Kessler and Kalfas
[2012] FMCAfam 892
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KESSLER & KALFAS | [2012] FMCAfam 892 |
| FAMILY LAW – Children – consent parenting orders – limited issues in dispute – special occasion arrangements – parental communication – poor co-parenting relationship – injunctions. |
| Family Law Act 1975 |
| Applicant: | MS KESSLER |
| Respondent: | MR KALFAS |
| File Number: | ADC 600 of 2010 |
| Judgment of: | Kelly FM |
| Hearing date: | 11 July 2012 |
| Date of Last Submission: | 11 July 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 11 July 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Mellows |
| Solicitors for the Applicant: | Daniel John Lawyers |
| Counsel for the Respondent: | Ms J Basheer |
| Solicitors for the Respondent: | David Burrell & Co |
UPON NOTING these orders are made by consent save where the Court has ruled on specific issues in paragraphs 8, 13, 14, 15, 16, 18-22, 23-26, 28-29, 35-37 and 38
THE COURT ORDERS THAT:
Parental responsibility
The father and mother (“the parents”) shall have equal shared parental responsibility for the children of the marriage, namely [X] born [in] 2001 and [Y] born [in] 2003 (“the children”).
Save and except as specifically otherwise provided herein each parent shall be responsible for making decisions concerning the day to day care of the children when the children are living with them.
The parents shall consult in writing in relation to all major long term issues in relation to the children including but not limited to:
(a)the children’s schooling;
(b)the children’s health and medical treatment.
Living arrangements
Except as otherwise provided for in these orders, the children shall spend equal time with each parent in a week about arrangement with changeovers to take place at the conclusion of school on Friday or if a non-school day at 6pm on Friday.
Regardless of where the children may from time to time be living or spending time the arrangements for school holidays and special occasions shall be as follows (and to the extent necessary the operation of paragraph 4 hereof shall be suspended during these periods).
School holidays and special occasions
Short school holidays
In the short school holidays the children shall continue to spend week about time with each parent as provided by paragraph 4 above.
Long school holidays
In the long school holidays the children shall continue to spend week about time with each parent as provided by paragraph 4 above SAVE AND EXCEPT where the parties agree to take a block of two (2) or four (4) weeks each OR notification is given in accordance with paragraph 8 of these orders.
Annual Vacation
Both parties shall be at liberty to take the children on an annual holiday for a period of 14 or 28 days or at any other times as agreed between the parties PROVIDED THAT:
(a)the parent taking the children on holiday provides to the other parent a minimum of 28 days written notice in the event of a proposed 14 day holiday;
(b)the parent taking the children on holiday provides to the other parent a minimum of 60 days written notice in the event of a proposed 28 day holiday;
(c)such notice to include an itinerary containing any flight information, accommodation and contact addresses and details, if applicable; AND
(d)the week about arrangement provided for in paragraph 4 above resumes at the conclusion of the holiday time on a Friday as if the holiday time had not occurred.
Christmas
The children shall live with the parents as follows:
(a)with the Mother
(i)from 3.00pm on Christmas Eve until 3.00pm on Christmas Day in the year 2013 and each alternate year thereafter; AND
(ii)from 3.00pm on Christmas Day until 3.00pm Boxing Day in the year 2012 and each alternate year thereafter; OR
(iii)at any other times as agreed between the parties.
(b)with the Father
(i)from 3.00pm on Christmas Day until 3.00pm Boxing Day in the year 2013 and each alternate year thereafter; AND
(ii)from 3.00pm on Christmas Eve until 3.00pm on Christmas Day in the year 2012 and each alternate year thereafter; OR
(iii)at any other times as agreed between the parties.
Easter
The children shall live with the parents for the Easter long weekend as follows:
(a)with the Mother
(i)from 10.00am on Good Friday until 10.00am on Easter Sunday in the year 2012 and each alternate year thereafter;
(ii)from 10.00am on Easter Sunday until the commencement of school the following Tuesday (or 10.00am if a non-school day) in the year 2013 and each alternate year thereafter UPON CONDITION that if Greek Easter Sunday coincides with Christian Easter Sunday in those years, the father shall spend time with the child from 10.00am to 4.30pm on Easter Sunday with the child to be returned to the mother at 4.30pm; OR
(iii)at any other times as agreed between the parties.
