Bampton and Kernick and Ors

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAMPTON & KERNICK & ORS

[2013] FCCA 2248

Catchwords:
FAMILY LAW – Parenting – one mother, three children, three fathers – where the father of the middle child wants all three children to live with him and mother in a week about arrangement – where the mother proposes that all three children live with her and that each child spends time only with his or her biological parent – where the other two fathers support this proposal.

Legislation:

Family Law Act 1975, ss.60CC, 61DA, 64C, 65C

Applicant:

MS BAMPTON

First Respondent:

MR KERNICK

Second Respondent:

MR MORRIS

Third Respondent:

MR ELLIS

File Number:

NCC 1075 of 2010

Judgment of:

Judge Terry

Hearing dates:

24, 25 & 26 June 2013 and 9 August 2013

Date of Last Submission:

9 August 2013

Delivered at:

Newcastle

Delivered on:

24 December 2013

REPRESENTATION

Counsel for the Applicant:

Ms Druitt

Solicitors for the Applicant:

Legal Aid NSW

The First Respondent:

In person

Counsel for the Second Respondent :

Mr Davies

Solicitors for the Second Respondent:

Rice More & Gibson

Counsel for the Third Respondent:

Mr Boyd

Solicitors for the Third Respondent:

LBK Solicitors

Solicitor Advocate for the Independent Children’s Lawyer:

Mr Munday

Solicitor for the Independent Children’s Lawyer:

Moin & Associates

ORDERS

Order amended pursuant to sub-rule 16.05(2)(e) of the Federal Circuit Court Rules (2001)

All previous parenting orders concerning X born in ~~20102~~ 2002, Y born in 2005 and Z born in 2007 are discharged.
The children shall live with the mother.

The mother and MR ELLIS shall have equal shared parental responsibility for X.
X shall spend time with MR ELLIS:
(i)on the first weekend of each month during school terms from 5.00pm on Friday until 5.00pm on Sunday;
(ii)for half of the Term 1, 2 and 3 school holidays each year being the first half of the holidays in odd numbered years and the second half of the holidays in even numbered years;
(iii)during the Christmas school holidays which commence in odd numbered years from 5.00pm on the last school day until 5.00pm on the second Saturday or 5.00pm on 27 December whichever is later;
(iv)during Christmas school holidays which commence in even numbered years from 5.00pm on the Saturday nearest to the mid-point of the school holidays to 5.00pm on the following Saturday;
(v)in odd numbered years on his birthday from 9.00am to 8.00pm if the birthday falls on a non-school day and from 4.00pm to 6.00pm if the birthday falls on a school day.
(vi)at such additional or alternate times as may be agreed between the parents.
Mr Ellis shall not spend time with X on a weekend that includes Mother’s Day and if the Mother’s Day weekend is a weekend that Mr Ellis would otherwise be spending time with X in substitution Mr Ellis will spend time with X on the weekend following the Mother’s Day weekend from 5.00pm Friday until 5.00pm Sunday.
If Father’s Day does not fall on a weekend that Mr Ellis is to be spending time with X, Mr Ellis will spend time with X on the Father’s Day weekend from 5.00pm Friday until 5.00pm Sunday instead of the weekend referred to in order 4(i);
For the purposes of Mr Ellis spending time with X, the mother will deliver X to Mr Ellis’ residence at the commencement of his time with the child and collect X from Mr Ellis’ residence at the conclusion of his time with the child.
The mother shall facilitate X having reasonable telephone communication with Mr Ellis when the child is with her and Mr Ellis shall facilitate X having reasonable telephone communication with the mother when the child is with him.

Subject to order (10) the mother shall have sole parental responsibility for Y.
The mother is restrained and an injunction is granted restraining her without the consent in writing of Mr Kernick first had and obtained from:
(i)changing Y’s surname; or
(ii)relocating Y’s place of residence from Town B.
The mother shall promptly advise Mr Kernick in writing (by text message or otherwise) of any decision she makes concerning:
(i)the school Y attends (if different to her present school);
(ii)Y attending on a specialist medical practitioner, psychiatrist, psychologist or counsellor
Y shall spend time with MR KERNICK:
(i)on the first and third weekends of each month during school terms from the conclusion of school on Friday until the commencement of school on Monday;
(ii)each alternate Tuesday being the Tuesday after the child has spent the weekend with the father from the conclusion of school on Tuesday until the commencement of school on Wednesday;
(iii)during the school holidays which are in or commence in odd years for the first half of each of the school holidays commencing at the conclusion of school on the last day of the term until 4.00pm on the middle Saturday in that school holiday period;
(iv)during the school holidays which are in or commence in even years for the second half of each of the school holidays commencing at 4.00pm on the middle Saturday in that school holiday period until 4.00pm on the last Sunday of that school holiday period;
(v)in odd numbered years on her birthday from 9.00am to 7.00pm if the birthday falls on a non-school day and from 4.00pm to 7.00pm if the birthday falls on a school day.
(vi)from 3.00pm Christmas Day until 3.00pm Boxing Day in years when the child is otherwise with the mother and the child shall spend time with the mother from midday Christmas Eve until 3.00pm Christmas Day when the children are otherwise with the father.
(vii)at such additional or alternate times as may be agreed between the parties.
Mr Kernick shall not spend time with Y on a weekend that includes Mother’s Day and if the Mother’s Day weekend is a weekend that Mr Kernick would otherwise be spending time with Y in substitution Mr Kernick will spend time with Y on the weekend following the Mother’s Day weekend from the conclusion of school on Friday until the commencement of school on Monday.
If Father’s Day does not fall on a weekend that Mr Kernick is to be spending time with Y, Mr Kernick will spend time with Y on the Father’s Day weekend from the conclusion of school on Friday until the commencement of school on Monday instead of the weekend referred to in order 12(i);
For the purposes of Y spending time with Mr Kernick, he shall collect and return the child from school and on non-school days he shall collect the child from McDonald’s Restaurant C Street, Town B and return her to McDonalds Restaurant C Street, Town B. The mother shall ensure that either she or another adult makes the child available for collection by Mr Kernick and either she or another adult collects the child upon her return by Mr Kernick but the mother is not required to be personally present at the changeovers.
Mr Kernick and if she attends changeovers the mother shall behave respectfully to any other person present at the changeovers and neither party shall attempt to discuss with the other party or any other person who is present at the changeovers any parenting or personal issue.
The mother shall facilitate Y having reasonable telephone communication with Mr Kernick when the child is with her and Mr Kernick shall facilitate Y having reasonable telephone communication with the mother when the child is with him.
Mr Kernick is restrained and an injunction is granted restraining him from:
(i)physically disciplining the child;
(ii)allowing the child to co-sleep with him;
(iii)leaving the child in the care of MR D or MS E.

The mother and MR MORRIS shall have equal shared parental responsibility for Z.
Z shall spend time with MR MORRIS:
(i)during school terms on the first and third weekend of each month from 4.30pm on Friday until Sunday at 4.30pm;
(ii)during school terms on the second and fourth Friday of each month from 4.00pm until 7.00pm;
(iii)during the school holidays which are in or commence in odd years for the first half of each of the school holidays commencing at 4.30pm on the last day of the term until 4.30pm on the middle Saturday in that school holiday period;
(iv)during the school holidays which are in or commence in even years for the second half of each of the school holidays commencing at 4.30pm on the middle Saturday in that school holiday period until 4.30pm on the last Sunday of that school holiday period;
(v)in odd years on Z’s birthday from 9.00am on that day until 7.00pm on that day if it is on a non-school day and from 4.00pm on that day until 7.00pm on that day if it is a school day;
(vi)at such alternate or additional times as may be agreed between the parties.
Mr Morris shall not spend time with Z on a weekend that includes Mother’s Day and if the Mother’s Day weekend is a weekend that Mr Morris would otherwise be spending time with Z in substitution, Mr Morris will spend time with Z on the weekend following the Mother’s Day weekend from 4.30pm Friday until 4.30pm Sunday.
If Father’s Day does not fall on a weekend that Mr Morris is to be spending time with Z, Mr Morris will spend time with Z on the Father’s Day weekend from 4.30pm Friday until 4.30pm Sunday instead of the weekend referred to in order 20(i);
For the purposes of Mr Morris spending time with Z, the mother will deliver Z to Mr Morris’ residence at the commencement of his time with the child and she will collect Z from Mr Morris’ residence at the conclusion of his time with the child.
The mother shall facilitate Z having reasonable telephone communication with Mr Morris when the child is with her and Mr Morris shall facilitate Z having reasonable telephone communication with the mother when the child is with him.

