Phelan and Phelan

FEDERAL CIRCUIT COURT OF AUSTRALIA

PHELAN & PHELAN

[2017] FCCA 1497

Catchwords:
FAMILY LAW – Interim parenting arrangements for care of children aged 13, 10 & 6 – oldest child not currently wishing to engage with father – middle child has significant special needs – parents separated since early 2015 – previously all three children parented in an equal time regime without necessity for formal parenting orders – relationship between parties has significantly broken down – mother asserts father is insensitive to emotional needs of children particularly middle child who suffers from anxiety – father asserts that the mother has facilitated children not to spend time with him – nature of interim hearing – application of presumption of equal shared parental responsibility – reasonable ground to consider whether children have been exposed to family violence or abuse – whether appropriate to apply presumption at interim stage – consideration of section 60CC factors – best interests.

Legislation:

Family Law Act 1975, ss.4(1); 4AB(1); 11F; 60B; 60CA; 60CC; 61DA; 65DA; 65DAA; 65DAC

Cases cited:
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
Deiter & Deiter [2011] FamCAFC 82
Slater & Light [2013] FamCAFC 4
MRR v GR (2010) 240 CLR 461
Goode & Goode (2006) FLC 93-286

Applicant:

MR PHELAN

Respondent:

MS PHELAN

File Number:

ADC 2904 of 2016

Judgment of:

Judge Brown

Hearing date:

20 June 2017

Date of Last Submission:

20 June 2017

Delivered at:

Adelaide

Delivered on:

30 June 2017

REPRESENTATION

Counsel for the Applicant:

Ms Kari

Solicitors for the Applicant:

Mahonys Lawyers

Counsel for the Respondent:

Mr Maharaj

Solicitors for the Respondent:

Maharaj Lawyers

ORDERS

Until further or other order:

The parties have equal shared parental responsibility for the children of the marriage X born (omitted) 2004; Y born (omitted) 2007; and Z born (omitted) 2011.
The child X live with the mother and spend time with the father at such times and subject to such conditions as the parties agree from time to time and subject to the wishes of X to spend time with his father.
The children Y and Z live with the mother and spend time with the father as follows:
(a)On alternate weekends during the school terms from the conclusion of school on Friday until the commencement of school the following Monday (or Tuesday in the event that Monday is a public holiday) commencing Friday, 30 June 2017;
(b)During the forthcoming mid-year school holiday from 10:00am on Thursday, 13 July 2017 until 5:00pm on Tuesday, 18 July 2017;
(c)At such other times as may be agreed between the parties.
In order to give effect to the time spending arrangements ordered in order (3)(a) hereof the children are to be exchanged at their respective schools and to this end it is directed that the school authorities be provided with a copy of these orders.
In the event that the children are not scheduled to attend school on any day on which they move between their respective parents’ households, they are to be exchanged at a location to be agreed between the parties and failing agreement at the McDonald’s Restaurant, (omitted) or such other child friendly venue as nominated by the father to the mother.
The parties be restrained and an injunction is hereby granted restraining them from abusing, denigrating or rebuking the other in the presence of the children or from permitting any other person to do so.
The parties be restrained and an injunction is hereby granted restraining them from discussing the proceedings with the children, in the presence of the children or from permitting any other person to do so.
The parties exchange all relevant information regarding major long-term issues pertaining to the children, including issues relating to their health, education, sporting activities and other major long-term issues by electronic means. To this end, the father is to open an email account, with an appropriate provider, which is to be utilised solely for the purposes of exchanging such information and is to provide the mother with the relevant address within 24 hours of having obtained the relevant email account.
The mother is to inform the father of all medical/psychological and other allied health appointments made in respect of the children and the father is authorised by this order to consult with each medical practitioner, psychologist and other allied health professional whom the children consult. In particular, the father is authorised to attend upon the child Z’s forensic psychiatrist, Dr M.
Pursuant to section 11F of the Family Law Act the parties and the children attend a child inclusive family dispute resolution conference at the Family Court of Australia with a family consultant on 5 September 2017 at 10:00am to discuss the care, welfare and development of the children in an endeavour to resolve any differences between the parties in relation thereto. The parties are to telephone the Registry on 1300 352 000 to confirm their attendance.
Further consideration of this matter is adjourned to 25 September 2017 at 9:30am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2904 of 2016