(b)with the Father
(i)from 10.00am on Easter Sunday until the commencement of school the following Tuesday (or 10.00am if a non-school day) in the year 2012 and each alternate year thereafter;
(ii)from 10.00am on Good Friday until 10.00am Easter Sunday in the year 2013 and each alternate year thereafter UPON CONDITION that if Greek Easter Sunday coincides with Christian Easter Sunday in those years, handover to the mother shall take place at 4.30pm on Easter Sunday (in lieu of 10.00am); OR
(iii)at any other times as agreed between the parties.
In the event that Greek Easter Sunday does not coincide with Easter as specified hereinabove and the children are otherwise in the care of the Mother, the children shall spend time with the Father on Greek Easter Sunday from 10.00am until 4.30pm.
If the children spend time with the father at Greek Easter in accordance with paragraphs 10(a)(ii) or 10(b)(ii) or 11 above the mother shall, upon providing twenty-eight (28) days written notice of her intention to take such time, have the option of taking make-up time on a Sunday when the children are in the Father’s care.
Children’s birthdays
Both children shall spend time with the parent who does not have the children living with them on the children’s birthdays as follows:-
(a)if a school day from the conclusion of school until 6.30pm;
(b)if a non-school day from 2.00pm until 7.00pm;
(c)at any other times as agreed between the parties.
Mother’s Day and Father’s Day
In the event that the children are living with the Father on Mother's Day the children shall spend time with the Mother from 10.00am until 6.00pm.
In the event that the children are living with the Mother on Father's Day the children shall spend time with the Father from 10.00am-6.00pm.
Special events
In the event that the children are invited to a party, family event or other special occasion with one parent when the children are in the care of the other parent the children are at liberty to attend such events by agreement between the parents which consent shall not be unreasonably withheld, PROVIDED THAT no more than five such events shall occur for either party in each calendar year NOTING that each parent will provide reasonable notice of such events (and if possible at least 14 days notice) and do not intend these arrangements for special occasions to include requests for the children to spend overnight time with the requesting parent.
Handovers
All handovers shall take place as follows:
(a)on a school day at the children’s school at the conclusion of school on a Friday;
(b)on a non-school day, for the next two (2) years from the date hereof at 6.00pm on Friday at the [omitted] Children’s Contact Service and, if unavailable, at McDonalds at [address omitted] on the conditions as set out in paragraph 17(c) below; AND
(c)at the expiration of two (2) years, on a non-school day, at McDonalds at [address omitted] ON CONDITION THAT:
(i)the mother or her nominee arrive ten (10) minutes before the appointed handover time and sit inside;
(ii)the father or his nominee arrive at the appointed handover time and remain outside at the entrance;
(iii)the father or his nominee then send the children inside or collect them from the entrance;
(iv)the mother or her nominee remain inside for ten (10) minutes thereafter;
(v)the parent using a nominee for the handover shall advise the other parent in advance by SMS or in the communication book of the name of such nominee.
Communication between the children and their non-resident parent
Each parent is at liberty to contact the children by telephone every Monday and Wednesday at 7.00pm-7.30pm whilst the children are in the other parent’s care with such telephone contact to be suspended on the children’s birthdays if they fall on these days.
Each party will provide a designated mobile phone number to enable these telephone calls to occur and will notify the other parent promptly by SMS text message in the event they are changing the designated mobile phone number.
Each parent shall ensure that their designated mobile phone is switched on, charged, and available to receive the other parent’s telephone call in accordance with paragraph 19.
Each parent shall facilitate the children taking the other parent’s telephone call and shall afford the children an appropriate level of privacy during the telephone call.
In the event the resident parent answers the telephone both parties shall speak in a polite and civil tone and will refrain from attempting to discuss any issues with the other parent.
The parties are at liberty to provide each child with a mobile telephone upon each of the children commencing their Year 8 school year (or at such earlier time as may be agreed between the parties and confirmed in the Communication Book).
Upon the first such mobile phone being obtained, telephone communication pursuant to paragraph 18 (above) may occur to that mobile telephone number, rather than through the parents’ designated mobile phone numbers.
