PANNELL & PANNELL

[2015] FCCA 3194

FEDERAL CIRCUIT COURT OF AUSTRALIA

PANNELL & PANNELL [2015] FCCA 3194

Catchwords:
FAMILY LAW – Interim arrangements for care of children aged 9 & 6 – children have special needs – high conflict – application of presumption of equal shared responsibility – arrangements for children to spend time with father – nature of interim hearing – meaningful relationship – best interests.

Legislation:

Family Law Act 1975, ss.4AB; 60B; 60CA; 60CC; 61DA; 61DB; 65DAA

Goode & Goode (2006) FLC 93-286
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28

Applicant: MR PANNELL

Respondent: MS PANNELL

File Number: ADC 3315 of 2015

Judgment of: Judge Brown

Hearing date: 24 November 2015

Date of Last Submission: 24 November 2015

Delivered at: Adelaide

Delivered on: 3 December 2015

REPRESENTATION

Counsel for the Applicant: Mr Bowler

Solicitors for the Applicant: Barnes Brinsley Shaw Lawyers

Counsel for the Respondent: Mr Jordan

Solicitors for the Respondent: Jacqui Ion Lawyers Pty Ltd

ORDERS

1. The father spend time with the children X born (omitted) 2006 and Y born (omitted) 2009 as follows:

   (a)From after school on Friday, 11 December 2015 until 6:00pm on Monday, 14 December 2015;

   (b)From 4:00pm on Friday, 18 December 2015 until 6:00pm on Monday, 21 December 2015;

   (c)From 4:00pm on Friday, 25 December 2015 until 6:00pm on Monday, 28 December 2015;

   (d)From 4:00pm on Friday, 31 December 2015 until 6:00pm on Monday, 3 January 2016;

   (e)From 4:00pm on Friday, 8 January 2016 until 6:00pm on Monday, 11 January 2016;

   (f)From 4:00pm on Thursday, 14 January 2016 until 6:00pm on Sunday, 17 January 2016;  

   (g)From 4:00pm on Friday, 22 January 2016 until 6:00pm on Monday, 25 January 2016;

2. Further consideration of the matter is adjourned to 8 February 2016 at 9:30am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3315 of 2015

MR PANNELL

Applicant

And

MS PANNELL

Respondent

REASONS FOR JUDGMENT

Introduction

1. Mr Pannell and Ms Pannell are the parents of X aged nine and Y aged six.  These reasons for judgment are directed to deciding what time the children should spend with each of their parents over the end of year school holiday period and at Christmas time.

2. Sensibly, in the light of very many disagreements between them, relating to how the children are to be best parented, the parties have agreed to commission Ms A to compile a family assessment report as quickly as possible.  The report, interviews and observations will take place in mid-January 2016, with the report to be available at the end of that month. 

3. As well as dealing with issues dealing with the nature of the children’s relationship with each of their parents, the report will address specifically which school the children should attend and whether they should be cared for in what is commonly known as a shared care or equal time regime. 

Background

1. By way of background, the parties are each in their early forties.  They began to live together in 2005 and married on (omitted) 2008.  They finally separated in June of 2015, when the wife left the former family home at (omitted), with the children, and moved in with her parents at (omitted).

2. Prior to separation, the children attended (omitted) College, in (omitted).  The wife has enrolled them at (omitted) Primary School.  This is an issue of considerable controversy, as the husband asserts that the enrolment occurred without consultation with him and is contrary to the children’s best interests.  He has a close connection with (omitted) and believes the children have been moved to undermine his relationship with them.

3. The husband commenced these proceedings on 4 September 2015.  At this stage, it was his position that the wife had unreasonably prevented him from spending time with the children, after initially agreeing that he should spend extensive periods of time, with X and Y, including blocks of overnight time.

4. At this stage, it was also Mr Pannell’s position that the wife had longstanding psychological issues and had been behaving oddly, particularly in respect of attending to the not inconsiderable health needs of the children.  In these circumstances, he was concerned that Ms Pannell was not able to properly care for the children. 

5. As a consequence of these concerns, he requested that his application be listed urgently and, on both a final and interim basis, sought orders that the children should live predominantly with him.  At this stage, Mr Pannell raised concerns that the wife was consulting alternative health professionals and other unorthodox healers, in respect of the children’s medical needs, which he considered inappropriate. 

