Petran and Petran

[2018] FCCA 1424

FEDERAL CIRCUIT COURT OF AUSTRALIA

PETRAN & PETRAN [2018] FCCA 1424

Catchwords:
FAMILY LAW – Interim parenting arrangements for children aged 9 & 3 – time spending arrangements with father – high conflict between parents – best interests.

Legislation:

Family Law Act 1975; ss.11F, 62G, 60CC, 61DA

Applicant: MR PETRAN

Respondent: MS PETRAN

File Number: ADC 3713 of 2017

Judgment of: Judge Brown

Hearing date: 6 February 2018

Date of Last Submission: 6 February 2018

Delivered at: Broken Hill

Delivered on: 6 February 2018

REPRESENTATION

Counsel for the Applicant: Mr E Craney

Solicitors for the Applicant: Doyle Kingston Swift

Counsel for the Respondent: Ms M Hayter

Solicitors for the Respondent: Andreyev Lawyers

ORDERS

1. This matter be listed for final hearing before Judge Brown on 1 & 2 November 2018 at 10.00am in Broken Hill NOTING 2 days hearing time has been allocated and will not be exceeded without leave of the Court.

2. Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 25 May 2018.

3. The family assessment to deal with the following matters:

   (a)to include interviews with the parties, the child and relevant family members;

   (b)observed interaction between the child and the parties;

   (c)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

   (d)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;

   (e)any other matters that the family assessor considers important to the welfare or best interests of the said child.

4. The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co-ordinator, Federal Circuit Court of Australia.

5. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

6. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

   (a)a Children’s Court;

   (b)a child protection authority;

   (c)a State or Territory legal aid authority; and

   (d)a convener of any legal dispute resolution conference

   NOTING:

   A.   At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

   B. Section121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court

   C.   Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

7. Pursuant to Section 26 of the Federal Circuit Court of Australia Act1999 the parties and their legal representatives do attend a Conciliation Conference with a Registrar of the Court on 23 April 2018 at 11:00am.

8. Unless otherwise exempted from payment the Applicant must pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulation 2012 twenty eight (28) days prior to the Conciliation Conference.

9. No later than 14 days prior to the Conciliation Conference the parties exchange informal discovery of all relevant documents as specified in Order 24 Rule 4 of the Federal Circuit Court Rules including updated superannuation holdings and copies of all valuations or appraisals of any assets of property in dispute between them both real and personal together with all relevant financial documents as specified in Rule 24.03 of the Federal Circuit Court Rules.

10. The balance sheet filed on 18 December 2017 be uplifted.

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

1. That the father spend time with the children at any time as agreed between the parties in writing and failing agreement:

   (a)From 4.00pm on Saturday 10 February 2018 until 4.00pm on Sunday 11 February 2018;

   (b)From 4.00pm on Wednesday 21 February 2018 until 7.00pm on Wednesday 21 February 2018;

   (c)From 4.00pm on Saturday 3 March 2018 until 4.00pm on Sunday 4 March 2018;

   (d)From 4.00pm on Wednesday 14 March 2018 until 7.00pm on Wednesday 14 March 2018;

   (e)From 4.00pm on Friday 23 March 2018 until 4.00pm on Saturday 24 March 2018;

   (f)From 4.00pm on Friday 30 March 2018 until 4.00pm on Saturday 31 March 2018;

   (g)From 4.00pm on Wednesday 4 April 2018 until 7.00pm on Wednesday 3 April 2018;

   (h)From 4.00pm on Wednesday 11 April 2018 until 7.00pm on Wednesday 10 April 2018;

   (i)From 4.00pm on Friday 20 April 2018 until 10am on Saturday 21 April 2018;

   (j)From 4.00pm on Wednesday 2 May 2018 until 7.00pm on Wednesday 2 May 2018;

   (k)From 4.00pm on Friday 11 May 2018 until 4.00pm on Saturday 12 May 2018;

   (l)From 4.00pm on Wednesday 23 May 2018 until 7.00pm on Wednesday 23 May 2018; and

   (m)From 4.00pm on Friday 1 June 2018 until 4.00pm on Saturday 2 June 2018.