MR PHELAN

Applicant

And

MS PHELAN

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Phelan “the father” and Ms Phelan “the mother” are the parents of X born (omitted) 2004; Y born (omitted) 2007; and Z born (omitted) 2011.
These proceedings are concerned with interim parenting arrangements for these three children, particularly whether Y and Z should spend either equal time or substantial and significant time in the care of their father.
The mother resists the children spending lengthy periods of time with their father. It is her case that X is currently estranged from his father and Y and Z are fearful of him. As such, it is her case that the children are at risk of suffering emotional harm if compelled to spend time with their father, contrary to their wishes.
On the other hand, it is the father’s position that there has been a longstanding arrangement for the shared care of the children, which the mother has sought to undermine for reasons relating to her own emotional security. He acknowledges that X does not currently wish to see him and it will therefore be necessary for him and X to undergo a formal process of reunification counselling.
Mr Phelan is fearful that there is a significant risk that Y, in particular, will follow the cues of both his mother and older brother and become estranged from his father. In these circumstances, it is Mr Phelan’s position that the court needs to take urgent steps to rectify the rift in his relationship with the two younger children.
Ms Phelan cautions that the court should take an extremely cautious approach to any arrangements for Y and Z to spend time with their father. Through her counsel, Mr Maharaj, she proposes a process characterised by Mr Maharaj as supported time. Essentially, this would be short periods of time, occurring during the week, in her presence.
In addition, Mr Maharaj submits that the court is not in a position to make any significant orders in respect of the younger children, until expert evidence is available regarding their idiosyncratic needs. Y was diagnosed with autism in or about 2011. This condition results in him suffering significant behavioural problems which Mr Phelan characterises as emotional meltdowns.
In May of 2017, Ms Phelan arranged a medical appointment with Dr Y, a paediatrician. Dr Y has referred Y to Dr M, a child & adolescent psychiatrist for opinion about the assessment and management of what is described as Y’s anxiety. In the meantime, Dr Y has prescribed the drug olanzapine:
“for [Y’s] meltdown episodes as required to help him to reduce his current level of anxiety and aggression whilst waiting for the psychiatrist’s appointment.”
The father is concerned that he was not consulted about these arrangements and has had no input into the resulting medical decisions of Dr Y and potentially those of Dr M. It is also the submission of his counsel, Ms Kari that the current medical reports before the court are imprecise in nature and largely informed by discussions originating from the mother alone. As such, Ms Kari submits that the reports in question lack objectivity.
From the mother’s perspective, she submits that the court should not do anything precipitate, until Dr M’s diagnosis has been obtained in respect of Y, which may shed light on why he is apparently exhibiting symptoms of extreme anxiety. As an alternative, Mr Maharaj proposes a child inclusive family dispute resolution conference, pursuant to the provisions of section 11F of the Family Law Act 1975 “the Act”.
The father does not strongly resist the mother’s proposal for a family dispute resolution conference. However, his preference is for a more targeted expert intervention involving Ms R, who is a psychologist and family assessor with particular experience in treating children with autism. However, due to pressures in her practice, Ms R would not be available to see the family until next year.