6. The application was listed before Judge Simpson on 9 October 2015.  For reasons which are not entirely clear to me, Judge Simpson indicated that he was not able to hear the matter on the day allocated for it. 

7. In these circumstances, the parties negotiated some holding orders, which saw X and Y continuing to live with their mother, whilst continuing to attend (omitted) Primary School; and spending time, with their father, on alternate weekends from the conclusion of school on Friday until 6:00pm the following Sunday, and in the intervening week from the conclusion of school Thursday to the commencement of school the following Friday. 

8. From the husband’s perspective, he agreed to these orders under compulsion as the wife was not prepared to offer any further time and the court had declined to deal with his application.  To use popular jargon, Mr Pannell felt caught between a rock and a hard place. 

9. Judge Simpson adjourned the matter to me for interim hearing on 24 November 2015.  Given the imminence of the end of the school year, Mr Pannell recognises that the court is unlikely to direct the return of the children to (omitted) College.  In addition, Mr Pannell is no longer pursing the predominant care of the children.  Rather, he seeks, during school terms, a week about regime for their care. 

10. At this stage, pending the receipt of Ms A’s report, the husband does not seek the court’s interim adjudication regarding the appropriate regime for the children’s care, during school terms.  However, pending that report, Mr Pannell seeks that the children should live with their parents, on a week about basis, during the six week end of year school holiday.

11. The wife opposes this application.  She proposes that the children should spend no more than two consecutive nights, with their father, in six discrete blocks, between 11 December 2015 and 24 January 2016. 

12. Essentially, the wife contends that Mr Pannell is ill-equipped to deal with the children’s medical needs and represents a threat to them because of an incident, involving X which occurred on 21 June 2015.  This incident, which from the mother’s perspective was extremely serious and from the father’s inconsequential, appears to be the major factor precipitating the parties’ separation. 

13. The incident is described as follows, in a notice of risk, filed by the wife on 6 October 2015: 

    “On 21 June 2015 the husband pinned X underneath a quilt and would not allow her to come up for air despite X kicking, screaming and panicking.  X believed that the husband had tried to suffocate and kill her.

    X was emotionally distraught following the above described incident and made comments such as “I am not going to eat or drink anymore”, “Why did God create me?” “I don’t want to live anymore”, “Daddy actually tried to kill me and I don’t understand.” “I didn’t do anything wrong.” “I am a little girl.” “I’ve had enough of him” “It’s not right Mum, I didn’t do anything wrong and he actually smiled at me and then said ‘No more tickles’”. “I’ve had enough”.[1]

    [1]  See Notice of Risk filed 6 October 2015

14. Both children, but particularly Y, have special needs relating to their health.  X suffers from asthma, rhinitis, eczema and has a fused labia.  She suffers from urinary tract infections and has many allergies.  The wife describes her as an anxious child.  Y suffers from tracheobronchomalacia, which is a rare condition causing the cartilage, within her trachea, to be soft, which can cause her airway to be restricted.  

15. I accept that it is a serious and potentially life threatening condition.  As a consequence of her condition, Y has been referred to a number of paediatric specialists, including gastroenterologists, ENT specialists, dieticians and neurologists.  She is currently managed by a paediatrician and her GP under a Medicare Chronic Disease GP Plan. 

16. Of some significance, in the current proceedings, Y has an intolerance to lactose, cow’s milk and protein.  It is common ground, between the parties, that she suffers chronic constipation.  As a consequence, she wears pull up nappies and has been prescribed Osmolax, a laxative, to assist with her bowel movements. 

17. Notwithstanding the significance of Y’s condition and the fact that each of the parties, in these proceedings, has filed numerous and lengthy affidavits, there is a dearth of medical evidence regarding the implications of Y’s condition and its implication as to what are the appropriate parenting arrangements for her care. 

18. However, Y’s chronic constipation and the utility of applying Osmolax to treat it are at the heart of the current dispute.  Essentially, Ms Pannell asserts that the husband is not able to manage Y’s condition appropriately and that this has the potential to place the child at a significant level of risk. 

19. Ms Pannell is an (occupation omitted).  Mr Pannell, when he commenced these proceedings, was critical of her for ceasing the use of Osmolax for Y and resorting to what he considered unorthodox treatment regimes for the child, which included abdominal massage and Reiki.

