PALMERIN & PARCELL

[2020] FCCA 1287

FEDERAL CIRCUIT COURT OF AUSTRALIA

PALMERIN & PARCELL [2020] FCCA 1287

Catchwords:
FAMILY LAW – Parenting – high conflict parents – where each parent is rigid in his and her preferred mode of parenting – “parallel parenting”.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC

Cases cited:

Champness & Hanson [2009] FamFC 96

McCall v Clark [2009] FamFC 92

Applicant: MS PALMERIN

Respondent: MR PARCELL

File Number: LNC 710 of 2019

Judgment of: Judge McGuire

Hearing dates: 13, 14 & 15 May 2020

Date of Last Submission: 15 May 2020

Delivered at: Launceston

Delivered on: 27 May 2020

REPRESENTATION

Counsel for the Applicant: Ms A Trezise

Solicitors for the Applicant: Andrea Trezise

Counsel for the Respondent: Ms C Gibson

Solicitors for the Respondent: Charmaine Gibson

ORDERS

1. That the parents have equal shared parental responsibility for the children X (‘X’) born in 2006 and Y (‘Y’) born in 2009.

2. That X and Y live between their parents as follows:

   (a)    On a week-about regime with changeovers to occur on Fridays at 5.00 p.m.;

   (b)   Such other times or variations of the above as agreed between the parents in writing from time to time;

   (c)    In any event X and Y spend time with the mother each year on Anzac Day/25 April between 9.00 a.m. and 1.00 p.m.; and

   (d)   In any event X and Y spend time with the father from 10.00 a.m. until 9.00 p.m. on Christmas Eve in each even numbered year and from 10.00 a.m. on Christmas Eve until 10.00 a.m. on Christmas Day in each odd numbered year but to spend time with the mother from 9.00 p.m. Christmas Eve until 10.00 a.m. on Boxing Day in each even numbered year and from 10.00 a.m. on Christmas Day until 10.00 a.m. on Boxing Day in each odd numbered year.

3. That changeovers for the children that do not occur at school shall take place by the parent to whom the children are coming on each occasion collecting the children from the front gate of the residence of the other parent.

4. That each of the parents be and is hereby restrained from entering onto the residential home address of the other parent without that other parent’s prior consent in writing.

5. That each parent be and is hereby restrained from raising with, discussing with the children or either of them, or providing the children with any literature in respect of any long-term or important decisions in respect of the children including but not limited to matters of education, medical procedure and overseas travel without first obtaining the written consent of the other party to do so.

6. That prior to the children being informed of any important decisions in respect of the children themselves the parents put their views each to the other prudently and in writing by letter or email and if agreement is not reached then the parents jointly instruct a mediator and attend at such mediation or counselling and equally bear the costs of such mediation or counselling and that this Order applies even should the children or either of them raise themselves any issues such as should ultimately be the decision making province of the parents.

7. That the children be advised as to any changes in their parenting arrangements, lifestyle, travel, health or education only once such decision has been finalised or agreed between the parents.

8. That each parent notify the children’s schools that they hold Orders for equal shared parental responsibility and make arrangements with the schools for each to be separately provided with newsletters, school reports or other communications from the school and, if necessary, by reason of duplication then at the equal shared expense of the parents.

9. That all communications between the parents be initiated by email request or invitation save and except in the case of medical emergency but that the parent receiving the communications then respond prudently to the other on each occasion.

10. That in the event of any accident, medical intervention or similar for the children or either of them then the parent with whom the children are living at that particular time prudently notify the other parent of such event but that in all other ordinary medical consultations only the ‘resident’ parent attend with the child or children except by specific invitation from the relevant child.

11. That communications between the children and the non-resident parent take place only by the children initiating such calls by telephone to that parent and each of the parents be restrained from engineering or arranging such communications from the children or either of them.

12. That each of the parents be and are hereby restrained from discussing with the children any aspect of the other parent’s household.

13. That each of the parents be and is hereby restrained from advising any educational or health professional that either child has been diagnosed with any mental health disorder or condition without the other parents written consent.

14. That each of the parents be and is hereby restrained from engaging the children or either of them in any psychological or therapeutic appointment or consultation without the prior written consent of the other parent.

IT IS NOTED that publication of this judgment under the pseudonym is Palmerin & Parcell approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

LNC 710 of 2019

MS PALMERIN

Applicant

And

MR PARCELL

Respondent

REASONS FOR JUDGMENT

Applications

1. These are parenting proceedings in respect of the parties two children namely X (‘X’) born in 2006 (aged 13 years) and Y (‘Y’) born in 2009 (aged 10 years).