Background

The parties married on (omitted) 2001; finally separating on 31 March 2015; and divorced, on the mother’s application, on 18 October 2016. Her divorce application and the father’s response to it indicate that the care of Y and Z was being shared between the parties equally, at the time of the divorce application, which was August of 2016.
The father was a (occupation omitted) working on a two weeks on/two weeks off roster, based in (omitted). In January 2016, he suffered a trampoline accident resulting in the rupture of the large muscles in each of his legs. He was severely incapacitated as a result of his injury and subsequently made redundant in November of 2016.
It is the father’s position that his injury and the resulting financial privation it brought, caused his mental health to deteriorate, although he has provided no formal details of this. It seems to me to be highly probable that last year was a particularly stressful year for Mr Phelan.
It is the father’s case that prior to the parties’ separation, he was significantly involved in the children’s care, sharing parenting responsibilities with the mother when he was in Adelaide during his rostered fortnight off. He deposes that he was involved in the children’s schooling and sporting activities to a significant degree.
Following the parties separation in early 2015, the parties commenced a shared care regime for the children which was based on a fortnight about arrangement stemming from Mr Phelan’s work roster at the time. This arrangement was recognised in a binding financial agreement which the parties entered on 28 October 2015.
Ms Phelan has re-partnered. She has fairly recently given birth to another child A, who is seventeen months old. Ms Phelan and her current partner live in (omitted). Mr Phelan lives in what I assume is the former shared matrimonial home which is located in (omitted). The two suburbs adjoin each other.
Mr Phelan has also re-partnered. His partner is Ms D, whom he met in early 2016. Mr Phelan and Ms D currently maintain separate residences. Ms D has two children who currently live with her. They are B, aged sixteen and C, aged four years.
It is Mr Phelan’s case that the rupture in his relationship with X occurred on 21 April 2016. It is his position that, around this time, he had become increasingly concerned about X’s attitude to a range of issues such as homework, performance of domestic chores, oral hygiene and bedtime. He took X to task about these matters and, from his perception, was met with defiance.
This discussion, which centred on matters which Mr Phelan would characterise as legitimate parental concerns, led to what Mr Phelan categorises as a silly argument, in which both he and X said regrettable things to one another. X has not engaged with his father in the period since, apart from a brief conversation in February of 2017.
Up until this stage, it has been Mr Phelan’s view that it is appropriate for him to give X some space in the hope that he will come around to him in time. However, he now believes that it is necessary for there to be some professional intervention to assist him and X to heal the rift between them. Mr Phelan is further concerned that the mother is not assisting in any process to bring X around to him and, in this context, conjectures that she may be ill-disposed towards him because of his recent relationship with Ms D.
Following this incident, the parties engaged in a process of mediation which centred on issues to do with X and Y’s special needs. Mr Phelan hoped that these discussions would lead to the adoption of a parenting plan, based on the previous shared care regime. On the other hand, Ms Phelan indicated that although she considered that the parties should share responsibility equally for the parenting of the children, it was appropriate that they live predominantly with her and spend weekend time with their father.
Against this background of parental conflict and disagreement about future parenting arrangements for the children and significant adjustment issues relating to the father’s new relationship and his redundancy from work, relations between the father and Y and Z fell into difficulties in February of 2017. The parties have different views as to why this has occurred.
It is the mother’s position that Y became hysterical whilst talking to his brother in respect of noises he had heard in the night which he (Y) likened to a scary movie. The mother raised these concerns with Mr Phelan. She queried whether these noises were the sounds of sexual activity between Mr Phelan and Ms D. Mr Phelan acknowledges that he had watched a DVD, in the absence of the children, which had a horror theme around the time of this complaint.
It is Mr Phelan’s evidence that he spoke with Y and Z and attempted to allay their fears about the scary noises. No doubt, he hoped Ms Phelan would do the same. However, in early March, he was informed that neither child wished to stay overnight with him at his home. In these circumstances once again, he elected to give the children some space.
The children were due to come into Mr Phelan’s care for the next fortnight on 26 March 2017. Both Y and Z were delivered but it was Mr Phelan’s perception that Y, in particular, was particularly unsettled on arrival. It is the mother’s evidence that neither child had wished to go to their father’s home and did so only after persuasion from her.
