Chatterjee and Woodby-Chatterjee (No. 2)

[2018] FamCA 611

FAMILY COURT OF AUSTRALIA

CHATTERJEE & WOODBY-CHATTERJEE (NO. 2) [2018] FamCA 611

FAMILY LAW – CHILDREN – With whom the children spend time – Best interests decision.

Family Law Act 1975 (Cth) ss.60B, 60CC, 61DA, 65DAA
Goode & Goode [2006] FamCA 1346
APPLICANT:	Mr Chatterjee

RESPONDENT: Ms Woodby-Chatterjee

FILE NUMBER: SYC 3822 of 2013

DATE DELIVERED: 6 July 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Baumann J

HEARING DATE: 2, 3, & 4 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Bridger

SOLICITOR FOR THE APPLICANT: Bricknell Legal Solicitors

SOLICITOR FOR THE RESPONDENT: G & D Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Stolier

INDEPENDENT CHILDREN’S LAWYER Brian Samuel & Associates

Orders

1. All previous parenting orders are discharged.

2. That the mother, Ms Woodby-Chatterjee, and the father, Mr Chatterjee have equal shared parental responsibility for long term issues for the children of the marriage namely E born … 2005 and F born … 2007 (“the children”).

3. For the remainder of the 2018 school year during school terms and commencing Friday 3 August, the children shall live:-

   (a)With the father from after school Friday to before school Thursday each alternate week; and

   (b)With the mother at all other school term times.

4. From the commencement of the 2019 school year and during school terms, the children shall live on a week about basis with changeover to occur after school Friday each week and with the Friday before the commencement of the 2019 first school term to be the commencement of the time with the father.

5. The children shall spend one half of the gazetted New South Wales school holidays each year with each parent as follows (excluding the end of year 2018 school holidays), being with the father for the first half of each school holiday during the years ending in an odd number, and for the second half of each school holiday in years ending in an even number, and otherwise with the mother.

6. To accommodate the children spending time with the father overseas from 21 December 2018 to 8 January 2019, the arrangements for the 2018/2019 school holidays unless otherwise agreed shall be as follows:-

   (a)That the number of days the children spend with each parent during their school holidays shall be equal;

   (b)The children shall spend time with the mother from the end of the 2018 school term until 12 noon on 20 December 2018;

   (c)The children shall spend time with the father from 12 noon 20 December 2018 to 12 noon 9 January 2019;

   (d)The period from 9 January 2019 until 5.00 pm on the Friday before the children return to school of the 2019 school year (when for the first week they will live with their father under Order four (4) of these orders), shall be divided between the parents to allow the children to spend equal time for the 2018/2019 school holidays with each parent.

7. That for the purposes of defining ‘holiday’ or ‘inter term’ periods the school holiday period shall commence on the day after the last day of the preceding gazetted NSW school term and shall conclude on the last day before the first day of the start of the gazetted NSW school term.

8. Other than when changeovers occur at school during school term, the parent with whom the children are spending time immediately prior to the commencement of the other parent’s time with the children shall deliver the children to the other parent.

9. That notwithstanding anything stated in these orders, the mother and the father shall each spend time with the children on each of the following special days:

   (a)For half of each child’s birthday from 2.00 pm to 7.00 pm or, if the child’s birthday is on a school day, for up to three hours after school with such time ending no later than 6.30 pm.

   (b)If the father would not otherwise spend time with the children of Father’s day, with the father from 10.00 am to 6.00 pm or otherwise as agreed.

   (c)If the mother would not otherwise spend time with the children of Mother’s day, with the mother from 10.00 am to 6.00 pm or otherwise as agreed.

10. That the father have sole parental responsibility for making decisions about the children’s day to day welfare, care, and development when the children are in his care.

11. That the mother have sole parental responsibility for making decisions about the children’s day to day welfare, care, and development when the children are in her care.

12. Telephone/FaceTime/Skype Time:

    (a)Each Wednesday and non-contact Sunday between 5.00 pm and 6.00 pm, the parent who does not have the care of the children shall be entitled to communicate and initiate a call to the children by telephone, text, Facetime, Skype or similar electronic means, and the parent with the care of the children shall:-

    (i)Ensure the children are available to receive the call; and

    (ii)Ensure any mobile number used by the children to receive the call is charged and in a mobile reception area.

    (b)Otherwise, the children of their own initiation shall be permitted to telephone (or text) the other parent at all reasonable times or upon a reasonable request, with “reasonable” to be determined by the parent the children are with at that time.

    (c)All such calls shall be in private, unrecorded and uninterrupted.

13. That whichever party receives a copy of the children’s school reports or other written notes issued by the school shall forthwith provide copies to the other party, or if the school is agreeable, direct the school to provide copies of such reports to the other party.

14. That each party shall, upon notification of any school or extra-curricular special event (including but not limited to concerts parent teacher interviews, excursions and camps), forthwith provide to the other party with details or a copy of the notification of such event.

15. That if either party receives notice of a party or other special event for the child/children which will take place while the child/children is/are with the other party, he/she shall forthwith give the other party notice of such event.

16. That each party shall forthwith notify the other party of any medical or other emergency affecting the child/children.

17. That each party shall keep the other party informed of the details of any person with whom they are cohabiting whilst the children are in their care.

18. That each party may attend and be involved in the children’s school events and extra-curricular activities, including sports, dance, and martial arts lessons, regardless of who the children are spending time with on the day of the activity.

19. That the parties will adhere to the Vaccination Plan for the children currently in place.

20. That:-

    (a)Upon obtaining a referral and mental health plan, the parties are to forthwith arrange for the children E and F to attend upon therapeutic counselling with Ms U of V Clinic at suite, Suburb B, New South Wales.

    (b)Leave be granted to the parents to provide Ms U with the two reports of Dr W (dated 30 April 2014 and 1 March 2018) and the reasons for judgment, and that Ms U be at liberty to contact Dr W to discuss the children.

    (c)Each party is the bear the costs of the children’s counselling equally.

21. That the parties shall not denigrate the other party in the presence or hearing of the children or either of them and shall remove the child/ren from the presence of hearing of any other person who is denigrating the other party.

22. That both parties do all necessary acts and sign all necessary documents so as to cause:

    (a)A passport to issue for each of the children and with the mother to hold E’s passport and the father to hold F’s passport once issued; and

    (b)An updated passport to issue for each of the children any time that a current passport expires or is due to expire.

23. That the passport will be returned to the relevant parent within seven (7) days of the children returning to Australia.