GENERAL ORDERS PERTAINING TO ALL CHILDREN

The mother shall promptly advise the father in question if their child is diagnosed as suffering from a serious medical condition, is involved in an accident which results in attendance at hospital or is the subject of a medical emergency which results in attendance at hospital and the mother and the father of that child parent may visit the child in hospital and obtain from the hospital or treating medical practitioner any relevant medical information concerning or reports prepared about the child.
Each father shall promptly advise the mother if their child while in their care is diagnosed as suffering from a serious medical condition, is involved in an accident which results in attendance at hospital or be the subject of a medical emergency which results in attendance at hospital and the mother and the father of that child parent may visit the child in hospital and obtain from the hospital or treating medical practitioner any relevant medical information concerning or reports prepared about the child.
Each father may obtain from the children’s schools in respect of their child only newsletters, notices, school reports, school photograph order forms and any other information or documents normally provided to parents.
Each father may in respect of their child only attend all events involving the child including:
(i)sporting fixtures;
(ii)extra curricula activities that allow for parental attendance;
(iii)school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.
The mother is to keep each father informed of her current residential address, postal address, landline (if she has one) and mobile telephone number and shall advise each father within 24 hours of any changes to any of these details.
Each father is to keep the mother informed of their current residential address, postal address, landline (if they have one) and mobile telephone number and shall advise the mother within 24 hours of any changes to any of these details.
During the time the children are with any parent that parent shall:
(i)not question the children about the personal life of the other parent;
(ii)speak respectfully of the other parent;
(iii)not denigrate, insult or threaten the other parent and use their best endeavours to ensure that others do not denigrate or insult the other parent in the presence or hearing of the children.
(iv)not seek to elicit from the children their views about the parenting arrangements.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1075 of 2010

MS BAMPTON

Applicant

And

MR KERNICK

First Respondent

MR MORRIS
Second Respondent

MR ELLIS
Third Respondent

REASONS FOR JUDGMENT

Introduction

Ms Bampton is the mother of X, 11, Y, 8 and Z, 6. The children all live with her.
X’s father is Mr Ellis, the third Respondent in the proceedings.
Y’s father is Mr Kernick, the first Respondent in the proceedings.
Z’s father is Mr Morris, the second Respondent in the proceedings.
X and Z spend regular time with their respective fathers by agreement with the mother.
Until the end of June 2013 all three children were spending regular time with Mr Kernick pursuant to court orders. However Mr Kernick’s time with X and Z has been suspended since 27 June 2013.
The orders sought by the mother on a final basis were that the children live with her and that each child spend regular time only with their biological father.
The mother proposed that she and Mr Ellis have equal shared parental responsibility for X and that X spend one weekend per month during school terms and for some time during school holidays with Mr Ellis.
She proposed that she and Mr Morris have equal shared parental responsibility for Z and that Z spend two weekends each month during school terms and for some time during school holidays with Mr Morris.
She proposed that she have sole parental responsibility for Y and that Y spend time with Mr Kernick on two weekends each month during school terms and for half of the school holidays.
Mr Ellis and Mr Morris agree with the mother’s proposals but Mr Kernick does not.
Mr Kernick sought final orders that he and the mother and the respective father’s share parental responsibility for all three children and that children live in a week about arrangement with him and the mother.
He proposed that there be a three way split of Z and X’s time during the Christmas school holidays and that they spend half of the Term 1, 2 & 3 holidays with their respective fathers and half with the mother.
The mother’s case was that:
·she found Mr Kernick intimidating and could not possibly share parental responsibility with him;
·Mr Kernick had played a role in bringing up all three children prior to her separation from him in May 2008 but he had chosen to move interstate for nearly 18 months not long after separation. During this period he spent limited time with the children.
·X had now formed a bond with Mr Ellis and was strongly opposed to spending further time with Mr Kernick and his wishes should be respected;
·Z had now formed a bond with Mr Morris and was confused about being required to spend time with Mr Kernick.
·her relationship with Mr Kernick was so poor that week about for Y let alone all three children would not work.
·Mr Kernick lacked empathy with the children and had physically manhandled X and Y. This helped to explain X’s attitude to him and made her reluctant to agree to him spending too much time with Y.
Mr Kernick case was that:
·he was the X and Z’s psychological father as well as Y’s biological father. Mr Ellis and Mr Morris had little (in the case of Mr Ellis) or nothing (in the case of Mr Morris) to do with their children until well after he and the mother separated and he would be letting X and Z down if he did not fight to stay a part of their lives;
·the children’s living circumstances with the mother were far from satisfactory. Mr Bampton was a drug user and dealer, and the mother and Mr Bampton actively tried to influence the children against him. He did not want to remove the children from the mother completely but an equal time arrangement would give them some protection from the exposure to drug use and dealing and make it more difficult for the mother to undermine his relationship with the children;
·there was absolutely no reason why he and the mother could not share parental responsibility for Y equally.
·the mother had a chaotic personal life featuring fights with various members of her family and recently Mr Bampton’s family and if the children were confused it was because of the mother.
·his parenting practices were acceptable and any negative comments and allegations the children made about him to the family consultant were the result of pressure put on them by the mother and Mr Bampton.
Mr Kernick also sought some orders which it is not within the power of the court to make, namely a declaration that he was the psychological father of X and Z and “an order correctly setting out the child support protocol for the whole matter.”

The Evidence

The mother relied on her application filed on 25 October 2011 (although the orders she sought at the end of the hearing were different) and her affidavit filed on 30 May 2013.
Mr Kernick relied on his amended response filed on 29 April 2013, his affidavit filed on 7 June 2013, the affidavits of Ms E and Mr D filed 11 December 2012 and the affidavit of Ms F filed 26 June 2013.
Mr Morris relied on his response filed on 15 December 2011 and his affidavit filed on 29 May 2013.
Mr Ellis relied on his amended response filed on 28 May 2013, his affidavit filed on 27 May 2013 and the affidavit of his wife Ms G filed on 20 June 2013.
A Family Report was prepared in November 2012 by Mr H, a Regulation 7 Family Consultant.
Mr Kernick expressed concern about the fact that in the list of documents which Mr H said that he had read he referred to an affidavit of Mr J filed on 5 October 2011. There is no affidavit of Mr J on the court file and Mr Kernick said that he had never seen such an affidavit.
Mr J was present, according to the mother, at a changeover incident on 8 July 2011.
It is concerning that Mr H referred to an affidavit which the court and the father have never seen but there was nothing in his report to suggest that he was influenced by any information given by Mr J about the incident, whatever the information might have been, and this incident was but one of a large number of incidents which form the background to this matter and not an incident on which the whole case turns.
I do not consider that the fact that Mr H referred to an affidavit which Mr Kernick (and indeed the court) has never seen vitiates his report or the conclusions in his report.
The mother, each of the fathers and Mr H were cross-examined. Mr Kernick’s witnesses were not required and nor was Mrs Ellis.

An assessment of the lay witnesses

The mother was a generally satisfactory witness. She was cross-examined by Mr Kernick, who was self-represented, as well as by counsel for Mr Morris and Mr Ellis. She was responsive and was not shown to have exaggerated or embellished her evidence.
A deficiency in the mother’s case was her failure to call Mr Bampton to give evidence. Mr Kernick alleged that Mr Bampton was a drug dealer, and Mr Bampton has been present at changeovers between the mother and Mr Kernick where confrontations have occurred. Mr Bampton will continue in the future to be an important figure in the children’s lives.
Mr Bampton ought to have been called but how important the failure to call him turns out to be I will consider later on.

Mr Kernick gave some strange and contradictory answers during cross-examination. The mother’s counsel asked him for example if he was upset about the fact that Y told Mr H that he was “a little bit mean and a little bit nice.” He responded “no” and when asked why said:
I expected my daughter to tell the truth.
Later on in cross-examination however, when he was asked about the fact that Y had told Mr H that if she had a magic wand one of the things she would do was make Dad nicer, he responded:
I think it was the training they received over the last couple of years coming out.
Later on again when asked about Y telling Mr H that X and Z did not want to spend time with him Mr Kernick responded crisply:
We are talking about a 7 year old child and a child who has had a lot of training by the Bamptons into her response and she’s repeating what she’s been told to say.
Mr Kernick did not reveal in his affidavit that he had fathered a child in South Australia during his eighteen month absence from Town B and his evidence about why he was not spending time with that child did not make sense to me.
Mr Ellis and Mr Morris were in the witness box for only a brief period. They were responsive during cross-examination and their evidence was generally credible.
Ms F expressed the view that Mr Kernick was a loving and caring father to X, Y and Z. She said that she had never found him intimidating and that the mother was known to get into conflict with others and had lied to her.
Ms F’s evidence does not assist me. It was very general and it attested to her own experience of Mr Kernick which does not of itself invalidate the mother’s evidence about her experiences with Mr Kernick.
I cannot place weight on Mr D’s evidence. There is bad blood between Mr D and the mother and I cannot exclude the possibility that this led Mr D to make untruthful allegations against his sister. He was the subject of a 12 month ADVO for the protection of the mother when he swore his affidavit.
Ms E is Mr D’s partner or former partner and her affidavit also read as if it was special pleading for Mr Kernick. There is bad blood between Ms E and the mother as well, arising out of more than one past incident, and I cannot place weight on the material in Ms E’s affidavit.
Anything Ms E and Mr D report X as saying has to be treated with caution because I cannot be certain whether X was telling the truth or saying what the people he happened to be with wanted to hear.

