Diani and Diani
[2016] FCCA 607
•22 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DIANI & DIANI | [2016] FCCA 607 |
| Catchwords: FAMILY LAW – Rice and Asplund argument – determined as preliminary issue – final consent orders made in March 2015 on the first day of the final hearing – mother seeking to challenge expert evidence available at the hearing when final consent orders were made. |
| Legislation: Family Law Act 1975, s.69ZN |
| Rice & Asplund (1979) FLC 90-725 Tomasevic v Entwisle (General) [2010] VCAT 327 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 |
| Applicant: | MS DIANI |
| Respondent: | MR DIANI |
| File Number: | MLC 5627 of 2007 |
| Judgment of: | Judge Harland |
| Hearing date: | 9 February 2016 |
| Date of Last Submission: | 9 February 2016 |
| Delivered at: | Dandenong |
| Delivered on: | 22 March 2016 |
REPRESENTATION
| The Applicant: | Appeared in person |
| The Respondent: | Appeared in person |
ORDERS
The initiating application filed on 7 October 2015 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Diani & Diani is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 5627 of 2007
| MS DIANI |
Applicant
And
| MR DIANI |
Respondent
REASONS FOR JUDGMENT
The parties are the parents of X, born (omitted) 2001 and Y born (omitted) 2004. The parties have been in and out of courts for years. X is 14 years old. Y is 11 years old. Their parents first started litigating in 2007 when they were just 6 and 3 years old respectively.
The parties entered into final consent orders resolving parenting orders between them on 18 March 2015. The case was listed for final hearing on that day. The father did not have legal representation. The mother was represented by Ms Baczynski of counsel who frequently appears in this Court. The Independent Children’s Lawyer (“ICL”) also briefed counsel. The orders are reproduced in full at annexure A.
The mother filed an initiating application on 7 October 2015. She sought detailed interim and final orders. Those orders seek to significantly change the living arrangements for the children. The mother seeks to reverse the living arrangements which were put in place on 13 February 2015. On that date Judge Burchardt made orders after a contested interim hearing which provided for the children to live with their father and that the mother’s time be reserved pending further order. Up until that date the children lived with their mother. Various other orders were made on that date including an order for an updated report from Dr (omitted), psychiatrist, and an updated family report from Mr N, Family Consultant. It is relevant to highlight that these were live issues for the final hearing which was listed some 6 weeks later.
The father has not filed a response but has filed an affidavit. It is clear that he opposes the mother’s application. He confirmed at the hearing that he wants the mother’s application dismissed.
Both parties are self-represented.
At the first return date on 9 December 2015, I pointed out to the mother that the principles referred to in Rice & Asplund (1979) FLC 90-725 and several cases since apply to this case. I further explained to parties that it would be necessary to determine whether or not there has been a significant change of circumstance since final orders were made so as to justify further litigation before I would consider her substantive applications. Due the concerns I had after reading the material filed by that date, I made orders restraining the parties from discussing the proceedings with the children and restrained the parties from taking the children to see any professional not specified in the final orders made by consent on 18 March 2015. I listed the matter for a half day hearing on 9 February 2016.
I have read the material both parties rely on in relation to this preliminary issue. It is not necessary for me to refer to each piece of evidence.
The history of litigation
It is necessary to set out the history of this case in order to give it context.
The father filed an application for divorce on 18 May 2007. The mother filed an initiating application for property and parenting orders on 25 July 2007.
The father filed an initiating application for parenting orders on 11 January 2010.
On 24 August 2007 the mother filed a child support departure application. Final property, maintenance and child support orders were made by consent on 30 August 2007.
The father filed a contravention application with respect to parenting orders on 11 March 2008.
The father filed an initiating application for property orders and a further contravention application on 11 January 2010. The husband withdrew the contravention application and orders were made about changeover.
An ICL was appointed in the 2010 proceedings. Consent orders were made on 29 October 2010.
The mother filed a contravention application on 20 December 2010.