The parties are otherwise restrained from contacting the children via their mobile telephone until such time as both parents indicate their consent to such communication occurring, such consent to be confirmed in the Communication Book.
Any further communication between the children and the non resident parent, whether by telephone, text message, Skype, email or any other electronic means shall not occur until such time as both parents have indicated their written consent as confirmed in the Communication Book.
Forms of communication between the parents
A Communication Book shall be used with each parent to provide (only) any relevant information relating to the health and welfare of the children and it shall be exchanged at each handover NOTING that all entries shall be respectful and child-focussed.
The parties communicate by SMS messaging in relation to any urgent matters regarding the children’s health, activities or schooling in circumstances where the information cannot await the weekly exchange of the Communication Book.
The parties are otherwise restrained from communicating with each other by SMS text message, telephone, email or any other form of electronic communication, subject to paragraph 31 herein.
Health issues
The father shall not be children’s treating medical general practitioner SAVE AND EXCEPT in the case of medical emergencies and for the treatment of colds, flu, allergies, minor cuts, abrasions, bruises and sprains and non-serious medical conditions and injuries ON CONDITION THAT:
(a)the father makes reasonably comprehensive notes of the symptoms upon examination;
(b)the father makes notes of any medications and/or prescriptions he provides for treatment; and
(c)the father enters the information referred to in paragraphs 30(a) and 30(b) above OR provides a copy of the said notes in the Communication Book at the next handover.
Each parent shall forthwith inform the other via text message or telephone of any serious illness or injuries sustained by the children whilst in their care, particularly if such illness or injury requires emergency ambulance and/or hospital treatment.
Each parent shall provide the other with particulars of any medical or dental treatment required or received by the children together with the name, address and telephone number of the treatment provider and/or location at which the children are a patient with such information to be recorded in the Communication Book at the next handover.
Each parent shall provide the other with any prescribed medications for the children and the other parent shall administer those medications during periods when the children are living with them.
Schooling
That the children shall remain enrolled at [school omitted] or such other private school as may be agreed between the parties for the balance of both their primary and secondary education UPON NOTING these educational arrangements are conditional upon the father meeting the associated costs.
School reports, notices and extra-curricular activities
Each party shall do all things necessary to request the children’s school to provide copies of all school notices, newsletters and academic reports to both parents.
Each parent shall also provide copies of any class or school notices received by them to the other parent via the Communication Book and shall otherwise inform the other parent of any school events not otherwise the subject of written notice from the school, with such details to be recorded in the Communication Book.
Subject to the injunctions set out in paragraph 38 below each parent is at liberty to attend all school events including sports days, swimming carnivals, choir, theatrical or music performances, parent teacher interviews (at separate appointments), information nights and school assemblies.
Injunctions
Without admission the parents are restrained and an injunction is granted restraining the parents from:
(a)denigrating the other parent (or their family) to or in the presence of the children or allowing any other third party to do so;
(b)attending within fifty (50) metres of the other’s residential premises;
(c)attending within ten (10) metres of the other parent’s motor vehicle or thereabouts with the parties to notify each other by way of entry in the Communication Book if they purchase or are driving a different motor vehicle;
(d)harassing, threatening, intimidating, following or stalking the other parent;
(e)knowingly entering any place of employment or any other place at which the parents may be working from time to time without legitimate reason;
(f)attending any classroom based activities when the children are living in the other parent’s care;
(g)attending within ten (10) metres of the other at handovers or at those school or extracurricular activities which both parents are entitled to attend in accordance with paragraph 37.
Passports
The parents shall sign all necessary documents and do all reasonable things as are necessary to obtain passports for each of the children.
The parties are restrained and an injunction is granted restraining them from removing the children from the jurisdiction of the Commonwealth without the written consent of the other PROVIDED THAT such consent is not unreasonably withheld and ON CONDITION that the travelling parent provides to the other parent with written notice of any proposed overseas travel and provides an itinerary, address and contact details which apply during the period of travel in accordance with paragraph 8 herein.
The parent who is in possession of the children’s passports after they are issued shall produce them to the other parent immediately upon receiving notification in accordance with paragraph 40 of the proposed travel or for any other reasonable purpose.
Procedural
All previous interim Orders made herein be and are hereby discharged.
