Benedict & Kresinger
[2023] FedCFamC2F 1287
•9 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Benedict & Kresinger [2023] FedCFamC2F 1287
File number(s): NCC 491 of 2023 Judgment of: JUDGE GLASS Date of judgment: 9 October 2023 Catchwords: FAMILY LAW – CONTRAVENTION – where 20 counts established without reasonable excuse – where both parties propose substantial variation of the primary orders Legislation: Family Law Act 1975 (Cth) ss 4(1), 60B, 60CA, 60CC, 61DA, 65DAC, 70NAC, 70NAE, 70NAF, 70NBA, 70NEB, 79A Cases cited: Bain & Bain (deceased) (2017) FLC 93-772
Banks & Banks (2015) FLC 93-637
Dobbs & Brayson (2007) FLC 93-346
F & B [2005] FamCA 265
Huda & Huda & Laham (2018) FLC 93-837
Irvin & Carr (2007) FLC 93-322
Jurchenko & Foster (2014) FLC 93-598
Keane & Keane & Another (2021) 62 Fam LR 190
M & M (1998) 166 CLR 69
Malcher & Malcher (2016) FLC 93-740
Manifold & Alderton (2021) FLC 94-015
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Rice & Asplund (1979) FLC 90-725
Sandler & Kerrington (2007) FLC 93-323
SPS v PLS (2008) FLC 93-363
T & S (2001) FLC 93-086
Division: Division 2 Family Law Number of paragraphs: 181 Date of last submission/s: 26 September 2023 Date of hearing: 26 September 2023 Place: Melbourne Counsel for the Applicant: Ms Swann Solicitor for the Applicant: Lakey Family Law Solicitor for the Respondent: Self-Represented Litigant ORDERS
NCC 491 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BENEDICT
Applicant
AND: MR KRESINGER
Respondent
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
9 OCTOBER 2023
UPON THE COURT FINDING THAT:
A.Mr Kresinger has contravened an Order for equal shared parental responsibility on 8 occasions without reasonable excuse.
B.Mr Kresinger has contravened Orders for children to spend time with him by overholding the children on 12 occasions without reasonable excuse.
THE COURT ORDERS THAT:
1.Paragraph 2 of the Orders made 29 November 2019 be varied as follows:
The Mother have sole parental responsibility for the children, X born in 2013 (“X”) and Y born in 2017 (“Y”) (collectively “the children”) on the condition that she consult with the Father in relation to major long-term issues affecting the children and advise him of any decision made.
2.Paragraph 4(a)(i) of the Orders made 29 November 2019 be varied as follows:
During school terms, each alternate weekend from the conclusion of school or 3:30pm Friday until 5:30pm Sunday – commencing at the beginning of every new school term as if the school holidays had not intervened.
3.All extant applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
Ms Benedict and Mr Kresinger separated in 2017. On 29 November 2019, final parenting Orders were made regarding their two children, X, born in 2013, and Y, born in 2017. The children are now 9 and 6 years of age respectively. On 19 December 2019, final property Orders were made.
Regrettably, those Orders did not finally quell the parties’ litigation.
On 30 March 2020, Mr Kresinger applied to vary the property Orders pursuant to section 79A of the Family Law Act 1975 (Cth), which application he subsequently withdrew on 7 August 2020.
On 28 April 2020, Mr Kresinger filed a contravention application in relation to the parenting Orders. On 14 May 2020, Ms Benedict filed a contravention application, which she subsequently withdrew on 20 June 2020 hoping to de-escalate the parties’ dispute. On 20 October 2020, Ms Benedict filed a further contravention application due to Mr Kresinger’s overholding of the children. On 20 November 2020, Mr Kresinger filed a further contravention application to rectify defects in his previous application. The parties attended upon a Family Dispute Resolution Conference with a Senior Judicial Registrar of the Court and a Family Consultant without reaching agreement. Those applications were determined on 12 July 2021 by striking out Mr Kresinger’s application, Ms Benedict withdrawing her application with a right of re-instatement, and the parenting Orders being varied to modify the changeover times.
Arising now for determination is Ms Benedict’s contravention application filed 21 February 2023. That application alleges Mr Kresinger contravened the parenting Orders on 50 occasions. In order to ensure the expeditious determination of the application, she pressed only 20 counts. Mr Kresinger admitted some counts, asserting he had a reasonable excuse for doing so, and denied others.
