FEDERAL CIRCUIT COURT OF AUSTRALIA
| PETRAN & PETRAN | [2019] FCCA 1853 |
| Catchwords: FAMILY LAW – Contravention of parenting order – high conflict family – final orders made in November 2018 – further proceedings instituted in early 2019 – principles applicable to alteration of recently made order – parenting orders amended – best interests of children – paramountcy principle – matters to be considered. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC, 64B, 65DAC, 65DAE, 66E |
| Cases cited: Rice & Asplund (1979) FLC 90-725 |
| Applicant: | MS PETRAN |
| Respondent: | MR PETRAN |
| File Number: | ADC 3713 of 2017 |
| Judgment of: | Judge Brown |
| Hearing date: | 17 June 2019 |
| Date of Last Submission: | 17 June 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 12 July 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr E. Craney |
| Solicitors for the Applicant: | Doyle Kingston & Swift |
| The Respondent: | In Person |
UPON NOTING:
A.That the father will make all reasonable efforts to ensure that the Children are not brought into contact with Mr P.
B.That the mother usually travels with the Children over the month of January for approximately four weeks.
ORDERS
That all orders made previous to the orders of 9 November 2018 (‘the Orders’) and all orders inconsistent with the following orders, be discharged in relation to the children:
(a)[X] born … 2008; and
(b)[Y] born … 2014,
(collectively, the Children).
That the parents will have equal shared parental responsibility for making decisions about the long-term care, welfare, supervision and development of each of the Children.
That the parent with who either child is living from time to time, will have sole responsibility for making decisions about the day to day care, welfare, supervision and development of each of the Children.
Living arrangements
That the Children will live with the mother.
That the father spend time and communicate with the Children at all times as may be agreed, but failing agreement, as follows:
(a)Commencing on Friday 16th November and each fourth weekend thereafter, the Children will spend time with the father from 4pm on the Friday until 4pm on the Saturday.
(b)Commencing on Friday 30th November and each fourth weekend thereafter, the Children will spend time with the father commencing at 4pm on the Friday and concluding at 4pm on the Sunday.
(c)Commencing on Thursday 22nd November and each alternate Thursday thereafter, the Children will spend time with the father between 4pm and 7.30pm.
School holidays
Order 6 of the Orders is amended as follows:
(a)During each short school holiday period, order 5 hereof is suspended subject to the provisions of order 6(b) hereof and in lieu thereof the Children will spend half of each such school holiday period with each parent with the mother to have the first week and the father to have the second week. For the purpose of this order and order 6(b) ‘week’ is defined to mean a period from 9.00 am Saturday to 9.00 am the following Saturday.
(b)During the end of year school holiday period,…
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- Petran and Petran [2019] FCCA 1853
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- [2019] FCCA 1853
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the principles applicable to altering parenting orders that had been made only a short time prior to the current application. This involved a careful consideration of the children's best interests in the context of a high-conflict family environment and the need to establish stable arrangements for their care and welfare.
In its reasoning, the court applied the paramountcy principle, which dictates that the best interests of the children are the primary consideration in all parenting matters. The court's orders reflect a significant amendment to the previous arrangements, establishing equal shared parental responsibility for long-term decisions and sole responsibility for day-to-day decisions with the parent with whom the children are living. The children were ordered to live with the mother, with detailed provisions outlining the father's time and communication with them, including specific arrangements for weekends, school holidays, and significant dates such as Christmas. The orders also included provisions for communication between the parents, travel, and the exchange of information regarding the children's health and education, aiming to foster a more cooperative co-parenting relationship.
Orders
Orders of the court
1.
That all orders made previous to the orders of 9 November 2018 (‘the Orders’) and all orders inconsistent with the following orders, be discharged in relation to the children:
(a) [X] born … 2008; and
(b) [Y] born … 2014,
(collectively, the Children).
2.
That the parents will have equal shared parental responsibility for making decisions about the long-term care, welfare, supervision and development of each of the Children.
3.
That the parent with who either child is living from time to time, will have sole responsibility for making decisions about the day to day care, welfare, supervision and development of each of the Children.
Living arrangements
4.
That the Children will live with the mother.
5.