IT IS NOTED that publication of this judgment under the pseudonym Kessler & Kalfas is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 600 of 2010
| MS KESSLER |
Applicant
And
| MR KALFAS |
Respondent
REASONS FOR JUDGMENT
These reasons were delivered orally. They have been edited and corrected from transcript to correct any grammatical errors and generally to make my oral reasons easier to read.
The parties have presented Consent Minutes of Order to the Court, which resolve many of the parenting issues between them, however certain specific aspects remain unresolved. Most of the issues in dispute between the parties do not require a paragraph by paragraph consideration of the principles set out in the Family Law Act.
In a general sense, while I take into account those factors when making these decisions today, it is clear that the most relevant s.60CC(3) considerations relate to each party’s capacity to support the children’s relationship with the other parent, the lack of communication between the parties and how that poor communication impacts upon their capacity to implement the agreed orders for shared care and equal shared parental responsibility.
These are the issues that I will be focussing on when ruling on the issues still in dispute between the parties, many of which relate to communication between the parties, but also communication between each parent and the children.
I have, of course, considered the material on the Court file. It was also very helpful for me to have the experience of hearing brief evidence from each of the parties yesterday. Counsel have no doubt informed each of you that this hearing is proceeding in a slightly unusual manner. However, in circumstances where so many aspects of the children’s parenting arrangements have been resolved, I agree that there is no benefit in the Court traversing all of the evidence regarding the past relationship difficulties and complaints that you each have about the other, both in terms of past conflict and allegations of poor parenting.
The reality is that you are each now coming to the Court consenting to an order, firstly, for equal shared parental responsibility and, secondly, to an order that the children will continue to live week about in your care. That agreement brings with it certain expectations in terms of co-parenting communication and co-operation that may not seem to be supported by the affidavit material on the Court file, nor by some of the oral evidence heard yesterday.
Nonetheless you have both had extensive legal advice from experienced solicitors and Counsel and are in agreement about the children’s living arrangements. The very fact of this agreement brings with it a clear acceptance by both parents that you each have the capacity to look after [X] and [Y] on a practical, day-to-day basis and to support and encourage their development as they grow up. Some of the other aspects of your parental capacity, such as supporting the children’s relationship with the other parent and so on, are matters that I will return to.
The family assessment report prepared by Ms H earlier this year is of particular assistance and I have certainly taken the contents of her report into account. Frankly, there are many aspects of the present parenting dynamic that might lead the Court to feel very cautious about making orders for equal care and equal shared parental responsibility.
Balanced against those concerns is the reality that the children have been living week about with each parent for some time now. The evidence indicates that even if this issue proceeded to trial, any outcome would necessarily involve the children spending regular and extensive time in the care of each parent, even if one parent was in the role of primary caregiver.
Proceeding to a full hearing on parental responsibility or a variation in the care arrangements would inevitably heighten the hostility and distrust between you. In those circumstances, I am satisfied that avoiding a destructive trial process by agreeing to continue shared care is a decision that is, in fact, in the best interests of the children.
From the Court’s perspective, you have both been failing in your parental responsibility to the children, in terms of their emotional welfare. Whether the children continue in shared care, or not, will not resolve the present emotional difficulties confronting [X] and [Y]. Obviously, you can both attend to their day to day care. You get the children to school. You can both clothe them properly. I am reasonably confident you can both feed the children properly, despite complaints you each make in the Communication Book in that regard.
But you have failed to provide a safe and secure emotional environment in which your children can flourish. You have failed to truly support [X] and [Y] by enabling them to move freely and comfortably between their two homes. You have failed to provide a secure bridge over which they can safely make this transition each week. The children need both parents to moderate and control their behaviour, to ensure that the children’s experience of moving between two homes is easy and relaxed. That is not their present reality.
You both criticise each other, but nonetheless you also acknowledge the children’s right to a relationship with their other parent. Given that you are both competent and at many levels, emotionally attuned parents, this failure is even more significant and you should each reflect upon this.
Obviously your co-parenting relationship does not exist in a vacuum. It is affected by your past relationship difficulties and by the problems and failures you each identify in the other parent.