Background

The mother met Mr Kernick, who is almost 20 years her senior, when she was still a child. She alleged that she and Mr Kernick had sex when she was 15. I have no reason to prefer the mother’s evidence to Mr Kernick’s about this issue and I do not consider that anything turns in these proceedings on whether the allegation is true or not.
Between 1999 and 2001, in other words from the age of about 15 to 17, the mother was in a relationship with Mr Ellis. She fell pregnant with X in 2001 but very soon after this she and Mr Ellis separated and began living in the same home as Mr Kernick at Town K.
The mother claimed that she and Mr Kernick commenced a relationship immediately she moved into his house. Mr Kernick claimed that they were merely housemates and did not commence a relationship until either a drunken night out in 2003 when X was 18 months or until X was 2.
Wherever the truth about this may lie they were certainly living under one roof when X was born in 2002 and Mr Kernick became involved in X’s day to day care.
In February 2003 the mother filed an application in the Local Court at Town B seeking parenting orders in relation to X. Mr Ellis was the Respondent. In October 2003 a DNA test was carried out which established that Mr Ellis was X’s father and the mother arranged for Mr Ellis’ name to be placed on X’s birth certificate.
In February 2004 final orders were made which provided for the mother to have “the long term care, responsibility and control of the child” and for X to live with the mother and spend time with Mr Ellis as agreed.
Mr Ellis spent time with X for only a short period after this. He said that he felt intimidated by the fact that Mr Kernick would turn up at the changeovers complaining loudly about the fact that he was missing work to be there. Mr Ellis said that he decided to leave things in the hope that when X was older he would get in touch with him.
Mr Kernick denied doing anything to intimidate Mr Ellis, but he presented in court as a forceful man with a loud strong voice and Mr Ellis presented as a quietly spoken passive man. It is easy to accept that a 19 year old Mr Ellis would have felt intimidated by a 38 year old Mr Kernick.
Although Mr Ellis ceased to spend regular time with X the mother still sometimes called in at Mr Ellis parents’ home in Town L for an hour or so with X if she was travelling from Town B to City M or Sydney on her own and X always knew that Mr Ellis was his father.
In 2004 the mother and Mr Kernick married.
Mr Kernick said that he married the mother to “protect X’s interests and as a result of a bet.” He described the bet as being the mother betting one night at a club that he would marry her and Mr Kernick agreeing that he would do so if the mother got five jokers on the poker machines. Mr Kernick said that he thought it would take the mother a long time to achieve this but she achieve it almost immediately and he felt obliged to honour the bet and marry her.
There is something a little offensive about this evidence but it is consistent with a theme which ran through Mr Kernick’s evidence of him being a victim of the mother’s attentions rather than someone who was interested in the mother. It had a flavour of Mr Kernick being embarrassed about having a relationship with some who was so much younger than him.
Y was born in 2005.
The mother and Mr Kernick had a rocky relationship. They were separated between 2005 and 2006 and between 2006 and late 2006. The separated again in 2007 and remained separated until mid 2007, although the mother said that they had a ‘one night stand” in 2007.
During the separations Mr Kernick continued to be involved in the care of X and Y.
In 2007 the mother had a 6 week relationship with Mr Morris. She discovered at the end of April that she was pregnant but said that she was uncertain about whether the child was Mr Kernick’s or Mr Morris.
Z was born prematurely in 2007.
The mother said that she and Mr Kernick were separated between 2007 and 2008 but this alleged separation coincided with a period of time when the mother was in City M in connection with Z’s birth and subsequent lengthy stay in hospital. The mother agreed that Mr Kernick cared for X and Y during this period when he was not at work and I cannot be satisfied that the parties were separated in a true sense during this period.
Mr Morris was aware of the mother’s pregnancy. He believed that he was the father of her child and he rang the mother when he learned of Z’s birth but Mr Kernick answered the phone. Mr Morris said that Mr Kernick roundly abused him and told him that DNA testing had been carried out and that the child was his. Mr Kernick admitted telling Mr Morris to “fuck off” but said that he did so because the mother asked him to deal with the situation.
Mr Kernick was a most unsatisfactory witness and I do not accept that he acted on the mother’s instructions in forcefully discouraging Mr Morris from showing an interest in Z. The mother said and I accept that she asked Mr Kernick to take part in DNA testing at the time but he refused to do so.
After being seen off by Mr Kernick, Mr Morris left Town B and went to Queensland, and Z became part of the mother and Mr Kernick’s household until their final separation.
The mother and Mr Kernick finally separated in May 2008 when X was 6, Y 2 and Z 6 months old and the mother applied for a child support assessment for Y and Z.
Mr Kernick did not spend time with any of the children between May 2008 and January 2009.
Toward the end of 2008 Mr Kernick began asking for time and the mother agreed to the children spending time with him from 16 to 26 January 2009 provided that he signed an undertaking to return them to her at the end of the time.
One would have to question the mother’s judgment in agreeing to this time in respect of Z. He was 14 months old and had not seen Mr Kernick since he was 6 months old and can have had no memory of him.
Mr Kernick failed to return the children at the agreed time. The mother unsuccessfully sought help from the police and was ultimately able to collect the children late at night on 26 January 2009 only after she agreed to Mr Kernick’s terms about an alternative changeover venue.
In February 2009 Mr Kernick filed an application in the Local Court at Town B seeking orders which would allow him to spend time with the children. Mr Ellis was named as a party (and whether he was joined by Mr Kernick and mother is irrelevant) but he chose not to take part in the proceedings.
On 19 May 2009 the mother and Mr Kernick signed final consent orders. They provided for the children to live with the mother, for the mother to have responsibility for day to day decisions concerning the children and for the children to spend time with Mr Kernick each Tuesday and Thursday from 4.00pm to 7.00pm, each alternate weekend during school terms from 8.00am on Friday until 6.00pm on Sunday and for half of the school holidays.
In 2009 the mother commenced a relationship with Mr Bampton.
Later in 2009 the mother contacted Mr Ellis and told him that X wanted to see him and Mr Ellis began spending time with X about once a month.
Mr Kernick spent time with the children in accordance with May 2009 orders until late December when the situation changed dramatically.
On 20 December 2009 he sent the mother a text message which said as follows:
I don’t care what you say anymore if you don’t get that not my problem. I just wont be held responsible for your mistakes because you cant keep your legs shut. Its now time the truth is told once and for all
Not long afterwards he sent the mother another message, as follows:
The truth is Ms Bampton that I don’t want to never (sic) see the kids again. That will be up to you. But my life cannot continue like this. I want to see them to be with them and love them but not have the struggle anymore. I am going to move away for a while. Maybe that will help. I can’t do this anymore its 2 years and my life needs a new start. I have no more fight and am not even in a position to look after these beautiful kids anymore. I do love them.
On 24 December 2009 the mother received a further message which said as follows:
I ask you as a loving mother not to put the kids through the false hope of me being there tomorrow. The choice is yours of course. I love the kids but as hard as it is for me to admit I am unable to care for them properly at this time. I need to heal so that I can be the father they deserve. I am sorry for everything.
Despite receiving these messages on Christmas Day the mother took the children to McDonald’s at Town B regardless for changeover in accordance with the orders. Mr Kernick did not turn up and when the mother sent him a text message asking where he was he responded:
In South Australia
During the family report interviews in October 2012 Mr Kernick told Mr H that he went to South Australia because he was offered an employment opportunity with good prospects, but this was not what he told the mother at the time.
The children had limited contact with Mr Kernick throughout 2010. He telephoned them a few times after the mother sent him a text message saying that the children wanted to speak to him, and he returned to Town B and spent 5 days with them during the April school holidays, 6 days in the July school holidays and 6 days in the September school holidays. He sent X a birthday present and at Christmas 2010 he sent gift cards to the children.
In September 2010 Mr Kernick agreed to participate in DNA testing in respect of Z and this established the Mr Kernick was not Z’s father.
Toward the end of 2010 the mother told Mr Kernick that she would prefer that he spent no further time with X and Z. Mr Kernick would not agree to this but the mother informed him that she did not intend to make X or Z available to spend time with him during the 2010/11 Christmas school holidays and that only Y would be available.
Mr Kernick did not attend at the changeover venue to collect Y for the 2010/2011 Christmas school holidays and no time occurred.
Mr Kernick said in evidence that he returned to live in the Town B area in March 2011 but I accept the mother’s evidence that Mr Kernick did not tell her that he had returned to the area to live until April 2011 at a changeover for his time with Y during the April school holidays.
In May and June 2011 Mr Kernick spent weekend time with Y on two occasions and he also collected her for the July school holidays.
On 8 July 2011 there was an incident at changeover after Mr Kernick began loudly demanding that X and Z be made available to spend time with him and loudly asserting that the mother had no right to keep “his boys” from him. The mother and Mr Bampton claimed that Mr Kernick assaulted Mr Bampton by “chesting up to him and spitting”. I will consider this allegation later but whatever occurred there can be no doubt that Y was exposed to conflict.
Y spent weekend time with Mr Kernick in July and August 2011 and he spent one week with her in the Term 3 school holidays in 2011.
On 11 October 2011 another confrontation occurred at changeover which again involved loud demands by Mr Kernick that the boys be made available to spend time with him and an allegation of attempted assault. Mr Kernick was carrying Y during this altercation.
As of the commencement of Term 4 2011 Mr Kernick began spending time with Y on Tuesday and Thursday afternoons as provided for in the 2009 consent orders as well as on the alternate weekends.
In October 2011 the mother contacted Mr Morris (who had returned to Town B in July or August 2011) and told him that he was Z’s father. She invited him to spend some time with Z at her home which he commenced doing.
Mr Kernick remained aggrieved about the mother’s failure to allow X and Z to spend time with him and on 20 September 2011 he filed a contravention application.
On 25 October 2011 the mother filed an application to vary the 2009 orders.
These applications were mentioned in court on 15 December 2011 and following that mention the mother began to make all three children available to spend time with Mr Kernick in accordance with the 2009 orders.
In March 2012 a DNA test established that Mr Morris was Z’s father and in December 2012. Z began spending three hours with Mr Morris each Monday and Wednesday.
After Z started school in February 2013 he began spending time with Mr Morris from Friday afternoon to Saturday afternoon every second weekend.
Mr Ellis by this time was living in Town L and X was spending time with him on one weekend each month.
The mother remained of the view that only Y should be spending time with Mr Kernick and Mr Kernick remained insistent that all three children should spend time with him. A Family Report was prepared but it did not resolve the matters.
In April 2013 Mr Kernick filed an amended Response seeking that the three children live in a week about arrangement between himself and the mother.
The matter was listed for hearing in the Tamworth sittings in June 2013. Evidence was taken over three days and the matter was adjourned to 9 August 2013 in Armidale for submissions.
On 9 August 2013 I was informed that since the hearing in June X and Z had spent no time with Mr Kernick.
This followed Mr Kernick having a conversation with X on the afternoon of 27 June 2013. Mr Kernick reported that X informed him that he “felt that he could not continue to see me.”[1]
[1] Exhibit E
Mr Kernick said that he had written a letter agreeing to a suspension of the orders of May 2009 in respect of X because of X’s expressed wish and in respect of Z to end any confusion Z may be feeling.
Mr Kernick said that he had also spoken to Y on 27 June 2013 and she had told him that she only wanted to see him on alternate weekends from Friday to Monday and one overnight stay each week during the week and did not wish to see him on Tuesday and Thursday afternoons. He said that he had not agreed to any suspension of the orders concerning Y.
Mr Kernick said that despite the suspension of his time with X and Z he still sought the same orders in relation to all three children.
At the end of submissions Mr Ellis’ counsel asked that I order that until the delivery of the decision the order concerning X spending time with Mr Kernick be suspended. Mr Morris’ counsel sought a similar order in relation to Z and the Independent Children’s Lawyer supported the making of those orders. Mr Kernick then consented to those orders being made and they were made.