24. Where a party fails or refuses to do so, the requirement for that party’s consent will be dispensed with and, subject to the requirements of the Australian Government Department or Agency which issues or has the power to issue passports, such department shall issue passports to and for the children.

25. That the children be permitted to travel overseas, provided that:

    (a)Unless both parties provide written consent otherwise, the child or children travelling overseas be accompanied by a parent, grandparent, aunt or uncle of the child;

    (b)The party travelling overseas with the children (or if another relative, the party who that person is related to) gives the other party at least 28 days’ notice in writing;

    (c)The party travelling overseas with the children (or if another relative, the party who that person is related to) gives the other party a written itinerary listing each location the children will be travelling to at least 28 days prior to the overseas travel;

    (d)Unless both parties provide written consent otherwise, any such travel be restricted to Hague Convention countries, India, or Bali;

    (e)The party travelling overseas with the child/ren ensures that there are arrangements in place to enable the children to communicate with the other party by telephone, Skype, Facetime or other electronic means whilst the children are overseas at a minimum of two occasions per week.

    (f)In the event a parent takes the child/ren overseas, the other parent will have additional time in the same school holidays if practical, or during the next school holidays.

    (g)The children are permitted to travel overseas with the father from 21 December 2018 to 8 January 2019.

26. The Independent Children's Lawyer is discharged.

27. Notwithstanding these final parenting orders, the mother is granted leave to make an oral application for a change of school for E and the following directions to that single discrete issue apply:-

    (a)The hearing of this issue shall commence at 9.30 am on 17 August 2018 before Justice Baumann sitting in Sydney;

    (b)The mother shall file and serve by 4.00 pm on 25 July 2018 all affidavits to be relied upon by her and a minute of order sought;

    (c)The father shall file and serve by 4.00 pm on 10 August 2018 all affidavits to be relied upon by him and a minute of order sought.

Notation

1. The parents are encouraged to engage the services of a specialist independent educational psychologist to assist them to try and reach a joint decision as to E’s schooling.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chatterjee & Woodby-Chatterjee (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3822 of 2013

Mr Chatterjee

Applicant

And

Ms Woodby- Chatterjee

Respondent

REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. The management of teenagers’ behaviour can, at times, prove challenging to parents, however, where as in this case the parents have been separated and litigating continually since July 2013 without final resolution, the challenges increase.  To a large part, this is due to the toxic parental relationship that has been created, and the innate capacity of the oldest child, E, aged 13, to find gaps in her parents’ capacity to co-parent.  That her young sibling, F, aged nearly 11 years, demonstrates a sense of confusion and uncertainty is hardly surprising as he has watched the issues between his parents played out before him.

2. For reasons well known to these parents, earlier attempts by the Court to conduct a final parenting hearing have failed, most recently when Stevenson J bifurcated the matter in April 2018 hiving off the parenting dispute, whilst retaining a number of financial issues in which her Honour remains part-heard for determination next week.  It is clear that those unresolved financial issues had exacerbated the deep sense of disrespect and trust between these parents.  Some of those issues seem to relate to school fees.  In circumstances where, as I explain, I find both parents are articulate, intelligent, caring and loving parents to their children, it is a great pity that these issues were not resolved by consent some time ago.  The orders I now make, for the reasons I give, seek to achieve that finality.

Background

Contextual history

1. Statements of fact hereafter shall be construed as findings of fact.  As one might anticipate with unresolved litigation spanning five years, there are many incidents along the way which have caused parental conflict.  The parents were both quick to attribute “blame” to the other parent, and generally to diminish that parent’s contribution.  Having had the benefit of observing them under cross examination, I have formed the view that both the father and the mother are decent people, with quite different personalities who parent differently.

2. The current preferred strategies of guiding the oldest child E through her teenage years are different.  I analyse below some of my thoughts about their different parenting styles.  That is not in an endeavour to find one method is superior over the other, but rather to assist the parents to better understand the journey both E and F are required to navigate between their respective homes.  It is always difficult to predict whether past behaviour, particularly post separation, and in the shadow of continuing litigation, is a reliable predictor of future behaviour.  Certainly, as the history demonstrates, from around the time of separation, poor and ineffective communication between the parents has been a constant feature.

3. In August 2013, for example, the father had sent email communication to the mother indicating he wished to be kept informed of medical appointments.  The mother who says the father’s communication style is offensive and controlling on many occasions (unnecessary to detail), failed to keep the father informed, or left it to the doctor or dentist to do so.  That this is a continuing feature is reflected in a more recent example when E “wagged” school and when F had two teeth extracted.

4. Although I make below findings about some incidents, where I preferred one version of facts over another and explain why I do so, I regard the parents as generally reliable and honest witnesses who see the history through the prism of their own perceptions, and, at times, frustration and hurt that they both seem to feel.

5. I should indicate that I was impressed with the father’s partner, Ms X, as a witness who was a reliable and, I find, accurate witness.  For example, I find that it is likely the mother did say ‘Heil Hitler” in the background where the father was having a telephone conversation with F - as he and Ms X allege - where the mother admits to having described Ms X as the father’s “Nazi girlfriend” and even purchased at a market a publication for E, then in grade five, a copy of “The Rise and Fall of the Third Reich”, (a totally inappropriate publication for a child of that age), gives a context that persuades me to accept the father’s version of that telephone call.

6. I also, in preparing these Reasons, seek to do as little damage as is possible to the ongoing co-parenting relationship which the orders will require.  I am not entirely confident full repair can be achieved quickly, noting that other hotly contested financial issues are still to be tried by this Court, but I retain some hope that these two capable parents will understand that continuing to put the children in the middle of their dispute (as has occurred now for some years) is likely to compromise the children’s development potential, whatever the care arrangements are ordered to be.  Even worse, as explained to the parties at the close of evidence on Tuesday, the pressure on the children, particularly E, may be reaching a stage where her long-term mental health might be adversely affected.

7. The parents began cohabitation in 1999, and married in 2003.  At the time of marriage the father was 32 years of age and the mother was 34 years of age.  The relationship was blessed with the two children: E born in 2005 and F born in 2007, who were aged approximately seven years and five years respectively at separation around September 2012.  The parents sought to manage the relationship with the children under the one roof for a time post separation.  However, it was apparent that the tensions in the relationship (many likely to have been exacerbated by the financial issues as well) caused the father to commence proceedings in the Federal Circuit Court in July 2013.

