GABALIS & AKULA

FEDERAL CIRCUIT COURT OF AUSTRALIA

[2020] FCCA 71

This case involves a parenting order application filed by the mother concerning parties’ child, X.

Facts:

Parties sought parenting orders be made by the Court concerning their child, X, diagnosed with Autism Spectrum Disorder (level 2), and Sensory Processing Disorder. The Court had to decide whether X should spend time with her father.

Ms. Gabalis (Mother and Applicant) commenced the proceeding in 2016. Orders were made, among others, for the parties not to denigrate, belittle and/or insult each other, or persons the other party is in a domestic relationship with or members of the other party’s family in the presence or hearing X or on social media. However, X became resistant to spending time with Mr. Akula (Father and Respondent).  

Ms. Gabalis sought parenting orders from Court for her to have sole parental responsibility, that X (Child) to live with her, and have no contact or communication with Mr. Akula. On the other hand, Mr. Akula sought an order for equal shared parental responsibility, that X to live with her mother, and to spend time with him.  

Issue:

Whether or not equal shared parental responsibility would be in X’s best interest.  

Held:

The legislation makes it clear that the benefit of a meaningful relationship must be weighed against the potential harm to X.[1] According to evidence from Region H Children’s Development Clinic, X’s Autism Spectrum Disorder and Sensory Processing Disorder make her particularly vulnerable to changes in her life and daily routine.[2] Mr. Akula’s proposal is for X to spend time with him on a specific schedule entails changes. Thus, an order for X to spend with her father poses potential harm to her. 

In addition, the Court considers the attitudes of the parties to X and their responsibilities as parents. The Court is critical of Mr. Akula’s failure to engage more with Region H Children’s Developmental Clinic in recent years. His attitude of resistance to authority is disconcerting. His breaches of the orders about social media speak of an attitude suggesting indifference to compliance with court orders. The Court has doubts whether he would comply with orders governing his conduct around X.

The Court determines that it is not in the best interest of X for her parents to have equal shared parental responsibility. Their relationship is a toxic one. They cannot communicate, and they do not trust each other.  

After considering the above premises, the Court made orders for Ms. Gabalis to have sole parental responsibility for X, for X to live with her, and for Mr. Akula be restrained by injunction from posting on any social media platform anything that relates to Ms. Gabalis, X, and the proceedings, among others.

Mr. Akula used social media, particularly Facebook, to vent out his frustrations over the breaking down of his relationship with his daughter. By doing so, he harassed Ms. Gabalis and violated Court orders. As a result, this not only made the Court doubt his capability to respect and follow court orders; he also lost his chance to restore his relationship with his daughter. 

[1] Gabalis & Akula [2020] FCCA 71 (23 January 2020) at (97).

[2] Ibid at (107).