Some of those past complaints remain significant. Some have been the subject of hearings and formal findings by a Court, such as the father’s actions in damaging the mother’s car. Such behaviour does nothing to build trust between parents and only undermines the capacity for each of you to engage in a proper co-parenting relationship. But whatever the past hostilities and difficulties are between you, you cannot avoid the expectations that these orders now impose upon you. Like it or not, you have an ongoing co-parenting relationship and you are both responsible to make it work productively, for the sake of your children.
This does not mean that we simply forget all of the past complaints and past allegations, whether they be allegations of aggressive or abusive behaviour, as raised by the mother, or complaints of inadequate and inappropriate parenting, as raised by both parents. Nor does it mean that concerns about family violence are not serious issues, especially when there is a domestic violence restraining order in place.
The domestic violence restraining order was made by a state Magistrate following on from a trial in that Court. Your co-parenting dynamic needs to operate within the context of that domestic violence restraining order. This is not a situation where Ms Kessler’s reluctance to communicate directly with the father indicates that she is being uncooperative or difficult.
But it does mean that any structure for the present co-parenting dynamic needs to properly provide for the two of you to be able to move beyond your past complaints and hostilities. Not to forget them, but to put in place appropriate mechanisms that will enable you to move forward in your co-parenting roles.
Both parties need to take some responsibility for the present dilemma and for the emotional implications upon your children. And those emotional implications are significant. For example, presently the Communication Book travels in the children’s bag in a sealed envelope, to protect the children from reading some of the ugly exchanges and dripping venom within that book. This sends an incredibly powerful message to [X] and [Y] about your inability to behave properly and to communicate respectfully with each other.
I acknowledge that some of the entries in the book are focussed and polite, such as when sorting out practical issues about a child’s birthday party or a change in the sporting arrangements. If the two of you could limit your use of the Communication Book in this way, you wouldn’t need to use a sealed envelope. The children wouldn’t need to be protected from it. Indeed, [X] and [Y] might actually experience their parents communicating with each other respectfully and have this behaviour role-modelled to them, as the way adults should behave in this world.
Unfortunately your children are currently receiving very poor role modelling from you, when it comes to how adult interpersonal relationships should be conducted. [X] and [Y] will soon be coming into the most vulnerable stage of their lives, when they will begin to experiment with their own style of interpersonal relating. How they conduct their future relationships should be fostered by the example they receive from their parents, not undermined. The children should learn about trust and respect from their parents, not relationships based on hostility and animosity.
Counsel for the father submitted yesterday that it is now time to move forward and that the parties should be able to communicate more easily by now. Mr Kalfas made similar comments in the witness box. However, the reality is that the present difficulties between you are still at a very high level of intensity, nearly two years after separation. The distrust and antagonism between you is such that what might be achievable between two more amicable co-parents is simply not available to the two of you. And it would be foolish for the Court to assume that the present difficulties are going to resolve quickly or easily.
That means that the co-parenting dynamic between you needs to operate with significant restrictions upon communication between you, for the present time at least. You are both going to have to work within that structure, even though it may be frustrating at times.
These are the general background comments that are informing my decisions today. As discussed, in terms of disputes regarding handover times, whether certain special occasion visits are overnight and so on, I will now go through the Consent Minutes of Order that set out the issues agreed between you and rule on those issues that remain in dispute. Where necessary, I will also make reference to the mother’s Case Outline document and the alternative draft orders proposed by her.
I will follow the structure of the Consent Minutes, even though that means I am ruling on relatively minor issues first, rather than the more significant issues such as communication.
Paragraph 8 deals with annual vacations. The parties have agreed to maintain the routine of the children’s time in each parent’s care, so that any longer holidays proposed by either parent will be for periods of either 14 or 28 days. The issue in dispute relates to what period of notice should be provided to the other parent.
The husband’s submissions were perfectly logical in that he doesn’t want to be tied to a 60 day notice period and would prefer a little more flexibility. The wife’s position was equally pragmatic. She says there are practical implications that arise for her employment, particularly in relation to any proposed four week holiday.
There is no particular legal principle I am bringing to bear in deciding this issue. I will make orders that are a compromise, in an attempt to address both parents’ concerns and minimise any difficulties for either party in other areas of their lives, such as the wife’s employment. Accordingly the longer 60 day notice period will apply to any proposed four week holiday by either parent.