Shortly after the children had arrived, Y had a melt-down, leading to aggressive and violent behaviour directed towards his father who placed him in his bedroom to allow him to calm down. Whilst in his bedroom, Y and his mother engaged in a text message conversation via mobile telephone. The mother has provided screen shots of the conversation. The parties now have a different overall view of the significance of the interchange between Y and his mother on this occasion.
The father’s position is that the mother subtly subverted his efforts to calm Y down and allowed him to consider that he could come back to his mother’s home if he wished to do so. Essentially, Mr Phelan asserts that Y was given his mother’s approbation to act out his disapproval of his father’s legitimate disciplinary intervention. The implication of this evidence being that Mr Phelan asserts that Ms Phelan was using the child as a pretext to bring about an end to the existing shared care arrangement.
On the other hand, it is Ms Phelan’s position that she was only sensitively responding to the text messages of a distressed child. Against this background, Ms Phelan elected to come to the father’s home and remove both Y and Z from his care. It is Ms Phelan’s case that when she arrived Z was petrified, hysterical, anxious and angry. As such, it is her case that she was justified in removing him.
Both parties are critical of how the other behaved on this occasion. Ms Phelan categorises the father’s interaction as being aggressive and abusive in manner. Mr Phelan asserts that the mother was hostile towards him. Clearly, at the time, the parties had little facility to approach the crisis precipitated by Y’s behaviour in a consensual and constructive manner.
At this juncture, it is useful I think to set down the parties’ respective accounts of their unfortunate confrontation with one another which axiomatically I think, could have been handled better by both of them. It also seems likely that the parties, by dint of their different personalities and backgrounds, are likely to approach the responsibilities of being a parent in different ways.
Mr Phelan deposes as follows in respect of the incident:
“The respondent attended at my home later that evening, uninvited and hostile. By this time Y had calmed down after his “meltdown”. The respondent would not allow me to talk but stated “this is an arrangement that the kids or me don’t want” meaning our shared care agreement and just took Y and Z from my care. Fearing the boys would suffer emotionally in seeing the respondent in this hostile state I allowed her to take the children so to avoid any further upset.
There was no reason for the respondent to act in the manner in which she did. As outlined in this my affidavit Y is prone to “meltdowns” and this “meltdown” was just a bit more aggressive behaviour displayed by Y. I would have been able to calm him in our normal practiced method over time and if he was left alone and not distracted by constant texting back and forth with his mother. I am concerned that the respondent acted in the manner in which she did.[1]
[1] See father’s affidavit filed 8 May 2017 at [63] – [64]
In contrast, Ms Phelan deposes as follows:
I informed the father that I was coming over immediately. I drove with Y still talking to me on the speaker phone begging me to collect them. I knocked on the door which was answered by the father. Z ran under the father’s arm and clung onto my leg with his belongings under his arm. He appeared petrified and anxious and begged me to take him with me. Y soon appeared, with a tear-stained face with his bag packed. He appeared hysterical, anxious, and angry.
When the father tried to talk to me in an aggressive and abusive manner, I told the [sic] him that I was interested and my concern was for the safety and welfare of my kids. I also asked him to listen to what the children wanted. I begged him to stop bullying the kids and to listen to them. I also said to him, ‘stop the mentality of I’m the parent, you’re the child; or words to that effect. I am becoming increasingly concerned at the children’s reluctance to having any relationship with the father and the father’s ongoing behaviour at confrontation with me in front of the children.”[2]
[2] See mother’s affidavit filed 31 May 2017 at [40]
It is the mother’s case that both Y and Z were extremely upset after this incident. In my view, it would be extraordinary if they were not, given their obvious exposure to the conflict between their parents. It was against this background that Ms Phelan arranged for Y to be medically examined, first by his general medical practitioner, Dr S and then by Dr Y. Dr S apparently referred Y to Dr Y. As previously indicated, Mr Phelan was not involved in either consultation.
Dr S’s notes indicate that, on 28 March 2017, he had a long chat with Ms Phelan regarding Y’s reluctance to see his father. Y apparently indicated that his father had grabbed his arm once during a melt-down. The doctor indicated no injuries were apparent to him on the child.
In the context of this discussion with the doctor, Y further disclosed that he was starting to realise that he did not like spending up to two weeks with his father. Ms Phelan indicated that she might have to obtain a court order. Dr S did not prescribe any medication for Y. Rather, he dispensed what he characterised as a supportive chat. He further opined that Y’s anxiety was likely to be worsened by the custody battle.