2. The applicant is the mother. Her application was filed 26 September 2019.  At that time and indeed in her trial affidavit filed 6 May 2020 and until the filing of her case summary document on 8 May 2020, the mother sought orders whereby X and Y live with her and spend time with the father each alternative weekend from after school Friday until the commencement of school Monday.  She proposed an order for equal shared parental responsibility.  However, by the commencement of the evidence the mother's position had changed and she was proposing a continuation of a week-about regime currently enjoyed by the children.  She continued to argue for an order for equal shared parental responsibility.  She sought a specific order that, in any event, the children spend Anzac Day with her each year from 9.00 a.m. until 1.00 p.m.  Following the completion of the evidence, the mother's Counsel provided an aide memoire of the orders sought by the mother still being a regime of equal time for the children between she and the father on a week-about basis but with a proposal of' 'parallel parenting' in respect to the parenting relationship of she and the father.

3. Since his response filed 21 November 2019, the father has consistently sought orders whereby the children live with him and spend time with the mother each alternate weekend from Thursday after school until the commencement of school on Mondays.  At that stage the father was asking for an order for sole parental responsibility.  By the time of the trial, the father had moved to asking for equal shared parental responsibility.  He asks for time each Christmas Eve with the children as his family celebrate Christmas in the evening of 24 December.

Background

1. The wife is 39 years and the husband 38 years of age.  They met as university students sharing a house in City A.  They commenced cohabitation in 2002 and were married in 2004.  The parties separated on 23 April 2017.  They were divorced on 26 June 2018. 

2. On 26 October 2018 the parents entered into a Parenting Plan providing for equal time shared care for X and Y on a week-about basis.

3. Both parents have tertiary education.  The mother is now self-employed as a tradesperson in Launceston and also works part-time in customer service.  There is no evidence that she is currently re-partnered although she did enter into a relationship in early 2018.  That relationship has apparently ended. 

4. The father is also self-employed as a tradesperson. He has re-partnered with Ms C.  She has a daughter who is seven years of age. 

5. Both parties live in the general Launceston municipality.

6. X is in grade 8 at D high school.  Y is in grade 5 at E primary school.

7. Annexed to the father's affidavit and marked 'A' is an assessment and report from Ms F, clinical psychologist, in respect of X and dated 25 April 2017.  I understand that the assessment was initiated due to some suggestion that X may have suffered an autism disorder.  I am unsure as to whether or not the father shared the mother's initial concerns.  In any event, Ms F did not diagnose autism but rather a 'Social Communication Disorder'.  The mother accepts Ms F’s diagnosis.  The evidence suggests that the father does not yet accept the diagnosis.

The Issues

1. The issues in this matter are in one sense discrete but otherwise complex.  Specifically, both parties observe X and Y to suffer anxiety and stresses in the parenting arrangements imposed by the Parenting Plan from 2018.  In short, the father says that it is the mother who causes the stresses for the children by reason of her parenting style which is almost completely excluding of him.  He says that the mother does not communicate or cooperate and that the children are hence uncomfortable in her care.  He says that the children are more relaxed in his home and by his parenting style and that he prefer a more flexible and mutually inclusive co-parenting arrangement.  He says that his open and communicative style and relationship with the children eases their anxieties relative to the closed and rigid parenting style of the mother.

2. The mother says that her personal relationship with the father is poor.  She concedes that it is effectively non-communicative.  She prefers a style whereby she be responsible for the children when they are in her care and vice versa when they be in the care of the father and that there need be little or no interaction for the children with the parent other than whom they are with at any particular time.  The mother argues that a parallel parenting regime will therefore ease the stresses and anxieties of X and Y by alleviating any unnecessary inter-parent interaction and therefore any potential for dispute.

3. The mother says that the father has contributed to the children’s stresses by imbuing them in the parental dispute and that consequently any preferences that the children may have to spend more time with the father are improperly influenced by him involving the children in adult issues. 

4. There is little of a factual nature in which these parties agree.  They do agree, however, that both children are anxious and stressed.  They are in disagreement as to the fundamental cause or source of such anxieties and stresses.

5. Significantly, and certainly interestingly, each of these parties do concede a significantly poor personal relationship, lack of communication, and lack of historical cooperation, and yet they both ask for orders for equal shared parental responsibility.  They accuse each other of acting unilaterally in respect of the children.  Each accuses the other of a lack of insight into the needs of their children and their best interests.  Each argues that the other’s parenting style is flawed and responsible for the children's emotional issues.  Each argues that the other is unmoving and uncompromising in believing that his and her parenting style is preferable than the other.

6. At its most abstract, therefore, the Court is to consider whether the children’s stresses might be alleviated by the proposal of the father which is to give them a primary residence and a reduction in time with the mother or, alternatively, whether those stresses will be alleviated on the mother's proposal which continues a seven day about arrangement for the children but attempts to limit and structure the parenting relationship between the parents although, of course, it was made clear to the parties that the Court's role is not simply to choose between the two options left by the parties but overall to make orders which attend to the children's best interests.