2. That for the purpose of handover, the parties meet at McDonalds.

3. That the mother will take all reasonable steps to ensure the children are available to speak with the father through her mobile phone (or alternative number provided to the father) as follows:

   (a)Every Monday evening the children are not already spending time with the father between 6.00pm and 6.30pm; and

   (b)Every Wednesday evening the children are not already spending time with the father between 6.00pm and 6.30pm.

4. Further consideration of the matter is adjourned for directions on 7 June 2018 at 9:30am in Broken Hill.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BROKEN HILL

ADC 3713 of 2017

MR PETRAN

Applicant

And

MS PETRAN

Respondent

REASONS FOR JUDGMENT

1. These proceedings were delivered orally, immediately following the interim hearing concerned.  Because of the significance of the case for each of the parties concerned, I have arranged for the reasons to be transcribed.

2. This afternoon, I am dealing with interim parenting proceedings in which Mr Petran is the applicant and Ms Petran is the respondent.  They are the parents of two children, [X], who was born on 2008, and [Y], who was born on 2014.

3. Accordingly, on my calculations, [X] is nine years of age and will be 10 in about six month, whilst [Y] is three years and about nine months old and will be four in a couple of months.

4. By way of background, the parties married one another in 2005, after having lived together for a couple of years.  They finally separated, in April of last year, when Mr Petran left the parties’ former family home. 

5. Mr Petran is employed as a (occupation omitted) at the (employer omitted).  He works to a roster, as do many individuals employed in the (employment omitted) industry.  He works long days, 13 hours at a time, five days in a row, and then he has five days off. 

6. Necessarily, at the present time, [X], who is going to school, attends school on Monday to Friday and has the weekends off.  No doubt [Y] has either kindergarten, childcare or crèche arrangements during the week.  For obvious reasons, difficulties arise when attempts are made to coordinate the children’s arrangements, with those of their father, who works to a different type of roster.

7. Ms Petran is a part-time employee of the (employer omitted).  Her work hours fall between Monday and Friday and are easier to coordinate with the children’s school and care arrangements.  Her major source of income is social security and child support, which she receives from Mr Petran.  There is no dispute between the parties that since they separated, it is the mother who has provided more of the care of the children concerned. 

8. Mr Petran seeks some interim orders, in respect of his time with the two children concerned.  Ideally, he would want to spend as much time with the children as possible, which would fall when he has his recurring period of five days off work.  At the same time, he has to earn his living.  Accordingly, roster issues are at the forefront of this matter.

9. Ms Petran’s position is that [X] is a child with some special needs and therefore has to be parented with predictability and care.  On that basis, she is cautious about any arrangements for [X] to spend time with his father, particularly in the context of spending two consecutive overnight periods with him.

10. [X] has been diagnosed with ADHD.  In the past, as I understand it, he has seen a number of counsellors and therapists in Town A.  It also seems to be the case that the parties have had different views about how [X]’s issues are best approached.  In respect of [Y], it is the mother’s position that given [Y]’s tender years, the court also needs to take a cautious approach in respect of the arrangements for him to spend time with his father.

11. The parties have had an interrupted pathway through the court system.  The husband commenced these proceedings, in Broken Hill, on 6 September 2017.  At that stage, the case was given a first return date on 30 October 2017.  In his application, Mr Petran also sought orders in respect of the division of the parties’ matrimonial property. 

12. It is common ground between the parties that there is not a large pool of property to be divided between them.  Their most significant asset is their former family home, which is subject to a not insignificant mortgage.  They also have superannuation.  As a consequence, no doubt, of Ms Petran’s previous employment and the fact that it has been interrupted by the births of the two children concerned, she has significantly less superannuation than does Mr Petran.

13. When the case came into court for the first time, on 30 October, it was clear to me that the parties did not have the easiest of relationship with one another.  At that stage, it was my impression that the circumstances surrounding their separation were still emotionally raw for each of them. 

14. That is hardly surprising, given the length of their relationship together and the fact that they were only fairly recently separated.  It is to be expected that each of them have had much emotional adjusting to do.  Necessarily there is no ideal time to make orders in respect of arrangements for children and for the division of property.  I hope with time that the parties will be better able to deal with the difficult issues this case has arisen.

15. At that early stage, I was anxious to refer the parties to a conference to discuss their property issues sooner rather than later.  With that in mind, a conference, which is commonly called a conciliation conference, was appointed for 3 January of this year.  Due to resource issues, the conference could not take place in Broken Hill.  Rather it had to occur, with a registrar of the court, who was based in Adelaide, with the parties attending via telephone. 