The parties current circumstances

The mother is 29. She commenced cohabitation with Mr Bampton at the end of 2009 and married him in 2010.
Mr Bampton, the mother and the children reside in rented accommodation in Town B.
At the time of the hearing the mother was engaged in home duties, but she has worked in the past and her most recent employment was as a cleaner for a contractor who cleans large businesses.
Mr Bampton was working as a cleaner until 2013. He is required to pay child support for two children in Queensland and while working was paying $600.00 per month.
Mr Kernick is 48. When he first returned from South Australia in 2011 he lived in Town K, a small town about 45 minutes south of Town B. In January 2012 he moved to rented accommodation in Town B and in January 2013 he moved to a different address in Town B. He is not currently in a relationship.
Mr Kernick has an adult son Mr O who lives in Sydney and with whom he keeps in touch. It also emerged during cross-examination, although Mr Kernick made no reference to it is in his affidavit, that he has a child P from a relationship in South Australia with a Ms Q.
P was born in 2010 and Mr Kernick has not seen her since he left South Australia in 2011. He said that he spoke to her on Skype, but I could not make sense of the reason he gave for having had no face to face contact with her since his return to New South Wales. I gained a strong impression that Mr Kernick was hiding something about this whole situation.
Mr Kernick is not currently employed. In answer to questions from the mother’s counsel he said that in the last 6 months he had been assisting his disabled sister to manage the estate of his mother who died in 2012. He said that he expected to receive a substantial inheritance and intended to use the inheritance set up a business and buy a house.
Mr Morris is 36 and lives in Town B. Z is his only child and he is not currently in a relationship.
Mr Morris was diagnosed with paranoid schizophrenia with bi-polar tendencies at the age of 18. He is appropriately medicated and has a case manager at Town B Community Health Service. His last hospitalization was at the beginning of 2013, and this led to his medication being adjusted.
Mr Morris is on a Disability Support Pension but said that he had completed certificates in trades and was actively looking for work.
Mr Morris lives alone in rented accommodation. He has a good relationship with the mother and he described some of the activities he did with Z. He said that he would like to be able to take Z to visit his relatives in the Region R and take him camping.
Mr Ellis is 33. He lives in Town L, about an hour from Town B with his wife Ms G and their two sons, S (known as S) aged 6 and T aged 5. The children are legally blind and Mr Ellis is their carer and is in receipt of a carer’s pension.
Mr Ellis also has a son U aged about 8 who lives with that child’s mother in Town B. There was nothing to suggest that Mr Ellis saw that child.
Mr Ellis said that X called him Dad and that he intended to continue spending time with him. He said that he might move to Town K with his family in the future, but this would bring him closer to Town B.

The applicable law

Mr Kernick has the standing to seek orders about X and Z even though he is not biologically related to them.
S.65C of the Family Law Act provides:
A parenting order in relation to a child may be applied for by:
(a) either or both of the child's parents; or
(b) the child; or
(ba) a grandparent of the child; or
(c) any other person concerned with the care, welfare or development of the child.
Mr Kernick is Y’s father and clearly comes within the definition of a person concerned with the care welfare and development of a child in respect of X and Z.
S.64C of the Family Law Act provides:
A parenting order in relation to a child may be made in favour of a parent of the child or some other person.
Any orders I make about the children must be orders determined by treating their best interests as the paramount consideration, and to determine the children’s best interests I must have regard to the matters in s.60CC (2) and (3) of the Family Law Act (as they stood prior to 7 June 2012).