Relevant Law

1. Part VII of the Family Law Act (1975) ('the Act') provides powers in respect of the Court making parenting orders for children. Section 60CA provides a fundamental proposition that it is the best interests of the children that is the Court’s paramount consideration. In determining those best interests the Court is to reference the parties’ proposals and the probative evidence to, firstly, the objects and principles of the Act set out at s.60B as follows:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents  having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)  protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)  ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a)  children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)  children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)  parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Secondly, the proposals and the evidence is more pragmatically referenced to the numerous factors set out at s.60CC(2) and (3) of the Act. In the matter now before me, and whilst each factor should be referenced, the following matters are of major consideration here:

   a)orders which benefit the children having meaningful relationships with both their parents;

   b)the children's views as to their living and parenting arrangements and the weight to be afforded those views;

   c)the capacity of each of the parents to attend to the children's physical, intellectual and emotional needs;

   d)the attitude of the parents to the responsibilities of parenthood including, and in this matter, the ability or otherwise of these parents to prioritise their children's needs over their own residual animosities and hence to co-operatively parent their children;

   e)changes for the children on either parent’s proposals and the likely impact for the children of those changes.

The Evidence - the family reporter.

1. In this matter the Court has had the very great benefit of a report prepared pursuant to section 11F of the Family Law Act on X and Y by Ms G, Family Consultant, and after interviews with both parents and the girls with such report being dated 28 February 2020. Although that report is not a comprehensive family report in its usual form, the report is, in my view, relevant, informed and highly particularised. Ms G gave evidence and was cross-examined. Ms G’s report provides recommendations at [37] –] 39] as follows:

   37.It is suggested that the equal time arrangement be maintained. Consideration could be given to a 2/2/5/5 arrangement which would provide the children more consistency across weeknights but this would come at the cost of more transitions between homes which they may experience to be more burdensome.

   38.It is suggested that a fixed, parallel parenting arrangement be developed. In the context of ongoing equal shared parental responsibility, this would be characterised by the following:

   a)The parties’ communication being planned and controlled either through set times for communication or through means of communication, such as email, which takes away the immediacy of communication and reduces the likelihood of the children being exposed to this.

   b)Space for each party to parent the children on a day to day basis as they see fit, without interference or involvement of the other. Significant matters involving diet, long term health and development, and education should be discussed and determined through the set communication channels as outlined above, away from the presence of the children. Engagement with community mediation processes may assist with more significant decision making processes.

   c)Any topics or issues raised by the children with regards to co-parenting decisions or issues re-directed, with reassurance to the children that they have been heard, back to discussion directly between the parties without involvement of the children.

   d)Children only being advised about any changes in their parenting arrangements, lifestyle, travel, health or education once a decision has been agreed to by both parties.

   e)Neither party attending the others home. Handovers for the children and any belongings occur through a neutral location to create a sense of equality in the co-parenting interactions. 

   f)All communication between the children and the other parent to be initiated by the children only.

   39.It is suggested that both parties make significant changes to the nature of their interactions with the children to limit their exposure to co-parenting issues. It is likely that both parties would benefit from engagement with individual counselling with J Counselling to assist them in this regard.

2. Notably, at the time of the interviews for the family report in February 2020, both parents were proposing that the children reside primarily with them and spend alternative weekend time with the other.  Presumably armed with Ms G’s report, the mother now moves to a continuation of the equal time arrangement and accepts Ms G’s proposals for 'parallel parenting'.  The father maintains that the children should live primarily with him but offers longer block periods of time for the children with the mother than he did in February.

3. Ms G identifies at [8] the crux of the mother's argument now before the Court and her complaint in respect of the father in that he is 'not respectful of her boundaries and that he has been intrusive and overbearing in his interactions with her'.  Conversely, the father is noted as desiring a more 'open and communicative relationship'.  Both parents, not surprisingly, raised concerns with the family reporter that the other lacks insight and skills into the children's emotional well-being.  The extremes of the parents viewpoints are demonstrated in the mother alleging the father to expose the children unnecessarily to the adult parenting disputes and issues whereas the father sees little wrong in involving the children in the decision-making process and does not understand this to undermine the mother's parenting or the children's relationship with her.

4. Ms G at [13] identifies a highly distrustful and negative view by the parents of each other which she sees as being based on 'significantly varying perspectives about the children's needs and best interests and fixed certainty that their view is correct'.  Ms G noted hostility and tension in the dynamic between the parents.  Importantly, at [16] Ms G opines that the conflict between the parents is pervasive and again 'that the children have been significantly exposed to this.'