20. Mr Pannell is employed as a (occupation omitted) at (employer omitted), which as previously indicated, is the school which the children have attended from the instigation of their education.  It is the tenor of his case that the wife has changed the children’s enrolment to restrict his otherwise easy involvement with the children.  It is further his case that the mother has raised issues pertaining to his capacity to manage Y’s bowel condition for similarly spurious and tactical reasons.

21. The husband has given a completely different version regarding the incident the wife describes in her notice of risk, when it is alleged X was pinned underneath a quilt.  In a lengthy and technical response to an equally lengthy affidavit of the wife, he recounts his version of the incident as follows:

    “I can recall an occasion of me playing tickles with the girls and the wife a few days before the wife moved out on the 23^rd June 2015, which the wife recalls was on the 21^st June 2015 and X becoming upset.  I recall X going under the covers to tickle my feet.  I did not deliberately trap her out of my legs, she just got caught up in my legs and the blankets in the tussles between us as I tried to avoid her tickles.  She got upset and went to her mother for comfort.  I ceased the game saying light heartedly ‘well that’s it then, no more tickles for you!’ or words to that effect.”[2]

    [2]  See paragraph 4.39 to the husband’s affidavit filed 9 October 2015

22. The wife maintains the benefit of Reiki for Y.  She describes it as a well-known natural healing therapy, which is non-invasive.  She also points to the fact that she has completed an infant massage course.  It is further her case that she has only recently returned to the workforce and prior to that time, she was the parent significantly more involved in managing the children’s challenging health needs, which she asserts she did in an exemplary manner. 

23. It is further her case that the husband is a distant and authoritarian parent. She is concerned that he has access to firearms, which he utilises to kill animals. The implication of much of her evidence is that she and the children have been the subject of coercive and controlling family violence, as defined by section 4AB of the Family Law Act.

24. The husband denies the gravamen of these claims.  In this context, he asserts that he has a firmer parenting style than that of his wife and manages their behaviour in a more structured manner.  He denies that the children are fearful of him and that he has utilised inappropriate discipline for them. 

25. The allegation, regarding what I will refer to as the quilt incident, has apparently been referred to the police by the wife but interestingly the only documentation of this complaint is on a form headed Police Ombudsman.  It appears to be common ground that the police have taken no formal action in respect of the incident, as yet and appear unlikely to do so. 

26. It is the husband’s position that following the wife’s departure from the former family home the parties retained a cordial relationship, during which they contemplated reconciliation.  In this period, it is his case that he spent regular block periods of time, with the children, sometimes with the wife sleeping over at the (omitted) property and at other times in her absence. 

27. It is also his position that he floated the possibility of a week about regime for the children, to which the wife was open.  He is puzzled that the wife has abandoned this position, particularly as her previous solicitor indicated that she (Ms Pannell) was open to regular blocks of unsupervised time.

28. The wife concedes that the husband did spend overnight periods of time, with the children, in the period immediately after the parties’ separation.  However, she asserts that she ended this regime because, in her estimation, it was clearly not working for the children as the husband was unable to adequately attend to X’s and Y’s needs. 

29. Accordingly, this is a case full of controversy and disagreement.  This controversy has not ended with the uneasy truce created by the orders of 9 October 2015.  To the contrary, the parties now vehemently disagree as to how the children have coped with the alternate weekend regime, particularly in respect of Y’s chronic constipation. 

30. It is the mother’s position that X, in particular, was resistant to spending time with her father.  She deposes that the child indicated to her that she would have a meltdown if compelled to spend time with her father.  On the other hand, it is the husband’s position that, with the assistance of the deputy principal at (omitted) Primary School, he was able to reassure the children and they transitioned easily into his care.

31. Thereafter, it is Mr Pannell’s evidence that his time with the children has been uneventful and the three of them have had a very happy time together, which was memorialised by the children providing him with cards endorsed with the words “I love you Dad ♥♥”.  It is also the husband’s position that he dispensed to Y her usual dosages of Osmolax and her bowel movements were thereafter facilitated uneventfully. 

32. The wife’s position is that, prior to the orders of 9 October 2015, she had largely got Y’s constipation under control.  She asserts that this objective had been achieved largely through her use of alternate therapies rather than the chemical-based laxative Osmolax, of which she seems impliedly to disapprove.