That the father spend time and communicate with the Children at all times as may be agreed, but failing agreement, as follows:
(a) Commencing on Friday 16th November and each fourth weekend thereafter, the Children will spend time with the father from 4pm on the Friday until 4pm on the Saturday.
(b) Commencing on Friday 30th November and each fourth weekend thereafter, the Children will spend time with the father commencing at 4pm on the Friday and concluding at 4pm on the Sunday.
(c) Commencing on Thursday 22nd November and each alternate Thursday thereafter, the Children will spend time with the father between 4pm and 7.30pm.
School holidays
6.
Order 6 of the Orders is amended as follows:
(a) During each short school holiday period, order 5 hereof is suspended subject to the provisions of order 6(b) hereof and in lieu thereof the Children will spend half of each such school holiday period with each parent with the mother to have the first week and the father to have the second week. For the purpose of this order and order 6(b) ‘week’ is defined to mean a period from 9.00 am Saturday to 9.00 am the following Saturday.
(b) During the end of year school holiday period, order 5 hereof is suspended and in lieu thereof the Children will spend four weeks of each such holiday in the care of the mother and two weeks in the care of the father, with the weeks to be agreed between the parties and failing agreement to be as follows;
(i) during odd ending years the father to have the first and last week of such period and the mother to have the middle four weeks subject to the specific provisions for the festive days of Christmas specified in order (12) hereof and noting the provisions of order (7) hereof which authorise the mother to be able to holiday outside of Town B, each year, during the end of year school holiday for a period not exceeding three weeks; and
(ii) during even ending years the father to have a period of fourteen consecutive days, being either the first two weeks or last two weeks of the holiday subject to the specific provisions for the festive days of Christmas specified in order (12) hereof and noting the provisions of order (7) hereof which authorise the mother to be able to holiday outside of Town B, each year, during the end of year school holiday for a period not exceeding three weeks.
(c) The father is to give the mother thirty days (30) written notice of his intention to take holiday time with the Children pursuant to order 6(a) & (c) which will be subject to him securing annual leave to do so and in the event he is unable to secure such leave the Children will continue to spend time with him pursuant to the provisions of order (5) hereof during the long school holiday period.
(d) The father is at liberty to travel outside of the town of Town B, including interstate during each period of holiday time provided he gives thirty days written notice of his intention to do so and provides the mother with travel details, including itinerary and contact details.
(e) The mother is at liberty to travel outside of Town B.
7.
That for the purpose of the Summer school holiday period, the mother is at liberty to travel away from Town B for a maximum of three continuous weeks provided that the mother gives no less than 60 days’ notice of her travel period.
8.
Order 8 is discharged.
9.
Order 9 is discharged.
10.
Order 10 is discharged.
11.
Order 11 is discharged.
Christmas period
12.
That the father’s ordinary time as set out at order 5 be suspended between the 24 December and 26 December each year, and:
(a) Order 12(a) is discharged;
(b) Order 12(b) is discharged;
(c) In 2019 and each alternate year thereafter, the Children spend time with the father commencing at 4pm on Christmas Eve and concluding at 10am on Christmas Day; and
(d) In 2019 and each alternate year thereafter, the Children spend time with the mother commencing at 10am on Christmas Day and concluding at 4.00pm on Christmas Day.
Communication
13.
Order 13 is amended as follows:
(a) The parties continue to use a communication book to exchange parenting information to give effect to these orders including to exchange information concerning health (including details, dosages and changes to such dosages of all medications prescribed for the Children by any medical practitioner) and educational issues pertaining to each child with the book to be exchanged between the parties on each occasion the Children are exchanged between them.
(b) In addition the parties are directed to utilise email to exchange such information as arises in respect of the issues referred to in order 13(a) hereof in periods arising between the exchanges of the communication book.
(c) The mother be responsible for opening the email account referred to in order 13(a) hereof and is directed to inform the father of it within five days of its opening which is to be by no later than 21 July 2019.
(d) The communication book and email account are to be utilised exclusively for exchanging parenting information between the parties.
(e) The mother is to advise the father in writing of all paediatric appointments for the Children, including changes of appointment as soon as they arise and the father is at liberty to contact such paediatrician or other medical specialist to whom the Children have been referred to discuss the child’s condition and any treatment prescribed.