CONTRAVENTIONS
The application falls to be determined pursuant to Division 13A of Part VII of the Act. Despite the number of contraventions alleged by Ms Benedict, she did not submit that Subdivision F of Division 13A should apply. She sought no relief specified by subsection 70NAF(3) of the Act, with the result that the applicable standard of proof is the balance of probabilities.[1]
[1] Family Law Act 1975 (Cth) ss 70NAF(1).
Mr Kresinger represented himself at trial. At the commencement of the hearing, I explained to him the importance of him cross-examining Ms Benedict about any evidence she gave that he disputed. I explained that where her evidence is uncontradicted and unchallenged by him, I am to accept it unless it is inherently improbable or inherently incredible.[2] When Mr Kresinger purported to conclude his cross-examination of Ms Benedict, I again reminded him of the importance of challenging any disputed evidence. Ultimately, Mr Kresinger did not challenge substantial aspects of her evidence, and much of it was uncontradicted by him, despite him having filed a lengthy affidavit.
[2] Bain & Bain (deceased) (2017) FLC 93-772 at [112]; and the cases there cited.
Pursuant to section 70NAC of the Act, Mr Kresinger is relevantly taken to have contravened an order if, and only if, he has intentionally failed to comply with the order or made no reasonable attempt to do so.
Section 70NAE of the Act provides a non-exhaustive definition for the concept of reasonable excuse. Relevantly, such an excuse is established where Mr Kresinger believed on reasonable grounds that the contravention was necessary to protect the health or safety of a person and the contravention was for no longer than was necessary to protect that person’s health or safety.
Count 1
Paragraph 2 of the Orders made on 29 November 2019 provides that the parties have equal shared parental responsibility for the children. That Order requires the parties to make decisions about major long-term issues relating to the children jointly, to consult each other in relation to the decision to be made about the issue, and make a genuine effort to come to a joint decision about the issue.[3] Major long-term issues are defined to be issues about the care, welfare and development of the children of a long-term nature including (but not limited to) issues of that nature about the children’s education, religious and cultural upbringing, health, name, and living arrangements that make it significantly more difficult for them to spend time with a parent.[4]
[3] Family Law Act 1975 (Cth) s 65DAC.
[4] Family Law Act 1975 (Cth) ss 4(1).
Ms Benedict alleges that Mr Kresinger contravened the Order by enrolling Y at B Kindergarten without her consent in early 2022.
Mr Kresinger admits the contravention but asserts that he had a reasonable excuse for doing so. He did not identify with particularity the nature of the reasonable excuse he proffers.
He deposes as follows:
The Mother enrolled [Y] in a day-care facility in [Suburb C] from 6 Months through to four. The Mother didn't consult me or take into account my opinions or suggestions regarding the day care that [Y] was to attend. I have not filed a contravention for these breaches, though I will if this continues.
[In] October 2021 until mid January I contacted the Mother on many occasions regarding Kindergarten. The Mother said she can not afford it. I enrolled [Y] and said I would pay for it. I contacted the Mother to attempt to arrange for [Y] to attend a government funded 4 year old Kindergarten program. I researched and suggested three Kindergarten centres in our local area where other children attending are likely to attend the same primary school. His older brother had no friends when he started school. Annexed hereto and marked "7" is a true copy of correspondence regarding [Y]'s Kindergarten.
The Mother was very dismissive of me, yet together, [Y] had a great outcome. Annexure Kindergarten.
Given [Y]'s speech delay; I felt strongly that attending Kindergarten would be necessary and beneficial for him. A kindergarten close to his school where he would have friends attend. Given over 98% of Australian children attend 4 year old Kinder; I don't believe I was being unreasonable.
I had previously requested communication with the Mother to plan [Y]'s pre-school years and speech delay and, as usual, received an extremely dismissive response. Annexed hereto and marked "7" is a true copy of correspondence regarding [Y]'s Kindergarten.
The Mother insisted that [Y] continue to attend the day care facility in [Suburb C]. I then took steps to enrol [Y] in a Kindergarten program near my house where I would be able to take him when he was in my care. I did not agree to [Y] attending this day-care. It is far away and not supportive of me as Father who has Equal and Shared Responsibility. Annexed hereto and marked "7" is a true copy of correspondence regarding [Y]'s Kindergarten. I have not filed a contravention for these breaches, though I will if this continues.