16. In any event, the conference did not take place because Ms Petran has changed her solicitors.   In a moment I will appoint another conference date in April.  More significantly, the parties were also referred to a family dispute conference, with Mr Trevaskis, who is a family consultant, again, based in Adelaide to discuss on-going arrangements for the care of [X] and [Y]. 

17. Pursuant to section 11F of the Family Law Act, I am entitled to get advice from a court counsellor concerning the dynamics of the parents’ relationship in any case with which is before the court and the implications of that dynamic on any child affected. 

18. As the parties will know, I have not taken any evidence from either of them at this stage, so what I know about you has been gleaned from reading the affidavits, which have been prepared on each of your behalves.  Those affidavits are somewhat contradictory, which is often the way, in parenting case, when the parties are fairly recently separated in difficult circumstances.

19. Otherwise I really know very little about each of you – particularly what type of individuals you are in an emotional context.  I have just looked at you in court and, from my observations, I can see that both of you are fairly upset about this case, which is very understandable.

20. At this stage, I have limited evidence from each of you, and that evidence is not easy to reconcile.  Accordingly, at this stage, it is impossible for me to resolve issues of fact between you, particularly in respect of matters to do with how each of you has behaved towards the other in the past, particularly in the aftermath of your separation.

21. But Mr Trevaskis did speak with you and he has been able to report back to me.  He has perhaps confirmed some of my own impressions that the separation between the two of you was very difficult, and he has indicated that each of you have indicated perhaps that there were issues in your relationship which could have been handled better, but he does not think this is a case which has significant implications so far as family violence is concerned for either of the children concerned.

22. Mr Trevaskis was aware that, on 1 November 2017, after the parties held some discussion with one another, I made some basic holding orders, which saw Mr Petran spending some time with the children after school and then on a couple of overnight occasions in the lead up to Christmas.  As I understand it, Ms Petran was planning a holiday away from Town A over Christmas.  Thereafter, the case has been adjourned until today.

23. The issue essentially today is whether, building on what occurred on 1 November 2017, I should, as the father proposes, put in place orders for the children, in conjunction with his roster, to spend two overnight time periods with him, or whether I should follow what the mother proposes, which is some periods of regular Wednesday afternoon time, together with one overnight time either from Friday to Saturday or from Saturday to Sunday to coincide with Mr Petran’s roster. 

24. Mr Petran says it is an easy exercise just to tack on one extra night to the current regime.  Ms Petran asserts that this would not be so easy, particularly because of [X]’s special needs and the fact that he does not cope well with change.

25. In his report to the court, Mr Trevaskis indicates that he does not think that there are any significant risks arising from the children being cared for by their father.  However, he concedes that any arrangements need to be factored into his work roster. 

26. He also indicates the children can usually manage a degree of irregularity, in arrangements for their care, if their parents are focused together and work together with goodwill.  So far as [X] is concerned, Mr Trevaskis points out – and I think neither party would probably disagree with this – that given his ADHD, he is a child that needs greater stability than perhaps a child without that condition.

27. Most significantly, Mr Trevaskis says that, at the present time, the parents’ parenting relationship has deteriorated to the point where they do not communicate with one another at all.  I have no answer to that very serious problem, other than to point out what is obvious, that regardless of the outcome of the proceedings today, it cannot be helpful, for either [X] or [Y], that their parents cannot discuss any issue with one another about matters to do with their care.

28. My impression of Mr Petran is that he is in this case for the long haul because he wants to remain involved in his family for the long haul.  He is going to want to remain involved with [X] and [Y] to a significant degree.  In these circumstances, clearly, it is not helpful to either of the children that there are these very great difficulties between their parents.

29. But having said that, as I said at the outset, I do not discount, for a moment how difficult it is for both parties to adjust to what has happened between them, on their fairly recent separation. 

30. But to a very large extent, the parties are linked together as parents of these two boys, and that means, given [Y]’s age, that you will be in one form or another of relationship, with one another, for at least the next 15 years.  Quite possibly you will be in a relationship with one another for as long as you are alive, because you don't stop being a parent when your child turns 18 years of age. 