The next issue arises at paragraph 13, in relation to birthday arrangements. Again, both parties are putting forward proposals that can easily be justified in terms of the children’s best interests. From the father’s perspective, he would prefer the children stay overnight with their non-resident parent, to enable the children to have a relaxed and enjoyable time across that evening. From the mother’s perspective, she would prefer to maintain the basic stability of overnight time on a week about basis with a minimum disruption in that regard.
I take into account that the children are moving between each parent’s home regularly on a week about basis. I consider it is important to maintain the structure of the agreed week about care arrangements by minimising mid week overnight stays. A handover across the evening will involve a face to face handover, which may seem counter-intuitive, but I conclude that the stability of the week about regime should prevail nonetheless.
I decline to order overnight time on school days but I am content that the children’s time with the non resident parent should conclude at
6.30 pm. That allows the children and the relevant parent to have three hours or so after school, to enjoy a celebration, exchange birthday gifts and so on. I also note that the children will be spending time with each parent on a weekend prior to or after the relevant birthday, when more extensive birthday celebrations can occur.
When birthdays fall on the weekend, again, on balance, I am inclined to maintain the structure of the arrangements and to minimise the degree of overnight “to and fro-ing”. I am also inclined to minimise the opportunity for either parent to feel the arrangement is working unfairly due to when birthdays may be falling. Any step the Court can take to minimise parental angst will invariably be in the children’s best interests.
The order of the Court will be to the effect that if birthdays fall on a weekend day, the children will spend time with the non resident parent from 2.00pm until 7.00pm. Even if the birthday falls on a Sunday evening, I do not think 7.00pm is too late. It enables time for there to be a family celebration and should not unduly crowd any celebration the other family unit may hold, as well.
I decline to make any specific ruling about Fridays, as sought by the mother. Frankly, if the children have sporting activities, then the children participate in those sporting activities. I do not see any difficulty in that regard. It could just as easily be sport on a Friday or some other activity on a Monday or Wednesday evening that the children happen to be participating in from time to time. While the Court will try and provide as much structure as possible, these orders do not pretend to deal with every issue that may arise in the future.
The next paragraph relates to the arrangements for Mother’s Day and Father’s Day. In light of my previous comments about overnight time and disrupting the pattern of week about care, the parties won’t be surprised that I take the same approach here and will order accordingly.
In relation to paragraph 16 the father is seeking an order that the children are able to spend time with the other parent for family celebrations or special occasions that may occur. The mother does not consider such an order is necessary but if it is to be made, that it be limited to four or so events in any year.
In principle, it is important for the children to be able to participate in special events or family celebrations from time to time. Again, in a perfect world, one would not expect that the Court would need to go into the level of detail as to specify the number of occasions each year but it’s quite clear that the co-parenting dynamic between these two parents is very far from perfect. Accordingly I will specify that the children are at liberty to attend up to five such special occasions each year, by agreement between the parties.
There was an application for time on the parents’ birthdays as well. On balance, I am not convinced that such an order is necessary from the children’s perspective. [X] and [Y] will have the opportunity to celebrate the parents’ birthdays on the weekend prior, or the weekend after, which I consider is sufficient.
While each parent might like to be able to celebrate and see their children on their birthday, I am quite sure they can each equally make proper arrangements to ensure that the children don’t feel that they’re excluded from any celebrations in that regard.
The next issues relate to communication between the children and the non-resident parent, as proposed by the father in paragraphs 19 to 21 of the draft Minutes of Order and in paragraphs 12 to 17 of the mother’s proposed Minutes of Order. The first issue relates to the number of phone calls each week with the children. The second issue relates to whether there should be other communication between the children and their non-resident parent by way of SMS text message, Skype, email, MSN messaging or equivalent and so on. The third issue relates to the provision of mobile phones.
I refer to my opening comments and reiterate that in a perfect world and a perfect co-parenting dynamic, the Court would not need to restrict communication between parents and children, especially given the ages of [X] and [Y]. There is a significant lack of trust between the parents, particularly from Ms Kessler towards Mr Kalfas, but, it is fair to say, operating in both directions.
