children commenced spending time with the father on each alternate week from after school Thursday until before school Monday.

   (h)On 9 March 2021, the parties attended a Child Inclusive Child Dispute Conference with a Family Consultant of the Court.

9. The mother outlined to the Court her concerns about the children’s safety while in the father’s care, which were based on her fears that the father abuses illicit substances and that he has mental health issues which pose a risk to the children. The mother says she is concerned about the father’s alcohol intake and that he has in the past drunk to excess and that this is a risk to the children.

10. In respect of the allegation that the father uses illicit substances, promptly upon such an allegation being raised, the father undertook hair follicle testing which provided negative results. In addition, the father denies using illicit substances as alleged by the mother. There is little basis for a submission that the father uses illicit substances or that such use poses a risk to the children.

11. In respect of the father’s mental health, Exhibit 1 included notes of the father presenting at hospital in 2020 with the following information:

    (a)Triage presenting information: Suicidal ideation x years, currently is on a situational crisis, his wife left him recently. Anything to less the pain, patient feels down.

    (b)The father was observed to be down and crying

    (c)The father was assessed by the mental health team and advised that he may go home, to come back the following day for a psychiatric evaluation. He was prescribed medication for the night.

    (d)Part of the source of information was the father’s mother in law: Ms B.

    (e)The father gave information denying having suicidal thoughts or plan, wishing the pain can go away and feeling like things can be better. “Stating his kids to be his protective factor”. The father was also aware of the impact on loved one’s as a result of suicide as a result of a friend of his committing suicide 6 years prior where he had to help clean up after his friend had shot himself.

    (f)The father also indicated that he does not cope well with being by himself and that when the children are spending time with him he feels OK as they keep him busy.

12. It is clear from the evidence that the father had a workplace injury approximately 3 years ago which has resulted in significant and chronic pain which he has had to deal with. It is also clear from the evidence, that the suicide of his close friend years ago has had a significant impact on the father. The father appears to suffer from depression, and he appears to be prescribed medication for his mental health. The medical records forming part of Exhibit 1 show that the father is capable of seeking medical assistance and that he recognises when he needs assistance, and recognises what his protective factors are.

13. The father describes in his affidavit what he understands his health conditions are and how they are managed.

14. There is no evidence that the father’s mental health poses an unacceptable risk of harm to the children. On the evidence, it appears to be well managed, although the Court does have some concerns in this regard which are noted further below.

15. The father admits to drinking alcohol regularly, but denies heavy alcohol use. It is appropriate in the circumstances for there to be an injunction in place preventing the father from drinking to excess for a period of time before and while the children are spending time with him.

16. In respect of the allegations of family violence, as noted earlier, each of the parties has outlined in detail what is said to have occurred on particular occasions. By way of example:

    (a)The mother alleges that in 2015, the father punched a wall in the bathroom after the child Y misbehaved, requiring surgery to his hand as a result.

    (b)The father alleges that in 2015, the mother was not at home and he was at home cooking dinner, while Y was in the bath. The father said he heard a weird noise and came running into the bathroom, but that he slipped and as he threw his arms out he hit the tiles which broke, cutting his hand.

    (c)The medical records in Exhibit 1 read as follows:

    Hit a tiled wall in bathroom with anger and sustained 2 lacerations on the dorsum of the right hand, very deep, has been bleeding a lot before…

    Punched a tiled wall in Bathroom during an argument…

    (d)The father says that he did not tell the medical officer at the hospital that he hit the wall in anger, but rather that it was the mother, who went to the hospital with him who gave such information on his behalf.

17. Without cross-examination, it would be improper for findings to be made about such contentious issues. However, the Court deems that the risk which would be posed to the children if the father does engage in the type of abusive behaviours alleged by the mother would be significant. There is no evidence that since the parties’ separation and while the children have been spending time with the father that the father has behaved in the ways which the mother alleges he had behaved in the past. The allegations of violence, while serious, would not of themselves result in a curtailment of the children’s time with the father. What is more weighty though, is that if the mother’s allegations are true and the father denies them, then his lack of accountability and responsibility would be factors which are contra indicators of appropriate parenting insight and capacity. This is particularly so in light of Exhibit 2.