33. It is her position that, on the weekend commencing 30 October 2015, when Y went into the care of her father, she failed to vacate her bowels satisfactorily.  She asserts that this was either as a consequence of Y being too nervous or distressed to do so or because Mr Pannell did not provide proper care to her. 

34. In this context, Ms Pannell deposes that Y did not eat properly on Monday, Tuesday and Wednesday, following this time with her father, and accordingly became critically constipated, complaining of stomach pain.  The child’s condition allegedly worsened on Wednesday night and Thursday, which on the mother’s case led to Y vomiting bile and running a fever.  The mother deposes that no amount of Osmolax would assist her condition and, by this time, she had not had a bowel movement for around a week.

35. In these circumstances, on 6 November 2015, the mother elected to take the child to the paediatric department of the (omitted) Hospital for an enema.  I have been provided with a certificate of sickness, issued by a hospital registrar, in respect of this medical intervention, which simply indicates that Y was suffering from medical illness and constipation and would be unfit to attend school from that Friday until the following Monday.

36. In her most recent affidavit, the wife deposes that Y has had problematic bowel movements, since her hospital attendance, demonstrated by her having only inadequate and liquid bowel movements.  In these circumstances, she is fearful that Y may have a blocked bowel, which was and is not being assisted by the use of Osmolax. 

37. In these circumstances, she arranged for Y to have an x-ray of her abdomen.  This found as follows:

    “There is an average amount of faecal contents on the right side of the colon.  There are a few loops of air distended small bowel in the left flank.  The appearances may represent either local ileus or early incomplete mid to small bowel obstruction.  This could be correlated clinically.  No obvious free gas in supine image. Hernial orifices appear clear.  Lung bases are normal.”

38. Following this x-ray, the mother deposes that she took Y back to the (omitted) Hospital, where the head paediatrician advised her to decrease the amount of Osmolax and increase the fibre in her diet. 

39. At this stage of the proceedings, I have not been provided with any further medical evidence in respect of Y’s condition and particularly how it is to be managed on a regular basis – whether through diet, particularly by her eating fibre; or through the use of Osmolax, particularly in what quantities; or otherwise. 

40. However, it remains the wife’s position that the husband is not able to manage the condition, particularly for any lengthy periods of time.  In this context, she deposes as follows:

    “This is the second time in the past few months that Y’s constipation has become problematic whilst the children have been in the husband’s care for consecutive days.  Prior to this, Y has only ever got to this state on 2 occasions in 6 years.  Y was using her bowels independently without issue when in my care and without the need for Osmolax since separation.  Her health seemed to be improving since spending time with the husband pursuant to the orders, her routine is broken and then I have to spend days trying to get her back to a normal pattern again.  On this occasion however, I was unable to do so and Y ended up in a really bad way.  She was not eating, sick and hospitalised twice.  I estimate that Y has lost about half a kilo in the last 2 weeks (she weighs less than 15 kilos which is the average weight of a 3 year old).”[3]

    [3]  See wife’s affidavit filed 19 November 2015 at page 9

41. The wife’s case is that Y’s condition began whilst she was in the husband’s care because he did not ensure she had evacuated her bowels properly – something the husband disputes.  Essentially it is her case that the damage was done in the early part of the week and she was left to deal with its sequellae, as Y’s constipation became more intractable.

42. The husband asserts that he did all that was required of him and Y’s motions were satisfactory on the weekend in question.  Accordingly, if there was any problem, it occurred on the mother’s watch.  I am unable to resolve this factual issue.  I do not know what caused Y’s problems and how serious they were.  This is a medical issue, which I am not qualified to determine, in the absence of expert evidence. 

43. In addition, I do not know what role, if any, Y’s emotions played in her condition.  The degree of conflict between the parties appears to me to be fairly high, although, to their credit, there is no indication that the children have been exposed directly to any altercation between their parents. 

1. However, in general terms, I would be extremely surprised if Y (and indeed X) were not aware of the tensions between their parents and were not emotionally discomforted by them.  In these circumstances, I think I would be naïve to think that there was not some emotional quotient in her bowel issues.  The parties would be wise to keep considerations of this kind in mind in determining how they proceed with this litigation, which has the potential to be extremely psychologically undermining for both children.