Dr Y noted that Y has been diagnosed with autism spectrum disorder and attention deficit and hyperactivity disorder. This has precipitated the child having frequent behavioural issues in terms of aggression, hyperactivity and emotional melt-downs secondary to the above problems. These issues have apparently been well controlled with medication.
The consultation between Dr Y and Y and his mother occurred in mid-May of 2017. At the consultation, Ms Phelan described that Y was having more frequent melt-down episodes which were difficult to settle despite the use of medication. The cause of this behaviour was ascribed by Ms Phelan to Y hearing some inappropriate noises whilst at his father’s house which had made him very distressed. Thereafter, Ms Phelan described Y as being increasingly anxious. It seems to be the position that Dr Y was not in a position to determine what was the precise aetiology of Y’s behaviour. It is in this context that the child has been referred to Dr M, a child & adolescent psychiatrist for further assessment.
It is against this difficult background that the court must put in place some interim arrangements for the care of not only Y, but also Z. The parties’ respective positions can be easily summarised. The father contends:
·The mother has either over reacted to Y’s melt-down or is using it as a pretext to restrict his time with the children;
·In these circumstances, it is imperative that he recommences regular time with both Y and Z, otherwise the children’s relationship with him may suffer severe or even irreparable damage.
On the other hand, it is the mother’s position that:
·She has merely responded to the significant emotional distress of the children, particularly Y, which Mr Phelan is insensitive towards;
·It is likely to be counter-productive to compel the children, particularly Y, to do anything against their will, as this will precipitate extreme and possibly unpredictable emotional responses from them;
·In these circumstances, it behoves the court to take an extremely cautious and measured approach until such time as further expert evidence is to hand.
Since late March of 2017, the father has had only extremely limited time with the children and no overnight time. He concedes that it may be difficult to return to the fortnight about regime at this stage. However, he wishes the court to make orders for substantial and significant time, including overnight time at this juncture. His preference remains for an equal time regime based on a weekly formulation.
As I understand the mother’s position, she proposed that Y and Z should spend two or three short occasions each week with their father, which should take place in her presence so that she can provide emotional reassurance for them.
At the heart of the dispute between the parties are significant differences in their respective parental ethos. The father believes that it is necessary to take a directorial approach to Y’s behaviour. On the other hand, it is the mother’s position that it is preferable to take a more responsive approach to his behaviour.