The Mother promptly responded with anger; however she did agree to send [Y] to a different Kindergarten program closer to the children's school. I agreed and [Y] commenced at [Town D]. A perfect outcome in my opinion. Annexed hereto and marked "7" is a true copy of correspondence regarding [Y]'s Kindergarten.
I am shocked that the Mother is now filing a contravention against me in this matter and requesting sole parental responsibility be given to her. I feel it is neglectful to refuse to send a four year old child with a speech delay to kindergarten.
[Y] was being forced to sleep for two hours everyday at day-care. [Y] did not like it and I did not want [Y] attending a day-care program prior to attending school where he is being forced to sleep. [Y] did not like it and said he was staring at the ceiling the whole time. The Mother did not care and said all the children are sleeping.
If I hadn't taken action to enrol [Y] in kinder in 2022 he would not have attended and the Mother and Father, including the Mother's Parents would not have benefited from the program. Annexed hereto and marked "7" is a true copy of correspondence regarding [Y]'s Kindergarten.
Please refer Count 1 and paragraphs 33-38 of the Mother's Affidavit; given that I sought communication from the Mother regarding kindergarten on a number of occasions and that it is a generally accepted position that 4 year old children attend kinder; I firmly believe that my action to enrol [Y] in kinder is not a contravention. Annexed hereto and marked "7" is a true copy of correspondence regarding [Y]'s Kindergarten.
Given the Mother and Father enrolled [Y] at [Town D], close to his school, proves that the Mother is able to co-parent if she chooses to. Annexed hereto and marked "7" is a true copy of correspondence regarding [Y]'s Kindergarten.[5]
[5] Affidavit of Mr Kresinger filed 25 May 2023, paragraphs 54 to 65.
The annexed correspondence reveals that Mr Kresinger raised with Ms Benedict the prospect of Y attending a dedicated kindergarten program in 2021.[6] Ms Benedict did not agree. As Mr Kresinger deposes, he enrolled him regardless and as he now concedes, he did so in contravention of Court Orders.
[6] Affidavit of Mr Kresinger filed 25 May 2023, annexure 7, page 116.
He apparently considers that his contravention was justified on the basis that it forced Ms Benedict to negotiate with him about a different kindergarten enrolment, at Town D, which he considers was a “perfect outcome”.[7]
[7] Affidavit of Mr Kresinger filed 25 May 2023, paragraph 60.
As a result, Y attended a kindergarten program without the knowledge of his primary care giver. Despite her repeated enquiries as to which kindergarten Mr Kresinger had enrolled Y in, Mr Kresinger refused to provide the information.
Mr Kresinger accepted in cross-examination that there was some truth to the proposition that the strategy he employed of unilaterally enrolling Y at B Kindergarten and concealing that information from Ms Benedict, was to force his will upon the situation.
Mr Kresinger’s evidence that it would be neglectful not to send Y to kindergarten is inconsistent with Ms Benedict’s evidence that the daycare Y was already attending had an accredited kindergarten program. Mr Kresinger conceded that such a program started at the daycare in the year that Y commenced kindergarten. Even if I were to accept that it would be neglectful for Y not to attend kindergarten, Mr Kresinger’s contravention of the Orders was not necessary to protect against that neglect, given Y had access to a kindergarten program in any event.
Mr Kresinger suggested during his cross-examination of Ms Benedict that “the reasonable excuse for enrolling him into a kindergarten is that the [E Day Care] was not a kindergarten. It was a long day care program.” That assertion cannot be reconciled with the evidence of both parties that there was an accredited kindergarten program at the daycare facility Y was attending.
I do not accept any suggestion that Y having friends attend kindergarten with him who would also subsequently attend primary school with him establishes a reasonable excuse for contravening the Order. In any event, Ms Benedict gave evidence that there was a boy attending Y’s daycare program who would potentially also attend the same primary school.
Mr Kresinger cross-examined Ms Benedict about the advantages he saw in Y having attended Town D kindergarten. I do not accept that any such advantages establish a reasonable excuse for Mr Kresinger unilaterally enrolling Y at B kindergarten.
I am not satisfied that Mr Kresinger believed on reasonable grounds that contravention of the Order was necessary for the health or safety of any person. I am not otherwise satisfied that he had a reasonable excuse for the contravention.
