Panelli & Panelli

Case [2022] FedCFamC1F 652

Federal Circuit and Family Court of Australia

(DIVISION 1)

Panelli & Panelli [2022] FedCFamC1F 652

File number(s): SYC 4668 of 2018
Judgment of: HARPER J
Date of judgment: 1 September 2022
Catchwords:

FAMILY LAW – PARENTING – Final parenting orders – Where mother has not spent time with children for 4.5 years – Each parent seeks orders for children to live with them – Agreement that parent with whom children live with should have sole parental responsibility – Where all children exhibit dysregulated and disturbing behaviour – Allegations of violence made by both parents – Allegations that both parents have abused the children – Abuse and risk of harm not pressed by conclusion of hearing – Where father demonstrates high resistance to children spending time with the mother – Where father’s negative views of mother have influenced children – Children extremely hostile towards and fearful of the mother – Numerous prior interim court orders for family therapy have failed – Mother proposes immediate change of residence and father to spend no time with the children for three months – Where such proposal would cause further harm and trauma – Orders made for children to live with father – Father to have sole parental responsibility – Orders for family therapy and graduated reintroduction of time with the mother.

FAMILY LAW – INTERVENTION – Where ICL proposed order under s 91B for the for the Minister or delegate of the NSW Department of Justice to intervene in proceedings for purpose of being allocated parental responsibility – Where s 91B is no more than a power to make a request – DCJ cannot be forced to intervene – Where such order proposed to avoid further disagreements in undertaking family therapy – Order would cause further delay – Order would be of limited utility as parents must still cooperate to engage in family therapy – Where best interests of the children require finalisation of proceedings.
Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65D(1), 65DAB, 91B, 117(4)
Cases cited:

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96

Director-General of the Department of Human Services (NSW) & Tran (2010) FLC 93-443; [2010] FamCAFC 151

Faulkner and McPherson v Rugendyke; Department of Community Services (1995) FLC 92-630; [1995] FamCA 82

Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251

Godfrey & Sanders (2007) 208 FLR 287; [2007] FamCA 102

M & S (2006) 37 Fam LR 32; [2006] FamCA 1408

Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Secretary of the Department of Health and Human Services & Ray (2010) FLC 93-457

Secretary, Department of Communities and Justice & Opunui [2021] FedCFamC1A 41

Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22

Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
Division: Division 1 First Instance
Number of paragraphs: 163
Date of hearing:

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AGLC
Panelli & Panelli [2022] FedCFamC1F 652
Case
[2022] FedCFamC1F 652
Decision Date

CaseChat Overview and Summary

The case of Panelli & Panelli involved a dispute between the mother and father of two children regarding their living arrangements and the allocation of parental responsibilities. The parents had been in a relationship from 2009 until their separation in 2017, after which they divorced. The primary issue before the court was determining the best living arrangements for the children, considering their best interests and the capacity of each parent to meet their needs. The court also had to address allegations of family abuse and coercive control, the children's emotional and psychological well-being, and the potential for therapeutic support.

The legal issues the court had to decide included whether a request should be made to the court pursuant to s 91B of the Act, whether it was in the children's best interests to live primarily with either parent, the time the children should spend with either parent, whether there existed any unacceptable risk factors, the capacity of each parent to meet the children's needs, the capacity and willingness of each parent to facilitate and support the other parent's relationship with the children, and whether the children and either or both parents would benefit from engagement with ongoing therapeutic support.

The court concluded that the children should continue to live primarily with the father, with the mother gradually spending supervised time with them, progressing to overnight stays. The court found that the children had a meaningful relationship with their father and would benefit from maintaining this relationship. The court also found that the children would benefit from a meaningful relationship with their mother, but the evidence showed that this relationship had deteriorated significantly. The court considered the historical evidence of mutual allegations and recrimination, each suggesting the other may have been a risk to the children in the past. The court found that the children were struggling with trauma, nightmares, and bed-wetting, and echoing the mother's abusive language. The court was satisfied that the orders set out at the commencement of these reasons should be made.