The children best interests

The primary considerations in s.60CC(2) are:
i)the benefit to the children of having a meaningful relationship with both of the children ’s parents; and
ii)the need to protect the children from physical or psychological harm from being subjected to abuse neglect or family violence.
It was common ground between all the parties in the case that each child would benefit from having a meaningful relationship with their biological father as well as their mother.
Mr Kernick maintained that X and Z would benefit from having a meaningful relationship with him as he was their psychological father. I will consider this contention under the heading “any other relevant matter”.
There has never been any violence between the mother and Mr Ellis or the mother and Mr Morris and the mother nor were there any allegations that any of these people have subjected or exposed the children to family violence or have abused the children as abuse was then (or indeed is now) defined in the Family Law Act. None of these things are likely to happen to X and Z in the future in the care of the mother, Mr Ellis or Mr Morris.
Mr Morris has a mental illness which raises the spectre of Z potentially being neglected by him. However I am confident that the mother would act protectively of Z and not allow him to spend time with Mr Morris if she thought Mr Morris.
The mother alleged that there were incidents of violence between her and Mr Kernick during this relationship.
She alleged that after an argument in 2005 Mr Kernick wrote on the wall:
I hope everything that you love dies
Mr Kernick put to the mother during cross-examination that he had written:
I hope everything in your life is broken
Why Mr Kernick thought that this made it better escapes me.
The mother alleged that Mr Kernick smashed plates and on one occasion punched the wall near her head during an argument[2] and on another occasion deliberately broke a shelf containing her collection of crystal dragons causing them to smash on the floor.
[2] The mother made a more general allegation in her affidavit but conceded during cross-examination that this had only occurred once.
Mr Kernick conceded breaking the shelf but contended it was an accident. I do not accept his evidence.
The mother said and I accept that Mr Kernick’s actions made her feel scared and intimidated and I am satisfied that they were acts of family violence.
Since Mr Kernick returned to Town B in 2011 Y has been exposed to two unpleasant incidents at changeover.
The mother alleged that on 8 July 2011 and Mr Kernick got right into Mr Bampton’s face and yelled abuse and spat on him.
The mother alleged that on 11 October 2011 Mr Kernick started asking where the boys were after collecting Y. She alleged that as she and Mr Bampton tried to drive away he tried to stop Mr Bampton closing his car door and said that she saw him try to punch Mr Bampton through the window. Mr Kernick was holding Y throughout this incident.
Mr Kernick admitted that on two occasions a scene occurred at changeovers after he demanded that the mother provide “the boys” to spend time with him. He admitted raising his voice but denied shouting or assaulting anyone.
I am not prepared to find that Mr Kernick assaulted Mr Bampton on either occasion even on the balance of probabilities when Mr Bampton did not give evidence but I am satisfied that Mr Kernick was the instigator of the scenes on each of these occasions, that he was aggressive and yelling and that he did not let Y’s presence restrain him.
Even if no actual violence occurred on these occasions I am satisfied that there is a risk of family violence occurring between the mother and Mr Kernick and Mr Bampton in the future if they came face to face.
The risk will be reduced by an order that the mother not be required to attend personally at changeover but not entirely eliminated, because if the mother does not attend Mr Bampton may well attend and there is a risk that an incident of family violence could then occur. Mr Kernick shows no capacity to restrain himself when he believes that he is in the right.
The incidents at changeovers occurred with Y present and in a public place so the fact that children or third parties are present is not going to be brake on Mr Kernick’s behaviour.
This risk could only be completely removed if changeovers occurred at school or at a contact centre. The parties are content for changeovers to occur at school in respect of Y but nobody suggested using a contact centre.
The mother believes that Mr Kernick abused X in May 2012. She said that when X arrived home on 20 May 2012 he was very upset and said words to the effect:
Mum, Mr Kernick grabbed me around the throat and picked me up and threw me onto the bed.
The mother took X to the Police Station to make a report and she said as follows:
While X was telling the Policeman what happened I heard X say words to the effect:
I was trying to hit a balloon and it hit Mr Kernick in the face by accident. Mr Kernick sent me to my room and he followed me and grabbed me by the throat and threw me on the bed.
The mother also reported that:
On 21 May 2012 I was at Y’s school picking up her and X. Y’s teacher Ms V pulled me aside and told me words to the effect:
Y blurted out a statement while in class. She said ‘My father picked my older brother up by the neck.
I said to Ms V words to the effect:
I have already reported this incident to the police.
Mr Ellis said in his affidavit that he had overheard X telling one of his friends about this incident.
Nothing came of the mother’s report to the police.
X told Mr H about the incident and also told him that Mr Kernick physically chastised the children.
Y also talked to Mr H about the incident and about another incident where she was pushed into a door. Mr H said as follows:
Y described her father as being “a little mean, a little bit nice”. She was categorical that she observed her father pick X up by the throat, indicating that it happened in Mr Kernick’s bedroom, with Y stating “I was crying”. Y went on to tell the Family Consultant that her father also pushed her into the wall, indicating that he meant to push her out the door, but it was Y’s clear belief that this was not an accident. Y stated that she was crying until she returned to her mother’s care.
Y explained that when she is naughty at her father’s home, she is either usually “smacked or told to settle down”. Y had a clear view that she doesn’t like people smacking their children.
The mother’s counsel cross-examined Mr Kernick about the incident with X. He said that X punched a balloon with his hand and hit Mr Kernick in the jaw (accidentally) and that he reached over and grabbed X by the shoulders and walked him a further step toward his room. He denied grabbing X by the throat.
Mr Kernick said that after reading the family report and realising that the incident had scared X he apologised to him and said:
I’d glad you hit me and not someone else
This was not much of an apology and I am satisfied that Mr Kernick does not really accept that he was at fault and has minimised what occurred during this incident. I am satisfied that X’s version of events as told to Mr H should be accepted and that Mr Kernick behaved in a way which constituted abuse of X as defined by the Family Law Act at the time.
Mr Kernick denied that he had pushed Y into a wall but admitted that he had pushed her in the back around the rib cage area. I am not prepared to find that Mr Kernick abused Y as defined in the Family Law Act on this occasion as there could have been an accidental element in what happened to her but its genesis was Mr Kernick manhandling Y and it is concerning that Mr Kernick used physical force on Y.
Mr Kernick agreed that he could have handled the situations better.
There is a risk of the children being exposed to abuse in Mr Kernick’s care in the future but nobody suggested that it was such a high risk that the children should only spend supervised time with him. Everyone seemed to consider that the risk could be contained by an order that Mr Kernick not physically discipline the children.
I have some concerns about the situation however because the incident with X arose out of the Mr Kernick reacting physically to an accidental blow from X and the incident with Y had its genesis in physical manhandling and these things could occur again in the future.
Such behaviour might not lead to a child being badly physically injured but it could lead to a child becoming angry and resentful and resistant to spending time with Mr Kernick.
The incident with X may well have contributed to X now being opposed to spending time with Mr Kernick.
The first of the additional considerations in s.60CC(3) is any views of the children and any factors such as their maturity and level of understanding the Court thinks is relevant to the weight to be given to their views.
The mother said that X’s time with Mr Ellis was going well and that X enjoyed spending time with Mr Ellis.
The mother said that X did not like spending time with Mr Kernick and tried to avoid speaking to him on the phone.
The mother said that Y generally enjoyed her time with Mr Kernick.
The mother said that Z had become used to spending time with Mr Morris and looked forward to spending time with him. She said he seemed confused about the situation of spending time with Mr Kernick.
The mother is not independent in the matter however and I need to be cautious about placing weight on her evidence but it is corroborated by the independent evidence from Mr H.
Mr H said as follows about X’s views:
X described that all the contacts he was currently having outside of his family home was “too much” and he was clear to say that despite Mr Kernick previously having been his psychological father, that he doesn’t wish to spend time with Mr Kernick at this point, believing that his time at home with his mother and step-father, combined with weekends he will spend with his biological father is more than sufficient for him.
When I asked X if he had a magic wand what he would change about his life, he replied by saying “no time with Mr Kernick (Mr Kernick)”. X did not believe that this would have any impact upon his life.
Y did not directly express a view to Mr H concerning spending time with her father. Mr H reported however as follows:
When I asked Y what it would be like for her if she was to spend time with her father without her brothers, she replied by saying that she wanted X to accompany her to visits with her father, but she was unable to be specific as to why. She was clear to say however, that her father denigrates her mother and Mr Bampton to the children, but could not recall her mother denigrating her father.
When I asked Y if she had a magic wand what would she change about her life, she replied by saying “make dad nicer and leave mum the way she is and her dad and mum to like each other”. Both parents need to note this. [3]
[3] Family Report paragraphs 110, 111
Y is aware that X and Z have different father’s to her own and told Mr H that both X and Z did not wish to spend time with “my father”
Mr H said that:
Clearly Z appeared to be too young and immature to be interviewed by the Family Consultant.[4]
[4] Family Report paragraph 112
Mr Kernick submitted that no weight could be placed on anything X and Y said to Mr H because the mother and Mr Bampton had “threatened them with punishment if they did not say what they were trained to say to the Family Consultant.” He said that he was concerned about the way Mr H had “posed those magic wand questions” and that he did not believe that X did not want to see him.
Mr H said in his report that he did not consider that X had been prepared by an adult about what to say and he re-iterated that during cross-examination. He also said that he did not consider that Y had been coached.
I place weight on this evidence. Mr H is an experienced family consultant who has prepared many family reports, and he does not bring the emotion to bear in the matter which the parties do.
Mr Kernick was asked by the mother’s counsel during cross-examination what it would take to convince him that X did not want to continue to see him. He said it would require X telling him that face to face.
He was asked whether he considered that it would be unfair to X to require him to do that and he said that he did not believe so.
On 27 June 2013, the day following the conclusion of the evidence in Town B, X did ring Mr Kernick and told him that he did not wish to continue visiting him. Mr Kernick agreed to X’s time with him being suspended but he continued to maintain that these are not X’s true views and did not change his proposal for final orders.
I am satisfied that weight should be placed on X’s views concerning spending time with Mr Kernick, because X is 11 (12 early next year) and I consider his views are genuinely held. However his views are only matter which I need to take into account in determining his best interests.
What I glean from Y’s views is that she is not opposed to spending time with Mr Kernick although she has some concerns about his parenting practices.
Y informed Mr Kernick on 27 June 2013 that she only wanted to spend alternate weekend time with him and one overnight each week and did not want to spend the time on Tuesday and Thursday after school. Mr Kernick was not prepared to act on those views.
The next additional consideration is the nature of the children’s relationship with each of their parents and any other relevant people, including grandparents of the children.
There was no dispute that the children had a good relationship with their mother, who has been the one constant in their lives.
The mother said that the children had a good relationship with Mr Bampton. X and Y were both very positive about Mr Bampton when talking to Mr H and I am satisfied that the children have a good relationship with Mr Bampton.
The mother commenced a relationship with Mr Bampton five years ago and the children have lived in the same household as him for four and a half years. Z would be too young to remember living with any other adult male. Mr Kernick does not like Mr Bampton but he did not suggest that the children had made any complaints about his treatment or care of them.
X has a good relationship with Mr Ellis, who he described to Mr H as “awesome and nice” and Z has a good relationship with Mr Morris.
Mr Ellis said, and there was no reason to doubt, that X had a good relationship with S and T.
Mr Kernick was an important part of the children’s lives between their births and separation in 2008 when they were 6, 4 and under a year old. He was the only consistent father-figure in X’s life up to the date of separation. He looked after X and Y for two months while the mother was in hospital in the latter part of 2007 leading up to and following Z’s birth. There can be no doubt that as well as being Y’s biological father he was X and Z’s psychological father up to the date of separation.
It was Mr Kernick’s case that he and the children still had a “wonderful, loving, caring supportive relationship with each other” and that the children all called him Dad of their own free will. He said that the children showed love, loyalty and respect for him. It was his case that the children loved being together as a blended family in his care.
The mother disputed this and it is not borne out by other evidence in the case.
Of the three children Y has the best relationship with the father. She has no other father figure in the wings tugging at her loyalties. She made some negative comments about Mr Kernick to Mr H but the mother said in her affidavit that Y enjoyed spending time with Mr Kernick.
I do not accept that X has a good relationship with Mr Kernick. He said very clearly to Mr H that he did not want to spend any more time with him, which is not indicative of a good relationship, and I do not accept that he said this because of brainwashing by the Bamptons.
X resents Mr Kernick’s treatment of him over what I will call the balloon incident and he has his own biological father whom he sees regularly, which is likely to mean that whatever Mr Kernick may believe X is not invested in and may see little value to him in continuing a relationship with Mr Kernick.
Z has only just turned 6. He is too young to remember living in a household with the mother and Mr Kernick and he did not consistently see Mr Kernick in the post-separation period. He knows Mr Morris as his father and sees more of Mr Bampton than he does of Mr Kernick. It is entirely plausible that, as the mother claimed and Mr H endorsed, he finds Mr Kernick being in his life confusing.
There was no dispute that the children had a good relationship with each other. They have lived together as a sibling unit all their lives.
I must consider the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent.
The mother is willing and able to support X and Z having a close and continuing relationship with their biological fathers.
The mother does not oppose Y having a relationship with Mr Kernick although I do not believe that she embraces this with enthusiasm. She has her own personal issues with Mr Kernick which have the potential to cloud her judgment about Y having a relationship with Mr Kernick.
Mr Ellis and Mr Morris defer to the mother and are willing and able to facilitate and encourage a close and continuing relationship between the mother and their children.
Mr Kernick does not oppose Y having a close and continuing relationship with the mother. He does not seek to take Y completely away from her and he is not engaged in a campaign of deliberately trying to influence Y against her. His behaviour toward the mother however and his resentments about the mother could potentially negatively affect Y’s relationship with the mother (or her relationship with him) in the future and the more time Y spends with Mr Kernick the greater is the risk of this occurring.
The mother does not support X and Z having a relationship with Mr Kernick but this is more appropriately considered when dealing with any other relevant matter.
I must have regard to the likely effect of any change in the children’s circumstances.
The mother and Mr Kernick both proposed changes for the children.
The mother proposed that X and Z spend no further time with Mr Kernick and that Y’s time with him be cut back to alternate weekends and half school holidays.
The mother maintained that this would be a beneficial change for X. She claimed that his behaviour had deteriorated after he began spending time with Mr Kernick again and that there were incidents at school in early 2012. She also said that his school work deteriorated because of the requirement that he spend Tuesday and Thursday afternoon with Mr Kernick.
However her principal reason for believing that this change would be beneficial for X was that it was X’s wish.