1. Ms G met with the children independently of their parents.  She describes X as ‘open, forthright and communicative’.  Y was more reluctant and reserved and requested her sister to be present at her interview.  The girls highlighted differences in their parents’ households and parenting models.  It is clear that the girls have been subjected to involvement and negative comment by their parents each against the other.  Any casual reading of Ms G’s report makes it blatantly obvious that the stresses and anxieties that these young girls undoubtedly suffer are due in large part to their perception of their parents’ hostility and their involvement, albeit in substantially different ways, in those disputes in each household.  Both girls explicitly told Ms G that they wished for less hostility and improvement in their parents’ relationship.

2. Ms G was helpfully able to expand on her report in her oral evidence.  She maintains that a relationship of parallel parenting is the best option for these girls and rejects the father's proposal of him being the primary parent.  Ms G identifies both parents as being essentially skilful and loving parents but being overwhelmed in their parenting by their own dispute, such that any opportunity for co-operative parenting has been lost.  Specifically, Ms G agreed that a move to a regime where one parent would have primary care for the children might create further problems, compound the current problems, and certainly not provide a resolution where the issue here is very much the relationship between the parents and not of itself the regime of time that the children spend between those parents.

3. Ms G’s evidence was that a system of 'parallel parenting' could provide a resolution to the anxieties for X and Y caused by the different parenting styles and hostility between the parents.  For example, the mother is rigid in her views that she does not need contribution by the father during her time with the children.  The father, on the other hand, continues to espouse a form of flexibility and co-parenting.  His actions in this respect serve only to further antagonise the mother.  Similarly, he tends to over-involvement of these young girls in the adult issues whereas the mother’s model is to quarantine the girls almost entirely from important decisions made on their behalf.  In this sense Ms G agreed with my 'definition' of parallel parenting in that it cannot involve any form of flexibility and that the obvious benefits to both the parents and the children of flexible, cooperative and communicative parenting are necessarily lost.  'Parallel parenting' anticipates that the children will come to know, understand and be entrenched in the differences between their parents households and that such become a routine in their lives with the children accepting the differences between their parents rather than being conflicted by them.  That is, the two parenting models do not overlap and independently become a part of the children's life routines.  The benefit, of course, is that the opportunity for parental interaction and hence conflict is diminished.  Decisions are made on a more formalised basis as for example by writing and the use of third-party mediators.

The Applicant Mother's Evidence

1. The mother presented in the witness box very similar to the observations of Ms G from her February report.   The mother is undoubtedly intelligent and articulate.  She is of strong and assertive personality.  She is, however, almost completely rigid in her views.  Whilst she is child focused, she almost entirely dismisses any accommodation of the father in decision-making for the children when they are with her.  As such, she feels confident in making unilateral decisions for the children such as providing psychological assessments of X to the school without first referencing the father.  Similarly, she saw no problem in her unilaterally changing the children's bank accounts from being jointly held by the parents.  She is almost entirely empowered and entitled in her own parenting to the exclusion of the father.  Nevertheless, there are contradictions in her behaviour such as she attending at the father's home on the first day of a school year, refusing his request to leave, and insisting on seeing the children outside his home.

2. The mother was not a good witness.  Her rigidity and entitlement was palpable.  She could not make admissions against interest.  She was entirely prepared to deflect any blame to the father and accept little or no responsibility herself.  She is, however, undoubtedly a highly skilled parent in virtually all aspects except any insight or understanding as to the benefit for her children in experiencing some form of cooperative relationship between their parents.  Whilst she identifies the symptoms for the children in their stresses and anxieties, she appears to be oblivious or, at least denying, of any contribution by herself. 

The Father's Evidence

1. Superficially the father presented with more desirable and commonly accepted parenting traits. He espouses cooperation and communication.  However, a more intrusive examination shows him, in fact, to carry many of the traits of the mother.  He is suspicious of the mother's actions and intents.  His response to dispute is to involve the children and thereby on occasions provide the mother with nothing more than a fait accompli which in turn further aggravates the mother.  Whereas he might come across as less rigid and more flexible and accommodating than the mother, there are examples to the contrary.  Notably, the mother obtained a comprehensive psychologist’s assessment and report in respect of X and at a time when the mother suspected that the child might suffer a form of autism.  The father's participation in the process appears to have been cursory at best.  Importantly for this process, however, he now says, some three years after the assessment, that he does not accept the assessment.  Nevertheless, he has not seen fit to himself consult with the psychologist to gain clarification.  Rather, he also appears somewhat empowered in his parenting by his denials.  That is, he criticises the mother for providing a copy of the report to the schoolteachers which, on reflection, seems to be an entirely appropriate action by the mother.  He says that he does not accept the diagnosis of social communication disorder.  Yet he appears to have initiated no other form of assessment or consultation with the assessing psychologist or any new psychologist. 