Count 1 is established without reasonable excuse.
Counts 2 & 3
Ms Benedict alleges that Mr Kresinger contravened the Order for equal shared parental responsibility by taking X to a specialist paediatrician doctor without her consent in January 2020 and July 2020. Mr Kresinger denies the allegations.
Ms Benedict deposes that Mr Kresinger did not discuss with her the prospect of X attending a paediatrician at that time, and that she did not become aware of the appointments until March 2021. Mr Kresinger did not challenge Ms Benedict’s evidence.
Mr Kresinger deposes to Ms Benedict messaging him in May 2021 that she would write to the paediatrician. That evidence does not establish that he consulted with Ms Benedict in 2020, or that she was otherwise aware of the appointments in that year.
Mr Kresinger gave oral evidence that he believed Ms Benedict knew about those appointments. After he was repeatedly asked whether he had told her about them, he eventually gave evidence that he had sent her a message on Our Family Wizard. Mr Kresinger was called on to produce the message. He did not do so.
I prefer Ms Benedict’s unchallenged evidence and find that Mr Kresinger did not consult with her about X’s paediatrician appointments in 2020 and took him to those appointments without her consent. I am not satisfied Mr Kresinger made any reasonable attempt to comply with the Order for equal shared parental responsibility.
Mr Kresinger did not submit that he had a reasonable excuse for the contraventions, and I find none to be established. His oral evidence that he believed X needed to see the specialist provides no reasonable basis for him failing to consult Ms Benedict.
Counts 2 and 3 are established without reasonable excuse.
Counts 9, 10, 16 & 17
Ms Benedict alleges that, in contravention of the Order for equal shared parental responsibility, Mr Kresinger took Y and X to a chiropractor without her consent in April 2022 and December 2022. Mr Kresinger admits the contraventions but asserts he had a reasonable excuse for so doing. He gave oral evidence that he did so because he believed that Ms Benedict would have prevented the children getting the care they needed.
Mr Kresinger gave oral evidence that the children “were in pain” and “were falling, they couldn’t walk properly, and were falling over”. He also gave oral evidence that every time X “would take off, he would just fall over”. That evidence suggests that the children were suffering from very significant health issues that required more than allied medical attention. In effect, he suggests that Ms Benedict was neglecting the children’s medical needs. I reject the suggestion. Given Mr Kresinger’s evidence was often non-responsive to questions asked of him and replete with internal inconsistencies, I do not accept his evidence that the children could not walk properly and would just fall over. There is also no independent evidence corroborating the assertion.
I am accordingly not satisfied that Mr Kresinger believed on reasonable grounds the contravention was necessary to protect the health or safety of the children. He was advised by Ms Benedict in both July 2021 and January 2022 that she did not consent to the children attending a chiropractor. I am not otherwise satisfied Mr Kresinger had a reasonable excuse for contravening the Order.
Counts 9, 10, 16 and 17 are established without reasonable excuse.
Count 18
This count relates to the Order for equal shared parental responsibility and the following Order:
Each party shall advise the other by way of the ‘Our Family Wizard’ App as soon as practicable of any illness suffered by the children, and any emergency relating to the children, including evidence of medical treatment received.[8]
[8] Parenting Orders dated 29 November 2019, paragraph 12.
Ms Benedict alleges that, in contravention of those Orders, Mr Kresinger failed to inform her that Y received urgent medical care at a hospital emergency department in early 2022. Mr Kresinger denies the allegation.
As confirmed by the hospital’s treatment summary, Y was taken to City F Emergency Department in the early hours of a day in early 2022.[9]
[9] Affidavit of Ms Benedict filed 21 February 2023, annexure 11, page 112.
Mr Kresinger deposes that he told Ms Benedict later in the morning, and that he “did not inform the Mother at 4am because the children were calm and taken care of”.[10] It should be noted such a circumstance provided no exception to the Order to advise Ms Benedict as soon as practicable. Despite his evidence, Mr Kresinger was unable to produce any correspondence sent by him on Our Family Wizard in early 2022.
[10] Affidavit of Mr Kresinger filed 25 May 2023, paragraph 139.
Mr Kresinger did not cross-examine Ms Benedict about her evidence that he failed to communicate the hospital presentation to her. Her evidence is consistent with the message she sent him in early 2022 asking why he had not provided the information to her.[11]
[11] Affidavit of Ms Benedict filed 21 February 2023, annexure 32, page 177.