The court's reasoning was based on the paramount consideration of the best interests of the child as set out in s 60CA of the Act. The court considered the primary and additional considerations set out in s 60CC of the Act, giving greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The court also considered the expert evidence from Dr B and Dr JJ, who recommended that the children should continue to live with the father, and that both parents should be involved in the children's future medical and educational needs, including therapy interventions. The court ordered that each party should pay their own costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons set out in what follows, in summary, I have come to the view that the children should continue to live primarily with the father, and begin to spend time with the mother supervised at first, then progressing to overnight time.BACKGROUND The mother was born in 1976 and is 46 years of age. The father was born in 1959 and is 62 years of age. The parties commenced a relationship in early 2009 and married in 2017. They separated in mid-2017 and divorced in late 2018. The date of separation is contested. The mother asserts a date around October 2017, whilst the father states it was in June 2017, when the mother first left the family home. However, the mother does later state in her affidavit that from July 2017, the parties were effectively separated under the one roof. The mother describes herself as a stay-at-home mum, whilst the father previously worked as a tradesman, although ceased employment due to a workplace accident. The mother has two children from previous relationships, Mr O and Ms P. Both these children are adults. The mother also called evidence from Ms P. The father has six children from previous relationships, with only one child under the age of 18. He has limited involvement with this child. There was a dispute as to when the parties commenced cohabitation, however this is not material to the issues for determination. The mother states that cohabitation commenced soon after their relationship started in 2009, however the father states it was not until around 2010. The parties initially resided in a three-bedroom apartment in Suburb Q. They then relocated to a community housing townhouse in Suburb R in early 2015. Ms P and Mr O resided with the mother when the parties commenced their relationship. Mr O resided with the parties for the majority of the time that they were in a relationship, however Ms P moved out in early 2011 to reside with her father. She returned for several months in 2012, however moved out to her father’s again soon after. The maternal grandfather also resided with the parties from late 2009 to early 2011. Mr O continues to reside with the mother, although he resided with his father briefly in the second half of 2017. Both parties make allegations of family abuse and coercive control. This will be discussed below under s 60CC of the Act. The mother left the family home in mid-2017 and resided with a friend, Ms S, for approximately two weeks. The children remained with the father at this time. The mother eventually returned home for three days, before leaving again for one night. The father considers this to mark their point of separation. The mother contacted T Service in mid-2017 seeking assistance to have the father removed from the property. The father states that he and the children had no choice but to continue residing with the mother, as she had refused to sign a Statutory Declaration as required by the Department of Housing confirming their separation, which would have provided the father with a new home.