On 7 November 2011 orders were made noting that there was no application before the Court. The matter was removed from the pending cases list.
The mother filed another contravention application on 1 November 2013. This started the next round of proceedings which led to the final orders being made in March 2015.
It will be apparent from the history that the parties have been in and out of court since their children were small.
In her affidavit filed on 5 December 2015 the mother complains that the children have been subjected to “systems abuse”. She says that she strongly opposes her children being further involved in the court proceedings, yet this is exactly what would have to happen if she was successful in her application.
The legal principles
The rule in Rice & Asplund is well-known. In that case, the Full Court had to consider what principles should apply when a court is faced with an application to change an earlier parenting order. Evatt CJ said the following:
“The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order into the reasons for material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation… Change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that… there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.”
The trial Judge has discretion as to whether to consider the Rice & Asplund principle as a preliminary issue or after a full contested hearing. In my view, in the circumstances of this case it is appropriate to determine it as a preliminary issue.
It is important to bear in mind that the rule in Rice & Asplund is merely a manifestation of the best interests principle: see SPS & PLS [2008] FamCAFC 16 and Marsden & Winch [2009] FamCAFC 152 at [47].
In Marsden & Winch the Full Court stated at [50]:
“Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3) If there is such likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.”
The mother’s material filed for the final hearing listed to commence on 18 March 2015
The mother filed several affidavits for the March 2015 final hearing:
a)Her affidavit filed on 4 March 2015;
b)An affidavit of Mr J, the mother’s partner, filed on 16 March 2015
c)An affidavit by Ms C, a friend of the mother filed on 4 March 2015;
d)An affidavit by Dr B annexed reports dated 16 July 2014 and 18 December 2014, filed on 13 March 2015
e)Affidavit of Ms M, clinical psychologist who treated Y, annexing her report, filed on 18 March 2015 with leave;
f)Joint affidavit of Mr I, Ms L and Mr P annexing their reports. This was prepared to response to Dr (omitted)’s report. Mr I assessed the mother’s psychological functioning. Ms L assessed the mother’s issues with respect to the children and Mr P reviewed their reports. The mother was granted leave to file their affidavit in court on 18 March 2015.
The mother’s material is support of her current application
The mother filed affidavits on 7 October 2015, 19 October 2015, 5 December 2015 and 3 February 2016. I will not summarise all of the mother’s evidence and arguments but observe that her arguments in support of revisiting the parenting issues cover three broad areas:
a)Dr (omitted)’s report;
b)The boys’ medical issues;
c)Allegations that the court and the experts failed to apply family violence best practice principles.
The mother makes other complaints including complaints about the ICL which are not relevant to the current issue.
Much of the material in the mother’s affidavits referred to material that was available before the March 2015 hearing.
Complaints about Dr (omitted)
The mother makes numerous complaints about the report by Dr (omitted). This is much of the wife’s focus. She is clearly upset that Dr (omitted) diagnosed her with generalised anxiety order and opined that the mother was fixed in her views and lacked insight into the differences between the children’s needs and her own.
In the affidavit she filed, the mother complains about Dr (omitted)’s report. She details the complaint she has lodged against him with the Health Services Commissioner and the VCAT proceedings she took against Dr (omitted). She says that her complaint was upheld and that his report can no longer be relied upon.
The mother annexed to her first affidavit a response to her Freedom of Information request with respect to complaints made against Dr (omitted). Those documents list complaints made and gives a brief indication of the nature of the complaints but says nothing about whether the complaints were upheld or not.
The mother obtained other reports from other psychologists in more recent months which she annexes to her affidavits.
The mother annexes several reports to her affidavits. She annexes some of the reports multiple times. She annexes a report by Dr V, psychiatrist, dated 18 September 2015. The mother clearly obtained this report to refute Dr (omitted)’s report. Dr V refers to having received a copy of the reports by Dr (omitted) and Mr I and his co-authors.