I accept Ms Benedict’s evidence and find that Mr Kresinger made no reasonable attempt to advise Ms Benedict that he had taken Y to hospital in early 2022 as soon as practicable. The evidence does not satisfy me that he made any reasonable attempt to do so. Mr Kresinger did not allege that he had a reasonable excuse for contravening the Orders.
Count 18 is established without reasonable excuse.
Counts 21 & 22
Paragraph 4(a)(i) of the Orders made on 29 November 2019 provides for X to spend time with Mr Kresinger from 3:30pm on Friday until 8:30am on alternate Wednesdays.
By Count 21, Ms Benedict alleges that Mr Kresinger contravened the Order by returning X to her home on 18 August 2021 at 4:23pm instead of 8:30am. By Count 22, Ms Benedict alleges that Mr Kresinger contravened the Order by returning X to her home on 1 September 2021 at 3:51pm instead of 8:30am.
Mr Kresinger denies the allegations. Nevertheless, he failed to challenge Ms Benedict’s specific evidence that X had been returned to her at the times alleged.
Mr Kresinger gives the following evidence in relation to the specific counts:
Once again, the Mother believes the Father is unable to care for the children which is disrespectful.
….
The Mother's Affidavit and annexures evidence that I tried to arrange drop off times. The Mother created confusion and was difficult to communicate with and then files a contravention; when it was her who created the uncertainty in where I should take the children. She often changes the location of changeover to suit her whereabouts which I never know until the last minute.[12]
[12] Affidavit of Mr Kresinger filed 25 May 2023, paragraphs 133 to 134.
That evidence does not establish Mr Kresinger made any reasonable attempt to comply with the Order requiring X’s return to his mother at 8:30am on the relevant days. Mr Kresinger did not suggest he had a reasonable excuse for contravening the Order.
Counts 21 and 22 are established without reasonable excuse.
Count 26
Paragraph 2(a) of the Orders made on 12 July 2021 provided for Y to spend time with Mr Kresinger each alternate weekend until 8:00am on Tuesday at day-care.
Ms Benedict alleges that Mr Kresinger contravened the Order on 9 November 2021 by returning Y to day care at 9:40am.
Mr Kresinger denies the allegation. He gives no evidence in relation to it. He did not challenge Ms Benedict’s evidence supporting the allegation. He generally gave evidence that he found it hard to get the boys up in time to deliver to Y to daycare at the ordered time.
The evidence satisfies me that Mr Kresinger made no reasonable attempt to comply with the Order. He did not assert that he had a reasonable excuse for contravening it.
Count 26 is established without reasonable excuse.
Count 28
Ms Benedict alleges Mr Kresinger contravened paragraph 2(a) of the Orders made on 12 July 2021 on 13 December 2021 by returning Y to his brother’s school at 3:30pm rather than daycare or her home at 8:00am.
Mr Kresinger admits the contravention, but asserts he had a reasonable excuse for doing so. He deposes as follows:
After the Judge created new Orders so the children could be aligned. Unfortunately, the children were still mis-aligned and the Mother was unable to agree to allow the children to be aligned. It makes me very upset the Mother deliberately causes harm and distress to the children. I am not sure why and am unable to explain why she does this.
I agreed to her proposal because she would not agree to allow the children to be together. I agreed to minimise conflict. Only to cause conflict and Contraventions.[13]
[13] Affidavit of Mr Kresinger filed 25 May 2023, paragraphs 136 and 137.
Mr Kresinger made no submissions in support of why he says he had a reasonable excuse for contravening the Order on 13 December 2021. Certainly, his evidence does not suggest that he believed on reasonable grounds there was any need to do so to protect the health or safety of a person.
His reaction to what he says is a misalignment of the children does not satisfy me he had a reasonable excuse for contravening the Order on 13 December 2021.
Count 28 is established without reasonable excuse.
Count 31
Ms Benedict alleges that Mr Kresinger contravened paragraph 2(a) of the Orders made on 12 July 2021 on 11 January 2022 by returning Y to her residence at 1:51pm and not at 8:00am.
