Phelan and Phelan - [2017] FCCA 1497

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Phelan and Phelan

Details

AGLC: Phelan and Phelan [2017] FCCA 1497
Case: [2017] FCCA 1497
Decision Date: 30 June 2017

CaseChat Overview and Summary

In Phelan and Phelan, Judge Brown of the Family Court of Australia made orders concerning the parental responsibility and living arrangements for the three children of the marriage. The dispute centred on how the children would spend their time with each parent and the communication and conduct of the parents in relation to the children.

The court was required to determine the appropriate orders for equal shared parental responsibility, the specific living arrangements for each child, and the practical arrangements for the children's time with the father. Additionally, the court needed to address issues of parental conduct, including prohibitions against denigrating the other parent in the children's presence and discussing proceedings with the children. The court also considered the exchange of information regarding the children's welfare and development, and the attendance of the parties and children at a family dispute resolution conference.

Judge Brown ordered that the parties have equal shared parental responsibility for the children. The eldest child, X, was ordered to live with the mother and spend time with the father as agreed by the parties, subject to X's wishes. The younger children, Y and Z, were ordered to live with the mother and spend time with the father on alternate weekends during school terms and for a specified period during the mid-year school holidays. The court also made orders for the exchange of the children, including at their schools, and provided for alternative exchange locations if school was not in session. Injunctions were granted restraining both parents from abusing or discussing the proceedings with the children. The parties were directed to exchange relevant information electronically, with the father to establish a dedicated email account for this purpose. The mother was ordered to inform the father of all medical and allied health appointments, and the father was authorised to consult with the children's health professionals. Finally, the parties and children were directed to attend a child-inclusive family dispute resolution conference, with further consideration of the matter adjourned.

Orders

Orders of the court

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;

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.

10.

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.

11.

Further consideration of this matter is adjourned to 25 September 2017 at 9:30am.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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