Both parents complain that the other party interferes with their phone calls. Both parents allege that the other party’s phone calls are used by that parent to place inappropriate emotional pressure on the children. The parties’ affidavits and the Communication Book extracts would seem to confirm these concerns. I refer particularly to certain entries by the father in the Communication Book, where he has adopted complaints or concerns apparently raised by the children and written to the mother in such a way as to distress or provoke her.
The issue of [X]’s recent birthday is one such example. If for some reason a parent wasn’t able to spend time with a child on the day, it is hard to imagine why the other parent’s response wouldn’t be, “Don’t worry, you will see mum/dad on the weekend”, rather than engage with the children in such a way as to whip up a level of emotional alarm and then complain about the emotional trauma suffered by the child.
Each parent’s capacity to perceive or create distress for the children where it would not otherwise arise is something that both parents need to reflect upon. Hopefully, with time, both parties will develop a greater level of mutual respect for the other parent’s role in the children’s life. Hopefully they will be able to improve their communication with each other which will, in turn, relieve their respective concerns about how they each talk about the other parent with the children.
[X] and [Y] currently speak to their “non resident” parent twice a week. Both parents complain that the other does not co-operate – phones not available, other machines being switched on, family activities interfering, and so on. Given that twice weekly visits have not worked easily, I do not consider introducing a third occasion for each parent to feel aggrieved or aggravated by a breakdown in the regime is going to be of benefit for the children.
The children will have said goodbye to the relevant parent on the Friday previously; they will be speaking to that parent on two separate occasions before returning to their care again on the Friday following. I fail to see that a third phonecall will greatly enhance the quality of their relationship with each parent.
Indeed, I consider that, more likely, it would simply become a source of further conflict at the present time, in a way that could be counter-productive for the children, where they are simply exposed again to an issue of irritation and disappointment or frustration from their parents, rather than it being a positive experience for them. I decline to introduce a third telephone call between each parent and the children.
I can certainly see that there is good sense for the telephone contact to be suspended on the children’s birthdays. If the children have just spent three hours with that parent, it’s hard to see that a further phone call half an hour later is necessary – indeed, it hardly requires an order.
Regarding access to mobile phones, the father has proposed that the children be able to have phones when they turn 12, which for [X] will be in [omitted] 2013. The mother is concerned that the children not be given access to such technology at too young an age, perhaps until they are emotionally able to manage the responsibilities that come with it. So there are two issues: (1) when and if the children should be provided with mobile phones, and (2) whether the phone should then be available to the non-resident parent to initiate telephone communication.
As adults we are all very conscious in this day and age about issues such as cyber bullying, children being distracted by games or constant text messaging with friends, and so on, although these issues weren’t raised directly by either party. Against that is the reality that for children, particularly children from a middle-class background such as [X] and [Y], being the only child in the class, or on the team, who isn’t able to text their friend with what happened in the game, or on a particular TV show may become an issue for them, in the sense of being different and being outside the norm.
The mother is concerned that the father will use a mobile phone to maintain a constant stream of communication with the children which would disrupt their ability to settle into their mother’s care. She is concerned that the children should not be pressured to initiate that communication, or distracted by the emotional demands and expectations of the other parent.
The children are presently dealing with a bifurcated life between each parent’s home, where there is a very limited capacity for agreement about parental rules and expectations. Ms H also identifies a concern that the children feel pressured by one parent or the other at times, even if that pressure is inadvertent. From the mother’s point of view, she says the father places very deliberate pressure on the children. I do not intend making a formal finding on that point, but it is very difficult to accept that the tone of some of the father’s entries in the Communication Book does not occasionally spill over into his communication with the children.
This hostility can occur as much by what is not said, as well. I suspect that neither [X] nor [Y] would easily recall the last time either parent said a positive word about the other parent in the course of general conversation. I suspect it simply does not happen. And until the parents are able to improve this situation, I conclude that close management of the communication between households is appropriate.
Accordingly I will specify the arrangements in regard to the provision of, and communication through, mobile phones for the children.
I think both parents, particularly the father, need to realise that the desire to be in regular communication with the children, while perfectly understandable, can also have an unsettling effect for the children. Sometimes such phone calls become a venue for minor complaints, about whether Mum or Dad has been unreasonable, or unfair, or too demanding about homework, or too restrictive about going out with friends – and providing a regular venue for such complaints is rarely helpful.