8. The mother says that as early as September 2013 she was concerned about the effect on E with the separation and obtained a referral to a local psychologist.  She did not inform the father of these actions at the time and, sadly, since then the level of communication between the parents about health issues has been less than ideal.  The Federal Circuit Court ordered by consent on 10 September 2013 (“said interim orders”) on an interim basis that the children should live with the mother and spend time with the father essentially as follows:

   (a)Week one from 8.00 am Saturday to before school Tuesday; and

   (b)Week two from after school Monday to before school Wednesday.

9. School holidays and special days were shared (with the orders for such time having required further Court intervention, it seems, but consent orders for variation having been reached).  Furthermore, the father and the mother were to have regular prescribed telephone/Facebook time when the children were not in their care; a regime that seems to have caused some other difficulties on the evidence I have heard.  Whether the time on telephone was to be every alternate night or every night is a little unclear, but, in my view, it was too many times.

10. Remarkably, these said interim orders have remained in place without significant variation, and despite a number of court events since September 2013; that is nearly five years ago.  I note that the mother sought by Application in a Case filed 31 March 2017 an order that the children’s time with the father be suspended.  However, no substantive order varying time was made.  Further, I note that Benjamin J - on 18 December 2017, as a matter was awaiting the trial scheduled to commence before Stevenson J in April 2018, ordered again by consent on an interim basis the following in respect of certain schooling matters:

    1.        That the mother forthwith do all things and sign all documents necessary to cause [E] (“[E]”) born on … 2005 to be enrolled at [Y School] commencing in year 7 in 2018.

    2.        In the event that [E] is not offered a place at [Y School] for the 2018 school year then the father is to forthwith do all things and sign all documents necessary to cause [E] to be enrolled at [Z School] commencing in year 7 in 2018.

    3.        In the event that [E] is not offered a place at either [Y School] or [Z School] for the 2018 school year by 20 January 2018 then unless otherwise agreed in writing between the parties, the father is to be responsible for the choice of schools and enrolment of [E].

    4.        That the father is to forthwith cause [F] (“[F]”) born on … 2007 to be enrolled at [AA School] commencing in year 5 in 2018.

    Notations:

    1.        The Court notes that the paternal grandfather, [Mr Chatterjee Snr], has agreed that he will be responsible for the payment of the school fees for [F] at [AA School] and for [E] at either [Z School] or such other school that is nominated by the father pursuant to these Orders.

    2.        The Court notes that it is the intention of the parties that the father be responsible for enrolment of the children in schools pursuant to Orders 2, 3 and 4 of these Orders rather than both parties being responsible for doing so, so that the mother is not required to sign enrolment forms and is therefore not exposed to liability for school fees.

    3.        The Court notes that the arrangements for E contained in Order 3 are intended to provide flexibility, so that if neither [Y School] or [Z School] enrols [E] in 2018, [E] can be enrolled in a local Public School until the father is able to secure a place for her in an alternate school if required.

    …”

1. During the course of these proceedings two family reports by Consultant Clinical Psychologist, Dr W, were prepared:

   (a)the “first family report’ dated 30 April 2014 arising from interviews on 13 March 2014; and

   (b)the “second family report” dated 1 March 2018 arising from interviews on 5 February 2014.

2. I deal more fully with views and opinions of this Court Expert, later in these Reasons.  Dr W was the subject of cross examination.  At the time of the first family report, the mother had proposed she be permitted to relocate with the children out of Sydney to northern New South Wales - a proposal strenuously opposed by the father.  Without adequate explanation to the Court, the mother did not inform the Court until October 2017 that she no longer intended to seek permission to relocate.  This is despite, at least since October 2016, she having moved into public housing in Suburb B where she still resides, caring for her elderly mother who I understand may suffer from some dementia.

3. The Federal Circuit Court transferred the proceedings to this Court in June 2014, and an Independent Children’s Lawyer was appointed in April 2017.  Regrettably, it seems the matter had been listed for hearing before other Judges previous to Judge Stevenson’s listing in April 2018 when, as I say, her Honour, for reasons she gave at the time no doubt, decided to bifurcate the proceedings between parenting and financial issues.  I am aware that those financial proceedings are due to recommence next week.

4. An issue around the children being vaccinated, previously opposed by the mother, was resolved, and recently the children have commenced a plan arranged by the father to undertake the required vaccinations.

5. When Stevenson J in April 2018 caused the parenting proceedings to be listed just over two months later before me, she was not to be aware that some issues have arisen (particularly with respect to E and her schooling and asserted increased anxiety) and, as a result, when the mother, who initially represented herself at the hearing, sought to file and rely upon a new Affidavit, the record will reveal, for reasons given orally, that I refused her leave to do so, save for part of the Affidavit which was marked Exhibit 1 which related to more recent events.  Such a course was not opposed by Counsel for the father, Ms Bridger, and by counsel for the Independent Children’s Lawyer, Ms Stolier, although I also granted leave to the father to give oral evidence in chief in reply.

6. After the short adjournment I allowed Counsel for the father to read the new material and take instructions.  Mr N, the solicitor previously on the record for the mother, appeared with instructions to appear for the mother as an advocate.  He did so through the trial and was, I am sure, of some assistance to the mother.

Statutory pathway

1. In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s.60B of the Family Law Act1975 and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s.60CC(2) and the additional considerations under s.60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.

2. To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.

3. In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s.61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.

4. In Goode & Goode [2006] FamCA 1346 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s.61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s.65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents.  If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.

Competing proposals

1. The Applicant father’s proposed parenting orders appear attached to these Reasons as published and marked Appendix One.  By filed submissions the only substantive change that he sought related to parental responsibility; the father now agreeing to an order for equal shared parental responsibility.  As the orders sought to effect, the father seeks the immediate commencement of a week-about equal time regime.  The mother’s position in respect of parental responsibility is that she sought the final decision making power for “health, including mental health” issues.  By filed submissions she also agreed to an order for equal shared parental responsibility.  Essentially, as her Response filed 27 June 2018 articulated (and the parenting orders are set out as Appendix Two to these published Reasons), the mother proposed a mathematical reduction in the time the children currently spend with their father from five nights per fortnight to four nights per fortnight during the school terms, although she agreed it would be appropriate that they be in one block as opposed to what is currently occurring of two blocks.

2. What is clear is that by filed submissions the mother had retracted from that position and then took the view that it would be appropriate and in the best interests of the children that they spend five nights per fortnight with the father which she was prepared to accept under the current order, should be in one block.  The mother had other specific issues orders, which many were not of substance, and which were dealt with by my submissions with Mr N, and many were not ultimately pressed, as the transcript reflects.