The mother also relies on the case of Tomasevic v Entwisle (General) [2010] VCAT 327 which concerned a complaint against Dr Entwisle and Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 which is a leading case on expert evidence. Whilst these cases may well have been relevant at a final hearing in testing the evidence of Dr Entwisle and other experts, it is not relevant to this application. What the mother is really seeking me to do is to exercise the power of a court of appeal.
The children’s medical issues
The mother complains that the father does not treat the children’s medical issues properly and that he has not complied with the consent orders with respect to their medical issues. The father denies this.
She also annexed a report of Dr B dated 18 December 2014. This predates the consent orders and was annexed to the affidavit of Dr B filed for the March 2015 final hearing.
The mother obtained a further report from Dr B dated 25 November 2015.
The mother obtained a report from Dr D, paediatrician dated 3 July 2015. As he stated in his report, he has not assessed the boys himself but has relied on reports and documents provided by the mother. The documents he lists predate the consent orders. The documents date back as far as July 2010. The most recent documents are from 2014.
By obtaining these reports the mother is attempting to effectively re-argue her position with respect to the children’s medication. This is not raising a new issue or a change of circumstance.
Family violence
The mother refers to her recent qualifications and her current employment. Without being insulting to the mother, it is important to emphasise that she is not an expert witness in this case but a party. She does not have the objectivity or the experience to provide objective expert opinion about the relevant issues in this case.
The mother complains that Dr (omitted) is not an expert in family violence and complains that the family consultant Mr N did not apply the Court’s Family Violence Best Practice Principles. She also complains that the Court ignored the family violence issues when making the consent orders.
Significantly, the mother says that she now works at (employer omitted) and has completed numerous (omitted) courses after the final hearing and is studying for a (studies omitted) which has led her to a greater understanding of family violence. She is asking the Court to remove the children from their father’s care for the children’s safety.
It is of concern that she refers to correspondence with politicians that does not reflect the reality of what has occurred in these proceedings.
The mother obtained a report by Dr M, psychiatrist dated 26 November 2015. Whilst the mother provided Dr M with some of the court documents, this report is limited as it is clear she only interviewed the mother. The penultimate and final paragraphs are concerning as it is not apparent how she has been able to form the opinion that the father “has been violent to the children since they were born…this would make the children fearful of their father”. My impression from reading that report is that Dr M is advocating for the mother rather than providing an expert report.
The reports the mother relies on are less about a change in circumstances and more about wanting to litigate issues she had the opportunity to do earlier.
The Mother’s argument
The mother refers to the principle in Rice & Asplund and several more recent cases addressing this principle. She has attempted to address the issues raised in those cases.
Considering the mother’s written and oral submissions (noting that much of her affidavits are submissions, not evidence), she complains that the experts and the Court did not apply the family violence best principles. That type of argument is really seeking to ask the Court to reconsider the matter without filing an appeal. The mother was represented at Court and consented to orders. She may regret that decision but she had the benefit of legal advice.
The language she uses in her affidavit is significant. A person reading her affidavit without knowing how the current orders came into force would be left with the impression that she had no part in the orders being made and that the orders were made over her objection and without her input. At paragraph 8 she says the Court “relied totally on the evidence” of Dr (omitted). This is not correct. Much of her oral argument focussed on her complaint against Dr (omitted) and her belief that his report was instrumental in the consent orders being made.
At paragraph 35 she refers to the children being “forcefully removed” from her care via court order. Interim orders reversing the children’s living arrangements had been made some 6 weeks before. The mother had the opportunity to argue that this decision should be revised upon a testing of the evidence at a final hearing.
The mother states that the children were removed from her care based on inaccurate and misleading information provided by Dr (omitted) and family consultant, Mr N. She also refers to unfounded allegations made by the father. She complains that the Court did not take into account family violence.