[X] and [Y] need to be able to get on with life in their mother’s care or their father’s care. The children have a strong relationship with each of their parents; they do not need to be in contact with them every day or every other day for that relationship to be maintained.
Turning to communication between the parents, obviously each parent should keep the other notified about their mobile phone number. They agree than any emergency communication should occur via SMS message. The husband argues that they should also be free to communicate generally by text message or even the occasional phone call. He considers email would also be more practical. For example, school notices could be scanned and forwarded electronically.
Again, in a perfect world, one would think that would be sensible but at the present time, given the tenor of past communication between the parents, there is not the level of trust that would enable a more free-flowing co-parenting communication to occur. The mother gave evidence that she can deal with the possibility of a hostile message from the father in the Communication Book, because that arrives only once a week. I accept that the mother does not want to confront the possibility of hostile emails from the father every time she checks her personal email account.
It may be that, with time, both parties reach a point where they can agree some level of email communication. The mother may consider setting up a separate email address purely for co-parenting communication, for example. But this is something that the parties need to be able to work towards and demonstrate a capacity to engage in respectfully and appropriately.
Paragraph 29 is by consent but I will include a notation at the end of the paragraph as follows – “upon noting these educational arrangements are conditional upon the father meeting the associated costs”.
The next issue relates to what school or extracurricular events both parents should be able to attend. Again, we are dealing with the unhappy reality of a parallel parenting dynamic. To that extent, while both parents should obviously be able to attend significant events for the children, this may well be a fraught experience for the children, given the poor relationship between their parents. These concerns will be reflected in the orders that I make.
This is a particular issue for the father as he is involved with [Y]’s [sport omitted] club and wants to be able to attend all of [Y]’s games. Presently, Mr Kalfas has not been attending those activities during the weeks that [Y] is in the mother’s care because of the domestic violence restraining order. The mother seeks to continue that restriction in the long term.
The father argues that any such orders are far more focused more on the mother’s emotional needs rather than the [Y]’s best interests. However [Y] has been dealing with this situation already – he is accustomed to one parent or the other attending his games. I remain concerned that having both parents present at the same event will be stressful for him, at this point in time. On balance, I conclude that the restriction should continue, aside from special events such as finals or awards ceremonies.
I now turn to paragraph 35 and the injunctive orders. The parties agree that an order restraining them from attending within the vicinity of the other parent’s residential home is appropriate, but the father would prefer to see some proviso for the order to be removed or made less restrictive, in time.
While the orders pronounced by me have made some proviso for the parties to communicate about varying specific arrangements into the future, the same considerations do not apply here. Obviously any improvement in parental communication will be a blessing for the children. However, there is nothing in these orders that requires or expects the parties to be attending at each other’s home.
Most of the handovers occur to or from school. There are occasional special occasion or birthday evenings when the children will be collected from a neutral venue. If the parties ever get to a point of changing this, then of course they can always agree to do so. But I don’t intend structuring an order which might lead one parent to be inviting such a variation on a regular basis. So subparagraph (b) will simply read “…from attending within 50 metres of the other’s residential premises”. I will delete the words “or thereabouts”. The order should be specific.
There is general agreement that the parties will not approach each other when attending at school or extracurricular events. The father seeks to add a proviso “insofar as it is practicable in relation to the latter’. It is difficult to see a situation where it couldn’t be practicable, but there may be certain venues that are smaller, that may make it difficult.
My concern is to ensure that the children are protected from the emotional impact of having to deal with direct interaction, or even the potential for direct interaction between their parents. For that reason, I am inclined to proceed cautiously and will not make the amendment sought by the husband. I also bear in mind that the parties have not been attending at events together in recent times, in light of the domestic violence restraining order, so the children’s recent experience remains the same.
The last issue again relates to notification arrangements, in paragraph 37. I will simply repeat the same arrangements as specified in paragraph 8 of these orders, for the same reasons.
On the basis of these Reasons I now make orders, by consent or otherwise, in accordance with the minutes now signed me and as otherwise pronounced by me in this hearing. I now dismiss the parenting applications as finalised.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Kelly FM
Date: 3 September 2012
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