3. Before filed submissions the Independent Children’s Lawyer presented the final minutes of order which the Court used as the suitable template for its orders today with an oral submission that a week-about equal time regime is appropriate in the best interests of both children, and should commence immediately.

4. In making final orders today, as I do, the only unresolved issue relates to the possible change of schooling for E relating, in part, to an offer of a scholarship to her made during the hearing but arising from an audition conducted on or about 28 June 2018.  The Court was informed the offer is from, I believe, the BB School, but the father has not seen the terms of the scholarship offered, (nor has the Court), or had a reasonable opportunity to consider the impact on E of any acceptance by the parents of that offer.  This is the reason why the Court took the somewhat unusual step but, in its view, totally in the interests of the child, of making final parenting orders today, but allowing the mother to make an oral application in respect of schooling for E, which the Court will deal with on 17 August 2018.  I make directions in respect of that discrete issue.

5. I also make the observation by way of a notation to the orders that this matter may benefit, if possible, from an assessment by an educational psychologist as there seems to be a number of competing issues that deal with E’s dance, her academic and other pursuits within the school environment.

Parenting styles

1. Much has been said by both parents and the Court Experts about the different parenting styles - with each parent asserting their style as superior, the other parent’s style is inferior.  A great deal of evidence was provided to the Court from which the Court is asked to effectively choose the “better” parent.  That, however, is not the real test.

2. These children are indeed fortunate in many ways, compared to many children in Australia.  The Court is satisfied on all the evidence that:

   (a)the mother who has been the primary carer of the children up to and since separation is articulate, intelligent, caring and not affected by mental illness, drug or alcohol addiction and does not physically or sexually abuse the children; and

   (b)the father, a chartered accountant by profession, and in full-time employment, has a strong bond with his children and is also articulate, intelligent, caring and not affected by mental illness, drug or alcohol addiction and has not physically or sexually abused the children; and

   (c)the children are not, in any sense, underloved.  In addition to their parents, the father’s extended family (his parents live within 500 metres of his home); the father’s partner since 2015, Ms X, and the mother’s mother (to the extent she has the capacity to do so) have important and supportive relationships with these children.

3. The greatest risk to these children arises from the clash in parenting styles; the attitudes to parenting of the parents that has manifested in poor communication and, frankly, little issues blowing up into big issues.  Whilst at separation the children’s ages may have diminished their awareness of these differences between their parents; that is not the case now.  I am satisfied that E (in particular) uses the poor parental communication and the need for each parent to garner her support emotionally at times, to achieve outcomes that suit her and which she does not have the maturity to understand may put her at risk and may not be in her best interests.

4. Under the pressures exerted by E in recent times, she has, I am satisfied:

   (a)caused her father to support a mixed gender sleepover against his long-held views as articulated in the material;

   (b)caused her mother to allow her to remain home from school on occasions without proper justification; and

   (c)enabled her to effectively avoid two school camps (at different schools) and a compulsory sports carnival (when she “wagged” school) proximate to that event.

5. I suspect there could be other issues the parents do not even know about and, frankly, her claimed absolute innocence about the use of her mobile phone to facilitate another child to be bullied only avoiding some suspension because of the parents’ intervention, rings a little hollow.

6. The father’s style is based on structure, rules, talking (no doubt at some length), through issues and then trusting E to be responsible, whilst the mother’s boundaries seem more flexible, and she is very much in tune to their asserted feelings and is, she claims, more empathetic.  I assess the strengths and weaknesses in these different approaches impact in different ways and in different scenarios.  Each parent could learn something from the other parent.  However, their focus (under the shadow of this litigation) has been more associated with proving their approach is always right and the other parent’s approach is nearly always wrong.

7. Luckily, perhaps, to date this constant “blame game” has not resolved in a tragic consequence for E who is pushing the boundaries, but unless there is a united front on core boundaries and values to be applied across both households, a tragic outcome looms.  That is why when the litigation is concluded and the practical sharing of care arrangements are defined, the parents must get on the same page and support each other with the assistance of immediate therapeutic support for both children, which the Independent Children’s Lawyer also promotes, having prepared a draft order and to which the parents, I understand, have agreed.  If this can all be achieved, then both E and F have a real prospect of reaching their potential in a way that these essentially two capable parents desire for their children.

Court Expert, Dr W

1. Dr W, as the history records, has had two separate occasions nearly four years apart to assess the parents and the children, and this longitudinal perspective made his opinions and responses under cross examination of some assistance in my ultimate determination.  It is trite to remind the parents that the opinions of an expert family report writer is but part of the evidence that the Court is required by law to consider and weigh up.  I record, to assist in illuminating the pathway to my conclusions, some of the evidence from the reports and evidence of Dr W as follows:

   (a)Dr W had, somewhat unusually, an opportunity for longitudinal assessment with the time between his first assessment in March 2014 and second assessment in March 2018, spanning four years.  His opinion that “little has changed” and “much has got worse” is telling.  I agree with his assessment.

   (b)I agree with Dr W that the parents are so busy hating each other, to take a leaf from the other parent’s parenting approach at times. Overwhelmingly, and on more than one occasion through his cross examination, Dr W, a very experienced clinician, expressed real concerns about the risk that E is at, particularly when he was informed about:

   i)her change of schooling - two schools this year already;

   ii)her persistent resistance to school-based compulsory events like the school camps and the athletics carnival;

   iii)the number of a days she has had absent from school which, without the Court being satisfied many absences were truly justified was, in his description, a “profound” concern;

   iv)her expressions of self-harm;

   v)her school truancy; and

   vi)her increasingly “dominant behaviour”.

   (c)To some degree, Dr W identified these personality traits in E when he saw her in 2014, (see his observations at paragraphs 54 to 56), where her petulance was on full display.  Even when the mother sought to talk to Dr W at one point in the presence of E, Dr W noted in his first report that “E then sat on her mother’s lap and used her hand to cover her mother's mouth”.  Then she started “tearing up papers and throwing the pieces around”.  The mother appeared to Dr W to be quite helpless to control or manage E’s behaviour and the mother admitted as much, saying words to the effect, “I don't know how to deal with this”.  E was only eight years 10 months old at the time.

   (d)Dr W recommended in his first report the mother not be permitted to relocate the children’s residence to the CC Town area which he opined would represent a “considerable disruption to the children in terms of schooling, social networks and recreational pursuits, not to mention a substantive diminution of their relationship with their father”,  (paragraph 74).