The nature of interim hearings

This hearing occurs at an early stage in the proceedings. Mr Phelan commenced the case on 8 May 2017. It was given a directions hearing on 20 June 2017. Ms Phelan responded to the application on 31 May 2017. The hearing on 20 June 2017 is what is referred to as a duty list day. On that date, the court had seventeen other first directions matters listed before it. As a consequence, the court’s time was limited.
Ms Phelan’s solicitor ordinarily practices in suburban Melbourne. He had flown to Adelaide for the case and needed to return to Melbourne later in the afternoon. In all these circumstances, it was not possible for there to be any exhaustive hearing in respect of the parties’ competing applications.
Necessarily the hearing took place in a truncated form. There was no time for either party to provide additional oral evidence. I have attempted to summarise their respective positions in the background outlined above. In particular, I have tried to indicate where they agree about what has occurred between them and where they disagree.
However, I am not as yet in a position to resolve these disagreements. If necessary, this will occur at the final hearing stage. This is invariably the position at the interim hearing stage. At this early stage, the court is not in a position to make findings of fact in respect of disputed issues. In addition, the court is not in a position to make accurate assessments of either the credibility of the parties concerned or their respective level of parental insight.
In addition, at this early stage, the court rarely has before it any independent expert assessment of the needs of the family concerned. In my view, that is the situation in the present case. In my assessment, the evidence from both Dr S and Dr Y is both limited and provisional.
In particular, neither doctor has received any input from Mr Phelan, in which he has been able to provide either his perspective on why Y behaves as he does or what is the best way to manage his behaviour in future.
For obvious reasons, Mr Phelan is likely to be dubious of any medical opinion relating to the children in respect of which he has had no input, particularly if it is recommended that the solution to any of the children’s behavioural problems is to restrict his interaction with them.
In due course, if the matter proceeds to a final hearing, it will be necessary to obtain an extensive family assessment report whether by Ms R or some other agreed expert. However, at this juncture, the court is not in a position to delay its decision on a provisional basis until such a report is to hand.

The legal principles to be applied

At the outset, it is to be noted that although the nature of the hearing is different at the interim stage as opposed to the final hearing stage, the legal principles to be applied are the same.
In deciding whether to make any particular parenting orders in relation to a child, the court must regard the best interest of that child as the paramount or most important consideration [Family Law Act 1975, section 60CA].
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 list form in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations which closely tie in with the overall objects and principles of the Family Law Act 1975 set out in section 60B.
There are two primary considerations, which are as follows:
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.
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 protective concerns applicable to the children who are the subject of the relevant proceedings.
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
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. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
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.
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.[3]
[3] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
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 …”[4] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[5]
[4] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[5] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
Ms Phelan’s case is predicated on the basis of concerns relating to the emotional safety of Y and Z, which she asserts arise because there is a risk that Mr Phelan has or will expose the children to some form of either abuse or family violence.
Both these concepts are prescriptively described in the Family Law Act 1975. Mr Phelan denies that there is any cogent evidence to establish that he personally engaged in behaviour which satisfies the statutory criteria for either abuse or family violence.
Abuse, in respect of a child, is defined by section 4(1) of the Family Law Act 1975. It means:
“(a) an assault, including a sexual assault, of the child; or
(b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.”
Family violence is defined by section 4AB(1) of the Family Law Act 1975. It means:
“violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”
Clearly, in this particular case there have been two unfortunate incidents arising between Mr Phelan and the children. Firstly, there was the incident resulting in X electing to withdraw from spending time with Mr Phelan. Secondly, there has been the more significant episode of 27 March 2017, involving Y’s melt-down and how Mr Phelan dealt with it.
For reasons already elaborated at the interim hearing stage, it is difficult, if not impossible, for the court to characterise whether particular incidents constitute either family violence or abuse. As such, it is necessary for the court to endeavour to assess the relevant level of risk, arising from the various factors elaborated in the case concerned, and put in place responses which are proportionate to the degree of risk so assessed.
In Deiter & Deiter[6], the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.
[6] See Deiter & Deiter [2011] FamCAFC 82
The Full Court in Slater & Light expressed the task of assessing risk in the following terms:
“The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.” [7]
[7] Slater & Light [2013] FamCAFC 4 at [37]
Mr Phelan approaches the case from the perspective of the children’s entitlement to the benefits arising from having a meaningful level of relationship with their father. It is his position that there are also significant risks, arising for Y and Z, if they are deprived of such benefits, on the basis of uncertain evidence, arising at this early stage of proceedings.
In general terms, subject to child protective concerns and the overall best interests of the children concerned, the objects of Part VII of the Act and the principles underlying them place an emphasis on the co-involvement of parents in the lives and development of their children.
As a consequence of this emphasis, the legislation contains 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].
The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.
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)].
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)].
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)].
It is Mr Phelan’s position that the presumption of equal shared parental responsibility should be applied at this stage. On the other hand, it is Ms Phelan’s position at both the interim and final stage, that she should have what she characterises as sole responsibility for the children.
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.
The interaction between section 61DA and section 65DAA is complex. The application of the presumption does not result in any mandatory direction that the court must implement an equal time regime (or one based on substantial or significant time) if the presumption applies. Both such outcomes are subject to the court being satisfied that two discrete criteria have been met – firstly, they are in the child’s best interests; secondly, they are practical in an objective sense to implement.
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.
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.
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.
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.
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.
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.
The relevant legislation speaks of children’s rights rather than of any parental right to care for or parent a child pursuant to any specific regime. In theoretical terms, an equal time regime may be the most beneficial outcome for a child, but the court is directed not to overlook the practical realities of the overall situation for the child concerned prior to reaching such a conclusion.
The High Court in a case known as MRR v GR has considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable. Both these considerations arise as a consequence of section 65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made or when that has been ruled out, a substantial and significant time regime.
The High Court has held that it is a statutory pre-condition of the making of an equal time order (and a substantial and significant time order) that it is reasonably practicable for such an order to be made. Accordingly, courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[8]
[8] See MRR v GR (2010) 240 CLR 461 at [13] & [15]
Accordingly, the nature and viability of the relationship between the parents concerned is a legitimate area for the examination of the court both at the interim and final stage. In a case like the present one, it is likely to be of fundamental importance, particularly if the presumption is not rebutted. Accordingly the pathway to an equal time regime is a complicated one. It is not the starting point of the court’s deliberations.
The pathway, which the court is mandated to follow in determining parenting matters as delineated by the Full Court in Goode & Goode[9], can be summarised as follows:
[9] See Goode & Goode (2006) FLC 93-286
·consider the section 60CC matters relevant;
·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 an interim matter only, it is not considered “appropriate” for it to be applied;
·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.