Mr Kresinger denies the allegation. He deposes as follows:
This highlights the Mother would rather the children by in Daycare against professionals advice to keep children home given there are 50, 000 Covid Cases a day. The Mother's dis-respect and disdain towards the Father as an Equal Parent is evident. Her actions are not in the children's best interest. The Mother would rather the children suffer than allow the children to have a meaningful relationship with the Father.[14]
[14] Affidavit of Mr Kresinger filed 25 May 2023, paragraph 138.
Ms Benedict deposes that despite Mr Kresinger confirming with her at 6:55am that morning that Y would be taken to daycare, he failed to do so, and ignored her messages. She avers to Mr Kresinger telling her Y had a great morning with his brother when he returned him to her at 1:51pm. Her evidence was not challenged, nor was it contradicted by Mr Kresinger.
I find Mr Kresinger made no reasonable attempt to comply with the Order. He did not assert he had a reasonable excuse for contravening it.
Count 31 is established without reasonable excuse.
Count 32
Ms Benedict alleges that Mr Kresinger also contravened paragraph 2(a) of the Orders made 12 July 2021 on 25 January 2022 by returning Y to her residence at 5:27pm rather than 8:00am.
Mr Kresinger denies the allegation. Under the heading “Please refer to ‘Count 32’ in the Mother’s Affidavit”, he deposes to taking Y to City F Hospital.[15] As has been observed, he did so in early 2022, not the day relevant to this count. He accordingly provides no evidence of any attempts he made to comply with the Order on 25 January 2022.
[15] Affidavit of Mr Kresinger filed 25 May 2023, paragraph 139.
Ms Benedict deposes to having offered to facilitate changeover either at daycare or at her home at 8:00am on 25 January 2022. She deposes to Mr Kresinger ignoring her messages all day. He did not challenge her evidence.
I am satisfied that Mr Kresinger made no reasonable attempt to comply with the Order on 25 January 2022. He did not assert he had a reasonable excuse for contravening it.
Count 32 is established without reasonable excuse.
Count 36
Paragraph 4(a)(i) of the Orders made on 29 November 2019 provides for X to spend time with Mr Kresinger each alternate weekend until the commencement of school at 8:30am on Wednesday.
Ms Benedict alleges that Mr Kresinger contravened the Order on 23 February 2022 by returning X to her home at 5:02pm.
Mr Kresinger denies the allegation. He deposes as follows:
Evidence the Father explains to the Mother the children are unwell. She dismisses and disregards the comment. Files a Contravention. It's fabricated to create a contravention.[16]
[16] Affidavit of Mr Kresinger filed 25 May 2023, paragraph 144.
Ms Benedict deposes that Mr Kresinger failed to return X to her care and disregarded her requests for information. She deposes that he arrived at her home that afternoon with no signs of illness despite Mr Kresinger’s assertions that X had a runny nose and was very tired. Mr Kresinger did not challenge that evidence.
The evidence does not satisfy me that Mr Kresinger made any reasonable attempt to comply with the Order. He does not assert he had a reasonable excuse for contravening it.
Count 36 is established without reasonable excuse.
Counts 45, 46 & 47
Paragraph 4(b)(iii) of the Orders made on 29 November 2019 provides for Y to spend time with Mr Kresinger on the same schedule as X from Term 2, 2022, namely on alternate weekends until 8:30am on Wednesday.
By Count 45, Ms Benedict alleges that Mr Kresinger contravened the Order on 31 August 2022 by returning Y to Ms Benedict’s residence at 9:33am and not 8:30am. By Count 46, she alleges that he contravened the Order on 5 September 2022 by returning Y to daycare at 3:11pm and not at 8:30am. By Count 47, she alleges that he contravened the Order on 12 October 2022 by returning Y to her residence at 10:39am and not at 8:30am.
Mr Kresinger denies the allegations. He gives no specific evidence in relation to them.
Ms Benedict’s specific evidence in support of each of the allegations was not challenged by Mr Kresinger.
The evidence satisfies me that Mr Kresinger made no reasonable attempt to comply with the Order on each of the occasions. He did not assert he had a reasonable excuse for the contraventions.
Counts 45, 46 and 47 are established without reasonable excuse.
Count 48
Paragraph 5.1(e)(ii) of the Orders made on 29 November 2019 provides for the children to spend time with Mr Kresinger on his birthday, on school days from after school until 6:30pm unless otherwise agreed.
