PETRAN & PETRAN
[2019] FCCA 1853
•12 July 2019
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, 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.
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.
Order 8 is discharged.
Order 9 is discharged.
Order 10 is discharged.
Order 11 is discharged.
Christmas period
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
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
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.
Order 15 is discharged.
Order 16 is discharged.
Order 17 is discharged.
Order 18 is discharged.
Father’s Day / Mother’s Day
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
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.
The Children will spend Easter Sunday with the mother.
General
That each party will execute all necessary documents so as to allow the Children to be issued with Australian Passports.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Order 34 is discharged.
All outstanding applications are dismissed.
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
| MS PETRAN |
Applicant
And
| MR PETRAN |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Petran “the father” and Ms Petran “the mother” are the parents of [X] born … 2008 and [Y] born … 2014. The parties separated in April 2017. Since that time, they have had a difficult parenting relationship, which has resulted in extended court proceedings, which first commenced in September 2017.
Regrettably, there is no indication that there will be any abatement, in the foreseeable future, in the parties’ fractious and difficult relationship with one another. Each perceives that he/she is the victim of the other’s unconscionable behaviour.
This is an attempt, on my part, to revisit some orders earlier made with the consent of each party, with a view to making them more efficient and transparent with the aim of avoiding still more controversy arising between the father and mother. It is also to be hoped that this will spare the children from being exposed to what appears to be endemic conflict between their parents.
I am fearful that this will be a foolhardy enterprise, as each party presented to me as being blinkered by their antipathy towards the other and so largely oblivious of the potential emotional damage their conflict is likely to occasion to [X] and [Y]. I am taking some time to put the reasons into writing so that each can consider them closely.
Background
In February 2018, a family report was ordered to be prepared. It was released to the parties in June 2018. The report writer, Ms C described the mother as being “highly critical of the father, of whom she held a pervasively negative view”.
The father described the co-parenting relationship between him and the mother as being fraught with difficulty. He considered that Ms Petran restricted and controlled his relationship with the children because of her feelings of anger for him as a consequence of him leaving the marriage between the parties.
In his words to the court, Mr Petran said “he had separated from the mother, not the children”. He wishes to keep himself at an emotional arm’s length from Ms Petran but remain warmly engaged with the two children.
To Ms C, the mother conceded that she did feel angry with Mr Petran because of her perception that he gave up on the marriage, which she considered to be until death do us part.
This is the powerful emotional backdrop to the apparently unending conflict between the parties, in which [X] and [Y] must be inevitably caught up, as their loyalties to each parent are constantly tested and called into question.
Ms C had a significant advantage, over me, in these proceedings. During the course of her assessment of the family, she was able to meet with [X] and [Y] and observe each of them with both their father and mother.
As such, she was able to make a professional and independent assessment of the nature of the relationship, which the children had with each of their parents. Although Ms C’s report has not been subject to scrutiny through cross examination, I have no reason to reject her conclusions, which largely accord with my own.
[X] is a child with special needs. He has been diagnosed with ADHD. As a consequence, he is, at times, challenging to parent. On a past occasion, the father acknowledges having lost his temper with [X], leading to him inappropriately hitting the child. I accept the father regrets his actions now.
Given [X]’s special needs, it is probable that he is particularly susceptible to the conflict and tensions arising from his parents’ relationship as he may be more susceptible to becoming more aligned with one of his parents, against the other, with possible long term implications for the quality and durability of those relationships. In general terms, it is not good parenting for a parent to either actively or tacitly encourage such alignment to satisfy his/her personal emotional needs.
The conceptual underpinnings of the Family Law Act 1975 (Cth) (the Act) are clear in this regard. Section 60B(1), which contains the objects of the children’s section of the Act, directs that the court, in pursuing the best interests of the children concerned in cases coming before it, should, amongst other things ensure:
“that children have the benefit of both of their parents having a meaningful involvement in their lives.”
As a consequence, section 60B(2) confers a right on children to know and be cared for by both their parents regardless of the marital status between their parents.
As previously indicated, [X] seems to have been particularly strongly affected by the parties’ separation, as indeed was his mother. In these circumstances, Ms C reported as follows:
“[X]’s language suggested that he had re-evaluated his father following separation. [X]’s negative appraisal of the father is consistent with the mother’s appraisal.”
At the time of her assessment, [X] was just short of his 10th birthday and so axiomatically cognitively immature. Accordingly, Ms C was cognisant of the significant risk that [X] may become emotionally enmeshed with his mother’s negative view of and attitude towards Mr Petran, with the potential for adverse emotional consequences for the child. In this context, Ms C wrote as follows:
“It is considered that the best outcome for [X] will be one where he is able to make his own decisions regarding his relationships, at a time when he is cognitively and emotionally equipped to do so. The writer does not share the mother’s view that [X]’s time-spending with the father should occur at [X]’s discretion. [X] will benefit from having as many resources as possible available to him for support as he ages and attains adulthood. Further to this, it is important that the father be given the opportunity to demonstrate his ongoing commitment to a relationship with [X], irrespective of [X]’s current feelings. The father is likely to benefit from therapeutic assistance so that his responses to [X]’s attempts at rejection do not develop into a cycle of rejection and counter-rejection.”[1]
[1] Family Assessment Report, para.63
The gist of Ms C’s assessment is that it is likely [X] will develop better if he is exposed to a reliable male role model. For obvious reasons, the best available male role models, for young children, are their fathers. In this case, it is undoubtedly the position that Mr Petran loves [X] and, as a consequence, has much to offer the child in this emotional context.
