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Family Law Court Dismisses Mother's Appeal to Reverse Father Having Sole Parental Responsibility and for the Mother to Spend No Time with Children. Gabbey & Cadriel [2024] FedCFamC1A.

 

The case of Gabbey & Gadriel was an appeal to Division 1 of the Federal Circuit and Family Court of Australia, heard before Justices Austin, Jarrett, and Riethmuller.

 

The case followed a trial in 2023, where the trial Judge made an order for the father to have sole parental responsibility for the parties' two children, and the mother was to have no contact save for sending cards, letters, and gifts on special occasions. This was despite the father having had no contact with the eldest child for two years and no contact with the youngest child. This is amongst the most severe outcomes a court can make in a family law parenting trial.

 

The mother sought orders for sole parental responsibility for the children and for the father to have no contact and no information about the care, welfare, and development of the children.


The father initially sought orders for the children to live with him for 6 months without spending time with the mother and, after that, care to be one week in each fortnight with each parent. Later, the father changed the orders and sought sole parental responsibility to the father and the children spend no time with the mother, as the mother would not promote a relationship between the father and the children, and the mother would tell the children their father was a rapist and had sexually abused a child and that the children were conceived due to rape.

 

The appointed Independent Children's Lawyer sought orders for the children to live with the mother and for the father to spend gradually increasing time with the father. However, the Independent Children's Lawyer acknowledged that the mother was unlikely to abide by any orders allowing the children to have a relationship with the father.


At the heart of the decision of the trial Judge in excluding the mother from the children's care was the mother indicated to the court that:

  1. She would not allow the children to have a meaningful relationship with the father nor abide by any court orders requiring her to do so.

  2. She would tell the children her allegations that the father had sexually assaulted the eldest child and that the father had sexually assaulted or raped the mother, which brought about the pregnancy of the children.

  3. If the mother were forced to have contact with the father, it would affect her psychological welfare so much that she would be unable to care for the children. As the primary carer of the children, this would be detrimental to the children.

 

When the trial Judge heard the mother's allegations of the father sexually assaulting a child, rape and sexual violence to the mother, the court found the mother's allegations on the balance of probabilities were unreliable. The trial Judge preferred the evidence of the father on contentious issues. Allegations made by the mother about rape and collateral time-based event evidence indicated unreliability in the mother's allegations. This made subsequent allegations of rape unsustainable in the view of the trial Judge.

 

As a result, the trial Judge concluded that the children would not be at an unacceptable risk of harm in the father's care. The trial Judge also determined that the mother's belief about the father's potential risk of harming the children was genuinely held, but based on the Judge's findings in the case, the mother's beliefs were not reasonable.

 

In turning to evidence in a family report, the Family Report writer indicated:


That the potential for the [mother's] resistance to the [father's] time with the children and her malevolent attitude towards him risked impairing the children’s proper development by the false narrative that he was a rapist, that they were conceived as a result of sexual assault and that he was grooming them to be the willing victims of child sexual abuse…

 

Further evidence in the family report indicated that if the children have no positive knowledge, awareness or engagement with the father, his culture and extended family, they are likely to be the subject of serious psychological risk and possibly to an unacceptable level.

 

While there were five grounds of appeal in total, the mother abandoned one ground of appeal. The court found that there was no basis to overturn the primary Judge's decision as to parenting arrangements.

 

One ground of appeal was whether the trial Judge's orders were disproportionate to orders required to mitigate the finding that the mother posed an unacceptable risk of emotional harm and/or psychological harm to the children. It was proposed that the mother could have supervised contact with the children and thereby maintain some relationship with them. This was a matter of some consideration by the trial Judge. The trial Judge clearly held the view that the case was such that it would not be in the best interests of the children for supervised contact to occur, with the trial Judge stating, "The mother in this case has presented psychiatric and psychological evidence which closes that door." and " It’s not even a matter for me to say, “Well, look, let’s give it a try”. I can’t do that in this case, because I have evidence that the mother wants me to rely upon which says to do so would be adverse to her mental health. I don’t know what more I can do about that."

 

As a result, the mother's appeal was dismissed regarding the trial Judge's determination of parental responsibility and living arrangements.

 

A final ground of appeal was granted with respect to an injunction whereby the trial Judge gave no reasons for injunctive restraints which restrained the mother from:


(b) Attending at or being within 100 metres of any school, preschool, out of school hours care and/or school or extracurricular activity attended by the children;

(c) Communicating with any school, preschool or out of school hours care attended by the children; and

(d) Communicating with the children’s medical and allied health professionals.

 

The appeal court found that the necessity for these orders was unexplained by the trial Judge and a failure to give any reasons in an error of law. As a result, orders 9(b)-(d) were set aside.

 

Cost certificates were granted to both parties and the Independent Children's Lawyer as the appeal succeeded on a question of law; otherwise, no orders for costs were sought.

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