The mother maintained that time with Mr Kernick was confusing for Z and of no benefit to him and that this time also should cease.
She also maintained that removing the mid-week time twice a week would be beneficial for Y as the mid-week time impeded her doing her homework.
Mr Kernick proposed that all three children commence living with him week about. He maintained that not only was he Y’s father but he was the psychological father of all three children, and that it would not be beneficial for the children if he pushed out of a significant role in their lives just because the mother had moved onto yet another relationship.
I will defer consideration of the likely effect of the proposed changes on the children until I make findings about the remaining additional considerations.
I must consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
The mother and Mr Kernick live only a street away from each other; Mr Morris lives in Town B; and Mr Ellis lives an hour away at Town L. If Mr Ellis moves to Town K he will be only 40 minutes away.
There is no practical difficulty or expense inherent in any of the proposed orders in this case.
I must consider the capacity of each of the children’s parents and any other person including a relative of the child to provide for the needs of the children, including his emotional and intellectual needs.
The mother is doing a satisfactory job of caring for the children on a day to day basis. Y and X are healthy children who attend school regularly. Z has health issues but the mother is dealing appropriately with those.
The mother said that she had used cannabis a few times when with Mr Kernick and had used ecstasy once but had not used any illicit drugs since leaving that relationship. She told Mr H that she had consumed alcohol excessively and “partied for 3 months” after her relationship with Mr Kernick finally ended but said in her affidavit that she had not alcohol since 2010.
There was no evidence in the case which cast doubt on those claims.
The mother does not have any criminal convictions.
The mother of course parents the children in a household containing Mr Bampton and Mr Kernick claimed that Mr Bampton used cannabis and dealt in drugs.
Both the mother and Mr Bampton told Mr H that Mr Bampton had ceased using cannabis a few months before the report interviews. I have to take this with a grain of salt as the court hears this so very often and Mr Bampton did not give evidence at the hearing.
The mother did not directly refer to Mr Bampton’s cannabis use in her trial affidavit but she said that he was willing to attend drug and alcohol counselling. I have to take this with a grain of salt also when Mr Bampton did not give evidence.
There was no independent evidence to support the claim by Mr Kernick that Mr Bampton dealt in drugs. I cannot place weight on Mr D’s claim about this. However in light of this allegation it is particularly concerning that Mr Bampton did not give evidence in the proceedings.
I have to be concerned that the children may be exposed at the very least to a drug affected adult in the mother’s household, but I also note that despite his allegations Mr Kernick was content to leave the children in her sole care in 2010 and proposed that the children spend each alternate week in her household in the future and that no police reports were tendered which raised a concern about Mr Bampton’s activities in Town B.
I am satisfied that the mother can provide satisfactory day to day care for the children.
Mr Kernick suggested that the mother’s capacity to provide for the children’s emotional needs was questionable in that she had:
·caused confusion and created divided loyalties in the children by inviting Mr Ellis and Mr Morris into their lives, something she did as a strategic move to try and shut him out of their lives;
·withheld X and Z from him for most of 2011 in breach of court orders and deprived X and Z of the opportunity to continue a relationship with their psychological father.
Mr H had some concerns about the mother’s contribution to the situation the children found themselves in in 2011, 2012 and 2013 but the situation is complex and Mr Kernick must also accept some of the blame for it.
The mother is not perfect in terms of providing for the children’s emotional needs and has made some errors of judgment but I consider that she tries hard to be sensitive to their emotional needs and that her overwhelming desire has been for them to have a father in their lives, a desire Mr Kernick thwarted by disappearing to Adelaide in 2010 leaving a void to be filled by Mr Ellis and Mr Morris.
The mother expressed a range of concerns about Mr Kernick’s parenting capacity.
She questioned whether he was properly feeding the children. She said that the children all appeared to be losing weight and she feared that Mr Kernick was feeding them junk food and in inadequate quantities at that. She said that the children had informed her in August or September 2012 that Mr Kernick did not have a working refrigerator.
She also complained that Mr Kernick did not have a heater or adequate blankets and that the children had to sleep on mattresses on the floor.
The mother raised concerns about whether Mr Kernick was bathing the children properly and washing their clothes. In August 2012 or thereabouts he did not have a washing machine.
The mother expressed concerns about Mr Kernick allowing X to play inappropriate computer games.
Mr Kernick claimed that there was no substance in any of these concerns. He said that he did not have a fridge in the earlier days when he returned to Town B but he did now, and he said that he had a washing machine. He denied not appropriately feeding the children.
The mother allowed all three children to spend regular time with Mr Kernick before he took himself off the scene in 2009 and is content for Y to spend regular time with Mr Kernick including block time in the school holidays in the future which rather suggests that there is no real reason to be concerned about Mr Kernick’s capacity to provide day to day care for the children at least for the limited time he has been having to date.
There is some force however in the submission by the mother’s counsel that when Mr Kernick was questioned about how he would care for the children if he had them week about he did not seem to have thought this through.
The mother expressed concern about the fact that Mr Kernick regularly took the children to the home of her brother Mr D and his partner Ms E. The mother said that her brother and his partner had a history of illicit drug use and that she had seen them over-use the prescription drug Zanex and inject themselves with what she believed was methadone.
The mother said that her brother had previously been addicted to heroin, that Ms E had attempted suicide and that DOCs had been involved with her brother and Ms E in connection with their children. The mother said that Ms E had verbally abused her in public as recently as May 2013 but the police would not do anything because it was her word against Ms E’s.
The mother said that the children had informed her that they had been taken to Mr D and Ms E’s house while the father was at work to be cared for. She requested through her solicitor that the father not do this. Mr Kernick refused to agree.
Mr Kernick denied that he had exposed the children to illicit drug use and questioned whether the mother’s opposition to the children spending time with her brother and his partner was because she had genuine concerns about them or because she was simply on bad terms with them.
I do not consider that Mr Kernick would be so negligent as to leave the children with someone who was obviously under the influence drugs or who had drug paraphernalia visible but his desire to triumph over the mother and his lack of regard for her opinion does have the potential to cloud his judgment and if nothing else in taking the children to see Mr D and his partner in the face of his knowledge about family conflict he was placing the child in a psychologically difficult position.
The mother said that Mr Kernick used cannabis on a daily basis during their relationship and that he sometimes took tablets which he told her were ecstasy. Mr Kernick admitted that he had used cannabis in the past but said that he last used it eight years ago. There was no evidence in the proceedings which cast doubt on this claim.
My greatest concerns about Mr Kernick’s parenting capacity are about his smacking and manhandling of the children and his lack of insight into their emotional needs.
Mr H expressed concerns about Mr Kernick’s insight into the children’s situation and thus about his capacity to provide for their emotional needs. He said as follows:
Whilst it is acknowledged that Mr Kernick has previously been the children’s psychological father, it is also fair to say that he abandoned his parental role, to some extent, for an eighteen month period by relocating to Adelaide. It is likely that Mr Kernick has underestimated the impact of this, particularly for X, but it is also reasonable to state that Mr Kernick possesses little understanding of the psychological confusion that all three children are likely to be experiencing and particularly with Z who appears to have some developmental delay.
Mr Kernick agreed in answer to a question by Mr Ellis’ counsel that in 2010, when he believed that he was Z’s father as well as Y’s, he suddenly disappeared out of their lives without saying goodbye.
He told the mother he was leaving because he needed some time to get his own life in order, and told Mr H he left because he received a good job offer to work as a tradesman at Employer W. Wherever the truth lies, he clearly did not stop even for a moment to think about the impact on all three children of him suddenly disappearing out of their lives without so much as a goodbye.
During the hearing Mr Kernick said that he was continuing with his application for parenting orders for all three children because he did not want the children to feel that he was abandoning them; he does not seem to have ever reflected on the fact that this must have been exactly what the children perceived him as doing in December 2009 when he disappeared out of their lives at Christmas.
It was apparent when he was asked questions during cross-examination that Mr Kernick was incapable of placing himself in X’s and Y’s shoes and incapable of thinking about how they must have felt when he manhandled or smacked them.
Mr Kernick was evasive when questioned by the mother’s counsel about his physical discipline of the children. He was asked about the fact that Y had told Mr H that the father had smacked her and told her to settle down. He was asked whether Y had been truthful about being smacked and he responded:
It depends how you construe the word smacked
He then said that he sometimes “tapped the children on their buttocks” but said that he did it to get their attention and not as a punishment.
He was asked whether he had taken on board Mr H’s recommendation that he not smack Y and after some hesitation he responded “I can’t remember the last time I had to smack her to get her attention.”
I do not accept that Mr Kernick’s smacking of the children has been as benign as he would like the court to believe nor do I accept that there is no likelihood of smacking ever occurring again.
Mr Kernick lost sight of Y’s needs when he became involved in an altercation with the Bampton’s at changeovers in July 2011 and October 2011. He denied that he was yelling but admitted raising his voice and admitted following the mother and Mr Bampton when they walked to their car in October 2011. The best Mr Kernick could say about this incident was that it was unfortunate.
The mother has been the one constant in the children’s lives and I have much greater confidence in the mother’s capacity to provide care for the children than I do in Mr Kernick’s.
Mr Morris has a limited capacity to provide for Z’s needs. He has mental health issues and he uses cannabis, although he told Mr H in December 2012 that consumed only a minimal amount. He also consumes some alcohol, which as Mr H observed could have an impact on the efficacy of his medication.
Mr Morris told Mr H that he was adept at recognizing signs of deteriorating mental health and that he would ring the mother if he recognised those signs while Z was in his care. Mr H rang Mr Morris’ case worker at Community Health who expressed the opinion that Mr Morris was compliant with his medication and that she was confident that Mr Morris would not jeopardize his son’s safety.
Mr H expressed the following view about Z spending time with Mr Morris:
The evidence to date would suggest that there are no immediate risk factors for Z in spending time with Mr Morris, however, it is the view of the Family Consultant that this time should commence initially every fortnight weekend with one overnight and possibly one afternoon after school, prior to moving to every fortnight weekend. There does not appear to be any overt evidence that Z would be at risk of any significant harm in spending overnight time with his father.
Z is spending one overnight with Mr Morris at present and Mr Morris has demonstrated a capacity to care for Z during that period. Z enjoys the time. I am confident that the mother would not allow Z to stay with Mr Morris if she considered Mr Morris unwell.
Mr Ellis told Mr H that he was diagnosed with ADHD as a child and had dyslexia but there was no evidence that in his adult life he had experienced any disabling mental health issues and no suggestion that he used drugs or had a criminal record.
Mr Ellis is the carer for his two youngest children and there was nothing to suggest (eg police or DOCS records) at there was any reason to be concerned about his parenting capacity.
I am satisfied that Mr Ellis has the capacity to provide for X’s needs during the time he and the mother agree that X should spend with him.
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents and any other characteristics of the children that the court thinks are relevant.
The mother told Mr H that X was diagnosed with ADHD when he was 2 but had never been medicated. There was no expert evidence to confirm that X suffered from this condition.
Z is under the care of a paediatrician. He has had appointments with a speech therapist, dietician and psychiatrist. Mr H thought that Z might have a developmental delay.
Mr Kernick has had no involvement with any of Z’s health interventions and there was no evidence that he had sought to have any. There was no evidence that he had tried to obtain any information about Z’s health issues from any treating health professional, a curious lack of interest from someone seeking to have week about shared care of a child.
The mother expressed concern that Mr Kernick had failed to accept her directions about giving Z medication on one occasion. Mr Kernick blustered a bit about this. It is not open to me to find that he did fail to give the medication on the state of the evidence, but his poor attitude to the mother and his lack of interest in Z’s health leads me to be very concerned about whether he would ensure that Z took the necessary medications and attended the necessary appointments if Z lived with him week about.
I must consider the attitude of each parent to the children and the responsibilities of parenthood.
After the mother and Mr Kernick separated in mid-2008 Mr Kernick did not initially pay child support for any of the children.
On 4 September 2008 Mr Kernick offered to give the mother a car worth $1,500.00 in lieu of 15 weeks child support at $100.00 per week and the mother accepted the offer.
The mother said that she applied for a child support assessment for Y and Z in or about December 2008 but did not recall receiving any child support until mid-2010. She said that while Mr Kernick was in South Australia she received 4 payments of about $900.00 each.
Mr Kernick did not dispute any of this evidence.
In October 2012 the mother informed the child support agency about the result of the DNA Testing for Z and the Child Support Agency ended Mr Kernick’s liability effective from 30 September 2012.
The mother said that she had not received any child support since Mr Kernick returned to Town B save for one payment of $198.00 which she received recently. She said that she was advised in April 2012 that Mr Kernick had arrears of $1,826.93 for Y.
Mr Kernick agreed during cross-examination by the mother’s counsel that he owed arrears of child support for Y but said that he believed that an amount of $4,000.00 he had paid for Z should be transferred to offset this debt.
Mr Kernick is within his rights to refuse to pay child support for Z and to seek to recover child support which he was never legally obliged to pay, but his insistence about this does not sit comfortably with his case that he considers Z his son. It is as if he wants all the rights and none of the responsibilities.
Mr Ellis pays child support for X and Mr Morris for Z, although in both cases the amount they pay is small. Mr Morris is on a Disability Support Pension so the mother would be receiving minimal child support from him, and Mr Ellis receives a carer’s pension.
I must have regard to any family violence involving the children or a member of the children’s family.
The relationship between the mother and Mr Kernick was volatile and they had a number of separations.
The mother told Mr H that during their relationship Mr Kernick used to punch holes in the wall next to her head although her oral evidence was that this occurred on one occasion and that it scared her.
She gave evidence about the incident in December 2005 when Mr Kernick wrote the message on the wall.
There was the occasion when Mr Kernick broke a shelf causing her collection of crystal dragons to fall to the ground. 7 or 8 of them smashed.
The mother also alleged that Mr Kernick had called her a slut and other offensive names.[5]
[5] Mother’s affidavit paragraph 71
Mr Kernick agreed that this had occurred but said it did not happen on many occasions and had not happened for many years.
I am satisfied that Mr Kernick did perpetrate these acts of violence.
There was no violence in the mother’s relationship with Mr Ellis or Mr Morris.
I must have regard to any family violence orders between the parents or members of the children’s family.
Between 2007 and 2009 a number of ADVO’s were made in proceedings between the mother and Mr Kernick.
On 29 January 2007 a final ADVO was made for the protection of the mother but it was revoked on 26 February 2007. The mother said that she asked for the ADVO to be revoked because Mr Kernick said that unless it was he would not see the children again. She said that she did not want to do that to the children and agreed to revoke the ADVO.
On 27 October 2008 an interim ADVO was made for the protection of the mother from Mr Kernick, to remain in force until further order. The mother said that she sought the ADVO because Mr Kernick approached her in the street and tried to take Y from her. Mr Kernick alleged, and he may be right, that this ADVO was revoked on 3 November 2008.
Mr Kernick denied ever being in Town B on the day in question and there was no exploration of this issue during the hearing and I cannot resolve where the truth lies.
The mother said that a further ADVO was taken out in January 2009 after the mother alleged that Mr Kernick yelled abuse at her in the street. The police were called. Whether the date is correct is unclear to me but documents established that on 11 March 2009 an interim order was made.