2. Similarly, the father has raised issues directly with the girls of potential travel with him to Country H.  Ordinarily, one might not think this to be a problem.  However, the father might reasonably have understood and expected a negative response by the mother in circumstances where she was not substantially involved in the process.  Such actions serve only to further stress these girls by reason of the very differences between their parents.  Whilst the father acknowledged to Ms G that he might now understand the errors in him involving the children in important decision-making processes before first seeking input from the mother, his evidence in Court was not necessarily persuasive as to whether or not he has gained such insight.

Evidence – the Father's Partner, Ms C

1. Ms C provided an affidavit sworn 29 April 2020.  She is understandably very supportive of the father.  She has a seven year old daughter and has a relatively amicable relationship with that child's father.  Ms C appears to have an easy and friendly relationship with X and Y.  Her evidence was otherwise unremarkable. 

S.60CC Factors

S.60CC(2)(a) - the benefit to the children of having a meaningful relationship with both of the children's parents 

1. This is a primary but not determinative consideration[1]. It is qualitative rather than quantitative in its nature.  Further, the consideration is a prospective one in that the Court is to make orders which operate into the future although, of course, any such consideration must be based on current and past factual circumstances[2].   

   [1] Champness & Hanson [2009] FamFC 96

   [2] McCall v Clark [2009] FamFC 92

2. Despite the manifestation of stresses and anxieties for X and Y, the evidence suggests that the children currently have established and attached relationships with both their mother and their father.  This would not be unexpected given that they have been living in a week-about relationship between the two. Nevertheless, and particularly in the matter now before me, the issue of qualitative ‘benefit’ is an important one in the structure and regime of orders that the Court is to make.  That is, after identifying any issues or problems, the Court is to make orders which then benefit the children and not necessarily either of the parents.  It is clear that ‘benefit’ is therefore a relative term. 

S.60CC(2)(b) - orders which protect the children from family violence, abuse or harm

1. This is not a matter with the common traits of those coming before these Courts with obvious inter-parent violence or abuse of the children.  Notably, however, the mother did make complaint to the family reporter of the ‘emotional and sexual abuse during the relationship’.  Whilst these issues were not highlighted or even broached during the evidence in Court, they may give some explanation as to the ongoing difficulties between these parents following their separation.

2. The issue under this consideration for me, however, focuses on any ongoing emotional damage to these children resulting from continuing parental conflict.  The children suffer manifest symptoms.  They have told the family reporter that they crave an improvement in their parents’ personal relationship.  The implication is that they do not want to be exposed to, or imbued, in the adult disputes.

S60CC(3)(a) - the views of the children, if any, as to their living and parenting arrangements and the weight to be afforded those views

1. X and Y are 13 and 10 years of age respectively.  At these ages they might reasonably expect that their views would be given some weight.  X, in particular, was observed by the family reporter as being ‘open, forthright and communicative and thoughtful about her circumstances and while she expressed clear views, was somewhat open to considering alternative perspectives and possibilities.’  At [24] X suggested that she would like to spend more time with her father as she ‘feels more relaxed’ in his home but was equivocal in that statement when also saying that the (current) arrangements are 'fine'.  Y, who was accompanied to her interview by X, expressed similar sentiments.

2. The veracity of the girls’ statements, however, must be seen within their involvement and exposure to the parental dispute and conflict.  Ms G suggests that both girls have been subject to influence by each of the parents.  The evidence discloses that they have been involved in decision making by one or other of the parents prior to any parental consultation.  They are obviously aware of the different parenting models undertaken by each of their parents.  Undoubtedly their loyalties are tested.  The irresistible conclusion is that their stresses and anxieties result because of such involvement and exposure.  The indication from the family report is that the girls’ preferences do not so much sit too much on a distribution of time between their parents but more towards the resolution and cessation of conflict between those parents.  The ‘out of the mouths of babes’ moment comes at [25] of Ms G's report where X is noted as follows:

   X identified some things that may make life easier for her: her parents making specific times when they can talk to each other so the children have no involvement in this, a rule that she can contact each parent whenever she wants, that she would like to have Dr appointments only attended by the parent she is with at the time unless she asks otherwise, and that she does not want to discuss these proceedings any further.  She highlighted that she ‘hopes for the best’ that things will get better for her parents’ relationship in the future.

S.60CC(3)(b) - the nature of the relationship of the children with each of the parents (and any other relevant person)

1. It is blatantly obvious that the nature of these girls’ relationship with each of their parents is determined by the parenting style and, more particularly, the ongoing parental conflict.  The parents have opposing styles.  The mother is possessive of her time and parenting of the girls.  She tolerates no interference and little contribution by the father.  The evidence suggests that she prefers almost complete isolation from the father for the girls during their time with her. An example was the parents both being present at an event for the children whilst they were having their week with their mother.  The father provided $10 to each girl for a meal.  The mother's reaction was to reject the offer and oblige one girl to return the money to her father.  These parents need to understand that their daughters are evolving in both a cognitive and emotional way and that such petty behaviour and dispute almost certainly will impact on them as they progress to adulthood and more immediately on their current relationships with their parents.