She refers to the interim decision which was made several weeks before the final hearing where the Court changed the living arrangements of the children. This is where she refers to the children being forcibly taken from her. The mother did not appeal that decision which is not surprising given the final hearing was only weeks away. At the final hearing, she had the opportunity to challenge not only Dr (omitted)’s report but also the family reports. She says that if the children had not been taken away from her weeks before she would have challenged the change in the children’s living arrangements but because the children had been taken from her, she did not think she would succeed. It is difficult to accept that argument. In fact, one would think that the mother would have had more reason to challenge those reports.
Her complaints about the reports are really matters which she had the opportunity to challenge with the experts directly through cross-examination. The mother had the opportunity to do that and chose not to. If she wanted to put on other evidence to challenge the conclusions of the family report writer and Dr (omitted), she could have sought an adjournment of the final hearing. She could have sought to appeal. She did none of those things.
The mother sets out a quote from the full court decision in D and Y (1995) FLC 92 – 581 being:
“The change of fresh circumstances must be such that upon becoming advised of it and being satisfied of its existence, the court would be left in no doubt that it was necessary to re-litigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or change circumstance would result in a change to the orders. It merely indicates that the change of fresh circumstances must be such that if taken into account there was a real likelihood that change may follow.”
It is clearly correct that the mother does not have such a heavy burden, but she must show that a fresh or change in circumstance will result in a change of orders. I am not satisfied that she has made out the lower test that there is a real likelihood that the orders will be changed.
The mother also refers to the decision of DL and W (2012) FamCAFC and she extracts a quote from that case which quotes Evatt CJ in Zabaneh and Zabaneh [1986] FamCA 18. The quote she refers to is:
“The welfare of children may ultimately demand that issues concerning access, custody and so forth, and so on, be reconsidered, but only when there is some evidence of an underlying change in the circumstances, whether that be in the attitudes of the parties, or the needs or circumstances of the children. The fact that time has elapsed or a considerable time, may be relevant, but it is not the only factor taken into account.”
That same case also quotes Nygh J in McEnearney v McEnearney (1980) FLC 90-866 where His Honour discussed the policy underpinning the Rice & Asplund principle and observed that bringing an end to litigation may be even more important in parenting cases as the psychological harm to a child when their parents seek to canvass parenting issues again and again can be very damaging. This is an important factor in this case.
In this case, the mother filed her application less than a year after the final orders were made and it is clear is that she spent a considerable time prior to filing, gathering reports which she thought would assist her case. Whilst much of the evidence she has gathered post-dates the hearing, they do not raise new issues but rather seek to impugn the earlier reports. This is particularly with respect to the mother’s mental health.
Finally, the mother quotes from Meyer & Shipton [2013] FCCA 307. The quote appears as follows:
“Orders made after a contested hearing are made by a dispassionate and disinterested judicial officer. It makes no difference financially to him or her whether the case is litigated or settled. He or she does not face the stress faced by litigants at a hearing. Orders made by consent are in a different category. They may represent what the parties believed was in the best interests of a child but there may also be other factors in play. The agreement may not have been concluded between parties in an equal bargaining position. An assertive party may have an advantage over an unassertive party. A party who agrees to arrangements which he or she believes is not in the best interests of the child may do so because of the costs involved in litigating the matter and/or the stress involved in litigating it. The orders may be a result of a compromise. Where each party is contending that the child should primarily live with him or her and each has an arguable case they may take the attitude that a guaranteed half a loaf is better than facing the possibility that the result will be no loaf at all and agree on a shared arrangement. There is no reason to assume that consent orders must have been made solely on the basis of what the parties perceived was the best interests of the child.”
The comments of Judge Brewster above are correct with respect to consent orders. There are numerous authorities to make it clear that the rule in Rice & Asplund is not binding and that is a matter of common sense given that it is another manifestation of the paramountcy principle that provides that the best interests of the child are the court’s paramount consideration. The case before Judge Brewster involved different circumstances than in this case. That case concerned a 2 year old child. The parties consented to a week about arrangement. It is also clear as Judge Brewster notes that the Rice & Asplund principle also applies when consent orders are entered into. It is also important to put the making of consent orders in context. There is a great difference between consent orders made early in the proceedings without expert evidence and consent orders made after the evidence for a final hearing has been filed. Each case depends on its own facts.