This order was revoked on 10 June 2009. The mother consented to the revocation again because, she said, Mr Kernick threatened to stop seeing the children unless she agreed to revoke it.
These ADVO’s are not by themselves evidence that Mr Kernick has been violent to the mother. None of them were obtained after a hearing and most of them involved disputes over the children.
The mother’s agreement to them being revoked is not evidence that she told lies to obtain them in the first place or is being untruthful about fearing Mr Kernick.
What the existence of so many applications does demonstrate is the volatile and conflicted nature of the relationship between the mother and Mr Kernick.
On 6 June 2012 an ADVO was taken out for the protection of the mother from her brother Mr D for 12 months. It expired just before the hearing commenced.
I must consider whether it is preferable to make the order least likely to lead to the institution of further proceedings.
The orders sought by the mother are the orders least likely to lead to further proceedings, although the dynamics between the mother and Mr Kernick mean that there is some risk of further proceedings between them no matter what orders I make.
I must consider any other relevant matter.
The first relevant matter is whether I should be concerned about the mother’s unwillingness to facilitate and encourage a relationship between X and Z and Mr Kernick.
Mr Kernick submitted that this reflected poorly on the mother because she had created a situation where he was the psychological father of these children. He was good enough to be asked to help bring them up until mid-2008 but now the mother wanted to expunge him from their lives because she had moved on and that suited her, which showed scant regard for the children’s emotional wellbeing.
He submitted that the other two fathers had only been introduced into the situation “on the back of the contravention proceedings.”
The situation is not that simple however.
The mother wanted Mr Ellis to be part of X’s life after X was born, and even after Mr Ellis ceased spending time with X she continued to keep in contact with his family. The mother re-introduced X to Mr Ellis in 2009, not on the back of the contravention proceedings.
Mr Morris did not re-enter the picture until late in 2011, but he did so after Mr Kernick had initiated a DNA test and after it had been established that Mr Kernick was not Z’s father. The mother’s action in introducing Z to Mr Morris was consistent with her believing that the children should know their biological fathers.
I do not accept that the mother sought out Mr Morris in order to try to keep Mr Kernick at bay, and in being critical of the mother Mr Kernick conveniently ignores the fact that he absented himself from the lives of X and Z in December 2009 and saw them for only a handful of days in 2010, creating a vacuum to be filled by their biological fathers.
Mr H considered that both parents bore some responsibility for how the situation concerning Mr Kernick and X and Z had evolved since separation and he was of the view that as things currently stood there was no benefit to X and Z in continuing that relationship.
Mr H said as follows:
Whilst it is reasonable to suggest that Mr Kernick was the psychological father of all three subject children up until his separation with Ms Bampton, that the events of the last two years, whereby Mr Ellis and Mr Morris have become consistently involved in their children’s life, makes it difficult to see how Mr Kernick, in continuing to spend time with Z and X, can be in these children’s best interests.
Whilst Mr Kernick has to take some responsibility in what has evolved currently, the same can be said about the mother in these proceedings, and it remains incumbent upon Ms Bampton to ensure that she provides stability and support for the children as they continue to work through their various relationships. Also impacting upon the current situation is that the three subject children appear to have evolved a positive relationship with the mother’s husband, Mr Bampton, and clearly appear to have a step-father relationship with him. It does not seem tenable for X and Z to have three father figures in their lives as this will only exacerbate their psychological confusion.
The second relevant matter is the nature of the relationship between Mr Kernick and the mother and their capacity to communicate effectively.
The mother and Mr Kernick have always had a volatile relationship and there were three incidents of violence during their relationship. There have been a number of ADVO applications and they have been unable to communicate productively about changeover arrangements since January 2012.
Sometimes parties communication improves once court proceedings are over and sometimes parties can do courses to assist improve their communication and their relationship but for a number of reasons I consider it unlikely that the parties’ relationship or their capacity to communicate is likely to improve in this case.
First, Mr Kernick is clearly resentful and angry about what he perceives as the mother’s shortcomings and the way he considers that involvement with her has affected his reputation. He had nothing good to say about her in his affidavit and spent pages castigating her for telling lies, manufacturing evidence and manipulating the children’s views.
Second, Mr Kernick has a strong deep voice and during his cross-examination of the mother he expressed himself forcefully. Sometimes there was a rising inflection in his tone as he challenged the mother. I am satisfied that a softly spoken person such as the mother could easily find Mr Kernick intimidating and difficult to deal.
Third, I am satisfied that some isolated incidents of violence did occur during the parties relationship, namely the smashing of the shelf holding the mother’s collection of dragons, the writing of the message on the wall and Mr Kernick punching the wall near the mother’s head. It would only take one or two such incidents to make someone like the mother fearful of again provoking Mr Kernick’s anger.
Fourth, it is abundantly clear that Mr Kernick does not respect the mother’s views. He has persisted in taking the children to visit her brother Mr D and his partner Ms E despite the mother expressing not ill-founded concerns about their suitability to have anything to do with the children and notwithstanding that the mother has personal issues with these people.
Until the commencement of the hearing in June 2013 Mr Kernick insisted that the court orders required the mother to be personally present at every changeover and he refused to hand the children over if she was not there. He would not listen to requests by the mother to allow her to delegate the task of collecting the children. The mother said that this made it very difficult for her to obtain employment.
The poor state of the relationship between the mother and Mr Kernick and their inability to communicate is not likely to change and this has implications both for the issue of allocation of parental responsibility and the issue of the parenting arrangements.