   (e)It is disappointing, and no credible reason was articulated by the mother, in my view, that the mother delayed advising the father that she no longer pursued relocation until October 2017, over three years later.

   (f)Relevantly, at the time of the first report, Dr W opined at paragraph 76 that equal time arrangement as sought by the father would be in the children’s best interests, and would be considered reasonably practicable but, as the mother was staunchly opposed to such an arrangement, he recommended as a “viable alternative” that the children spend six nights with the father each fortnight, (paragraph 77).  Sadly, from the date of the release of the report on 14 May 2014, no further review was undertaken by the Court so that the 9/5 sharing of care ordered in September 2013 has now been in place for nearly five years.  Dr W’s recommendation against a reduction of time and support for equal time I find is a position he generally still adopts now.

   (g)In circumstances where Dr W opined, and I agree, that the core characteristics of each parent’s parenting style has not changed, and where the hostility between the parents has continued, and, if not, escalated, (with occasional glimpses of cooperation), it is hardly surprising that both children have felt the pressure of managing their parents and want the conflict to end.  What is apparent, and Dr W’s express concerns confirmed the immediate risk, is that E’s behaviour has escalated through a difficult to manage situation, and neither total adoption of one parent’s style of parenting is the answer - as each parent asserts.

   (h)Dr W saw, and I agree, risk in the father’s more rigid and rules based environment as well as risks in the mother’s more relaxed trusting and flexible style (characterised at times by counsel for the father as “permissive”), and that a bit of both in a complimentary way would be the ideal situation.  As will become apparent, the orders which I make which support equal time arrangements is opined by Dr W as also thought likely to engender some modification of each parent’s style which might possibly evolve.  I agree that is possible, as both parents, I believe, have now reached a level of understanding, if not been drained by the litigation, that if they do not learn to accommodate some of the parenting difficulties in their household, a tragic result for E could almost be a certainty.

   (i)It is not necessary to record in these Reasons the multitude of “parenting” strategies that Dr W shared with the parents during his cross examination, as I watched both parents listening intently, and I agree they both have the capacity to change.  In short though:

   i)both homes need to adopt similar boundaries for E around use and access to her social media and mobile phone; peer involvement and school attendance;

   ii)whilst I do not find the father is “unaffectionate”, the mother is, it seems to me, on the evidence, more emotionally attuned and a more emotional person, and her maternal tactile approach (recently demonstrated at E’s 13th birthday party when F sought to return to his mother’s home rather than the father’s when he was tired) does provide some comfort, although cuddle techniques are not appropriate all the time; and

   iii)Most importantly, each parent has to support and not undermine the authority of the other parent when they are exercising in their home proper decision making.  The experience where E clearly manipulated her parents after the school camp debacle, and:

   -    refused to go to the father, which was supported by the mother; and

   -    where the father took the phone as a “punishment” or “inducement or encouragement” for her to come to him; and then

   -    the mother activated police to attend at the father’s home in the presence of F to recover the phone,

   is, in my view, an indictment on the approaches of both parents.  They could have handled it much better and I believe they know that to be the case now.

   (j)I agree with Dr W that, in effect, this type of behaviour for the parents has the effect of empowering E to make decisions.  She does not have the maturity to fully understand, and where both parents have allowed themselves to deviate from what they know is not right, giving in to E and further empowering her as a result.  That F, a child of different personality, watches these events with a degree of confusion is, as I have said earlier, hardly surprising, and one does not really know how he might think he will handle it as he gets older.  I am satisfied, however, that his gender identification is another reason why increasing the time, at least for F, with his father is justified.

2. Ultimately, Dr W supported an equal time arrangement with possible incremental transition which, although supported by the wishes (for fairness) expressed by F, was not a regime which E supported in the wishes recorded to her.  I have come to the conclusion that a contribution to the express wishes of E to leave things as they are, is that the father’s rules and consequences are seen by the child as too restrictive as compared to the more flexible boundaries offered in the mother’s home.  In this case, as the Independent Children’s Lawyer has done in the final submissions, I do attach considerable weight to the opinions and recommendations offered to the Court by Dr W.

1. I now propose to deal with the competing proposals within the matrix of the relevant section 60CC(2) and section 60CC(3) considerations in a narrative form, in circumstances where I rely upon, but do not repeat, findings already made.

Primary considerations

1. The respective final proposals of each parent and the evidence overall demonstrates, I find, that each parent appreciates the benefit to E and F of having a meaningful relationship with the other parent.  As I briefly discuss next, however, if a reduction in their parental conflict is not achieved quickly, coupled with a modification (as enunciated by Dr W) of their individual parenting styles, E will continue to challenge her parents in such a way that she is likely, at some point in the future, to “vote with her feet”, and could either rely on one parent to the exclusion of the other, or be so difficult to manage that, as, sadly, some children in this country do, look for solutions outside either of their parent’s home.

2. As noted earlier, these capable parents are not the subject of allegations of neglect, drug addiction, mental illness, or other asserted parental deficits.  However, as by now the theme of these Reasons make clear, the unrelenting conflict between the parents (mostly arising at times through poor or ineffective communication) has fuelled an unhappy environment for these children.  Thankfully, the way forward lies squarely in the hands of their parents, and I entirely agree with Dr W at the conclusion of this parenting trial, each parent would benefit from initial individual counselling to be followed by some joint sessions to build, hopefully, a joint desire to communicate early about issues, and more effectively.  Doing a course in learning to “listen” to the other party would be a good place to start as well.

Initial considerations

1. In his most recent report Dr W captures the feelings and views expressed by E (paragraphs 62 to 70) and F (paragraphs 76 to 82).  There was a common thread expressed through these interviews for a cessation of the parental conflict.  E expressed a preference for leaving arrangements as they are because she is “used to it”, whilst F expressed a preference for equal time, but not in a week-about regime.  In my view, despite their ages, the Court is cautious about applying determinative weight to their expressed wishes.  The level of conflict they have had to endure and the likely natural desire to “please” their parents to avoid conflict, made it difficult for these delightful and talented children to feel safe, in my view, in expressing their true beliefs.  In any event, as the Family Law Act1975 makes clear, there are a number of other factors apart from their wishes which must be considered in determining the children’s best interests.

2. Although the mother historically, has been the children’s primary carer, Dr W observed, and the parents do not dispute, that the children have a close relationship and bond with each parent and with each other.  I am satisfied they have a warm relationship with the father’s partner Ms X who adds another dimension into their lives through her interest in cultural pursuits.  The mother properly conceded that the paternal grandparents (who live close to the father) and the father’s extended family offer support and love to E and F, and they benefit from those relationships, as I find they do from being close to their maternal grandmother who lives with and is cared for by the mother.