When considering whether or not to allow there to be further parenting proceedings, one of the considerations clearly must be whether the orders were made after a contested hearing or whether they were consent orders, but that does not mean that because orders were made by consent without the evidence being tested, that parties should be able to start litigation again. That could lead to a flood of cases of that nature. It is necessary to carefully consider the individual circumstances of the case. The fact that the orders were made by consent is one relevant factor in this case amongst many.
The mother did not appeal the orders. In the recent Full Court decision of Darley & Darley [2016] FamCAFC 10 the mother appealed final parenting consent orders. The consent orders were lengthy and were made on the fourth day of the final hearing. In this case, the consent orders are also lengthy and were made on the first day of the final hearing.
In Darley’s case, the mother in that case raised the same argument as has been raised in this case that the judge did not take into account family violence. The Full Court made the following observations at paragraphs [26], [28] – [30], [42] and [62]:
“26. The mother asserts centrally on this appeal that family violence perpetrated by the father upon her (and, it should be noted, the children) ought to have been taken into account by his Honour and, she says, it was not. She also apparently asserts that the consideration of that issue was rendered more acute by her self-represented status at the time the consent orders were made…
28. It is important to stress that the serious assertions made by the mother were by no means the only serious assertions that would have required adjudication by his Honour if the matter proceeded to a determination before him. The father, too, made serious assertions to the effect that the mother was engaging in conduct designed to undermine and harm his relationship with the children.
29. The central assertions by each of the parties, if either was established, had the potential to result in a finding that either or both of the parties had caused “physical [or] psychological” harm to the children. Plainly, then, a determination by his Honour brought with it the risk of such a finding and as a result consequences for the orders sought by each party and, ultimately, for the orders that the court might determine were in the best interests of the two children.
30. As a consequence, the potential for findings about each or both such issues was a highly relevant matter for each of the parties to consider in deciding whether to resolve co-parenting arrangements for themselves or, alternatively, to abdicate that decision about their children to his Honour.
42. Here, the parties were entitled to have the trial proceed to its conclusion and have his Honour “adjudicate it on the facts” including the competing serious assertions made by both parties and the single experts. However, they did not. By their respective applications to have his Honour make the orders they had each agreed to, each party was asking his Honour not to adjudicate upon the issues. Further, each party was, by their respective application, asserting that the orders proposed to be made were in the best interest of the children.
62. Each assumes errors pertaining to an adjudication of issues which, as a result of the application for the making of consent orders by both parties, the court was never asked to adjudicate. Indeed, as we have said, the parties’ application is in essence an application that the court not adjudicate those issues. The principles referred to in Robinson and Willis (above), pertain. The consequence is that none of the grounds 2 through 10 have any foundation.”
The father’s argument
The father affirmed an affidavit filed on 13 November 2015. He refers to the expert evidence filed in the proceedings before the final orders were made. He quotes extensively from the updated family report which was prepared shortly before the final hearing. He also refers to family therapy which has taken place after the final consent orders were made.
He goes on to address one of the complaints the mother makes which is that the father has failed to provide Dr S with all of the children’s medical records. The father denies this.
Both parties were self-represented before me. Both sought to rely on material which was before the Court when the final orders were made by consent.
The impact of further litigation on the children
Order 21 of the consent orders made on 18 March 215 require the parents and the children to attend a therapeutic counsellor recommended by the ICL. The parties and the children saw Ms P. Order 21 of the consent orders required the parties and the children to attend therapeutic counselling, not reportable counselling. It is also highly concerning that the family therapist Ms P released copies of her session notes to the mother. It is also concerning that the mother has only annexed notes dated April 2015 and 13 October 2015 from two attendances which clearly suit the case she is seeking to make. There is no note from her session with the father. The issue also is not whether or not the mother is a “loving and caring mother with her children’s best interests at heart” as the mother quotes from one of the session notes.
