PELLAR & GABRIELS

[2020] FCCA 3592

FEDERAL CIRCUIT COURT OF AUSTRALIA

PELLAR & GABRIELS [2020] FCCA 3592

Catchwords:
FAMILY LAW – Parenting – application in a case filed by the father – whether there was an agreement between the father and the mother to permit the father to travel interstate with the child – not satisfied an agreement was reached between the father and the mother – application dismissed.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS PELLAR

Respondent: MR GABRIELS

File Number: DNC 214 of 2020

Judgment of: Judge Young

Hearing date: 22 December 2020

Date of Last Submission: 22 December 2020

Delivered at: Darwin

Delivered on: 22 December 2020

REPRESENTATION

Counsel for the Applicant: Mr Story

Solicitors for the Applicant: Story & Associates

Counsel for the Respondent: Ms Farmer

Solicitors for the Respondent: Withnalls Lawyers

ORDERS

1. That the Application in a case filed by the father on 13 December 2020 be dismissed.

2. That the mother’s costs of today be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Pellar & Gabriels is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 214 of 2020

MS PELLAR

Applicant

And

MR GABRIELS

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an urgent application by the father of a child, X, who is four years old, to permit interstate travel over the Christmas holidays.  The relevant interim consent order  is as follows:

   That should there be a genuine family emergency, noting that the mother’s grandmother is ill, the mother may take the child to South Australia for up to a fortnight, with the father to have make-up time on his return.  Otherwise neither party shall remove the child from the greater Darwin area without the written consent of the other party first … –

3. And I think there is a typo:   it says “that obtained”.  It should be “had and obtained”, I suspect.

4. Mr Story, on behalf of the father, who has purchased tickets to travel with the child interstate, told me that there was an agreement reached in writing by SMS or text message.  The father’s affidavit in support of his application does not annex the text messages which Mr Story said constituted the agreement.  The father’s affidavit, at paragraph 9, as far as I can see, contains part of the email exchange.  Nowhere is there an express concluded agreement in those text messages. When I pointed that out to Mr Story he sent me three bundles of text messages by email, which he has tendered, and I will make those exhibit A1.  The first was sent to my associate at 11.25 am, the next at 12.00 pm, and the next at 12.30 pm.

5. I asked Mr Story to take me to where the agreement was set out, and I might say the SMS messages are not in any chronological sequence, as far as I can see.  Possibly they are in reverse chronological sequence, that is, the latest at the front and the earlier at the back, but even that is doubtful because the dates are not clear, generally speaking.  I cannot tell from looking at this material what the precise sequence is.  That is not fatal, in itself, to an assertion that there is an agreement.  However, on Monday, 16 November 2020 there was a series of text messages between the mother and the father.  The mother said at 8.41 am:

   Just letting you, just in case you haven’t kept up with the news, there is a chance I won’t be going to SA if it’s announced a hotspot or if it’s heading that way.  We need to talk about your mum’s holiday because SA is now a hotspot, so I most likely won’t be travelling.

6. The father replied at 10.14 am:

   What would you like to talk about?

7. The mother said:

   Everything in my last three texts.

8. That is a reference to the arrangements for Christmas.  She was prepared to permit, it seems, the father to travel to interstate with the child.  She said in answer to his question:

   Everything in my last three texts … I’m still happy for X to agree –

9. And then what follows is obscured.  I cannot see what is there. 

10. At 8.16 pm, possibly the same day, but it is not apparent from the material I have been given, the conversation begins again.  The mother said:

    What was my last question?  Just answer that.

11. The father replied:

    You’ll hear from my solicitor.

12. The mother said:

    Oh, my Lord, if you can tell me the time, I might just say it’s fine, but answer me.

13. The father replied:

    You’ll hear from my solicitor.

14. The mother said at 8.55 pm in response to that:

    Is he able to spend Christmas Eve with me before you go?

15. Then another text from the mother:

    Just talk to me about it, Mr Gabriels.  Not everything has to be through lawyers.  One day there won’t be lawyers and we’ll have to do it ourselves.

16. I asked Mr Story to point out what the conversation following that was, if any, and he referred me back to page 10 of the bundle of messages.  I do not accept that that is what I have read at the beginning in paragraph 5. In any event, it is confusing.  I have looked at the material.  I am not satisfied there is any evidence that an agreement has been reached in writing as per the orders and accordingly I propose to dismiss the father’s application.  I do not propose to make any other order.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Young.

Associate: 

Date: 21 January 2021