Federal Circuit and Family Court of Australia
(DIVISION 1)
Gillen & Lindo (No 3) [2022] FedCFamC1F 1031
File number: CAC 2594 of 2019 Judgment of: GILL J Date of judgment: 21 December 2022 Catchwords:
FAMILY LAW – PARENTING – Where the mother seeks sole parental responsibility and for no contact from the father – Where the father and Independent Children’s Lawyer have an aligned position of supervised time with the father transitioning to unsupervised time – Where there are no alternatives between the polarities of the orders – Where the father has a history of coercive conduct and physical violence towards his former partners – Where consideration of a meaningful relationship between the father and the child is to be weighed against the child’s protection from unacceptable risk from the father’s vulnerability to anger and resort to violence including choking – Where the father’s risk may be nullified for the period of supervised time but not sufficiently ameliorated when transitioning to unsupervised time – Where the mother has also undermined the child’s relationship with the father – Father to be prohibited from coming into contact with the child and the mother – Mother to have sole parental responsibility.
Legislation: Australia Passports Act 2005 (Cth) s 11
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA
Cases cited: Eastley & Eastley [2022] FedCFamC1A 101
Isles & Nellisen [2022] FedCFamC1A 97
Jollie & Dysart [2014] FamCAFC 149
Marsden & Winch (No 3)[2007] FamCA 1364
Phillips & Hansford (No 2) (2019) 60 Fam LR 160
Division: Division 1 First Instance Number of paragraphs: 225 Date of hearing: 12–15 December 2022 Place: Canberra Counsel for the Applicant: Ms Petrie Solicitor for the Applicant: Parker Coles Curtis Counsel for the Respondent: Mr Watkins Solicitor for the Respondent: GA Lawyers Counsel for the Independent Children’s Lawyer: Dr Leslie Solicitor for the Independent Children’s Lawyer: Legal Aid ORDERS
CAC 2594 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GILLEN
Applicant
AND: MS LINDO
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
GILL J
DATE OF ORDER:
21 December 2022
THE COURT ORDERS THAT:
Parenting
1.All previous parenting orders be discharged.
2.The mother have sole parental responsibility for X born 2018 (“X”).
3.X live with, Ms Lindo (“the mother”).
4.X shall spend no time with and have no communication with Mr Gillen (“the father”).
5.The father is, until X reaches the age of eighteen:
(a)restrained by way of injunction from approaching X, any daycare, pre-school or school which X attends and X’s residence.
(b)restrained by way of injunction from approaching the mother, or any place she may reside, and from contacting her other than through a legal representative.
6.For the purposes of section 11 of the Australia Passports Act 2005 (Cth):
(a)X is permitted to travel internationally;
(b)The father is restrained from making an application for an Australia passport or travel-related document for X; and
(c)X is permitted to have an Australian passport or travel-related…
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- AGLC
- Gillen & Lindo (No 3) [2022] FedCFamC1F 1031
- Case
- [2022] FedCFamC1F 1031
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether there were sufficient grounds to modify the existing parenting orders. This involved an examination of the current arrangements, the history of the parents' relationship, and the best interests of the child. A key consideration was the father's ability to supervise X, given past concerns about his consumption and the presence of Ms B in his home. The court also needed to assess the father's post-separation visitation history and the mother's concerns about the safety and supervision of X.
The court found that while there were concerns about the father's past behaviour, these had been addressed through the imposition of specific conditions, such as hair follicle testing and restrictions on consumption. The father's evidence, supported by dated photographs and a video recording, demonstrated that he had spent time with X shortly after separation, which the court accepted as credible. The mother's allegations of inadequate supervision by the professional supervision service were not substantiated at trial. The court concluded that the father's visitation history, coupled with the absence of any issues during the supervised visits over the past eighteen months, indicated that the existing conditions were sufficient to protect X. The court emphasised the importance of maintaining a positive relationship between X and the father.
The court made orders generally in line with those sought by the mother, including correcting a misspelling on X's birth certificate and allowing the mother to obtain a passport for X. The court declined to award costs, noting that each party should bear their own costs, but directed that costs be considered if either party pursued the matter further. The court did not see the father's behaviour as a prominent ongoing risk but acknowledged the need for the imposed conditions to mitigate concerns. The existing arrangements for supervised visits were maintained, with the father continuing his fortnightly visits with X.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
I doubt, on the description of the father, Ms B and the mother, that this is a prominent ongoing issue of risk, but note that the father agrees to orders that provide or hair follicle testing and restraints in relation to consumption in order to ameliorate concerns in respect of these issues. Post separation The father says that from separation until about a month later he spent time with X for between half an hour to three hours, unsupervised and then from his acquittal of criminal charges in mid-2019, supervised by the mother. The father asserts that this occurred on fourteen occasions up to late 2019. The mother denies this. Although she initially denied ever supervising, eventually she accepted that there was one occasion of time supervised by her on Father’s Day, being an occasion when the father’s family unexpectedly attended and the mother called the police. Countering this evidence, the father produced firstly a text exchange,[34] indicating agreement between the parents for him to spend time with X the day after the Father’s Day when the police were called. The text exchange indicates a settled agreement. The mother initially said that she did not recall such eventuating, and then that she did no turn up. [34] Exhibit F5. The father secondly produced a series of images of X dated four dates in mid-2019.[35] The mother asserted that the image of one date 2019 was one taken by her rather than the father, but otherwise, while she accepted that each was an image of X, she denied that the father had spent time with X on those dates, despite the date stamp on the images. [35] Exhibit F9. Given this response the father sought to reopen his evidence to lead evidence of a video recording of that date in mid-2019, which incorporated the image referred to above, but also recorded the father singing to X, indicating his that he was with X at this point.[36] [36] Exhibit F12. The father’s testimony and the dated images, that appeared to correspond to the assertions as to time made by the father are, sufficient to establish his claims as to time spent shortly post separation. They also undermine the mother’s reliability. It may be accepted that he spent time with X post separation and prior to there being supervised time. The mother says that the next time that X spent with the father was professionally supervised by P Supervision Service, which she thought commenced prior to court orders for supervised time. Those visits took place in City Q on three dates in late 2019. In late 2019, the mother ended this arrangement, accusing the supervision service of failing to properly supervise, and of allowing X to be injured while under supervision. This was not explored at trial. The father and X then did not spend time together until March 2020. Following orders made in February 2020 the father commenced supervised time at E Family Services on 21 March 2020. Although provision was made for weekly time, until mid-2022 the father spent time with X on a fortnightly basis. From about August 2022 X was spending supervised time with the father twice weekly. The mother accepts that X has had a positive time with the father during the supervised sessions. No issue of adverse behaviour on the part of the father in the visits that have spanned eighteen months has been raised.