31. That is something about which I am very cognisant, because I do not want to do more damage than has already been done to your relationship as parents.

32. But it is recognised that court cases of themselves do great damage to parenting relationships –  I will tell you why that is so – for obvious reasons, no one comes into Court to say something nice or positive about the other parent in a parenting case in this Court.  Fathers say of mothers unpleasant things.  Mothers say of fathers unpleasant things. 

33. To me, to Mr Craney and to Ms Hayter, those comments fall off us because we, like frying pans, are Teflon-coated.  It is what we do for a living.  It just falls off.  But for the individuals concerned, it is very hurtful, and it generates even more conflict between the individual parents concerned.

34. Why I say these things is because the Family Law Act indicates that in how conduct these proceedings, I should try to do what I can to help the parents concerned to remain focused on their children, not on individual issues about parents and their relationship breakdown, sad though that invariably is. In addition, I am also directed to do what I can so as best to support the parenting relationship between the two parents concerned rather than doing it more harm – that is not make the existing situation between them more difficult than it already is.

35. For all I know, you may think that things between you cannot get any worse, and perhaps that is right.  I do not know.  But sometimes things do get worse, and I hope that I am being respectful to you and you will be respectful to me.  I am sure you will be.  And in time, I hope you will be able to be respectful to one another, but whether we are there as yet I do not know.

36. But, you know, a lot of this stuff in this case is about powerful emotion.  I have seen the photos of the chattels stacked up outside the former home.  I have seen the text messages and all the rest of it annexed to the affidavits.  I am not going to unpack that now, but I recognise the powerful emotions unleashed by the separation.  I suppose, if I have to make findings of fact about it all, I will do so, but I will do it at your expense, and it could be thousands and thousands of dollars – an expense, I would prefer for to avoid, if at all possible. 

37. So I see these cases as exercises of damage control, for you and the children.  It is easy to get swept along by the emotion of these cases and not focus on the big picture and that is why I have indicated to each of the parties that in terms of the two children, is it about a doubling of time, or is it about seven additional nights in 105?  That is a different way of seeing things.

38. Anyway, I will turn now to the legal issues that I have to apply to the case. They are set out in Part VII of the Family Law Act. In making any order in respect of the children concerned, I have to consider the best interests of the child or children concerned as the paramount or most important consideration. In so doing, I have to consider a long list of matters in section 60CC of the Family Law Act.

1. There are two primary considerations, which are as follows:

   a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.

2. As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings. 

3. Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.  Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.

4. Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.

5. Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount.  The court’s duty is to deliver individual justice, for the child affected, in every case.

6. In this case, the mother asserts that there is a risk that because of [X]’s special needs, there is a risk that he will be exposed to maltreatment.  As I have already indicated, Mr Petran has indicated that he did lose his temper with [X], which is something that he regrets.  He acknowledged that to Mr Trevaskis. 

7. In these circumstances, it is Mr Trevaskis’ assessment that risk considerations do not loom large in this matter and that if the parties themselves do not come into direct contact with one another, the possibility of there being an incident between them is limited.  Mr Trevaskis has recommended that another party, who is neutral, be involved in handovers, but as far as I know, neither party is in a position to put forward such an individual at this stage. 

8. Accordingly, in this case, I think I am duty bound to give significant consideration to the benefits [X] and [Y] will derive from having a meaningful level of relationship with both their parents, and this certainly is the underpinning of the father’s case. 

9. From his perspective, what is proposed at this stage is insufficient for him to maintain a meaningful level of relationship with both children.  From his perspective, he will gain meaning with the children by being able to spend more rather than less time with them and also engage with them in more activities than would be possible on one day of a weekend and for an evening midweek meal.

10. Obviously meaningful relationships have both a qualitative and quantitative association with them.  Clearly, to have a meaningful relationship, you have to spend sufficient time with a child.  But the other side of that coin is if you have an extended period of time but do not do anything of quality in that relationship, the relationship will not necessarily be meaningful. 

11. So in this case, I am not told with any great detail what Mr Petran proposes to do in his time with the children.  However, in his affidavit material, he has indicated, prior to the parties’ separation it is his position that he was involved both with the nuts and bolts parenting of the children but also in terms of playing with them and engaging with them in activities.