The mother says she had not seen the children for 3 weeks and that the first time they were in her care they went to see Ms P on 13 October 2015. She says they expressed concerns about living with the father. She does not say whether she consulted with the father about their attendance with Ms P.
The mother annexes an email from Ms P addressed to both parties dated 3 July 2015. Significantly she says the following:
“I feel that X and Y are happy living with their father and having visits with their mother but they are deeply concerned with upsetting either parents and therefore don’t trust that I would not break confidentiality we agreed upon…
X was particularly relieved that we would discontinue my involvement at the present time and we agreed that they could contact me through their parents if any issues arise that they wanted to discuss.
As I have explained to you both, Y and X have clearly indicated to me that they don’t want to continue seeing me and I will not be party to causing them further stress and worry.”
There is now no point in the children continuing to see Ms P - by providing the session notes to the mother, she is not performing her function as a family therapist.
If the mother is successful, the litigation would be re-opened. This would mean re-appointing the ICL and the parties filing further material. It may well be that a further family report and other expert evidence would be required. Based on the evidence the mother has already filed, it is also likely that the hearing would last several days. Given the current listing delays the case would not be heard before April 2017.
In Miller & Harrington (2008) FLC 93-383 the Full Court pointed out that section 69ZN of the Family Law Act 1975 requires the court to consider the impact of proceedings on children. The potential impact is obvious as in this case it would most likely require another family report and the stress of further litigation. This is a major consideration in this case.
Conclusion
I return to the 3 steps referred to in Marsden & Winch set out at paragraph 23 of the judgment. I am not satisfied that the complaints the mother raises about the court process and the experts are matters which amount to information that was not available at the hearing which could amount to a new circumstance as Evatt CJ referred to in Rice and Asplund.
The reports the mother obtained do not raise a change of circumstances as referred to in Rice & Asplund and other cases since; rather, it is seeking to challenge the earlier evidence before the court which is an issue for an appeals court, not a court at first instance.
Whilst the orders were made by consent, the orders are detailed and there was significant material on the court file. This consisted of not just the expert reports of Mr N and Dr (omitted) but other experts relied on by various parties, as well as affidavits filed by the parties themselves. There is also the significant litigation history.
It is very clear that there are many contested issues between the parties and there have been for years. It is also clear that the ongoing proceedings have had a significant impact on the children who are very much aware that they are in the middle of the conflict between their parents.
This much is clear from what Ms P sets out in her email quoted above. There needs to be an end of the proceedings for the children’s sake. These children, as the mother herself complains, have been interviewed multiple times. If the matter was to proceed, the children would be subjected to further interviews. An ICL would need to be reappointed. It is plain to see that the children have been adversely affected by the litigation and ongoing conflict between their parents. They probably do not remember a time when they have been relieved of this burden.
I am not satisfied that if this matter proceeded to a hearing there is a likelihood that the current orders would be varied significantly. I am not satisfied that any variation, if so ordered, would be sufficient to justify putting the children through further litigation.
The mother’s application is misconceived. She is really seeking to challenge the evidence she had the opportunity to challenge at the hearing.
For these reasons I will dismiss the mother’s application.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 22 March 2016
Annexure A
1. That all previous parenting Orders be discharged.
2. That the Husband have the sole parental responsibility for the children of the marriage X born (omitted) 2001 and Y born (omitted) 2004.
3. That the Husband make every reasonable attempt to consult with and obtain the Wife’s views about parenting decisions and ensure that she be kept informed about issues relating to the children’s care.