It is Mr Phelan’s contention that the presumption of equal shared parental responsibility is not rebutted in the overall circumstances of this case. As such, it is his contention that the court is mandated to consider orders resuming the pre-existing shared care regime for Y and Z, which he asserts has been in place for a significant period of time.
It is his case that such an outcome is calculated to be in the best interests of the children and also reasonably able to be implemented, given where he and Ms Phelan currently live and the fact that they have been able to parent the children, in this manner, in the past.
Ms Phelan does not agree. Although her counsel did not specifically articulate it as such, it is her case that the presumption is rebutted on the basis that it would not be in the best interests of the children concerned for it to be applied. It is also, I think, implicit that she believes that the father’s conduct towards Y constitutes a form of abuse or family violence.

Consideration

At this juncture, I do not consider that there exists reasonable grounds, which should lead me to believe that Mr Phelan has engaged in either abuse of the children or family violence directed towards them. That is not to say that there is not some degree of risk that Y, in particular, will suffer some form of psychological harm, if he experiences another melt-down, which is inappropriately handled by his parents, either individually or in tandem.
On the basis of the medical evidence currently available to me, albeit that the evidence is somewhat limited, I accept that Y is a psychologically vulnerable child because of his special needs. However, at this juncture, it is unclear to me how those special needs should be approached and whether Mr Phelan personally is either ill-equipped to deal with them or un-insightful about their extent.
It seems clear that all three children know their father well. On any view, he has been a significant figure, in their respective lives, since each was born. It is also clear that Mr Phelan has had a significant degree of input into providing care for the children over many years. This has included a shared care regime since the time of the parties’ final separation approximately two years ago.
It is in this context that the degree of risk of the children spending regular and extended periods of time with their father must be assessed, particularly whether that risk is one of such magnitude that it would be unacceptable for the court to take it. I do not consider that it would be unacceptably imprudent for either Y or Z to spend extended periods of time in their father’s care given the longstanding nature of the relationship between them.
In addition, I do not consider that there is cogent evidence to indicate that the father is lacking in parental capacity to manage the children’s needs, including those of Y, arising from his special needs. Rather, it seems more probable that the parties have different views as to the best way in which those needs should be approached.
In addition, at this juncture I consider that there are perils in the children’s relationship with their father being unnecessarily and artificially curtailed or even truncated. At this stage, I consider that there are also significant risks in terms of their psychological wellbeing of being exposed to the potentially polarising effects of the significant parental conflict described by both Mr Phelan and Ms Phelan.
In all these circumstances, in my assessment the court needs to give earnest consideration to the benefits likely to arise for both Y and Z of maintaining a meaningful level of relationship with their father.
I do not consider that the mother’s proposal will enable such a meaningful level of relationship. In addition, I am concerned that her proposal for her to remain present during any periods of time the children spend with their father will lead both to a high degree of artificiality and provide fresh flashpoints for further conflict between the parties.
The medical evidence currently available does not provide any clear explanation as to why Y is so apparently anxious about his father’s household. In addition, Ms Phelan herself is not in a position to provide such an explanation. The father has given an explanation for the allegedly scary noises and can take appropriate steps to ensure that the children are not exposed to them again in the future.
It is the mother’s case that X and Y, in particular, have expressed a clear view not to spend time with their father. The applicable legislation requires the court to consider such views but within the context of the maturity of the children concerned and whether there are any other factors at play influencing such views.
At thirteen, X is to be regarded as a relatively mature child. As such, it is probable that he has personal preferences about all manner of matters. However, the fact remains that the rift between him and his father is comparatively recent and, as such, the court should approach his situation with some caution particularly given the complexity of the family dynamic which surrounds him.
To his credit, in my view, Mr Phelan accepts that a cautious approach needs to be adopted so far as X is concerned. Necessarily, Mr Phelan accepts that he and X need to work through their issues in a controlled and supportive way. However, at this junction there is no specific proposal as to what form any reunification counselling should take.
In these circumstances, I consider that it would be a useful response for X (and the parties) to attend upon a family consultant pursuant to the provisions of section 11F of the Family Law Act to gauge the best mechanisms through which X can be supported to resume a proper level of relationship with his father. The next issue is whether Y and Z should also engage in such a process.
This is a more difficult issue to determine given Y’s significant special needs, particularly his potential to behave in a violent and unpredictable fashion when placed in a stressful situation. However, in my assessment it is likely to be useful for an independent person to attempt to canvas his views and assess what factors are in play in influencing those views. In my view, it would be helpful if this could occur sooner rather than later.
Although each party is likely to be critical of the parental style of the other, this is not a case where either party can be described as disinterested in any aspect of the children’s care, welfare or development. In my assessment, both parties are deeply interested in every aspect of their children’s care and wish to be involved in all significant decisions relating to X, Y and Z.
In addition, in my view, there is no evidence to indicate that either party is unable to supply the children’s day to day care and educational needs. Where the parties do differ is who of them is better placed to provide for the children’s emotional needs, particularly in the context of Y’s challenging behavioural issues. Notwithstanding this controversy, I have no reason to think anything other than that Mr Phelan loves all three children concerned and wishes to have the opportunity to express this love to the children on a regular basis.
One of the additional considerations, which the court is required to consider, is the likely effect of changes in the circumstances of the children concerned, including the consequences of separation from parents. In this case, as a consequence of decisions largely taken by the mother, the children are spending only extremely limited amounts of time with their father whilst in the past there has been a shared care regime. On any view, this is a significant degree of change for the children concerned.
It is Mr Phelan’s case that this degree of change is excessive and, as such, cannot be regarded as being in either Y or Z’s best interests. In addition, he points to the fact that it has been unilaterally imposed upon him against a background of disagreement between him and Ms Phelan as to the appropriate future arrangements for the care of the parties’ children.
As such, he contends that it is appropriate for the court to attempt to normalise arrangements for the children’s care, which necessary must entail them spending reasonably significant periods of time with both of their parents. From his perspective, the mother’s proposal is at best tokenistic and, at worst, will lead to the children becoming more estranged from him.
In my assessment, this submission has considerable currency. I am concerned that Y and Z have gone from spending extended and regular periods of time with their father to little or no time. This occurred against a background of a failed process of mediation between the parties and an escalating level of conflict between them.
At this stage, there is no evidence to indicate that Ms Phelan has attempted to engage with Mr Phelan (and he with her) in any shared attempt to get to the bottom of what is affecting Y and work out some workable solution to any problems arising. Regrettably, their co-parenting relationship appears to be in trouble at present.
In general terms, the court is disapproving of self-help by one parent in respect of parenting unless circumstances of extreme emergency exist. Given my assessment of the nature of the risk which Mr Phelan’s parenting potentially creates for the children, I do not consider that the circumstances arising in this case justify the extreme and unilateral action elicited from Ms Phelan, namely the suspension of the children spending time with their father. Considerations of this kind militate in favour of either a resumption of the equal time regime or some form of substantial and significant time.