2. The issue in dispute between the parties accordingly falls in a small compass, prior to the issue of Ms A’s family assessment.  It is clearly a matter of emblematic significance to each of them, as is demonstrated by the effort and expenditure which has utilised in having the court determine it.  This does not bode well for the on-going viability of the parties’ post-separation parenting relationship, which is likely to be crucial for the welfare of the children, given their special needs.

3. Notwithstanding the small compass of the case and the fact that I cannot determine factual issues in play between the parties, given the abbreviated nature of these interim proceedings, nonetheless the case still must be determined by the application of the relevant provisions of the Family Law Act 1975 and the principles enunciated by the Full Court in Goode.[4]

   [4] Goode & Goode (2006) FLC 93-286

Legal Considerations

1. In deciding whether to make any particular parenting order, in relation to a child, the court must regard the best interests of the child as the paramount or most important consideration [Family Law Act section 60CA]. 

2. The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC. 

3. Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations.  There are two primary considerations, which are set out in section 60CC(2)(a)(b) namely:

   (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.

4. Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another.  They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned. 

5. However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

6. The gist of the wife’s case is that there is an appreciable risk that Y will come to some form of harm if exposed to what she alleges is the husband’s compromised parenting style.  The husband places significant emphasis on the children’s entitlement to have a proper and meaningful level of relationship with him.

7. In this context, he relies on the overall construction of Part VII of the Act and the principles which underlie it as contained in section 60B.  These speak of children’s rights to know and be cared for by both their parents and to regularly spend time with each of them.  The legislation recognises the fundamental entitlement of children to have a relationship with their biological progenitors.

8. Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3).  There are fourteen such criteria, which are categorised as being additional considerations. 

9. Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant.  This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.

10. Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount.  The court’s duty is to deliver individual justice, for the child affected, in every case.[5] 

    [5]  See B v B: Family Law Reform Act 1995 (1997) FLC 92-755

11. In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[6]  As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[7] 

    [6]  See B v B: Family Law Reform Act 1995 (ibid) at 84,220

    [7]  See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J

12. Given the importance, which the applicable legislation places on the co-involvement of parents in their child’s life and development there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].

13. The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents. 

14. The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].

15. The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].

16. Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so in all these circumstances prevailing [section 61DA(3)].

17. Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.

18. By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable. 

19. If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents.  Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality. 

20. The expression “substantial and significant time” is defined in the Family Law Act 1975 [section 65DAA(3)].  It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week. 

21. More significantly, it is time which enables a parent to be involved in a child’s daily routine and on occasions and events, which are of particular significance to the child concerned. 

22. Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings. 

23. Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned. 

24. In determining interim parenting matters, after identifying the competing proposals of the parties, the issues in dispute, and any agreed issues, the court should:

    ·consider the section 60CC matters relevant and, if possible, make any relevant findings of fact;

    ·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:

    Ø  there are reasonable grounds to believe abuse or family violence has occurred;

    Ø  or, in interim proceedings only, if it would not be appropriate to apply the presumption. 

    ·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;

    ·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;

    ·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);

    ·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC. 

    ·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time if the court considers it to be in the best interests of the child concerned.

Discussion

1. Given that the wife agreed to the husband spending unsupervised weekend time with the children on 9 October 2015, I do not consider that the quilt incident constitutes sufficient justification for unduly restricting Mr Pannell’s involvement with Y and X.  I am fortified in this view by the uncertain and contested nature of the allegation involved, which does not appear to be capable of independent verification, at this stage. 

2. Accordingly, the central issue in this case turns on the risk of Y suffering physical harm because the husband is allegedly incapable of managing her bowel condition.  As indicated above, this is a difficult issue to resolve.  Mr Jordan, counsel for the wife, urges me to play it safe, particularly given that the case can return to court shortly, when much more information is likely to be available.

3. On the other hand, Mr Bowler, counsel for the husband submits that the section 61DA presumption should apply and there is no viable justification, relating to either the children’s best interest or what is practicable, preventing the children living in a week about regime during the school holidays.

4. At this juncture, I do not find that the presumption of equal shared parental responsibility has been rebutted by issues relating either to family violence or abuse.  Although I cannot definitively rule out these concerns, at this stage, I do not objectively believe that reasonable grounds exist to demonstrate that either family violence or abuse has occurred. 

5. The discretion, not to apply the presumption, at the interim stage, is a wide one.  It is not to be applied, if it would not be appropriate to do so.  Synonyms for appropriate include suitable or proper. 

