· 2021-10-12T06:46:21+0000 · 750 posts

Parties Dispute Final Orders for Equal Shared Parental Responsiblity

Welter & Welter [2021] FedCFamC2F 11 (15 September 2021)

The parties are in dispute over final orders made in 2019 entailing equal shared parental responsibility for X. The mother asserts that her co-parenting relationship with the father is extremely toxic. On the other hand, the father asserts that the mother would breach earlier final orders, alienating X from him. The Court, in adjudicating this dispute, relied largely upon principles relevant to Rice & Asplund.

Facts:

The parties are the parents of X born in 2016. The parties married in 2014 and separated in 2017, when X was approximately 13 months old. The mother commenced proceedings, in relation to both property and parenting arrangements for X, on 6 July 2017. The mother's position is that the father has been intent on subjecting her to his coercion, both before and after the parties’ separation. As such, the mother outlines that he is more focussed on controlling her behaviour than pursuing what is in X’s best interests.

The father asserts that the mother is a problem drinker and has posed a significant risk to X’s safety because she has shaken and abused the child, as well as having over-medicated him.

The mother proposed that X should remain in her primary care and have professionally supervised time with his father; whilst the father proposed that X should live with him, whilst Ms Welter sorted through her personal issues and X himself should spend time with his mother, subject to his (Mr Welter’s) supervision. Throughout the latter period of 2017, orders were made for X to spend periods of daytime care, with his father, in the presence of Mr Welter’s brother or father. Time was further extended in 2018, so that X began to spend a full day, with his father, on each Saturday.

Final orders were made entailing equal shared parental responsibility for X. Consent orders provided for X to continue to live with his mother and for there to be a graduated increase in time until March 2021 (when X would be 5 years of age) when he would begin spending time with his father. On 14 June 2019, the father commenced contravention proceedings alleging that the mother was not facilitating his telephone contact with X. On 4 October 2019, the mother re-commenced proceedings alleging that controversy had arisen in respect of the pre-school that X should attend.

It remained the mother’s position that the parties’ co-parenting relationship remained extremely toxic and the father made regrettable comments about her, at handover, referring to her as an alienator in the hearing of X. On 10 February 2021, the father filed a further Contravention alleging breaches of the earlier final orders in respect of allegations that the mother had failed to deliver X to him on numerous occasions.

Issue:

Whether or not there are sufficient circumstances to re-open the proceedings.

Applicable law:

Family Law Act 1975 (Cth) Div 12A, Pt VII ss 11F, 60CA, 60CC, 68LA, 65DAA, 69ZN, 69ZQ, 69ZR - deals with orders relating to children. Before making any particular parenting order, the Court must regard the best interests of any child concerned as the paramount consideration.

Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) - where the legislature has made significant directions as to how courts, such as this one, are to conduct “child-related proceedings”.

CDJ & VAG (1998) 23 Fam LR 755 - where it was held that children are not well served by frequent displacements or being subject to uncertainty about where they will be living in the future.

Deiter & Deiter [2011] FamCAFC 82 - 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 the future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.

In the Marriage of Bennett [1990] FamCA 148; (1990) 14 Fam LR 397 - explained that a Court has a discretion to determine whether there has been a sufficient change of circumstances, to justify the reopening of the parenting issues in respect of a child, which have earlier been determined, as either a discrete or preliminary issue, or after a full and exhaustive hearing of all the available evidence.

In the Marriage of McEnearney[1980] FamCA 43; (1980) FLC 90-866 - said that the Court should not condone a “perennial football match between parents, who ... seek to canvass again and again the question of [parenting arrangements] of a child”.

King & Finneran [2009] FamCAFC 152; [2001] 42 Fam LR 1 - provided that the change of circumstances must be such that there is a “real likelihood” of a change.

Marsden & Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1 - where it was held that the Court should consider whether the issues raised relate to change alone or new issues, which render it necessary to revisit the earlier decision.

Rice & Asplund[1978] FamCA 84 - a reflection of the paramountcy principle contained in section 60CA of the Family Law Act.

SPS & PLS[2008] FamCAFC 16 - provided that when the threshold question described in Rice & Asplund is determined as a preliminary matter, it remains a determination “on the merits”.

Walter & Walter[2016] FamCAFC 56 - remarked that the decision to embark upon a fresh round of proceedings, following the conclusion of earlier ones, must be an idiosyncratic one determined by the Court’s consideration of all the prevailing circumstances.

Analysis:

Ms B, an experienced psychologist, reported that X was active and energetic, whilst in his mother’s care. Ms Welter was described by Ms B as presenting in an anxious manner. On the other hand, Mr Welter was observed as having presented as articulate in interview, putting forward his arguments logically and reverting to his own topics of concern throughout. However, Mr Welter’s results indicated that he experienced intense feelings of anger and, on the paranoia scale, an indication that he was likely to be overtly hostile, and have a tendency to be resentful and hold grudges. Ms Welter’s results did not indicate clinical levels of concern.

Under the current regime, X spends regular periods of time with each of his parents which appear to meet the description of substantial and significant time. While X enjoys the benefits of having a meaningful level of relationship with each of his parents, both parties agree that handovers in relation to X remain problematic. It is in a child’s best interests for those involved in their care to avoid, as far as possible, the deleterious consequences of litigation. In a case such as the present, it is readily apparent, that Mr Welter and Ms Welter have a significant propensity to disagree with one another, a circumstance unlikely to change by judicial fiat.

Future arrangements for X’s care would continue to be problematic, given the nature of the parties’ parenting relationship with one another, which is toxic.

Conclusion:

The Court concluded that there is no fresh issue that has arisen in this case, since the orders of February 2019, of such moment to justify the re-opening of the proceedings. There is no realistic prospect that Mr Welter’s recently filed application has any realistic prospect of success. To allow the proceedings to continue would be contrary to the paramountcy principle enshrined in section 60CA and not in keeping with the manner in which the Court is directed to conduct child-related proceedings pursuant to the provisions of Division 12A of the Act. The Court ordered the proceedings and all outstanding applications dismissed. The appointment of the Independent Children’s Lawyer is discharged.

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