2. To the contrary, the father claims to be more laissez faire and less rigid.  He says that he would desire more flexibility and mutual communication wherever the girls are at a particular time.  Nevertheless, he too is rigid in his own views and thereby, as with the mother, serves only to cause confusion by insisting on his model of parenting.

3. Consequently, the nature of the girls’ relationships with their parents has become confused.  They are exposed to almost diametrically opposite styles of parenting in many respects.  Nevertheless, the evidence of Ms G suggests that their relationships with each of the parents remain intact, attached and generally positive.

S.60CC(3)(c) - the extent to which each of the children's parents has taken, or failed to take, the opportunity to participate in making decisions about long-term issues in relation to the children and to spend time and communicate with the children

1. The decision-making process for these two girls has been fundamentally flawed.  Ironically, each of the parents now comes of this Court asking for an order for equal shared parental responsibility which by definition denotes mutual traits of cooperation, communication, respect and trust.  Thus far, in each of their own styles, the mother and the father have both been culpable in respect of making unilateral decisions for these children.  The father involves the girls themselves in the prospect of overseas travelling and thereby leaving the mother in an unenviable situation and without prior consultation with her.  The mother is more forward and blatant in making decisions without consulting the father. 

S.60CC(3)(d) - the likely effect of any changes in the children's circumstances, including the likely effect on the children of any separation from either of their parents

1. The mother proposes a continuation of a week-about arrangement.  The father's proposal would see the children living primarily with him for 10 nights per fortnight and with the mother for a long-weekend each alternative week.  The fundamental question for the Court is whether either of these proposals would attend to the issues emphasised above which rest with parental conflict?  The family reporter gave the Court the benefit of her experience and suggested that the issue was not so much the regime of time but the relationship between the parents and a simple change in the distribution of time is unlikely to address the issue of conflict and mistrust between the parents.  Indeed, such problems might be compounded whereby these girls could come to see some fundamental difference in their parent’s capacity where each is capable but where those capabilities are infected by their propensity for conflict.  Whilst the father suggests that the children spending 10 days per fortnight in his care might reduce their exposure to parental conflict I suggest that this is unlikely.  To put it simply, the conflict between these parents has little if anything to do with the distribution of their time with each parent.

S.60CC(3)(e) - the practical difficulty and expense of the children spending time and communicating with their parents.

1. This is not an issue.

S.60CC(3)(f) - the capacity of each of the children's parents to attend to the physical, intellectual and emotional needs of the children

1. The current parenting circumstances are causing emotional stresses and potentially long-term emotional damage for these children. Each of these parents has many positive attributes and skills. Individually, they are very capable. They can each provide physically for their children. They individually offer themselves as intelligent and articulate role models for X and Y. However, it is prima facie never intended that parenting be an individual responsibility or role. It is not accidental that the Family Law Act itself is silent as to the 'rights' of parents but rather emphasises the ‘rights of children’ to have a relationship with each of their parents. It might be said, albeit without any strong authority, that it is not accidental that we are given, as a norm, two parents.

2. This matter does not bring with it the often torturous and tragic issues which confront these Courts such as physical child abuse and neglect often compounded by mental illness and/or substance abuse and/or family violence.  To be blunt, Ms Palmerin and Mr Parcell are not typical of the litigants in these Courts.  However, they do each bring certain and important incapacities and such which are felt keenly by their children notably a complete inability to cooperatively and respectfully parent X and Y.  As I have said above, they are both intelligent and well educated individuals.  They have had the benefit of all the facilities and tools that these Courts can give to assist litigants.  There has been a family report.  Both have been represented by experienced family law lawyers.  Nevertheless, I detected throughout the evidence of each of them a reluctance to ‘give way’ to the other.  The incapacity of these parents is a simple and obvious one.  They have not yet learned to prioritise their children's needs over their own residual and often petty disputes.

S.60CC(3)(g) - the maturity, sex, lifestyle and background of the children

1. These are children in the process of maturing.  They remain emotionally vulnerable to being unnecessarily involved in parental dispute and conflict.

S.60CC(3)(h) - if the children are aboriginal or Torres Strait Islander

1. Not relevant.

S.60CC(3)(i) - the attitude to the children and the responsibilities of parenthood, demonstrated by each of the children's parents

1. Each of these parents is culpable to the extent that they have failed to prioritise the children's emotional needs over their own.