18. The mother reports that the children were unsettled in late 2020 when they were spending equal time with each of the parents.

19. Since February 2021, the children have been living with the mother and spending time with the father each alternate week from Thursday after school to Monday before school.

20. The mother says that this is disruptive for the children, that it is not in their best interest and that the father continues to undermine her parenting and to involve the children in the parenting dispute between the parties. The mother submits that it would be in the children’s best interest for them to spend time with the father from Friday after school to Monday before school each alternate weekend only, and that such an arrangement would provide stability and certainty for them.

21. The father says that the children are happy when they are with him. The father says that prior to separation he was the children’s primary carer.

22. What is of most concern to the Court, and the factor which tips the balance in favour of the mother’s application as opposed to the father’s application, is the evidence of the Family Consultant as to the children’s wishes, the father’s involvement of the children in adult issues and the difficulties which the children have experienced since the parties’ relationship broke down.

23. The Child Inclusive Conference Memorandum, dated 25 March 2021, noted in respect of X as follows:

    It was apparent that she was very anxious and it was apparent that she was frightened about saying anything that could create difficulties for her. X indicated that she wants to live with her mother but spend more time with her father. She also nodded her head when asked if her parents had told her what to say but did not indicate which parent.

24. The Family Consultant, said of Y as follows:

    Y said he loves both his parents and wishes they did not hate each other. He wants this to stop. He wants to live with his mother and spend more time with his father. He said that Mr C his mother’s partner is kind and Ms D his father’s partner is kind although he does not know her so well.

25. According to the Family Consultant, both children appear to have an attachment to both. Furthermore, the Family Consultant reported that:

    42. Ms Gibbs the applicant would like the current parenting arrangements to remain in place and the children spend three nights per fortnight with Mr Gibbs.  Mr Gibbs wants the children to live with him and spend time with Ms Gibbs.  Mr Gibbs appears to be attempting to align the children to his viewpoint and cannot accept that Ms Gibbs is capable of parenting the children.

    43. Ms Gibbs is concerned about Mr Gibbs’s mental health and alcohol use and does not think that this is as good environment for the children.  Mr Gibbs refutes all the allegations made by Ms Gibbs and it is apparent that he has discussed some of the issues with the children. This needs to cease as it is emotionally damaging for X and Y. Added to this they live in a remote and relatively small community and it is apparent that small town chatter has contributed to some of the allegations and counter allegations.  Both parents need to consider the impact of reacting to small town chatter and the possible transferring of this to the school playground.    Both parents should refrain also from using social media as a tool to gain ascendency in this matter.

    44. An equal time parenting arrangement would be difficult to manage in this matter because of the acrimony between the parents and the ongoing allegations however both parents would benefit from having equal shared parental responsibility.

1. It is not only the matters which the Family Consultant raises which speak to the concern about the children’s involvement in the parental dispute. It is also inferred from Exhibit 1, that the father considers the children themselves to be a “protective factor” for him, which is not an appropriate pressure to be placing on the children. Furthermore, there is an indication in Exhibit 1 that if the father is at risk of self-harm “if he loses access to children especially if drinking increases”. As noted by the Family Consultant:

   When asked if he had discussed this matter with the children Mr Gibbs was at first oblique and then did agreed that the children were aware of how he was feeling and that he had discussed todays (sic) interviews with them. Mr Gibbs did not appear to consider this developmentally inappropriate.

2. It is incumbent upon the Court to make orders which it considers, in the exercise of its discretion, to be in the children’s best interest. In all of the circumstances of this case, and as briefly explained in the reasons herein, the children’s best interests lie in the orders sought by the mother.

3. For those reasons, orders as set out at the forefront of these Reasons for Judgment will be made.

29          I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.

Dated: 16 September 2021