12. In my view, in order for a parent/child relationship to be meaningful, it requires parent and child to interact with one another in a variety of contexts and setting, which ideally should include relaxing ‘fun” times, as well as more mundane settings, such as bedtimes and preparation of meals.  It is also helpful for children to just “hang out” with their parents.  Accordingly, the extent of time is important.

13. The additional considerations are more lengthy and deal with such things as the wishes of the children.  At this stage, I do not have any great evidence about what the children would prefer.  It is the mother’s position that [X] in particular was resistant to spending time with his father.  Mr Trevaskis reports that there have been some difficulties at handover.  Mr Petran acknowledges that but puts it down to the tense relations between the parties at handover, to which [X] reacts.

14. It seems more probable than not that the children’s more significant relationship, arising from issues to do with primary care, is the mother.  I am also directed to consider the idiosyncratic needs of the children, particularly at their ages, and in respect of [Y], he is a child of tender years.  In this context, it is the mother’s position that, given he is not yet four, he is a child who is likely to be struggling to separate from her for periods of two days at a time.

15. I also have to look at the capacity of the parties to support the children’s emotional needs, and both parties are necessarily critical of the other in this capacity.  As I understand the mother’s case, she asserts that the father is pushing to spend more time with the children in order to satisfy his own emotional needs, rather than what is best for the children. 

16. The father asserts, I think, that the mother is unduly protective of the two children concerned and is anxious to disrupt his relationship with the children because of her emotional reaction to the parties’ separation.  At this stage, given the truncated nature of this hearing, I am not in a position to make findings of fact about that.

17. The overall structure of the Family Law Act, particularly its objects and principles, emphasises the desirability of both parents being involved in their children’s lives both in terms of time spending arrangements but also in terms of decision-making.

18. For that reason, there is a presumption that arises pursuant to section 61DA of the Act. I am obliged to consider the parents concerned sharing parental responsibility for their children equally. That presumption is rebutted if there are reasonable grounds to believe that a party has engaged in neglect, abuse or family violence involving a child, or it would not be in the best interests of the child for it to be applied.

19. Significantly, at the interim stage, if it is not appropriate for the presumption to be applied, it need not be applied. In this case, given the difficult parenting relationship between the parties, I have come to the conclusion that it is not appropriate for it to be applied. But notwithstanding that, I still have to consider the various section 60CC factors to come to the result that I think is in the best interests of the children concerned.

20. In this case, I think the most significant considerations are the following:

    ·the poor parenting relationship between the parties,

    ·the fact that their separation is still fairly recent,

    ·the mother’s primary care of the children,

    ·her likely difficulty in supporting consecutive overnight periods of time with the children particularly in light of [Y]’s tender years, and

    ·[X]’s special needs.

21. On that basis, I have come to the conclusion that I should essentially do what the mother proposes, which, when it is all boiled down, is for the next three months or so.  Although I recognise the father’s understandable desire to start spending more time with children as soon as possible, in my judgment, it is likely to be more prudent for the court to take a cautious approach, while all concerned, both parents and children continue to adjust to the comparatively new situation.

22. I will also order that a family report be prepared at the Court’s expense pursuant to section 62G of the Act. That report is likely to be available towards the end of May. That will reflect upon what has happened between now and 2 June or 3 June and particularly will gain some insight from the children’s perspective about their views on the matter and what is the nature of their respective relationships with each of their parents.

23. In my view, it incumbent upon me to take a cautious approach.  I appreciate that Mr Petran will be disappointed, but at the end of the day, when it is all said and done, what I am looking at is seven additional nights over a period of 90-odd days, perhaps a little bit longer, and in the greater scheme of things, that is not significant. 

24. I also think there is a need for the proceedings to be brought to a conclusion, notwithstanding that a lot of loose ends remain, given how infrequently I come to Broken Hill.  So I am going to fix the matter for final hearing on 1 and 2 November 2018. 

25. I will direct that the parties attend a further financial mediation conference which will be allocated for 23 April at 11 am Australian Central Time. 

26. In connection with this conference, I will direct that, 14 days prior to the conference, the parties exchange all relevant financial documents, including up-to-date statements of their respective superannuation holdings and copies of appraisals or valuations of any significant pieces of property disputed between them, particularly in respect of the former family home.  I will additionally direct that the balance sheet that was filed on 18 December be uplifted.

27. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:     31 May 2018