Given his younger years, it seems [Y] has been able to escape the worst consequences of the parties’ difficult and acrimonious separation. She considered that [Y] had an emotionally rewarding relationship with each of his parents.
In summary, it was Ms C’s assessment that both the mother and father fervently loved their children. In this context, she was optimistic that both Mr Petran and Ms Petran possessed the “intellectual and emotional resources necessary to put aside adults concerns and focus on assisting the children to reach their full potential.”
At this stage, Ms C’s optimism appears misplaced. It is evident to me that there has been no lessening in the unacceptable level of tension between the parties, who continue to jockey for advantage over each other, with the children likely to become collateral damage of their toxic struggle with one another.
Mr Petran is employed as a manager in Town B.
In the past, Mr Petran worked to a roster, which complicated arrangements for him to spend time with [X] and [Y], as it did not coordinate easily with the routine of young children attending primary school and kindergarten.
In addition, at the earlier stages of the case, there were difficulties relating to the age disparity between the children, which necessitated arrangements being dictated, to some extent, by [Y]’s age and his vulnerability to being away, from his primary carer, for lengthy periods of time.
Ms Petran is a part time customer services officer in Town B. There is no dispute that, since separation, it is she who has been more responsible for providing the day-to-day care required for the children.
The parties cannot be described as being wealthy individuals although Mr Petran earns considerably more than does Ms Petran. It is my perception that issues to do with child support and financial provision, for the children, have also been matters which have added to the tensions in the parties’ already fractious relationship with one another.
Against this difficult background, from September 2017 onwards, the parties’ competing application regarding parenting arrangements for [X] and [Y] and the settlement of property issues moved inextricably towards trial.
Early interventions of conciliation and mediation were unsuccessful. There were a number of interim hearings. As previously indicated, in order to assist the court, a family report was prepared.
The trial was fixed for final hearing, in Town B, on 1 and 2 November 2018. Each party was legally represented. Through their respective solicitors, the parties engaged in lengthy negotiations in the hope of avoiding a trial.
The relevant pool of assets was not a large one, consisting of the parties’ former family home in Town B, which was subject to a mortgage; their respective superannuation holdings; and some motor vehicles and other items.
Ultimately, the parties agreed that Mr Petran would transfer his interest in the former family home to Ms Petran and she would take over the mortgage concerned. In addition, given the disparity in the parties’ respective superannuation holdings, it was also agreed that there would be a split made from Mr Petran’s superannuation to that of Ms Petran.
However, some powerful emotional issues remained concerning property matters, notwithstanding the parties’ ability to settle the big ticket items of their property.
Essentially, Mr Petran asserted that Ms Petran had retained some items of his property, which held great emotional significance for him.
Ms Petran denied that she had the items in question or had acted, with malice, in respect of their disposal. She did, however, concede that, in the aftermath of the parties’ separation, she had arranged for the shed at the parties’ former home to be cleared out and that items had been left, in cardboard boxes, on the footpath outside for Mr Petran’s collection.
The tenor of her evidence was that she was at a loss to explain what had happened to the items. She herself had no personal desire to retain them. She asserted that she had acted appropriately and in reasonable consultation with Mr Petran in respect of the clearing of the shed. She denied categorically giving relevant items to her brother, a person who shares her antipathy for Mr Petran.
Given the emotional quotient of this issue, it fell to the court to determine it, as best it could, whilst being well aware it is not the sort of issue particularly amenable to determination on the basis of assessment of credit alone.
This necessitated the taking of evidence from each of the parties. The court does not have strict investigative powers. It does not have the authority to issue warrants to search premises to look for any particular items. The court cannot engage police to conduct investigations on its behalf.
In their evidence, each party presented as determined, self-righteous and the victim of the other’s bad conduct. I did not disbelieve either of them, each of whom presented as being right. From my perspective, it was an impossible issue to determine on the basis of findings of credit alone.
In these circumstances, from Mr Petran’s perspective, I was left with the unsatisfactory option of declaring him the beneficial owner of the items of property, which he sought, without being able to establish their actual location, other than to direct Ms Petran, if she located them, to provide them to her former husband, at his expense.
No doubt, Mr Petran continues to feel hard done by, and as he perceives it, the victim of his former partner’s malice. From his perspective, she has been allowed to get away with theft. The issue rankles with him. Ms Petran remains hurt at the end of the parties’ marriage.
More significantly, in the context of the current proceedings, after a protracted process of negotiations, the parties were able to reach agreement in respect of final parenting arrangements for [X] and [Y]. Orders to give effect to this agreement were made on 9 November 2018.
There were thirty four orders made, which were an attempt to deal with all major parenting contingencies arising in respect of the care of the children concerned. The orders appeared sensible and detailed and I was content to make them.
As is frequently the case, particularly in contentious matters, the orders were prefaced with three notations. Notations do not have the same effect as orders as they are not strictly enforceable. Rather, they represent the goodwill of the parties concerned and their intentions in regards to the implementation of the substantive orders which follow.
In this case, the notations made reference to the mother’s annual practice of travelling interstate, with the children, each January, for a beach holiday. In addition, the father, in a somewhat ambiguous way, indicated some level of commitment to maintaining the children’s routine, whilst they were in his care.
However, specific orders dealt with the allocation of parental responsibility, between the two parties, in respect of [X] and [Y]. Specifically, the parties were conferred with equal shared parental responsibility for making decisions about the children’s long-term care, welfare, supervision and development.
However, each parent was conferred with sole responsibility for making decisions about the children’s day-to-day care, welfare, supervision and development. To a large extent, these orders reflect the applicable provisions of the Family Law Act 1975.
An order which provides for shared parental responsibility requires that the parties to it consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [see section 65DAC].
In this case, as a result of the orders to which they both consented, the parties are conferred with parental responsibility, for both [X] and [Y], which they are to share jointly and equally.
Major long-term issues is an expression defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s heath; the child’s name; and changes pertaining to the child’s living arrangements which would make it significantly more difficult for the child concerned to spend time with a parent.
Obviously, these are matters concerned with significant and far reaching decisions for a child. How and where a child is educated, for obvious reasons, must have long term implications for that child’s adult life. The same is true of matters to do with religious instruction and what name, particularly a surname, a child bears. These are issues which go to a child’s long term identity.
Similarly, the definition gives recognition to a child’s right to maintain significant parental relationships. In this context, no parent is conferred with an automatic right to relocate a child far away from the other parent concerned.
Issues to do with the child’s health, in the context of whether those decisions are long-term ones, can be less clear-cut and so potentially more controversial.
On the one hand, the event of a child suffering some significant accident or falling seriously ill and, as a consequence, requiring significant medical intervention, which may have possibly either life‑saving or catastrophic consequences, must fall within the rubric of major long-term decisions.
On the other hand whether a child requires an over-the-counter medication for a sore throat or an ear ache; or whether the child requires a routine dental check-up; are likely to be less cut and dried issues and quite possibly fall within the purview of day-to-day management.
In this case, [Y] has been required to go to Adelaide for corrective surgery and has had to undergo a general anaesthetic. In my view, such an intervention is clearly one pertaining to a major long-term issue.
More significantly, because of his special needs, [X] is required to attend upon a paediatrician regularly. He has been prescribed medication from time to time. The use of such medication, particularly for young children, has the potential to be controversial.
Again, in the context of this case, the issues to do with the treatment of [X]’s ADHD appear to me to be of a major long-term nature and so require active consultation between the parties.
In order for the consultation required by the law contained in section 65DAC to take place, it is necessary for each party to be furnished with the necessary information required to enable such a process of consultation to take place.
Accordingly, as a consequence of the orders agreed between them, neither Mr Petran nor Ms Petran have primacy over the other, in respect of major long-term issues to do with [X] and [Y]’s medical regime, education or other significant issues.
Rather, they are required to consult with one another about these matters. As indicated above, necessarily any process of efficient consultation requires the exchange of all relevant material, between the parents concerned, so that their views can be exchanged and conceivably an agreed position reached in respect of any such issue. This is what the parties signed up to, in their Consent Orders.
The import of this situation was further endorsed by other orders to which the parties agreed on 9 November 2018, which dealt with medical issues and access to educational and medical information regarding the children. These orders were as follows:
“28.That each party will notify the other parent, as soon as practical upon the happening of any of the following:
(a) If either child is hospitalised;
(b) If either child is involved in an accident;
(c) If either child becomes seriously ill;
(d) If either child is referred to a medical specialist; or
(e) If either child is prescribed 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.That the mother will advise the father, at least 7 days prior to any specialist appointment of the time, date and location of such an appointment and that the father will be invited to attend the appointment.”
As is readily apparent from these Reasons for Judgment, the parties do not have the sort of relationship which allows them to communicate easily and organically with one another. To the contrary, every interaction between them is fraught with difficulty and, in my assessment, likely to remain so for the indefinite future.
In these circumstances, which in my view are not uncommon in the case of the many high conflict families, which seek orders from the court, it is necessary for the parties concerned to have secure, reliable, accurate and unambiguous modes of communicating with one another and in order to exchange necessary information.
In addition, it is likely to be helpful that those modes of communication be amenable to being memorialised in order to prevent them from becoming corrupted from their initial purpose by being utilised to exchange abuse and invective between the parents concerned.
In this particular case, the parties have had a history of disagreeing about the mode of communication most appropriate for them. Ms Petran would prefer to use some electronic means, preferably a parenting app, which could be downloaded on to a variety of electronic devices.
Mr Petran describes himself as being not tech savvy. As such, his preference is for a communication book, which is exchanged between the parents at each handover of the children. The mother is resentful and dismissive of him in this regard.
The chief deficit of a communication book is that it does not provide an efficient mechanism for the instantaneous communication of information, particularly in the context of an evolving situation or one which has arisen expectantly.
In this context, Ms Petran has deposed that she frequently gets information regarding [X]’s medical appointments at a late stage. This is a consequence of [X] living in a remote location, which is irregularly visited by specialist staff, who from time to time change arrangements at late notice.
Given the deficits in the parties’ communication skills, stemming from their mutual mistrust and antipathy for one another, it is likely that they will be compelled to parent [X] and [Y], in respect of their day-to-day care, in a parallel fashion. Again, this is not an uncommon phenomenon in high conflict separated families.
What is meant by the expression parallel parenting is that the parents concerned each have autonomous responsibility, for their child or children, during the period of time that child or children is in their respective care and that the parents concerned each endeavour to keep their communications with one another, about those children and their requirements, to a respectful but effective minimum.
Although parallel parenting is the reality of the familial situation surrounding care arrangements for [X] and [Y], it too has been the source of much friction and controversy between the parents. One of the notations, on which the parties settled, when the Consent Orders were made, was directed towards ameliorating this controversy.
From Ms Petran’s perspective, it is desirable that there be a continuity in the activities and arrangements, in which the children have been enrolled, across both households. For example, if she has arranged a sporting activity for the children or a social occasion, which is scheduled to take place in a time during which the children are in their father’s care, Mr Petran should be mandated to ensure that this commitment is fulfilled.
From Mr Petran’s perspective, such a requirement represents an unreasonable intrusion into his time with the children and his parental autonomy. It is his position that he will take the children to the activity concerned, if he believes it is appropriate, but otherwise he should have a free hand to do what he likes, during his time with the children. The impression I gained from his evidence is that he resents what he perceives is his former wife’s capacity to control his time with the children.
Although the parties disagree about many things, there was a great deal of commonality in their evidence. Both agree that their parenting relationship is “toxic”. Both believed that the other was utilising the current set of orders to control him/her.
Ms Petran asserted that she perceived the father’s constant need to know about what she regarded as minutiae in regards to the children’s care as being his mechanism for controlling her.
On the other hand, it was Mr Petran’s perception that the mother withheld information, when it suited her and directed him what he was to do with the children, in his time with them, as a means to control him.
What is clear to me is that each party is convinced of the righteousness of their respective position and is engaged in a battle for control. This is potentially disastrous for the children.
In addition, the parties themselves have no capacity whatsoever to empathise with the position of the other. Each suffers from the common cognitive bias of believing implicitly in the individual validity of their respective world view.
In my view, the orders on which the parties agreed, on 9 November 2018, were designed to deal with this baleful situation. In addition, those orders, particularly order 3, reflect the applicable provisions of the Family Law Act 1975.
Pursuant to section 65DAE, parents do not have to consult on matters, which are not concerned with long-term issues, when the child is spending time with one or other of them.
This is to ensure that the myriad decisions, which have no long-term significance concerning a child and which need to be made on a day-to-day basis, by both of the child’s parents, independently of one another, can be made without the necessity to refer to the other parent.
In my view, whether a child goes to a birthday party or to a swimming lesson or carnival, cannot be regarded as a major long-term issue as defined by the Family Law Act 1975. Rather, these are issues falling within the rubric of section 65DAE and the purview of the order agreed to by the parties regarding day-to-day decisions.
As previously indicated, the notation has no formal application in this regard, other than as a statement of goodwill. Regrettably, as these proceedings have demonstrated, there is scant goodwill between the parties.
Background to the current proceedings
The consent orders of 9 November 2018 provided for the children to spend time with their father on two extended occasions each four weeks and for a short mealtime meet on each alternate Thursday. There are starting dates for each such order and the parties told me it remains in sync.
Other orders deal with school holiday arrangements. They are, in my view, extremely convoluted in their expression in the sense that they do not provide a mechanism for calculating when the time is to commence and conclude. They require the father to give notice of his intention to take such holiday time (45 days) and are subject to the condition he is on annual leave during the periods sought.
From the father’s perspective, the spirit of the November 2018 orders soon broke down. On 25 February 2019, he commenced contravention proceedings against the mother, alleging she had failed to provide him with details of surgery which [Y] had to undergo in a timely fashion; he also alleged that the mother had informed him that she did not intend to make the children available to spend time with him during the forthcoming end of term 1 school holiday.
The second alleged contravention was largely prospective in nature. Contravention proceedings are quasi criminal in nature. As such, I have grave concerns about their utility in respect of anticipated breaches of orders. In any event, the contravention application was listed, in Town B, on 4 March 2019, well in advance of the relevant school holiday.
On this occasion, I was able to make orders specifying exacts dates for the commencement and cessation of time in the end of term 1 holiday – form 9.00 am on 22 April 2019 until 4.00 pm on 27 April 2019. I further directed as follows:
“During the period of adjournment the applicant’s solicitor forward to the respondent a proposal for amending the children’s orders to provide certainty as to how each school holiday period is to be allocated between the parties and when either party wishes to take a holiday outside Town B.”
Part of the problem with the April school holidays in 2019 was the fact they coincided with the mother’s fortieth birthday and [Y]’s fifth birthday. A compromise was able to be found in respect of these issues but it took the involvement of the court.
Thereafter, I was hopeful that some sensible negotiations between the parties would lead to any further amendments to the November 2018 orders to avoid such difficulties in future. Regrettably, the major provider of community-based family mediation, in Town B, was not prepared to offer mediation to the parties in this case. Accordingly, it falls to the court to do the best it can.
The chief problems arising in this case, stem from the parties’ poor parenting relationship, focussing on the following issues:
·School holiday arrangements, particularly notice requirements, in respect of travel outside of Town B;
·Mechanisms to convey information between the parties, particularly in respect of medical issues and appointments pertaining to the children;
·The utility of the parties being referred to ADR processes;
·Arrangements for birthdays;
·Easter arrangements;
·Passport issues;
·Phone communications between parent and children; and
·Parental obligations at the nominated handover location (Town B McDonalds).
The matter returned to court on 17 June 2019. Mr Petran had filed an affidavit setting out how he proposed the November 2018 orders should be changed to bring about clarity and provide less scope for friction to arise between the parties.
On 14 June 2019, Ms Petran filed her own contravention application detailing an allegation that Mr Petran had failed to give her sufficient notice of his intention to take the children to Town D during the recently concluded period of holiday time.
In addition, she has filed an affidavit in which she is critical of the father and his solicitor (Mr Craney) and a member of his staff (Ms E) for being difficult to deal with in respect of negotiating the required new orders. For her part, Ms E has filed an affidavit in which she is critical of the mother and alleging that she had to call police to Mr Craney’s professional offices on the basis that Ms Petran had been abusive towards her.
I am concerned that matters are getting out of hand and blowing out of proportion to the issues at stake. Rather than dissipating, tensions seem to be escalating, leading to more rather than less allegations of poor behaviour. This is not helpful to anyone, least of all [X] and [Y]. In this context, the mother has raised a whole new raft of matters, which are of concern to her, which can be summarised as follows:
·The father had removed from [X] his watch, which had been given to him by his aunt;
·[X] had returned from spending time with his father with bruises and had been inappropriately disciplined by him;
·The father was not allowing [X] to engage in swimming training and other activities, during his time with the child;
·She had been compelled to enlist the Town B and Town D police to conduct a welfare check, on the children, during the April holiday because the father would not allow her to speak with the children;
·The father does not allow her to claim on his private health insurance fund in respect of the children; and
·The father refuses to remove his name as the account holder with her of trust accounts for the children. She wants to be able to move the funds held to different accounts, offering superior interest rates.
Some legal principles
The orders of 9 November 2018 are final orders. They are intended to be just that, final. Before the court makes any parenting orders, it must be satisfied that such an order is calculated to be in the best interests of the child affected by the order. The child’s best interests are always the court’s paramount or most important consideration [see Family Law Act 1975 at section 60CA].
Pursuant to section 64B(2) a parenting order can deal with amongst other things, where a child should live; the allocation of parental responsibility; the time a child spends with another person; and any aspect of a child’s care, welfare and development or any aspect which relates to the exercise of parental responsibility for that child.
A parenting order can also deal with the maintenance of a child. However, a specific division of Part VII deals with this aspect of a child’s care – Division 7. In addition, as the parties are aware, the Registrar of the Child Support Agency has authority to make an administrative assessment of child support.
Section 66E of the Family Law Act 1975 prohibits a court making a child maintenance order in respect of any child who is subject to an assessment under the Child Support (Assessment) Act 1989.
I was satisfied, when I made the orders in November of 2018 that they would serve [X] and [Y]’s best interests. I would not have made them otherwise. They were not an invitation to further proceedings. Rather, I wished to hand back parental responsibility, for the children, to the parties, as the orders envisaged.
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Family Law Act 1975 in section 60CC.
Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a) & (b) namely:
“(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.”
These primary considerations are stressed through the provisions of section 60B(1) & (2) of the Family Law Act 1975, which contain a list of aims and principles, which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes.
The list of objects or aims of the legislation is set out in section 60B(1). They are as follows:
“(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.”
The principles, which underpin these objects, are set out in section 60B(2) and are as follows:
“(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).”
Other criteria, relating to how a court is directed to consider how the best interests of any child concerned may be served by any order which the Court makes, are set out in section 60CC(3). These criteria are categorised as additional considerations.
There are fourteen such criteria, including, pursuant to section 60CC(3)(m), that the court is empowered to have regard to any other fact or circumstance which it considers relevant. This is to ensure that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
The additional considerations include such matters as:
·any views of the children concerned, subject to their maturity and other factors, which may be influencing such views;
·the nature of the children’s relationship with parents and other significant individuals;
·the extent to which a parent has participated in decision-making, spending time and communicating with the relevant children;
·issues relating to the financial support of the children;
·the likely effect of any change in the circumstances of the children concerned;
·the practical implications of proposed contact arrangements;
·cultural issues, particularly in the context of children enjoying aspects of their cultural background with relatives who also share it; and
·any family violence involving the child or a member of the child’s family.
Finality is generally preferable in children’s cases. In considering a child’s best interests, the court is specifically directed to consider making orders which are least likely to lead to the institution of further proceedings [section 60CC(3)(l)]
This is because it cannot usually be in a child’s best interests for the final arrangements made in respect of that child to be subject to endless change or revision. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned.
In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation, particularly if such a revision has the potential to involve emotionally wrenching litigation, which pits parent against parent.
These considerations have led the Full Court of the Family Court to outline a rule of practice in a case well known to family lawyers known as Rice & Asplund.[2] The rule in Rice & Asplund is an expression of the paramountcy principle.
[2] Rice & Asplund (1979) FLC 90-725
In all matters concerning parenting orders, the best interests of the children concerned is the paramount consideration. As the circumstances of the parties change from time to time, parenting orders are never final in the sense that the court always retains a jurisdiction to deal with such changed circumstances.
However, some degree of change is a necessary corollary of life and should not of itself allow final parenting orders to be easily revisited. Otherwise to allow further applications, on the basis of a change of circumstances alone, would be likely to be an invitation to never ending litigation.
For that reason, a court will not readily re-open a case concerning parenting orders recently made. There needs to have been a substantial change in circumstances before a court will do so. This is the basis of the rule in Rice & Asplund.[3]
[3] See ibid.
Parental conflict or controversy between parents about parenting arrangements, of itself, may not be sufficient to justify the revisitation of an otherwise finalised case. Obviously, the parties in the current matter have been in conflict, with one another for a significant period of time, both before and after the orders of 9 November 2018. There has been no significant change of circumstances in this regard and, sadly, it seems unlikely that any form of rapprochement will develop between them in the short to medium term.
In addition, each party was represented by a legal practitioner, in the lead up to the making of the orders. These orders were comprehensive and obviously intended to provide a complete code as to the future parenting of the two children concerned. Changing the orders, of itself, may do little, if anything, to ease the perennial conflict between the mother and the father.
As such, in my view, there is a very real risk that constant tinkering with the agreed position, as expressed in the November orders, may do more harm than good and exacerbate rather than diminish the difficulties between the parties.
There is an appreciable danger, I think, that entertaining more proceedings, in a case of the current kind, will only provide the parties with a metaphorical boxing ring in which to engage in yet further combat or provide a forum in which to ventilate their never ending criticisms of one another.
However, it is now too late to put such reservations into effect in the current matter. Rather, when the matter returned to court on 17 June 2019, I decided to take a different and unusual course. I elected to leave the bench and join the parties at the bar table, where each was sworn in so that they could provide evidence concurrently as we went through each of the orders of November 2018 in an attempt to reach some form of consensus regarding how they could be clarified and made to work better.
It proved to be a confronting and somewhat dispiriting task. Confronting because I had a direct visceral experience of the emotional hurt and anger experienced by each of them; dispiriting because I was exposed directly to the intractable conflict between them, which was characterised by a mutual degree of stubbornness, petulance and inability to empathise with the other.
What I had hoped would be a session of problem-solving quickly degenerated into a process of recrimination, with neither party displaying any capacity to compromise nor willingness to move on from the past. In these circumstances, I went through the orders one by one, doing my best to make the changes I considered appropriate, after having heard the perspective of each party concerned.
My lodestone in so doing was the realisation that the best outcome, for these children, is some form of parallel parenting and a reduction in parental conflict. I have no great confidence that my efforts, in this regard, will have any great efficacy and, at the end of the day, I am left with the disquieting thought that it might have been better just to leave things as they were and hope for the best.
Conclusions
It is now necessary to detail the changes I propose to the current orders and the reasons why the change is justified.
Notations – given the reality of the parallel parenting of the children, arising from the deficits in the communication skills of their parents, notation B can have no utility to the parties’ situation. As indicated above, in my view, extramural activities engaged in by the children, are to be regarded as day-to-day decisions, falling within the ambit of section 65DAE. As such, it is not open to the mother to direct to the father what he should do with the children in the periods of time they are in his care.
Orders 1, 2, 3, 4 & 5 – stand.
Order 6 – requires amendment in order that there is certainty as to the periods of time the children are in their father’s care during school holidays and how that time is calculated. The order will read as follows:
“6(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.”
During the last school holiday, there was considerable controversy regarding the father’s decision to take the children to Town D, where I understand he has family. The order is designed to address this controversy. It is likely to be in the children’s best interest to holiday to such places as Town D with their father. It is not in anybody’s interests that the police become involved.
The amended order 23 will deal with electronic communication. It is in the children’s interests to keep in touch with their other parent during school holidays, but such communication should not become a de facto instrument of control.
Similarly, the order recognises the mother’s practice of having an annual three week beach holiday with the children, which the father accepts occurs in January of each year, subject to the mother being able to obtain suitable accommodation.
Order 7 – stands. The amended order 6 envisages the father being able to take a longer holiday with the children, during the end of year period, in alternate years, which is in keeping with the children having their regular beach holiday with their mother.
In my view, it would be beneficial for the children to have a fortnight summer holiday, with their father, from time to time. Such an occurrence can only add meaning to the relationship the children have with him. I would hope that the parties would be able to agree to such an arrangement without the court’s intervention.
Orders 8, 9, 10 & 11– these orders are now otiose. The formal order will make their discharge.
Order 12 – (a) & (b) thereof are now otiose and should be discharged.
Order 13 – this order deals with the vexed issue of communication. The father wants to stick with written communication in a book passing between the parties. The mother wishes to move to electronic modes of communication.
In my view, whatever occurs will remain problematic until such time as the parties themselves work on their parenting relationship. This will require time, effort and applied expertise. Whether such expertise exists in Town B is not clear to me. It is up to the parties to explore this for themselves.
However, more significantly, so long as the parties each think that their difficulties are all the fault of the other, any therapeutic intervention, centred on improving their communication skills and capacity to empathise and work with the other, is destined to fail. This can only have detrimental consequences for [X] and [Y].
The father concedes that his employer requires him to use email at his work. In these circumstances, it seems somewhat pigheaded for him to decline to use email to exchange information regarding the children so far as he and the mother are concerned.
This is particularly so given one of his major concerns is that he is not kept informed about medical appointments for the children. The mother’s evidence, which does not appear to me to be inherently improbable, is that she is often notified at short notice of changes of appointment due to Town B being serviced, so far as speciality medical services are concerned, from a distance, resulting in fluid waiting lists and appointment times.
Such exigencies require a facility for real time communication. For these reasons, I will make the following orders:
“13(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 14 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.
Order 14 – this order deals with the vexed issue of birthdays, particularly those of [Y] and the mother, which fall in April and so theoretically subject to clash with either Easter or the end of first term school holiday.
As the imbroglio which erupted this year demonstrates, the parties have no current capacity to work through these issues and reach a satisfactory compromise. In these circumstances, the children should spend time, with each of their parents, on the occasion of the individual child’s birthday, other than if the children are out of Town B on an extended holiday pursuant to order 6 hereof.
The same arrangements should occur in respect of each of the parties’ individual birthdays. For these reasons, the order pertaining to birthdays should read as follows:
“(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.
This renders orders 15, 16, 17 and 18 otiose and each will be discharged.
Order 19 – deals with arrangements for Mother’s Day and Father’s Day. The parties seem to agree that if Mother’s Day falls on a weekend the children would be with their father and Father’s Day falls on a weekend the children would be with their mother, the order should be suspended so that time can be had with the appropriate parent from 9.00 am until 4.00 pm on the appropriate day.
The order will read as follows:
“(19)(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.”
Orders 20 & 21 – the parties agree that Easter is working well. It is recognised that the orders do not deal specifically with Easter Monday and this is not necessary.
Order 22 – should be amended so that each party executes the necessary documents to ensure the issue of Australian passports for the children, although neither has any current plans for overseas travel.
Order 23 – deals with the vexed issue of electronic communication during school holidays. The father’s perception being that the mother utilises such opportunities to intrude upon his time with the children and undermine it. Whether this is so is difficult to determine. The father seeks that there be such communication every fifth day. The mother wishes it to be daily and to be for half an hour.
I will direct 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 fifteen minutes.
Order 24 – although neither party plans to travel overseas, it is agreed that forty five days is an appropriate period of notice for such travel and such notice should include details of itinerary, flight numbers, departure and arrival times and contact details. It is also agreed that the parent holding the children’s passports will provide them to the travelling parent after such notice has been given. I will specify thirty days for this.
Order 25 – the father does not seem to be working an unorthodox roster at present. As such there seems no pressing need to change this order.
Order 26 – the controversy surrounding this seems to be emblematic of the deep level of unhappiness arising between the parties. The father complains the mother arbitrarily changes the handover location and then does not assist the children to transition safely between the parties’ respective motor vehicles.
In these circumstances, he seeks an order that would require the children to be safely escorted by their mother from the front door area of the McDonald’s Restaurant in Town B. It is his case that the mother and her mother’s unwillingness to alight from their car and come to the door of the restaurant, presumably because they do not wish to come into proximity with him, poses a threat for the children because they have to negotiate drive way and parking traffic at the restaurant.
In my view, child safety falls within the purview of the parents concerned. It is up to them to ensure their children get safely in and out of cars within a restaurant carpark, not the court. I would invite each of them to contemplate their own conduct in this regard. If the current arrangement is dangerous, as responsible parents, they should take the necessary steps to solve the problem. I decline to change the order.
Order 27 – stands. It is not controversial.
Order 28 – raises issues falling within the purview of communication matters, which have been dealt with by order (13). The father has complained that he has not been informed soon enough of relevant medical information.
The advent of electronic communication, via email, solves this problem. The father can obtain a smart phone to enable him to access emails sent to him instantaneously with their transmission. I will make the amendments sought by the father with the proviso any accident be serious enough to involve medical intervention. I am not sure what the distinction between medication and new medication is. The requirement is to keep each parent informed of major long-term parenting issues.
Orders 29, 30 & 31 – are not controversial and will stand.
Order 32 – again deals with the vexed issue of communication about medical appointments. Originally the period of notice for such appointments was seven days. The mother agrees to its abridgement to 48 hours. As previously indicated, in theoretical terms, notice via electronic means can be instantaneous.
I will amend the order so that it reads as follows:
“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.”
Order 33 – provides a mechanism to ensure that the children are provided with medication prescribed for them at the correct dosage. Given [X]’s special needs, the issue of medication is a sensitive one, ripe with the potential to incubate controversy.
The father complains he was provided with only half of some tablets previously prescribed for [X]. Order 13 has been designed to deal with this issue and prevent controversy erupting in future. Otherwise the order can stand.
Order 34 – this order is otiose because of the reluctance of the available FDR practitioner in Town B to engage with the parties. Sadly, it must be discharged.
The mother has sought her own additional orders relating to health insurance arrangements for the children and to ensure that she has sole control of two accounts that were set up for the benefit of the children, during the course of the parties’ marriage. Her reason for wanting such control is to be able to secure a better interest rate.
I do not believe that these issues fall within the remit of children’s orders for the purpose of the Family Law Act 1975. I can understand the practicality of Ms Petran wanting to be in control of the accounts. I am at a loss to understand why Mr Petran will not agree to a change to an account bearing a higher rate of interest.
It is not my function to rule on every dispute and controversy arising between the parties, merely because they are the parents of children and the issues in dispute between them have some connection to their children. It is up to them to sort out claims on health insurance and issues to do with interest. These are not issues strictly germane to the maintenance of the children.
The final issue is an injunction sought by the mother to prevent the father from physically disciplining the children in future. In this context, the mother alleges the father has bruised [X] in the period after Easter, which coincides with the controversy arising from the children being taken to Town D.
In this context, the mother consulted a psychologist, Ms F, with [X]. To her, [X] reiterated the complaints similar to those he had raised with Ms C in the earlier family report process, which had led to her being concerned that the mother may have been influencing the child to have a negative attitude towards his father.
Ms F, who is a mandatory reporter, did not consider [X]’s complaints to her warranted a report to the NSW child protection authorities. Although she did consider the child’s distress at his perception that he was unfairly treated in his father’s house to be genuine.
In this context, Ms F, perspicaciously in my view, opined as follows:
“It is clear from discussions with [X], that his mother and his father take considerably different approaches to parenting their children and as a result, [X] is, understandably, at times confused and distressed when behaviours considered appropriate in one household may be punished in another, and rewards offered in one household become confiscated items at the other. [X]’s father appears to take a more authoritarian approach to parenting in contrast with [X]’s mother, who is far more permissive in her approach and attempts to focus more on rewards. A more consistent approach to parenting from [X]’s parents would certainly benefit [X].”
In this eloquent summary, Ms F has encapsulated the issues in the case – the parties approach parenting differently. Their personalities are different and the factors, which perhaps once brought them together, now draw them apart. As a consequence, their facility to disagree, about even the simplest matter and see provocation in even an innocent action of the other seems to be great indeed.
Given the level of their mistrust and the extent of their inability to communicate constructively with one another, this must be extremely problematic, given that they are the parents of two children. One of the major dangers of parallel parenting are the inevitable stresses, which arise for children, of having to move regularly between two households with different rules and expectations.
Rather than each trying to land a pre-emptive strike on the other, through contravention proceedings, it would be more useful, for [X] and [Y], if their parents considered ways to improve their level of communication and attune their parenting approaches with that of the other. Each need to recognise they will always be different from one another but nonetheless each should have a role to play in parenting the children.
In these circumstances, I decline to make the additional orders sought by the mother. I propose to dismiss all outstanding applications and issue the November 2018 orders, as I have amended them, in the hope that this will provide a circuit breaker in the apparently escalating levels of animosity and unhappiness between the parties and allow them each to re-group and focus on making the orders, on which they agreed, work more effectively in future.
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 one hundred and seventy-six (176) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 12 July 2019
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