4. That the children live with the Husband.
5. That the children spend time with the Wife as follows:
a) From 9am until 7:30pm on 21 and 28 April 2015;
b) From 10am on 4 April 2015 until 5pm on 5 April 2015;
c) commencing 17 April 2015 and each alternate week thereafter from 4.30pm on Friday to 5pm on Sunday, such time to be extended to commence from 5pm on the eve of any pupil-free day or public holiday *or to conclude at 5pm if the Monday following that weekend is a pupil free day or public holiday*;
d) commencing 28 April 2015 and each alternate week thereafter from 4.30pm to 7.30pm for the purposes of a meal;
e) for one half of all school term vacations and one half of the long summer vacation with the Wife to spend:
i.the first half of the school term holidays in the 2015 school year and each alternate year thereafter and for the second half of the long summer 2015/2016 holidays and each alternate year;
ii.the second half of the school term holidays in the 2016 school year and each alternate year thereafter and for the first half of the long summer 2016/2017 holidays until 5pm on 23 December and then from 1pm on 25 December 2016 until the halfway point of the holidays and each alternate year thereafter provided that time in the long school holidays be calculated so that the children return to the Husband not later than 3 calendar days prior to the commencement of the school term, and that the school term holidays be deemed to commence on the Saturday after the conclusion of the school term;
f) from 5pm on 23 December 2015 until 1pm on 25 December 2015 and for those times in each alternate years thereafter;
g) If the birthdays of X and Y fall on days when they are not spending time with the Wife then from 4pm to 7.30pm on each child’s birthday if on a week day, and from 2pm to 7.30pm on each child’s birthday if on a weekend or on holiday;
h) If Mother’s Day falls on a weekend when the children are with the Husband, from 5pm on Friday to 7pm on Sunday on the Mother’s Day weekend provided that if Father’s Day falls on a weekend when the children would be with the Wife, that time be suspended for the Father’s Day weekend;
i) On the Wife’s birthday from 4:30pm to 7:30pm on a weekday and on weekend and holidays from 11:30am to 2:30pm (if the children are otherwise not with her) provided that if the children are with her on the Husband’s birthday that the children spend time with the Husband from 11.30am to 2.30pm;
j) By telephone (and including text messages)on a Monday and a Thursday between the hours of 6pm and 6.30pm, and at such further and other times as the children may request from time, when the children are with the Husband, such calls to be taken privately provided that the Husband be permitted to telephone the children at the same hours when they are with the wife they be at liberty to telephone him;
k) The children be permitted to call the parent with whom they are not residing at their discretion and the other parent to facilitate same if necessary;
l) At such further and other times as agreed between the parties.
6. That for the purposes of calculating school holiday and long summer holiday time spent, the parties will use the Victorian Public School term dates as published for Y, and then on the basis of Y’s school holiday dates when he commences attending at (omitted).
7. That for the purposes of paragraph 5(j) hereof, the Husband provide to the Wife a landline telephone number, when same is connected, on which to call.
8. That for the purposes of all changeovers, the Wife or her nominee collect the children from the (omitted) McDonalds’s at the commencement of her time spent, and the Husband or his nominee collect the children from the (omitted) McDonalds’s at the conclusion of the time spent, save for 5(d) when changeovers shall take place at (omitted) McDonalds.
9. That the time referred to in paragraphs 5(a) to (d) hereof be suspended during all school holiday periods and recommence after the relevant school holiday period calculated as if the school holidays had not intervened.
10. That each party have the sole responsibility for the day to day care, welfare and development of the children whilst the children are in their care.
11. That the Wife be permitted to attend the following:
a. School concerts;
b. Parent-teacher interviews (albeit separately from the Husband);
c. School presentations and awards nights;
d. Speech nights;
e. Competitive sporting events, whether organised by the school or otherwise, but not the children’s normal sporting days or regular sporting activities in or outside school;
f. Presentations, awards nights, and concerts for any of the children’s extra-curricular activities, but not their normal extra-curricular activities themselves;
g. Events and functions at the children’s school or extra-curricular activities to which parents are invited.
12. That the Wife be entitled to receive:
a. circulars, notices and details of events normally provided to parents from the children’s schools;
b. school reports and photographs;
c. any assessments made of the children by their schools, extra-curricular activities and/or medical practitioners from time to time at her own expense, and the Husband provide such Authorities to the Wife as are necessary to enable same.