3. In my view, both parents have taken opportunities to participate in making decisions about long term issues and to spend time to communicate with the children, shaped, at times, by the interim orders made in September 2013 which have generally been complied with, but at times made difficult by the communication issues.  They were able to reach some form of agreement in late 2017 about schooling but, as we note from the history, whilst F is happy with his school, E is not.

4. In this regard, although I accept the mother has been anxious and has felt somewhat isolated, and perhaps under attack during the currency of these proceedings, her failure to find a way to keep the father informed has been disappointing and has fuelled the conflict and sense of lack of trust or respect between the parents.  She has also delayed in communicating about some significant issues (eg relocation and vaccination) in a timely way.  It is not appropriate to expect a health professional or the school to be the conduit for passing on information between parents.

5. The father pays child support as assessed and although payment of school fees and the sharing of expenses for dance and the like has caused conflict, hopefully the resolution of the financial issues will clear away the angst that has not allowed the parents to easily reach agreements on how to equitably share expenses for things like school, dance lessons, child counselling and some health expenses.  There are no real practicable difficulties or expenses for the children to spend time or communicate with the other parent.  They live in the same region.

6. I have, I believe, already made sufficient findings on the parents’ capacity to provide for the needs of the children, and their attitude to the responsibilities of parenting to E and F.  There are no family violence orders in place and, although the mother asserts that the nature of the father’s style of communication towards her is both intimidating and controlling (which on the wider definition of family violence under the Family Law Act 1975 that applies could amount to family violence), I again note that the communication difficulties and frustrations for both that arise from those difficulties is the major issue.  I accept the opinion of Dr W that the father has, at times, demonstrated anger, but I do not assess him as an angry person.  Rather he is, I find, a person who does not easily or quickly accept a contrary position and who is extremely confident about how “excellent” a father he is, causing frustration from him when others (including the mother) do not see it so clearly.

7. The Court is required to consider making an order least likely to lead to the institution of further proceedings, and I believe the orders I pronounce, although not what the mother seeks, will achieve that desire - save for the currently unresolved issue of schooling for E.  F’s schooling is settled and, provided his fees are paid.  They are currently being paid and undertaken by the paternal grandparents.

8. In the discussion which follows I deal with the important additional consideration (prescribed by section 60CC(3)(d)), namely the likely effect upon the children of changes to the parenting orders.

Discussion of parental responsibility

1. Although by filing submissions the parents had retreated from their earlier initial positions and proposals for retaining some aspect of decision making solely, the father seeking it for health issues, and the mother seeking it for school issues, I agree that the Court should make an order for equal shared parental responsibility for major long-term issues.  I regard such an order as in the best interests of the children.  I make the observation that there are examples where the parents, even within the last six months or so, when communication has been really tested, agreed on F’s tonsil removal; the initial choice for schooling and then the change to DD School for E; and even adjusting the forthcoming mid-year school holidays.  They are able to communicate at some times it seems.

How should time be shared?

1. Whilst it is mere speculation as to how the position of the parties and the children might have been different today if some nuanced incremental increase in time between the children and their father had occurred after the first family report, I am satisfied that the entrenched positions of the parents from the start of these proceedings five years ago until the end of the trial before me, with the mother asserting initially a four/ten regime but now accepting a five/nine regime; and the father asserting an equal time regime, has fuelled the lack of respect the parents have had for each other because at least the Applicant father sees his parenting as at least of equal (if not superior) quality to that of the mother.  Her failure to recognise his parenting benefits and reduce the time the children have with him is not, in his view, child focused, whereas the mother saw an increased role of the father as a diminishing of her own role; something which she takes very seriously and has performed to the best of her ability.

2. In my view, the mother felt threatened about her deeply-held concept of her parenting being more emotionally attuned and where she has had, in my view, passively controlled, through her failure to communicate or agree to variations, the situation.  This being under the guise of maintaining stability, however she failed to properly, in my view, understand the growing needs and benefits of the children spending more time with the father.  Although a “snapshot” of the poor communication and intense conflict that currently exists is contraindicative of an equal time regime working well, which I am required to consider.  I am, on balance, prepared to accept the views expressed by Dr W that a move towards “more equity” is in the best interests of the children and reasonably practicable.

3. Although I accept the children (and particularly the mother) will need to make some adjustments, I am satisfied they can all do so.  I hold no concerns of the father and his expanded family and Ms X will cope well with the change.  I hold some residual concerns that both parents could at times say or do things that undermine the other parent’s relationship with the children, but, on balance, I find that with their therapeutic support and a better understanding of their individual contribution to the hostilities over the time since separation nearly six years ago, that the focus will shift from the other parent to the needs of their two adolescent children.  If that does not occur, and, as I have already said, that each parent needs to share the responsibility for these changes, there are no orders that the Court can make that will protect E and F from the worst consequences of exposure to ongoing parental conflict so graphically painted by Dr W.

4. I have decided that an equal time regime is in the best interests of the children, and reasonably practical, but will order it occurs incrementally as follows:

   (a)an immediate increase of one night a fortnight from the commencement of the next school term; and

   (b)the week-about arrangement (changeovers of school on Friday) to commence from the start of the 2019 school year.

5. I have elected to move the time in this way, conscious that the mother will need to adjust to these orders as well as the children; that issues around E’s schooling are unresolved (arising from the recent offer which makes her environment a little uncertain), and where for E 2018 has been a very unsettling and disruptive year, and 2019 offers a chance for the type of stability and certainty that is likely to encourage her balanced pursuit of her scholastic endeavours and her passion for dance.  I am also aware that as a result of an order both parents and the Independent Children’s Lawyer ask me to make, both F and E will engage immediately with Ms U, a Psychologist recommended by Dr W.  This will hopefully assist any transition issues of which the children may experiences.

Other orders

1. The parents have agreed that school holidays be shared equally and now agree the children are of an age where they would benefit from a longer block with each parent as possible during the, at least, six week end of year school holidays.  The orders I make accommodate that.  Both parents agree the children should have passports and be able to travel overseas on appropriate notice.  Sensibly, the parents have agreed that the children accompany the father and his parents on a trip to the United States from 21 December 2018 to 8 January 2019.  On this basis the orders I make today for the end of 2018 school holidays take account of that trip and take account of some short period before the trip to get ready and some short period after the trip to adjust back to the time zone.