Parental Responsibility

Pursuant to s.61DA of the Family Law Act 1975 I am required to apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them, absent a finding that one of the parents or a person living with one of the parents has abused the children or perpetrated family violence.
As between the mother and Mr Morris and the mother and Mr Ellis, the presumption applies in relation to their biological children because none of these persons have perpetrated family violence or abused the children and I am not satisfied that there is any evidence that Mr Bampton has done these things.
The mother is content to share parental responsibility for X and Z respectively equally with Mr Morris and Mr Ellis. I suspect that this is partly because the mother well knows that they will allow her to make all the decisions, but nevertheless as the relevant parties agree I intend to order that the mother and Mr Ellis have equal shared parental responsibility for X and the mother and Mr Morris have equal shared parental responsibility for Z.
The mother sought an order for sole parental responsibility in respect of Y and the Independent Children’s Lawyer supported this proposal.
The presumption of equal shared parental responsibility does not apply as between the mother and Mr Kernick in regard to Y. Mr Kernick perpetrated acts of family violence when he punched the wall next to the mother’s head and when he broke the shelf holding the dragons and wrote the message on the wall. These acts made the mother fearful for her personal safety.
It is still open to me to make an order for equal shared parental responsibility if I consider that this would be in Y’s best interests, and Mr Kernick sought that order, but I do not consider that an order for equal shared parental responsibility would be in Y’s best interests.
There is a real power imbalance between the mother and Mr Kernick, with the power being on Mr Kernick’s side. I am satisfied that the mother feels intimidated by Mr Kernick and he has shown no respect for her since he returned to Town B in 2011. He has insisted that she personally attend changeovers or he will not hand over the children. He has persisted in taking the children to see her brother and his partner despite the mother’s expressed opposition to it and the facts (known to him) that the mother’s brother has a history of intravenous drug use. It is almost as if he has cultivated the relationship to spite the mother.
There is no prospect of the mother and Mr Kernick being able to discuss major long term issues about Y in a peaceful and productive way in the future. The mother would find this an enormous strain and I do not consider that there would be any demonstrable benefit to Y in requiring her to do so.
I intend to make an order that the mother have sole parental responsibility for Y subject to some restraints. Mr Kernick will continue to have a meaningful relationship with his daughter and I intend to order that the mother cannot change Y’s surname or relocate Y’s place of residence from Town B without Mr Kernick’s consent (or of course an order of the court).
Mr Kernick also sought an order that he together with the mother and the two other fathers have equal shared parental responsibility for X and Z.
This would in reality be equal shared parental responsibility between the mother and Mr Kernick, as Mr Morris and Mr Ellis would be likely to do whatever the mother proposed, and it is no more feasible than Mr Kernick sharing parental responsibility for Y equally with the mother. I do not intend to make this order.

The recommendations in the Family Report concerning Mr Kernick spending time with X and Z

Mr H did not support X and Z being required to continue to spend time with Mr Kernick. He said as follows:
There does not appear to be any overt rationale to oppose X spending time with Mr Ellis, nor Z spending any time with Mr Morris. However, it remains imperative that the children’s current living arrangements remain stabilised, whilst ensuring that there is no exacerbation of their confusion, particularly for Z, who would appear to have some developmental delay. With this in mind, and given the evidence of both X and Y, there appears to be no rationale in supporting Mr Kernick’s desire to continue spending time with all three subject children.
During cross-examination Mr Kernick told Mr H that he was concerned that X and Z might feel that he had abandoned them if an order was made that they no longer spend time with him. Mr H did not think that this was likely and said that the dynamics for the children had changed dramatically in the last couple of years,
Mr H reiterated that he was concerned that X and Z were overloaded by having too many parental figures in their lives all of whom had different rules and expectations.
Mr H was adamant that from his knowledge of X that X would not live in a week about arrangement with the mother and Mr Kernick.
Mr H prepared a thorough Family Report and I am satisfied that weight should be placed on his opinions but ultimately I must determine the appropriate orders taking all the relevant evidence into account.

Conclusion

The mother, Mr Ellis and Mr Morris were in agreement about the orders I should make about their respective children.
The matters in dispute were whether and if so to what extent Mr Kernick should continue to be involved with X and Z and the extent to which Y should continue to spend time with him.
The terms agreed between the mother and Mr Ellis and Mr Morris do not impact on whether X and Z should continue to spend time with Mr Kernick because the time agreed between these parties could be fitted in with Mr Kernick’s week about proposal.
During final submissions and even given the developments since the hearing began in June Mr Kernick continued to press for week about for all three children.
This was opposed by the mother and by the Independent Children’s Lawyer and a week about arrangement would be untenable even just for Y.
The mother and Mr Kernick live close to each other but they have absolutely no capacity to communicate effectively about anything. The mother feels intimidated and overborne by Mr Kernick and he does not respect her wishes. This is a case where there could be no confidence that the parties could deal effectively even with the simple issue of arranging for clothing left behind at one house to be transferred to the other house.
The mother and Mr Kernick have absolutely no capacity to co-operatively parent the children and there is no likelihood that sending them off to do a post-separation parenting course would improve their communication.
Even leaving aside the particular circumstances of X and Z the impact of such an arrangement on the children would be entirely negative.
The proposal would be particularly untenable for X who, as Mr H opined, would very likely refuse to live week about with Mr Kernick even if was ordered.
It would be incomprehensible to Z why he was suddenly living for considerably less time with the mother, and Mr Kernick has not demonstrated an interest in Z’s health issues so Z could really suffer in this arrangement.
A compelling argument for why the court should not order equal time for X and Z or indeed order that they spend any time with Mr Kernick at all is that he gave up spending time with them voluntarily in June 2013. To now put X and Z back in the situation of having to spend time with Mr Kernick would be to impose yet another major unexpected change on them, in circumstances where Mr Kernick does not have the capacity to provide for their emotional needs and assist them to adjust to the change.
Finally X and Z’s parents agree about the arrangements for their children and I do not consider that it would be in those children’s best interests to make orders for them which are opposed by both their parents.
Y is part of a sibling group. It would not be in Y’s best interests to be treated dramatically differently to her brothers. She would lose her current sense of being part of the one family unit with her brothers and there was nothing to suggest that this would benefit her.
Y does not need to live in a week about arrangement in order to have a meaningful relationship with Mr Kernick. She can have a meaningful relationship with him if she sees him each fortnight and during the school holidays. If her relationship with him fails to thrive it will not be because the mother fails to promote it but because Mr Kernick fails to heed such things as Y’s dislike of being smacked and manhandled.
The mother proposed that from now Y spend time with Mr Kernick only on two weekends a month from Friday to Sunday and that her time with him on Tuesday and Thursday cease.
The mother said that the time on those afternoons was disruptive and prevented Y doing her homework.
The Independent Children’s Lawyer supported the cessation of the time on two afternoons each week but proposed that there be one overnight on a school night each fortnight.
I am satisfied that the time on Tuesday and Thursday afternoons should cease. X and Z will not be going on time with their fathers on these days, which are school days and days on which it is important for all the children that the household functions smoothly. It will be somewhat disruptive for the mother or Mr Bampton if they have to go out to collect Y twice a week when they are otherwise trying to attend to X and Z.
It is of course proposed that Z have some afternoon contact with his father, but the situations are different because the mother and Mr Morris get on well and the time will be on Friday afternoons and not on a school afternoon.
I am also not convinced that all risk of conflict at changeovers has passed and the last thing Y needs is to witness conflict on a school night.
I then need to consider the issue of whether there should be an overnight in the other week.
Arguments against it are that Mr H did not recommend a mid-week overnight and Y will still be able to have a meaningful relationship with Mr Kernick if she only sees him on weekends. There was no evidence that Mr Kernick had shown an interest in doing homework with Y in the past and if he wishes to be involved in her school life he could avail himself of the opportunity to attend some events at the school such as assemblies.
However time on alternate weekends is minimum time and it was the mother’s case that Y enjoyed spending time with Mr Kernick. One overnight each fortnight was supported by the Independent Children’s Lawyer and pick up and drop off from school would avoid any disruption in the mother’s household.
I therefore intend to order that Y spend one midweek overnight each fortnight with Mr Kernick.
I accept that Mr Kernick feels considerably aggrieved about the fact that he spent years providing care and financial support for X and Z as well as Y and now is confronted by a dramatic reduction in his importance in their lives.
However the dynamics in the situation changed after Mr Kernick moved to South Australia. Mr Kernick he needs to acknowledge his role in the way the situation has evolved and he must bear in mind that the orders I make must be those which I consider to be in the best interests of the children.
The Independent Children’s Lawyer acknowledged the significant role Mr Kernick at one time had in all the children’s lives but rightly emphasised that circumstances had changed.
I intend to order that Mr Kernick’s time with Y on weekends be from the conclusion of school on Friday until the commencement of school on Monday (which the Independent Children’s Lawyer proposed) rather than until 4.00pm on Sunday (which the mother proposed).
This will mean that the weekend arrangements for Y are different to those of X and Z.
I intend to make the orders sought by the mother and Mr Ellis and Mr Morris concerning X and Z. In regard to Y, I intend to order that she spend time with Mr Kernick on two weekends each month and for half of the school holidays.
The order that Y spend time with Mr Kernick on the first and third weekend of each month rather than each alternate weekend will result in her spending slightly fewer weekends each year with Mr Kernick than if the orders provided for time to be each alternate weekend, but it ensures that Y will be absent from the mother’s home (and present in her home) on the same weekends as her brothers.
For all of the above reasons the orders of the court are as set out at the beginning of this judgement.

I certify that the preceding three hundred and sixty (360) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate:

Date: 24 December 2013

CORRECTIONS

Correction to year of birth for the child X in Order 1.
Insert word “be” in Order 20(vi)
Number of paragraphs stated in certification corrected from 359 to 360.

[2013] FCCA 2248

24 December 2013

Key Legal Topics

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Family Law

Civil Procedure

Legal Concepts

Injunction

Procedural Fairness

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