13. That each of the parties keep the other informed of any illness or injury occurring to either of the children whilst in their care which requires medical attention, such notice to be provided as soon as practicable and not more than 24 hours following the child requiring such medical attention.
14. That each party provide to the other their mobile telephone and landline contact numbers during periods when the children are in their care, and inform the other party of any change in those contact details within 24 hours of such change.
15. That each party administer to the children any medicine prescribed by a medical practitioner and that each party ensure that the medicine so prescribed and directions for its administration are provided to the other party as applicable.
16. That each party follow the reasonable advice of any medical practitioner in respect of the children.
17. That each party ensure that the children are transported in vehicles with proper seatbelts and use the same for the children at all times.
18. That each party be responsible for the cost of medical or dental treatment for injuries sustained by the children whilst in their respective care.
19. That each of the Husband and the Wife be restrained from:
a. Denigrating the other parent, the other parent’s partner/spouse, or the extended family of the other parent to or in the presence of the children and/or within the children’s hearing, or from allowing the children to remain in the presence of any third party engaging in such conduct;
b. Causing any third party to engage in the conduct set out in paragraph 19(a) hereof;
c. Physically disciplining the children or either of them;
d. Discussing these proceedings or the residence of the children or either of them with them or in the hearing of the children.
20. That the parties maintain a communications book for the sole purpose of providing to one another any appropriate information as to the children’s welfare, health or progress, and each part sign the said book and return it to the other party at the conclusion of any time during which the children are in their care.
21. That the parties and the children attend upon such therapeutic counsellor as is nominated by the Independent Children’s Lawyer, and that the parties comply with all reasonable directions/requests by the said counsellor.
22. That for the purposes of paragraph 21 hereof, the Husband meet the costs of him and/or the children attending counselling, and the Wife meet her own costs of attending, and the Husband and Wife each keep one another advised of any attendances by the children with the said counsellor.
23. That in the event of a dispute arising between the parties as to any aspect of these Orders, or with respect to the children generally, they first attend upon the therapeutic counsellor before issuing any further proceedings, save in the event of an emergency.
24. That both parties, their servants and agents be and are hereby restrained from
a. Publishing, displaying or commenting with respect to each other, their respective partners, the children, each other’s extended family and friends on any form of social media, or from permitting, causing, inducing or otherwise encouraging any third party to engage in such behaviour;
b. Contacting the children on social media.
25. That in the event the Husband elects to take the children to a paediatrician other than Dr B, he advise the Wife of the children’s attendance upon such paediatrician no later than three (3) days after such attendance, and that the Wife be permitted to liaise with said paediatrician and obtain all reports and results after the children have attended upon him/her.
26. That for the purposes of paragraph 25 hereof, the Husband obtain and make available to any new paediatrician the whole of the children’s records from Dr B and Dr C ahead of attending any consultations.
27. That in the event that the Husband does not engage a new treating paediatrician then he attend with the children upon Dr B in July 2015 and follow all recommendations of Dr B (or such other treating paediatrician) from time to time.
28. Pursuant to s.65DA(2) and s.62B the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
29. That all extant Applications be dismissed and the matter removed from the Pending Cases List.
30. That the Independent Children’s Lawyer be discharged within 14 days from the date of these Orders.
31. For the purposes of term holidays the first day is the first day after school closes and the last day is the day prior to the return to school.
32. That the ICL serve a copy of these Orders on the children’s schools.
33. That the Husband advise the Wife of the children’s extra-curricular activities from time to time, noting that it is not for the purposes of the Wife’s attendance at same except as provided for in paragraph 11 hereof.
BY CONSENT, THE COURT NOTES THAT:
Notation that the parties agree to the holidays this year for terms 1 and 2 as follows:
a) From noon on 27 June 2015 until 5pm 4 July 2015
From noon on 19 September until 27 September 2015
b) From 3pm on 23 December 2015 until 1pm Christmas Day
c) From noon on 5 January 2016 until 24 January 2016 7:30 Sunday night.
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6
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