2. On this basis, for the end of 2019 school holidays the mother shall have the first half a day where the children can spend Christmas with her.  Thereafter, the first and second half shall alternate, unless otherwise agreed.  If both parents are in the same area for Christmas and wish to share some of the celebratory time with their children and can agree on it, then that can occur, otherwise the parent can use their three week holiday time with the children as they wish without Christmas Day preventing it from occurring (as will be achieved this forthcoming Christmas Day).

3. With respect to other issues and the orders which are set out at the commencement of these Reasons, I say briefly that:

   (a)the order for counselling for E and F on the terms drafted by the Independent Children’s Lawyer is made;

   (b)I do not propose to order that the parents undertake individual counselling;  parenting skills education courses (including one focused on better understanding and listening to teenage children) or FDRP engagement - although I would encourage all such endeavours;

   (c)I will make directions to facilitate a discrete hearing on E’s school if required after allowing the mother at the conclusion of the trial, through his sister, to make an oral application to do so.  It will be listed for hearing before me commencing at 9.30am on 17 August 2018 in Sydney.  I do this such is the importance to E of the decision if the parents (who now have equal shared parental responsibility) cannot agree; and

   (d)I discharge earlier orders, including the appointment of the Independent Children’s Lawyer with the thanks of the Court.

4. The orders I pronounce today and which are set out in the commencement of these published Reasons are in the best interests of E and F.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 6 July 2018.

Associate: 

Date:  13 August 2018

APPENDIX ONE

Parenting Orders

1. That the father have sole parental responsibility for making decisions about the education including primary and secondary, and health care including health care, medical and dental issues in relation to the children namely E born … 2005 and F born … 2007 (“the children”).

2. Other than for the long-term issues referred to in order 1 above, the parents have equal shared parental responsibility in relation to the long term care, welfare and development of the children, including:

   (a)Religious observance;

   (b)Sporting, cultural and social activities;

   (c)Travel including the obtaining of a passport.

3. That the children live with the mother as agreed between the parties in writing and failing agreement as follows:

   (a)During school terms, each alternate week commencing on the second week of term, from after school on Friday to the start of school the following Friday morning with the mother collecting the children from school at the commencement of her time with the children and delivering the children to school at the end of her time with the children;

   (b)For one half of the gazetted New South Wales school holidays each year as follows:

   a.For the first half of each school holiday during years ending in an even number, and for the second half of each school holiday in years ending in an odd number.

   b.At Christmas the children shall live with the mother from 6:00pm on 24 December until 6:00pm on 25 December in years ending in an odd number, and with the father from 6:00pm on 24 December until 6:00pm on 25 December in years ending in an even number.

4. That for the purposes of defining ‘holiday’ or ‘inter term’ periods the holiday period shall commence on the day after the last day of the preceding school term and shall conclude on the last day before the first day of the start of the school term.

5. That the children live with the father at all other times.

6. The parent with whom the children are spending time immediately prior to the commencement of the other parent’s time with the children shall deliver the children to the other parent except when the commencement of a parent’s time with the children is at the conclusion of a school day.

7. That notwithstanding anything stated in order 3 above, the mother and the father shall each spend time with the children on each of the following special days:

   (a)For half of each child’s birthday from 2:00 pm to 7:00 pm or if the child’s birthday is on a school day for up to three hours after school with such time ending no later than 6:30 pm.

   (b)With the husband from 10.00 am to 6.00 pm on his birthday or if his birthday is on a school day for up to three hours after school with such time ending no later than 6:30 pm.

   (c)With the wife from 10.00 am to 6.00 pm on her birthday or if her birthday is on a school day up to three hours after school with such time ending no later than 6:30 pm.

   (d)If the husband would not otherwise spend time with the children on Father’s Day, with the husband from 10.00 am to 6.00 pm or otherwise as agreed.

   (e)If the wife would not otherwise spend time with the children on Mother’s Day, with the wife from 10.00 am to 6.00 pm or otherwise as agreed.

8. That the father have sole responsibility for making decisions about the children’s day to day welfare, care and development when the children are in his care.

9. That the mother have sole responsibility for making decisions about the children’s day to day welfare, care and development when the children are in her care.

10. That the father/mother be allowed to communicate with the children by telephone or other means (including Facetime) on alternate days for up to 15 minutes per child and the father/ mother shall provide all reasonable assistance to enable such communication to take place.

11. That whichever party receives a copy of the children’s school reports or other written notes issued by the school shall forthwith provide copies to the other party, or of the school is agreeable, direct the school to provide copies of such reports to the other party.

12. That each party shall upon notification of any school or extra curricular special event (including but not limited to concerts, parent teacher interviews, excursions and camps) forthwith provide the other party with details or a copy of the notification of such event.

13. That if either party receives notice of a party or other special event for the child/children which will take place will the child/children is/are with the other party, he/she shall forthwith give the other party notice of such event.

14. That each party shall forthwith notify the other party of any medical or other emergency affecting the child/children.

15. That each party shall keep the other party informed of the details of any person who is residing with them whilst the children are in their care.

16. That each party may attend and be involved in the children’s extracurricular activities, including sports, dance, and martial arts lessons, regardless of who the children are spending time with on the occasion of the activity.

17. That both parties do all necessary acts and sign all necessary documents so as to cause:

    (a)a passport to issue for each of the children and to be held by the husband, and

    (b)an updated passport to issue for each of the children at any time that a current passport expires or is due to expire.

18. That the passport be retained by the father.

19. Where a party fails or refuses to do so, the requirement for that party’s consent will be dispensed with and subject to the requirements of the Australian Government Department or Agency which issues or has the power to issue passports, such department shall issue passports to and for the children.

1. That the children be permitted to travel overseas, provided that:

   (a)Unless both parties provide written consent otherwise, the child or children travelling overseas be accompanied by a parent, grandparent, aunt or uncle of the child;

   (b)The party travelling overseas with the children (or if another relative, the party who that person is related to) gives the other party at least 28 days’ notice in writing;

   (c)The party travelling overseas with the children (or if another relative, the party who that person is related to) gives the other party a written itinerary listing each location the children will be travelling to at least 28 days prior to the overseas travel;

   (d)Unless both parties provide written consent otherwise, any such travel be restricted to Hague Convention countries or India.

   (e)The party travelling overseas with the children ensures that there are arrangements in place to enable the children to communicate with the other party by telephone, Skype, Facetime or other electronic means whilst the children are overseas.

APPENDIX TWO

1. Unless otherwise stated in these orders the mother is to have sole parental responsibility for the children E born … 2005 and F born … 2007 (“the children”) in relation to health including mental health.

