Author: Carol Pages, Pages Family Law.

In the recent case of Gabbey & Cadriel [2024] FedCFamC1A 60 (17 April 2024) the Full Court upheld the decision of a trial judge which reversed the care of two children born in 2016 and 2019 from the mother to the father.

The father brought a court application for parenting orders in 2019. At that time, the children lived with the mother, and the eldest had spent limited or supervised time, and sometimes no time, with the father, the youngest child had spent virtually no time with the father. 

What each side said

The mother made allegations of serious and ongoing sexual assault against the father, and alleged that she saw the father sexually assaulting the parties’ oldest child in 2018. The mother’s view was that the father was an unacceptable risk to the children as she considered there was a real risk that he would sexually abuse them. The mother sought orders that the children live with her, she have sole parental responsibility and that the children spend no time with the father, and have no communication nor relationship with him.

The father initially sought equal shared parental responsibility, and that the children initially live with him for six months, without spending time with the mother. After the six months, he sought orders that the children would spend alternating weeks with each parent. After the trial, he sought orders for sole parental responsibility, that they live with him and spend no time with the mother. He argued that the mother would not promote any relationship with him, she would tell the children he was a rapist and were conceived as a result of rape, and that the only way the children would be able to have a relationship with him was if they had no contact with the mother.

The independent children’s lawyer appointed to the matter initially supported a gradual increase in time with the father, however at the end of the trial acknowledged that the mother’s opposition to the children having any relationship with the father meant that there was no real alternative to the orders sought by the father. 

What the court said

Trial Judge

The trial in this matter lasted 16 days in December 2023, following several adjournments initiated by the mother from March 2022.

The evidence included reports from a psychologist and psychiatrist, a family assessment report, two contact centre (supervised care facility) reports from a Senior Mental Health Social Worker and Family Consultant, Child Protection and the police, along with evidence from the Mother, Father and Independent Children’s Lawyer. The mother refused to attend the Court’s Child Expert with the children prior to the trial.

The mother was self-represented at trial, having had eight prior lawyers who she had claimed were each unprofessional and/or incompetent.

The trial judge rejected the mother’s evidence of sexual assaults.

The judge also found that the mother posed an unacceptable risk of emotional and/or psychological harm to the children.

The mother’s case at trial was that the only alternatives were for the children to be in one or the other parent’s care.  

Full Court

One of the appeal grounds to the Full Court was that the orders of no contact with the mother, other than providing cards, letters and gifts to them on special occasions, was that this order was disproportionate and that other orders, such as supervised time should have been considered. 

This argument was rejected by the Full Court, as this was raised by counsel for both the independent children’s lawyer and the father, and the mother’s own evidence was that no alternative orders (to her having sole care) were available.

The mother’s appeal against restraints on her attending the school and communicating with the children’s medical professionals was upheld, as there was no explanation for the necessity of these orders by the primary judge, and those orders were set aside.

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The content of this article is provided for information purposes only and does not constitute legal advice. We recommend that you seek legal advice relevant to your own circumstances and we would be happy to assist you.

Carol Pages of Pages Family Law is an Accredited Specialist in Family Law.  If you would like advice about your own separation, please contact Pages Family Law at info@pagesfamilylaw.com.au or on 03 9121 8077.