S.60CC(3)(j) and (k) - issues of family violence and family violence orders

1. Not relevant. 

S.60CC(3)(l) - whether it would be preferable to make the order that would be less likely to lead to the institution of further proceedings in relation to the children

1. Sadly, it is the experience of this Court that unless these parents take on board the matters raised by the family reporter and in the trial process then it seems inevitable that the effects on their children now so apparent will be compounded and become more serious as they travel through her adolescence.  This will in turn lead to a strong likelihood of further litigation which in itself will be a destructive process for X and Y. 

Findings and Considerations

1. The evidence easily persuades me that these children have loving and bonded relationships with each of their mother and their father.

2. Whilst X and Y have indicated a preference to spend more time with their father, I am unconvinced that these sentiments are expressed in an assertive or voluntary way but rather are exclamations of children divided in their loyalties and imbued in parental conflict and dispute.  Their statements to Ms G are equivocal in their preferences as to their living arrangement.  To the contrary, they are forceful and bold to Ms G that their parents cease their dispute or at least the exposure and involvement of the girls in those disputes.  X and Y are just 12 and 10 years of age.  They do not need or want to be the authors of their own destiny.  Undoubtedly, they would prefer their parents to do just what parents do being to make important decisions for children.

1. These parents are of different personality type.  The mother is rigid and self-assured.  The father, whilst more engaging of the children, fails to understand the stresses caused to X and Y by his involvement of them in matters more properly the province of adults.  Each parent remains firm and entrenched as to their preferred parenting model.  As a consequence they each show little or no respect of the other’s parenting style.  They are suspicious of each other's intent.  They both seem oblivious to the impact on their children which jumps from the pages of Ms G's family report.

2. Each parent asks for an order for equal shared parental responsibility.  I confess to doubts as to their ability to discharge the obligations of equal shared parental responsibility which by definition involves communication, cooperation and respect – being ingredients missing from the recipe here.  Nevertheless, they are both intelligent and well educated and hopefully have the capabilities to compartmentalise their own dispute from their children's best interests.  As such, where they ask for an order for equal shared parental responsibility then I (perhaps optimistically) intend to make such an order if only because it might represent the first step in them reaching any form of agreement in respect of their children.  From their daughters’ perspective, of course, the successful operation of such an order would be a revelation and, I expect, a relief from their stresses.

3. The question for the Court then becomes what regime best serves to quarantine these children from parental dispute.  As put to the parties (somewhat facetiously) during the course of the evidence, it might be that the children simply living with one parent full-time and being denied any form of relationship with the other would at least relieve them of the pressures of their parents conflict.  This, however, is not what the children want.  They want relationships with both their mother and their father.  They simply want those relationships to be loving and carefree.

4. The father proposes that the children live with him for 10 days each fortnight.  He suggests equal time for the children between the parents on a week about basis during school holidays.  His rationale is that the children would be going to school more often from one venue.  Respectfully, however, the distribution of time is not the genesis of or cure for the children’s stresses.  It is the attitude and insight of their parents.  As such, that actual and propensity for dispute and conflict will remain prevalent and imposed on these children whatever regime of time I determine.  The father’s proposal, on reflection, is simplistic and naïve.  He advocates flexibility and involvement.  Yet he suggests taking away time from a mother who is steadfast and rigid in her views.  How exactly this would alleviate the propensity for conflict escapes me!

5. Ms G (and now the mother after originally arguing herself for primary care) now advocates a form of 'parallel parenting' whilst maintaining the seven day on/seven day off regime.  Ordinarily, I would be hesitant in making orders of a 'parallel parenting' type.  Such a model or system of parenting virtually accepts that the problem (in this case parenting conflict) is not capable of rectification.  It serves to deny children the great benefit of growing up and seeing and experiencing their parents negotiate, conciliate and cooperate in important matters about them.  It has children missing out on the benefits of flexibility and mutuality in their parenting and living arrangements regardless of their parent’s separation.  To the contrary, it represents a resignation that the deficiencies of the parents will remain apparent to the children but in the hope that they can establish routines in each but separate households.  Experience suggests, however, that children (not always parents) are robust and adaptable in their relationships with their parents.  At the very least, orders can be made with precise detail so as to remove the possibility of the children being exposed to conflict.

6. Further, the parents themselves lose many of the advantages and enjoyments of cooperative parenting.  Spontaneity and flexibility is lost and parents might be denied the experience of milestone or important moments in their children's lives.  Contact with the non-resident parent will be strictly adhered to if not completely denied.  There must be detail and parameters placed on the decision making process for the parents themselves and often with the ongoing use of third-party strangers.  Again, the objective is a simple one being to remove children from their parent’s argument and conflict.