Conclusions

The first issue for determination is whether the presumption arising pursuant to section 61DA is rebutted in this case. Given my findings about the child protective issues, the major rationale for the rebuttal of the presumption is that it would not be appropriate at this interim stage.
In Goode[10] the Full Court indicated that this discretion was not to be exercised in a:
“broad exclusionary manner, but only in circumstances where limited may make the application of the presumption, or its rebuttal difficult”.
[10] Goode & Goode (supra) at 80-903
Again, in Goode, the Full Court said as follows, in respect of the overall ethos of shared parental responsibility to the Act, which were made in 2006:
“In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable.”[11]
[11] Ibid at 80,901
In all the circumstances of this case, notwithstanding the significant conflict between the parties, given Mr Phelan’s extensive level of previous involvement in the care of all three children, both prior to the parties’ separation and afterwards, it is my view that the presumption of equal shared parental responsibility should be applied.
However, as previously indicated, the presumption alone is not determinative of what actual time spending arrangements should be made. These turn on best interest considerations and what is reasonably practicable, given the dynamics of the family concerned. The legislation does not approve a one size fits all approach following the application of the presumption.
Although the parties live close to one another in suburban Adelaide, it is clear that they do not communicate effectively and have a limited capacity to solve parental issues relating to the children concerned. As such, in my assessment, it would be fool hardy for the court to reimpose an equal time regime.
However, at this stage, I do not think it would be in the best interests of either Y or Z to spend only extremely limited periods of time with their father, notwithstanding their parents’ apparent difficulties in surmounting the various practical considerations enumerated in section 65DAA(5).
I will direct that the parties and all three of the children concerned attend at a child inclusive family dispute resolution conference, which can be appointed for 5 September 2017 at 10:00am. It is also, in my view, appropriate that Mr Phelan be able to attend upon Dr M, if he so wishes. An ability to consult with a child’s medical practitioner is implicit in any parenting scenario, in which the parents concerned share parental responsibility for their children equally.
The concept of a major long-term issue, in respect of a child, is defined by section 4 of the Act and its implications defined by section 65DAC. It requires parents to jointly make all decisions relating to a child’s health, education and other issues of a long-term nature, relating to the care, welfare and development of the child or children concerned.
I accept that both X and Y are experiencing issues in their lives at present. These issues include how they relate to their father and what time they should spend with him. In my view, it would not be in the best interests of either of these children for Mr Phelan to be excluded from being involved in parental decision making because they have apparently expressed some personal antipathy for their father in the past.
At the end of the day, Mr Phelan remains vitally interested in every issue pertaining to the care, welfare and development of both X and Y and indeed Z. As such, it is important that he remains involved in any on-going treatment for Y and is kept in the loop so far as what is happening with X, including at his school.
In my view, it is one of the implicit roles of being a good parent that he or she keeps the other parent concerned and informed in respect of these matters. In these circumstances, in my view, Ms Phelan is potentially open to criticism for the actions which she has taken in respect of Y.
However, the fact remains that the parties’ parenting dynamic, at present, is severely compromised. They have scant ability to communicate effectively and as how the issues surrounding Y amply demonstrate, they have a limited facility to solve parenting problems consensually, particularly the complex problems, which are likely to arise fairly frequently given Y’s significant special needs.
In these circumstances, I do not consider that it would be in the children’s best interests to return to the equal time regime, as advocated by Mr Phelan as his first preference. I do not think that it is reasonably practicable to implement such a regime, particularly given that it is unclear, at this juncture, what would be the impact upon the children of such a resumption.
Similar considerations arise in respect of a substantial and significant time regime. Given the polarised positions of each of the parties, I am concerned at the potential for such an outcome to have an adverse emotional impact on the children, particularly Y. As such, I have reservations that such a regime is likely to be readily implemented in an objectively practical sense, although it may be considered to be theoretically in the children’s best interests.
The current situation, in my view, mandates a cautious approach until more evidence is to hand, particularly in the form of some advice from a family consultant following the child inclusive conference which has been allocated for 11 July.
However, in my view, the mother’s proposal is inadequate to maintain a significantly meaningful level of relationship between Y, Z and their father, given the application of the presumption of equal shared parental responsibility. I do not think that is an arrangement calculated to be in their best interests.
I will order that the children (Y and Z) spend alternate weekends from after school on Friday until the commencement of school the following Monday with their father. This arrangement can start on the forthcoming Friday 30 June. I will direct that the relevant authorities at the children’s school(s) be informed of this arrangement so that the transition may occur in a seamless manner.
I am aware that the mid-year school holiday is scheduled to commence on 7 July. During this period I will direct that the father spend time with the two younger children between 10.00 am on Thursday 13 July until 5.00 pm on Tuesday 18 July. The school term regime is to re-commence on Friday 28 July. In my estimation, such a regime fits within the rubric of substantial and significant time.
I will direct that X live with the mother and spend time with his father at such time and on such conditions as the parties agree from time to time but with the time to be subject to his wishes. I will further order that the parties be restrained from denigrating the other or discussing these proceedings with the children.
I will also make orders in respect of the exchange of parenting information between the parties in an effective manner, which I hope will reduce the potential for conflict to arise between them. It is implicit, in these reasons for judgment that I consider it appropriate that Mr Phelan be kept informed of all significant medical and educational decisions relevant to the children and be able to consult with the children’s doctors and psychologists and other health professionals.
I will await the outcome of the child inclusive conference to assess what is likely to be the best way to approach arrangements for X to re-engage with his father. But until that time, he should continue to live with his mother and spend time with his father subject to his wishes.
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 one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date: 30 June 2017

[2017] FCCA 1497

30 June 2017

Key Legal Topics

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Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies