Vallario & Meidner

[2022] FedCFamC1F 986

Federal Circuit and Family Court of Australia

(DIVISION 1)

Vallario & Meidner [2022] FedCFamC1F 986

File number(s):	AYC 118 of 2020
Judgment of:	JOHNS J
Date of judgment:	28 November 2022
Catchwords:	FAMILY LAW – CHILDREN – final parenting orders – where the parties have reached consent with respect to the substantive parenting orders – where the issues in dispute are limited in scope – where the parental relationship post-separation has been highly conflictual – where the children have been exposed to the parents’ conflict – where the children need reprieve from the parents’ conflict – where the orders made should be such as to reduce the likelihood of further conflict – orders made which will reduce the amount of changeover between parents – orders that will minimise the scope for further conflict
Legislation:	Family Law Act 1975 (Cth)
Division:	Division 1 First Instance
Number of paragraphs:	18
Date of hearing:	28 November 2022
Place:	Melbourne
Counsel for the Applicant:	Ms McCreadie
Solicitor for the Applicant:	Ambrose Kampen
Counsel for the Respondent:	Mr Weil
Solicitor for the Respondent:	Taussig Cherrie Fildes
Counsel for the Independent Children's Lawyer:	Ms O’Connell
Solicitor for the Independent Children's Lawyer:	Victoria Legal Aid

ORDERS

AYC 118 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS VALLARIO

Applicant

AND:

MR MEIDNER

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:	JOHNS J
DATE OF ORDER:	28 NOVEMBER 2022

BY CONSENT THE COURT ORDERS THAT:

1.All previous orders be discharged.

2.The Mother have sole parental responsibility for X born in 2010, Y born in 2014 and Z born in 2016 (“the children”) in relation to long term care issues in relation to the children including:

(a)Education (both current and future); and

(b)The children’s health

On condition that:

(i)The Mother shall contact the Father in writing and provide her views about any such issue;

(ii)The Father may reply to the Mother’s proposal within 14 days of receipt of same; and

(iii)Should the Father respond then the mother shall consider the Father’s views and opinions and advise the Father within 7 days of her receipt of same of her decision in writing.

(iv)This limitation on time shall not apply if there is a question of emergency in which case the Mother has the sole parental responsibility in such circumstances.

Provided that:

This Order for sole parental responsibility does not give the Mother sole parental responsibility as to questions of major long term issues about the children’s names, religion or changes to the children’s living arrangements to outside the Commonwealth of Australia or more than 50km from the City B area, without the consent of both parents or an Order of a Court exercising jurisdiction under the Family Law Act (1975).

3.The children live with the mother.

4.The children spend time with and communicate with the father as follows:

(a)During gazetted Victorian school terms each alternate weekend from the conclusion of school Friday to 7:00 PM Sunday commencing 9 December 2022;

(b)During the gazetted Victorian school term holiday periods at times as maybe agreed in writing and failing agreement from 10:00 AM on the second Saturday of the holiday period until 5:00 PM on the 3rd Saturday of the holiday period;

(c)During the gazetted Victorian long summer holiday period for three weeks at times as agreed and failing agreement from 10:00 AM on the 1st of January until 5:00 PM on the 21st of January;

(d)In the event the children are not already spending time with the Father on the Fathers’ Day weekend then from 4:00 PM Saturday to 5:00 PM Sunday;

(e)On each of the children’s birthdays at times as agreed in writing and failing agreement:

(i)If on a school day, from the conclusion of school to 6:30 PM; and

(ii)If on a non-school day, from 1:00 PM to 5:00 PM.

(f)By telephone or electronic communication each Wednesday and Sunday at 6:00 PM with the Mother to facilitate the children calling the Father’s mobile telephone or such other device nominate by him; and

(g)Such other times as may be agreed between the parents in writing.

5.The time the children spend with the Father shall be suspended as follows:

(a)Time pursuant to order 4(a) herein shall be suspended during all school holiday periods and recommenced each school term as if there had been no break in time;

(b)In the event the children are spending time with the Father on the Mothers’ Day weekend then time shall be suspended from 4:00 PM Saturday;

(c)In the event the children are in the care of the Father and have not already been in the care of the Mother on any of the children’s’ birthdays then:

(i)If on school day, from the conclusion of school to 6:30 PM; and

(ii)If on a non-school day, from 1:00 PM to 5:00 PM;

(d)Such other times as may be agreed in writing between the parents.

6.In order to facilitate changeover when same does not occur at school the parents shall meet at the City B McDonalds.

7.When the children are spending time with the Father, the children communicate with the Mother by telephone or electronic communication each Wednesday and Sunday at 6:00 PM with the Father to facilitate the children calling the Mother’s mobile telephone or such other device nominate by her.

8.Save in the event of an emergency the parents shall communicate via the App Close parenting app or such other parenting app as may be agreed in writing.

9.The parents advise each other in writing of any changes of address, emergency contact telephone number and/or email address within 48 hours of any such change.

10.The parents shall notify each other as soon as is practicable of any significant illness and/or injury suffered by the children or any of them along with the names and contact details of any treating medical professional.

11.In the event the children or any of them are admitted to hospital for a period of greater than 24 hours then each parent shall be entitled to visit same in accordance with the hospital’s visitor policy at that time.

12.The Mother shall do all acts and thing necessary to authorise the children’s treating medical, dental and/or allied health professional to discuss with the Father any diagnosis, prognosis and treatment of the children, at his own expense, if any.

13.The Mother shall so all acts and things necessary to authorise the children’s schools to provide to the Father, at the expense of the father, copies of all school reports, notices, photograph order forms and correspondence normally provided to parents and/or to give him access to any school portals.

14.Each parent, their agents and/or servants be and are hereby restrained from:

(a)Insulting, belittling, degrading, rebuking, abusing or otherwise denigrating the other parent or members of their immediate family and/or household to and/or within the presence of the children or any of them and from knowingly permitting others to do so;

(b)Discussing these proceedings or any document prepared and/or filed in relation to these proceedings or associated proceedings to and/or within the hearing of the children or any of them or knowingly permitting others to do so;

(c)Providing the children or any of them with access to any document prepared and/or filed in these proceedings and/or any associated proceedings; and

(d)Using physical discipline on the children or any of them and/or permitting any other persons from doing so.

15.Order 12 of the orders made 18 November 2022 for the appointment of the Independent Childrens’ Lawyer be discharged.

16.All extant applications be dismissed

IT IS CERTIFIED

17.Pursuant to r 12.28 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 this matter reasonably required the attendance of Counsel.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vallario & Meidner has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

1. The matter of Vallario and Meidner comes before the Court today in relation to both parenting and property matters.  The property aspect of the dispute between the parties was resolved early in the day and I made final orders by consent finalising that aspect of the dispute. 

2. The parties have spent much of today in discussion in an endeavour to resolve the parenting dispute.  The issues in dispute relate to the future care arrangements for the parties’ three children:  X, aged 12 years, Y, aged almost eight years, and Z, aged six years.  The children have been in the primary care of the mother since the parties’ separation in late 2019.  The children have spent time with the father pursuant to orders made on 18 November 2020.

3. The parties have each filed detailed trial affidavit material.  They have also attended for and participated in expert reports. Ms C, Psychologist, prepared assessments of the parties which are contained in her affidavit filed 18 August 2021.  In addition, the parties have participated in the preparation of a Family Report, prepared by Dr D, Psychologist.  That report is annexed to his affidavit filed 9 November 2022. 

4. It is of enormous credit to the parties that the majority of issues between them have been resolved by consent.  I have been presented with a minute of proposed orders that resolves issues including the allocation of parental responsibility, with whom the children are to live and, in large part, the time the children are to spend with the father.  Having regard to the evidence before the Court I am satisfied that the proposed consent orders are in the children’s best interests.

5. Three central issues remain for determination.  Firstly, the wording of orders relating to the allocation of parental responsibility.  It has been agreed between the parties that the mother ought have sole parental responsibility for the children in relation to long-term care issues regarding, firstly, their education, and secondly, the children’s health.  There are conditions attached to the allocation of sole parental responsibility to the mother – it is agreed that she must contact the father in writing and provide her views about any such decision she proposes to make.  The question that arises is whether or not the word “forthwith” ought be attached to that condition. It is the husband’s case that the mother should contact him forthwith in writing upon forming her views about any educational or health issue. 

6. The inclusion of that word is opposed by both the mother and the ICL.  The submission made in opposition of that order is that all of the evidence supports the view that these parties have a highly conflictual relationship. They have had enormous difficulties, historically, in communicating about care arrangements for the children.  That position is set out in some detail both in the trial affidavit material and also in the reports of Ms C and Dr D. 

7. In my view, the addition of the word “forthwith” adds nothing to the meaning of the order and is likely to provide a source of conflict between the parties, giving rise to the suggestion that the mother has not notified the father of proposed decisions as quickly as she should.  My concern is that the inclusion of that word could be used as a weapon against the mother in the event that a need arises for her to notify the father of a proposed decision in relation to the exercise of sole parental responsibility.  For those reasons, I am not inclined to include that word in the order as drafted. 

8. The second issue that emerges is the question of how school holiday time is to be shared between the parents.  The mother’s position is that the orders ought be in as simple and clear term as possible.  What she proposes is that the children spend time with the father during the term holiday periods commencing at 10 am on the second Saturday of the holiday period until 5 pm on the third Saturday unless otherwise agreed between the parties in writing. 

9. The father’s position is that which is set out in his Amended Response to Initiating Application, filed 23 November 2022, particularly at [3.2] and [3.3] of that document.  The father there sets out a very detailed proposal, which would involve a sharing of the term 1 holiday periods to ensure that their children have the opportunity of Easter holiday time with the mother and the father in an alternating routine and, similarly, a sharing and rotating of the first and second half of school holiday periods in the term 2 and term 3 holidays. 

10. The position of both the mother and the ICL is that the proposal of the father is inappropriate.  Again, reliance is placed upon the expert assessments as to the conflictual nature of the relationship between the parents.  Reliance is placed by the mother on the observations, albeit untested observations, of Dr D in his Family Report.  In particular, I was referred to the observations of Dr D as to the father engaging in behaviour which has the effect of involving the children in the dispute. 

11. It was submitted by the mother that the orders made should reduce the potential for conflict between the parties, rather than give rise to potential confusion and argument about the allocation of Easter time and other periods during the school holidays. 

12. Having regard to the evidence of Dr D, and the evidence as contained in the affidavits of both the mother and the father, in my view there is much force in that submission.  In my mind, it is preferable for the children that there be consistency and certainty in the holiday arrangements.  I am satisfied that the children’s best interests will be served by a  sharing of the holidays as is contemplated at paragraph 4(b) of the minute of order prepared on behalf of the parties by the Counsel for the wife.  Accordingly, I will make orders in the terms of paragraph 4(b). 

13. Turning to the long summer holiday period, the wife proposes that the husband have a block period of three weeks commencing on 1 January in each year.  She will spend some time with the children in the week or so following the conclusion of the school year and then will have the period from about 21 January until the commencement of the new school year. 

14. The husband seeks orders as set out in his Amended Response to Initiating Application, filed 23 November 2022, with the orders sought by him being contained at [4] thereof. Again, he seeks orders which break up the long holiday period into four periods of time, alternating between the mother and father. 

15. The concern raised with respect to the father’s proposal is that it involves a number of changeovers during the holiday period, which limits the opportunity for extended holidays and gives rise to the possibility of further conflict between the parties. 

16. The ICL supports the orders sought by the mother. 

17. The father submits that the orders sought by the mother are inappropriate, as they make no provision for him to spend any Christmas time with the children.  The mother submits that the husband and his family do not celebrate the Christmas holiday period and she, in particular, refers to [162] and [163] of her trial affidavit, where she gives evidence as to the husband and his family not acknowledging or celebrating the Christmas holiday period. 

18. At [162] of her trial affidavit, the mother deposes that the father has never celebrated or enjoyed Christmas Day.  Further, she deposes, at [163], of conversations she says occurred between X and the father in November 2021 regarding the Christmas period.  Those allegations have not been responded to by the father in his trial affidavit. 

19. It was submitted on behalf of the father that it would be unfair to draw an adverse inference against the father by the omission of any response to those paragraphs.  It was also submitted on behalf of the father that, and I was taken to parts of his affidavit which indicate that, he does spend Christmas with a family friend. 

20. Having reviewed the material and considered the paragraphs to which I have been taken, I am satisfied that from the children’s perspective, the long summer holiday period is a special period of time that ought be enjoyed by them without the prospect of conflict or exposure to tension between their parents; it should be a happy occasion, free from the challenges that they have faced, particularly since their parents have separated. 

21. It is clear from the material of Dr D that these children have been significantly impacted by the conflict.  As a consequence, I form the view that the best outcome for them will be to ensure that they have block periods of uninterrupted time with both the mother and the father. 

22. The time proposed by the mother that the father spend with the children is a significant, extended and uninterrupted period.  I am satisfied that the children will likely benefit from that and I am satisfied that that proposal, which ensures that there are fewer changeovers and enables the children to spend block periods with both parents, is a preferable arrangement to an alternating cycle through the holiday period.  Accordingly, I will make orders as proposed at paragraph 4(c) of the mother’s proposed minute. 

23. The final, issue that emerges is the question of telephone communication between the children and the father.  The father seeks orders that he be permitted to communicate with the children via telephone each Tuesday, Thursday and Sunday when the children are in the mother’s care.  The mother and the ICL oppose orders in those terms and propose that the telephone or electronic communication between the children and the father ought occur each Wednesday and alternate Sunday at 6 pm, with the mother to facilitate that time. 

24. The issue that is raised by the mother in opposition to the father’s proposal is her concern about the potential for the children to be influenced and manipulated by the father.  That is a submission that is supported by the ICL. 

25. It was submitted by the ICL that there are numerous examples of the father being very manipulative and reliance was placed upon the observations made by Dr D in his Family Report.  It was submitted that such behaviour impacts significantly on the mother and the children, and that the children need to be protected from that behaviour. It is on that basis that it is the ICL’s position that it is appropriate that telephone communication be limited to each Wednesday and every second Sunday when the children are not otherwise in the father’s care. 

26. In my view, again, I consider that proposal to be appropriate.  I do so having regard to the observations, albeit untested, made by Dr D.  I also have regard to the likelihood that as these children grow older, they are likely to have a range of after-school activities, whether it be homework or extracurricular pursuits that will limit their availability to communicate with the father as frequently as is sought by him. Whilst I am satisfied that the children will benefit from regular communication  with their father about their weekly routines, there is a risk that such obligation may become a burden upon these children as they grow older if it is to be expanded to three times a week, as sought by the father.  Accordingly, in my view, it is in the children’s best interests that orders be made as set out in paragraph 4(f) of the proposed minute. 

1. Having regard to the above matters, I am satisfied that the orders as proposed are in the children’s best interests.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Johns.

Associate:

Dated:       28 November 2022