Ms Benedict alleges Mr Kresinger contravened the Order on 1 November 2022 by returning the children to her residence at 7:54pm and not at 6:30pm.
Mr Kresinger denies the allegation but gives no evidence in relation to it.
Ms Benedict deposes that Mr Kresinger delivered the children at 7:54pm after ignoring her messages asking for the children’s return. Mr Kresinger did not challenge Ms Benedict’s evidence.
The evidence satisfies me that Mr Kresinger made no reasonable attempt to comply with the Order. He did not assert he had a reasonable excuse for contravening it.
Count 48 is established without reasonable excuse.
Count 49
Ms Benedict alleges that Mr Kresinger contravened paragraph 4(b)(iii) of the Orders made on 29 November 2019 on 23 November 2022 by returning Y to his brother’s school at 10:08am and not to her residence at 8:30am.
Mr Kresinger denies the allegation.
Ms Benedict gives evidence that Y was due to attend a prep orientation session that day at school. She deposes that she waited at her home until 9:20am for Mr Kresinger, however he did not arrive. She also deposes to him ignoring her messages to him at that time. Mr Kresinger did not challenge her evidence.
Mr Kresinger deposes as follows:
It's very disrespectful and demeaning of the Mother not allow the children to say goodbye to their Father. The Mother grabbed the children and hurried them away from their Father. I am not sure why she would not sign [X] in. Only to try and make the Father look incompetent.[17]
[17] Affidavit of Mr Kresinger filed 25 May 2023, paragraph 153.
The evidence does not satisfy me that Mr Kresinger made any reasonable attempt to comply with the Order. He did not assert he had a reasonable excuse for contravening it.
Count 49 is established without reasonable excuse.
Count 50
Paragraph 4(a)(iii) of the Orders made on 29 November 2019 provides for X to spend time with Mr Kresinger for specified weeks of the summer school holidays. Paragraph 6B specifies that changeover for those weeks is to occur at 5:00pm.
Ms Benedict alleges that Mr Kresinger contravened the Order on 6 January 2023 by returning the children to her at 7:08pm rather than 5:00pm. She gives specific evidence of Mr Kresinger overholding the children and making excuses that the children were upset about her organising a haircut for them.
Mr Kresinger denies the allegation. He deposes as follows:
Yes, [X] was upset that the Mother is Abusive! I spent some time explaining to [X] it's okay to return to his Mother. I explained to the Mother, if she Abuses [X] again, I will be involving Child Protection! Thankfully the Mother's Abuse lies in the Grey Area. Still causing emotional and psychological harm. I note the children will have to learn to cope with their Mother's Mental Health Issues. Shaving [X]'s head when he has long hair and wants to grow it longer. And forcing him to have a hair cut everytime she takes him to [Town G]. I was disgusted to hear he was carried in by both the Mother and Grandmother, kicking and screaming. I am appalled and it breaks my heart to know this happens and there's nothing I can do. I had to revoke the IVO to minimise the harm caused by the Mother. [X] is [hundreds of] kms away from home in a small country town where this abuse occurs. hereto and marked "12" is a true copy of correspondence regarding [X] repeatedly getting a hair cut agianst his will and often after he's had a haircut in the Fathers care.[18]
[18] Affidavit of Mr Kresinger filed 25 May 2023, paragraph 154.
The evidence does not satisfy me that Mr Kresinger made any reasonable attempt to comply with the Order to return the children at the specified time. He did not assert he had a reasonable excuse for contravening the Order.
Count 50 is established without reasonable excuse.
RELIEF SOUGHT
Although various powers are available pursuant to section 70NEB of the Act as a result of my findings, Ms Benedict seeks only that I vary the primary Orders made on 29 November 2019 pursuant to section 70NBA of the Act. In particular she seeks:
·sole parental responsibility for the children, conceding that she is prepared to consult with Mr Kresinger and keep him informed of treatments the children receive and any decisions that are made; and
·in lieu of the children spending time with Mr Kresinger each alternate weekend during the school term from after school Friday until before school Wednesday, they spend time with him from after school or 3:30pm Friday until 5:30pm Sunday.
Mr Kresinger ultimately sought that I also vary the primary Orders such that the children commence spending equal time with each of their parents.