7. It is an oft stated adage in judgments from these Courts that judges are not so presumptuous as to seek to make ideal or optimum orders for children.  We are simply presented with a recipe of facts and circumstances from which we are mandated to concoct orders which attend, on balance, to children's best interests.  Certainly, X and Y should not be ambitious or optimistic in reaching anywhere near their ideals or preferences in their parents until such time as Ms Palmerin and Mr Parcell learn to prioritise the interests of their young daughters over their own continuing disputes of which I must confess that I still fail to understand in such otherwise skilful individuals.

8. For all of these reasons set out above, and with some reluctance that further options are not before me, I am of the view that the best interests of X and Y continue to be served by them living in an equal time arrangement between their parents.  This will at least give them some fundamental understanding that neither of their parents is any better or any worse than the other.  Where the parents styles and views of each other are entrenched and leave me with no confidence as to rectification, I accept and agree with the view of the family consultant that a model of 'parallel parenting' best attends to these girls interests with the hope, on their behalf, that this situation can be improved before they themselves leave their childhood and adolescence.  The restraints and orders that I intend to place on the parenting regime will be the following:

   a)That each parent be and is hereby restrained from raising with, discussing with the children or either of them, or providing the children with any literature in respect of any long-term or important decisions in respect of the children including but not limited to matters of education, medical procedure, overseas travel without first obtaining the written consent of the other parent to do so;

   b)That prior to the children being informed of any important decisions in respect of the children themselves the parents put their views each to the other prudently and in writing by letter or email and if agreement is not reached then the parents jointly instruct a mediator and attend at such mediation or counselling and to equally bear the costs of any such mediation;

   c)That (b) above hereof apply even should the children or either of them raise themselves any issues such as should be ultimately the decision-making province of the parents;

   d)That the children be advised as to any changes in their parenting arrangements, lifestyle, travel, health or education only once any such decision has been finalised or agreed between the parents;

   e)That each parent notify the children's schools that they hold orders for equal shared parental responsibility and make arrangements with the schools for each to be separately provided with newsletters, school reports, or any other communications from the school and, if necessary, by reason of duplication then at the equal shared expense of the parents;

   f)That each parent be and is hereby restrained from entering onto the premises of the other party or loitering in the vicinity of the premises of the other party during any time that the children be with that other party except by express written invitation from one party to the other;

   g)That all communications between the parents be initiated by email request or invitation save and except in the case of medical emergency but that the parent receiving such a communication then respond prudently to the other on each occasion;

   h)That in the event of any accident, medical intervention or similar for the children or either of them then the parent with whom the children are at that particular time notify the other parent as soon as practicable but that in all other medical consultations only the ‘resident’ parent attend with the child or children except by specific invitation from the relevant child;

   i)That communications between the children and the non-resident parent take place only by the children initiating such calls to that parent by mobile telephone and each of the parents be restrained from engineering or arranging any such communications from the children or either of them; and

   j)That within seven days of the date of these orders each of the parents contact J Counselling at Launceston to arrange counselling in respect of their parenting styles and attitudes and for these purposes each of the parents have leave to provide any counsellor with a copy of these orders and reasons and the report of Ms G, family consultant, dated 28 February 2020 and that the parties equally meet the costs of such counselling and that the parties continue such counselling as directed by J Counselling until such time as the counsellor is of the view that counselling is no longer required.

9. It remains for me to determine where X and Y spend specific days being their mother’s wish that they spend each Anzac Day with her including between 9.00 a.m. and 1.00 p.m. if they are otherwise with the father and the father’s wish that they spend each Christmas Eve with him between 10.00 a.m. and 9.00 p.m. if otherwise with the mother.  Anzac Day is a tradition in the mother’s family.  Christmas Eve is a tradition for the father’s family of Country H origin.  I think it is a good thing for the girls to enjoy family traditions and will order accordingly.  Unfortunately, but not surprisingly, Court orders are required where agreement was not forthcoming from each parent.

10. The father sought orders effectively allowing overseas holidays with the children.  It is proper to note that this should properly be a matter of the exercise of parental responsibility and, in my view, should be decided on a case by case basis by the parents.  Similarly the issue of Country H passports for the girls who carry dual citizenship should be a matter for the parents when relevant.  I will not make such an order now and hope perhaps that these parents will come to understand that the orders they both seek for ‘equal shared parental responsibility’ is a manifest obligation on each of them and not simply a ‘lip-service’ order.

11. Consistent with the notes of ‘parallel parenting’ there will be an order restraining each parent from discussing the other parent’s household with the children.

12. I will also make an order sought by the father restraining either parent from advising any educational or health professional that either child has been diagnosed with any medical health disorder or condition without the other parents written consent and also an order restraining either parent engaging the children in an psychological or therapeutic appointment without the prior consent of the other parent.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Associate 

Date: 27 May 2020