2. In relation to any specialist medical treatment for the children the mother will, if practical:

   a.Advise the father of the date of any specialist appointment giving him at least 48 hours notice;

   2.1Permit the father to attend the appointment;

   2.2Invite any response from the father within a nominated period of time;

   2.3Consider any views of the father contrary or otherwise if provided by the father within the nominated time;

   2.4Advise the father of the decision taken relating to treatment.

3. Otherwise, but subject to these orders the father and the mother have equal shared parental responsibility for the children in relation to all other matters which is to include the vaccination of the children.

4. The children continue to live with the mother.

5. The children spend time with the father as follows:

   5.1From after school on Friday or if not a school day from 3pm to the start of school on Tuesday and if not a school day at 9am each fortnight;

   5.2One half of each NSW gazette public school holidays including the Summer Christmas holidays at times to be agreed between the parties or failing agreement commencing at 5pm, on the date the school term ends and concluding at 5 pm on the day halfway through the holidays;

   5.3For the Summer Christmas school holidays:

   5.3.1The first week and each alternate week thereafter in Summer school holidays that commence in odd years

   5.3.2The second week and each alternate week thereafter In Summer school holidays that commence in even years.

   5.3.3For a period of 10 days commencing on 1 January 2020 at 8am and concluding at 8 am on 11 January 2020, and each alternate year thereafter;

   5.3.4For a period of 10 days commencing on 11 January 2018 at 8 am and concluding at 8 am on 21January 2019, and each alternate year thereafter.

   5.4If the father would not ordinarily be spending time with the children on Father's Day, with the father from 9 am to 4 pm, or as otherwise agreed;

   5.5If the mother would not ordinarily be spending time with the children on Mother's Day, with the mother from 9 am to 4 pm, or as otherwise agreed;

   5.6With the father from 22 December 2019 at 9 am until mid-day on 25 December 2019 and each alternate year thereafter;

   5.7With the mother from mid-day on 25 December 2019 until 9 am 29 December 2019 and each alternate year thereafter;

   5.8With the mother from 22 December 2020 at 9 am until mid-day on 25 December 2020 and each alternate year thereafter;

   5.9With the father from mid-day on 25 December 2020 until 9 am 29 December 2020 and each alternate thereafter;

6. That for the purposes of defining holiday or inter-term periods the holiday period shall commence on the day after the last day of the preceding school term and shall conclude on the last day before the first day of the start of the school term.

7. That all other orders specifying with whom the children shall reside or spend time with shall be suspended during each school holiday period and shall resume operation at the conclusion of each holiday period as though the holiday suspension had not occurred.

8. Unless otherwise agreed, changeover is as follows:

   8.1When the children are at school, from or to school;

   8.2At any other time, the mother is to take the children to the father's residence at the commencement of the father's time with the children and the father is to take the children to the mother's residence at the end of his time with the children.

9. Unless otherwise agreed that the mother/father be allowed to communicate with the children by telephoning each of the children's mobile telephones once every second day between 6 pm and 7 pm and speak with each child for up to 10 minutes when the children are living with the other party. In the event the child does not answer the phone call on the second attempt then the parent is to instead text them.

10. That the father and mother are to facilitate any communication that either child may want to make to the other parent at any reasonable time.

11. That the father and mother be restrained from preventing the children from communicating with the other parent.

12. In the event either parent travels overseas without the children, during the time the parent is away the children will live with/spend time with the other parent and there will be no make up time.

13. Unless otherwise agreed E is to continue to attend DD School.

14. Unless otherwise agreed F is to continue to attend AA School for the duration of his schooling.

15. The father is to be responsible for paying the children's school fees with such school fees to include but not limited to the cost of tuition, excursions, school uniforms, and bus travel.

16. The father is to reimburse the mother for half the cost of the children's school fees for attendance at [C School] in 2016 and 2017, with such an amount totalling $30,861.55.

17. The father is liable to pay the cost of any medical or dental consultation, procedure or treatment for the children recommended by the children's treating doctor, dentist, psychologist, or specialist.

18. Unless otherwise agreed E is to continue to participate in dance and attend up to 3 classes per week at FF School.

19. The father is liable to pay the cost of the tuition fees and all the other associated costs to a maximum of $6,000.00 per calendar year.

20. Unless otherwise agreed, that the parties are restrained from removing the children from the greater Sydney Metropolitan area.

21. That the children's passports are held by the mother.

22. Unless otherwise agreed the mother and father are each permitted to take the children on an overseas holiday every 2 years for a period of up to 3 weeks, subject to the following:

    22.1That the parent proposing to travel shall no less than 3 months prior to the intended date of departure provide the other parent with:

    22.1.1A detailed itinerary, and

    22.1.2A copy of the return airline tickets.

    22.2That the parent travelling will ensure the other parent is contacted by text message and or email with 2 hours of arriving at each different country;

    22.3That the parent travelling will ensure that the children shall communicate with the other parent at least every two days.

    22.4Within 7 days of the children returning to Australia with the father he is to return the children's passports to the mother's possession.

23. In the event a parent takes the children overseas the other parent will have additional time in the same school holidays if practical, or during the next school holidays.

24. That the parties are hereby restrained from involving the children in requesting the other parent to agree to any change in the parenting arrangements.

25. That the parties are hereby restrained from discussing the proceedings to and/or in the presence of the children or either of them.

26. The parties shall not denigrate the other party in the presence or hearing of the children or either of them, and shall remove the children from the presence or hearing of any other person who is denigrating the other party.

27. That the parties be restrained from using any physical discipline on the children and are not to permit any third party to physically discipline them.

28. That the parties be restrained from using profane language and/or swearing and/or denigrating the children when speaking with the children or permit any third party to speak to the children that way.

29. That either parent be permitted to attend any school or sporting activity to which parents are invited.

30. That in the case that either child is admitted to hospital, the parent who has the children in their care at the time of admission is to inform the other parent forthwith.

31. That both children's family name of Chatterjee be changed to Woodby-Chatterjee to reflect their dual heritage.

Notation

1. With one child in the private school system and the other in the public school system the holiday time will accord with the public school calendar so that the children remain together. During any extra school holidays the orders relating to non-holiday time will apply.

2. The mother has agreed to the children going overseas with the father and his parents and extended family from 21 December 2018 to 8 January 2019.

3. The father has agreed that following their return from the overseas holiday in Notation 2 the children will spend time with the mother for the Summer holidays.