Birthdays
14.
The Children will spend time with each of their parents, other than if they are outside of Town B as a consequence of previously notified arrangements for school holiday time pursuant to order (6) hereof on the occasion of each of their birthday and each of the party’s birthdays as follows:
(a) with the parent in whose care they would ordinarily be pursuant to these orders other than for the period of 4.00 pm until 7.30 pm on each such birthday, which time will be spent in the care of the other parent.
15.
Order 15 is discharged.
16.
Order 16 is discharged.
17.
Order 17 is discharged.
18.
Order 18 is discharged.
Father’s Day / Mother’s Day
19.
Order 19 is amended as follows:
(a) In the event that Father’s Day falls on a weekend the Children would be in the care of their mother pursuant to these orders such order will be suspended on the occasion of Father’s Day to enable the Children to spend from 9.00am until 4.00 pm with the father on Father’s Day.
(b) In the event that Mother’s Day falls on a weekend the Children would be in the care of their father pursuant to these orders such order will be suspended on the occasion of Mother’s Day to enable the Children to spend from 9.00am until 4.00 pm with the mother on Mother’s Day.
Easter
20.
If the father has scheduled annual leave and provides the mother with confirmation in writing, then parties’ ordinary time as set out at order 4 and order 5 are temporarily suspended and the Children spend time with the father from 4pm on Good Friday until 4pm on Easter Saturday in each year.
21.
The Children will spend Easter Sunday with the mother.
General
22.
That each party will execute all necessary documents so as to allow the Children to be issued with Australian Passports.
23.
That, in the event the Children are away from Town B with one parent, they will have phone or facetime contact with the other parent every alternate afternoon/evening when it is 5.00 pm at the location where the Children are and with the time not to exceed 15 minutes.
24.
That, upon providing the other parent with no less than 45 days advanced notice including details of itinerary, flight numbers, departure and arrival times, and contact details and the consent of that parent to travel, the parent holding the Children’s passports will provide them to the travelling parent within 30 days of such notice being given.
25.
That the father will provide to the mother, a copy of his work Roster each six months, commencing on 1st January 2019 and each six months thereafter. If the father’s work Roster changes between these periods, the father will provide the Roster changes within 5 days of the change being notified to the father.
26.
For the purpose of effecting change-overs, the father will collect and return the Children to McDonald’s Restaurant (or another agreed location) at the appropriate time.
27.
That neither parent will denigrate the other, the others partner or members of that person’s family in the presence or hearing of either of the Children or via social media and that each parent will use all reasonable efforts to ensure that any person over whom they have influence or control, will not will denigrate the other parent, the other parent’s partner or members of that person’s family in the presence or hearing of either of the Children or via social media.
28.
That each parent will notify the other parent immediately, upon the happening of any of the following:
(a) If either child is hospitalised;
(b) If either child is involved in an accident serious enough to involve medical intervention;
(c) If either child becomes seriously ill;
and that each parent will notify the other parent as soon as practical, upon the happening of any of the following;
(d) If either child is referred to a medical specialist;
(e) If either child is prescribed medication or new medication.
29.
That a copy of these orders will be sufficient authority for the father to obtain from the schools attended by the Children from time to time, copies of school reports, photographs and notifications relevant to each child’s education and development.
30.
That, in accordance with the policies of the schools attended by the Children from time to time, the father and/or mother is permitted to attend all school functions that a parent would normally be permitted to attend.
31.
That a copy of these orders will be sufficient authority for the father to obtain from any treating Doctor, Specialist or Counsellor, information relevant to the health, welfare and development of either child.
32.
The mother will advise the father of all specialist medical appointments involving the children, including the name and specialty of the specialist and where and when the appointment is to take place as soon as the appointment is made by email pursuant to the provisions of order (13) hereof and the father is at liberty to make arrangements with the rooms of the specialist concerned to attend such appointment.
33.
That the mother will ensure that each child will be provided with appropriate doses of their prescription medication for each period when they are in the father’s care.
34.
Order 34 is discharged.
35.
All outstanding applications are dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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