Evidence

Evidence Before The Court

By the end of the trial, the issues requiring determination were the following:(a)Whether a request should be made pursuant to s 91B of the Act, as proposed by the ICL;(b)Whether it is in the children’s best interests to live primarily with either parent;(c)The time the children should spend with either parents;(d)Whether there exist any unacceptable risk factors;(e)The capacity of each parent to meet the children’s needs;(f)The capacity and willingness of each parent to facilitate and support the other parent’s relationship with the children; and(g)Whether the children, and either or both parents would benefit from engagement with ongoing therapeutic support, as well as who should provide this support.Expert evidence The family report was based, as described by Dr B, on the material filed by the parties so far in the proceedings, some documents produced on subpoena, and the interviews conducted, as set out at the commencement of her report. I will refer to the content of the report as necessary during the course of these reasons. It is noted that Dr B did not observe the children interacting with the mother. Dr B made recommendations at [203] of her report to the following effect:(a)For the parties to engage with a family therapist to ensure the parties could work on a more collaborative relationship. Failing this, the Court would need to consider granting sole parental responsibility to the primary caregiving parent;(b)The children should continue to live with the father; (c)The parties should engage with a family therapist to facilitate a reintroduction to their mother, with a view to spending time with her;(d)Both parents should be involved in the children’s future medical and educational needs, including therapy interventions;(e)Z should undertake a comprehensive paediatric assessment to ascertain her developmental needs and intervention strategies;(f)Neither party nor their significant others should physically discipline the children; and(g)Neither party nor their significant others should denigrate the other or significant others to the children or involve the children in any discussions pertaining to this dispute. Dr JJ also produced a report dated 21 March 2022, although she did not interview the children. However, she recommended a full psychiatric assessment of all family members, including others who reside with either parent to ascertain the family full history and the level of psychological functioning of each parent and child.The children The father’s evidence showed the children are struggling. At [225] of his affidavit he said:The children have continued to show signs of trauma including nightmares and bed wetting. The girls are scared to leave their room to go to the bathroom so they wet the bed or pee on the floor. They fear that [Ms Panelli] will come in through the window. I have been working on some solutions with my psychologist in the Parent Course with [DD Services]. In cross examination, he reaffirmed that the children continue to express fear, stating that “mummy is in the oven. Mummy is going to come through the window.” Their issues with urination had commenced upon the father and children moving out into a new property, with the father asserting that it was a response to their separation anxiety. He also reported that the children were echoing the mother’s behaviour, repeating words that she had used in her alleged abuse of the father, such as “you are a stupid old cunt.”

Decision

Reasons for decision

Although not intending to foreclose any other application for costs, my initial view is that each party should pay their own costs.CONCLUSION For all the foregoing reasons, I am satisfied the orders set out at the commencement of these reasons should be made.

Ratio Decidendi

Legal Principle Established

The best interests of a child are the paramount consideration (s 60CA of the Act). They are to be determined by an examination of the considerations as set out in s 60CC of the Act. While the Court must consider each of the primary and additional considerations in s 60CC, express discussion is not necessary; the proposals of the parties, their evidence, and the manner in which they have run their case will largely determine what is discussed: Tibb & Sheean (2018) 58 Fam LR 351 at [68] and [87]. Accordingly, in this matter, the relevant considerations to be discussed are as follows.PRIMARY CONSIDERATIONS The “primary considerations” set forth in s 60CC(2) of the Act are:(a)The benefit to the child of having a meaningful relationship with both of the child's parents; and (b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In applying these considerations, the Court is to give greater weight to the consideration in subsection 2(b) (see s 60CC(2A) of the Act).Section 60CC(2)(a), “meaningful relationship” A “meaningful relationship” is one which is “important, significant and valuable to the child”: (Mazorski & Albright (2007) 37 Fam LR 518 at [26]; McCall & Clark (2009) FLC 93-405 (“McCall”) at [115]). A “prospective approach” is preferred, requiring the Court to “consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents”: McCall at [118]–[119]. The legislation aspires to promote a meaningful relationship, not an optimal relationship: M & S (2006) 37 Fam LR 32; Godfrey & Sanders (2007) 208 FLR 287 at [36]; Champness & Hanson (2009) FLC 93-407; see generally Sigley & Evor (2011) 44 Fam LR 439 at [135]. There was no dispute that the children have a meaningful relationship with their father. Although by the end of the trial some doubt was cast upon the father’s parenting capacity, as discussed later, there was no dispute that the children would benefit from maintaining a meaningful relationship with him. There was agreement that the children would benefit from a meaningful relationship with their mother. The evidence shows that prior to separation, the children had a warm relationship with her. But this no longer exists. A central difficulty in this case is determining how any meaningful relationship between the mother and the children could be re-established.Section 60CC(2)(b), “abuse” and “family violence” or risk of harm The parties gave historical evidence of mutual allegations and recrimination, each suggesting the other may have been a risk to the children in the past. Each made allegations against the other of violent or abusive behaviour often witnessed by the children. It is unnecessary to recount the events or resolve factual disputes in relation to them, as the following discussion shows.