6. These proceedings arise at an early stage in the development of the parties’ post-separation parenting relationship.  The circumstances surrounding the end of their marriage remain raw and painful.  As such, they are not communicating effectively and each is no doubt suffering the emotional ramifications arising from their difficult and controversial separation. 

7. In this sense, I do not think it would be appropriate, in the sense that it would not be suitable or fitting for the presumption to be applied.  However, Mr Pannell needs to bear in mind that the court is specifically directed to disregard any allocation of parental responsibility made at the interim stage [see section 61DB].

8. However, notwithstanding my rejection of the presumption, at this interim stage, I am still required to consider the applicable section 60CC factors to reach the outcome, which I consider will best serve Y and X’s interests.  Such an outcome could still encompass week about, during school holiday periods. 

9. I accept that Y is a vulnerable child because of her special needs.  In these circumstances, it is only to be expected that Ms Pannell would be highly protective of her and indeed X, who also has a history of significant health issues.

10. It seems clear that both children have a significant level of relationship with their father.  Until recently, they shared the same household.  In addition, Mr Pannell worked at the school, which the children formerly attended.  In my view, it is incumbent upon the court to support this central relationship for the children and ensure that it remains meaningful. 

11. It is also clearly the case that the parties have different views currently as to how Y’s bowel problems are to be managed.  The wife favours some unorthodox forms of therapy, in the sense that they are not forms of treatment provided by a medical practitioner.  The husband asserts that he follows the medical advice provided to him, particularly in respect of the use of Osmolax. 

12. At this stage, it is not my role to determine what medical treatment Y should receive.  Ideally the parents themselves should agree about such matters.  In addition, given the absence of expert medical evidence, I am not in a position to determine what the appropriate treatment is and what is the validity of interventions such as Reiki and massage. 

13. However, in my assessment, Mr Pannell is not the sort of parent who would negligently expose either of his children to harm.  I am satisfied that he would not wish for Y to be in discomfort or at risk of suffering serious medical harm because of inappropriate or lack of medical treatment. 

14. I also accept that Ms Pannell is a solicitous and caring parent.  For his part, I suspect that Mr Pannell would say that she is, at times, over solicitous.  Again, in the absence of expert medical evidence, I am not in a position to say whether the wife is inflating her concerns about Y’s medical issues for either tactical purposes or to satisfy her own emotional needs.

15. The wife’s case is that, during the parties’ marriage, the husband was content to leave the majority of parenting issues, including medical ones, to her.  This may or may not be the case.  However, it is a common scenario following marriage breakdown that a parent, particularly a father, is called upon to re-appraise his previous parenting role and step up to the plate and assume new parental responsibilities, in the now changed environment of the family concerned. 

16. In this context, in my view, it would be a useful thing for Mr Pannell to do, in order to assuage the mother’s concerns, that he consult the most appropriate of Y’s medical practitioners in order to seek advice and guidance as to how her condition is best managed. 

17. At this stage, my function is to make a judgement call as to what is likely to be best for the children, in what is a comparatively short period of time.  To a very large extent, the issue has been blurred by the prolix and inflammatory material, which has been hitherto filed by both parties.  I have done my best to sift through this material.

18. After this process, I am left with two children, of tender years, who are likely to be emotionally compromised by the radical change in their circumstances, following their parents’ separation.  It seems more likely than not that this turmoil will impact on the children’s various ailments, particularly Y’s constipation. 

19. In these circumstances, I have decided to accede to Mr Jordan’s submission that I need to approach the issue with some caution.  However, I am not going to be as cautious as the mother would want.

20. In lieu of her proposal of blocks of two days, I propose to allow the father to spend time with the children for blocks of three days, during the forthcoming school holidays.  I consider that the father needs to spend time of sufficient quantity, with the children, to ensure that it remains meaningful.  There needs to be enough time to enable the children to engage with their father in a variety of circumstances.  This includes school holidays and special occasions.

21. The children will also be able to touch base with their mother regularly. From the mother’s perspective, six days is the danger period, so far as Y’s bowel condition is concerned.  The period of time I propose is half of this.  In my view, it will enable the children and their father to spend sufficient time to be comfortable with one another and enjoy some holiday time.

22. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:       3 December 2015