Section 70NBA does not prevent the making of permanent orders varying the primary orders.[19] Application of the provision is to be approached no differently to any other application to vary parenting orders,[20] including consideration of the guideline judgment in Rice & Asplund.[21]
[19] Malcher & Malcher (2016) FLC 93-740 at [55].
[20] Sandler & Kerrington (2007) FLC 93-323 at [48] to [52]; cited with approval in Irvin & Carr (2007) FLC 93-322 at [68].
[21] Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”).
Mr Kresinger initially sought to invoke the principle from Rice & Asplund to resist Ms Benedict’s application to vary the primary Orders. However, as was drawn to his attention during his oral submissions, pursuing his own application to vary the Orders is inconsistent with that invocation. Implicit in his application to also vary the primary Orders is a concession that they are no longer in the children’s best interests.
Consistent with the articulated position of both parties seeking substantive variations of the Orders, I find there has been a sufficient change in circumstances to provoke a new enquiry into the children’s best interests.[22]
[22] SPS v PLS (2008) FLC 93-363 at [84].
Accordingly, the variation applications fall to be determined by reference to Part VII of the Act. I am guided by the objects of that Part and the principles underlying those objects.[23] The children’s best interests are the paramount consideration.[24] In determining those best interests, I am to consider the matters prescribed by section 60CC of the Act.[25]
[23] Family Law Act 1975 (Cth), s 60B.
[24] Family Law Act 1975 (Cth), s 60CA.
[25] Dobbs & Brayson (2007) FLC 93-346 at [130].
Despite the reservations I raised during the hearing about the sufficiency of the evidence in relation to all relevant considerations, both parties sought that I determine their respective variation applications on the basis of the evidence now before the Court. Neither sought to adduce expert evidence in relation to their applications. Authority does not dictate that such evidence must always be produced before the Court makes findings about the likely effect of certain types of parenting regimes.[26]
[26] Jurchenko & Foster (2014) FLC 93-598 at [157].
Whilst parenting proceedings are not disputes inter partes in the ordinary sense of that expression,[27] the issues joined by the parties dictate what issues, including section 60CC factors, are relevant.[28] The proceedings are not inquisitorial.[29] As has been held:
Ultimately the judicial role is to determine the proceedings on the material presented to the Court. It is not an investigative body conducting an inquisition but rather it is an adjudicative body determining a dispute that is brought before it.[30]
[27] M & M (1998) 166 CLR 69 at 76 and the cases there cited.
[28] Keane & Keane & Another (2021) 62 Fam LR 190 at [64] citing Banks & Banks (2015) FLC 93-637 at [48].
[29] T & S (2001) FLC 93-086 at [196], quoted in Huda & Huda & Laham (2018) FLC 93-837 (“Huda & Huda & Laham”) at [9].
[30] F & B [2005] FamCA 265 at [76], quoted in part in Huda & Huda & Laham at [9].
Mr Kresinger has been on notice of Ms Benedict’s position that she sought a substantial variation of the Orders since the filing of her Affidavit in support of her Contravention Application on 21 February 2023. I am satisfied that both parties have had ample opportunity to adduce evidence relevant to the determination of the dispute. Neither sought to adjourn the proceedings to enable further evidence to be obtained. Consistent with their respective positions, I will determine their applications on the evidence they have elected to adduce.
Primary considerations
The benefit to the children of having a meaningful relationship with both of their parents
Whilst meaningful in this context is a qualitative adjective and not strictly a quantitative one,[31] I accept that an extension of the children’s time with their father to seven nights per fortnight is likely to afford them a greater opportunity to benefit from a meaningful relationship with him. Conversely, a reduction from five nights per fortnight to two will reduce their opportunity to do so.
[31] Mazorski & Albright (2007) 37 Fam LR 518 at [26], cited in McCall & Clark (2009) FLC 93-405 at [115] and [121].
Clearly upset at the prospect of the children’s time with him being reduced, Mr Kresinger made submissions that such a reduction would be detrimental to the children’s overall wellbeing, and that he would have nothing to do with them. Neither of those submissions are established on the evidence. Certainly, Ms Benedict proposes that Mr Kresinger would not have regular care of the children during the school week, but that is not tantamount to him having nothing to do with the children.
Mr Kresinger complained that he would be deprived of the opportunity to take the children to extra-curricular activities on school days. Ms Benedict advised she has no objection to him attending agreed extra-curricular activities whenever they fall.
Mr Kresinger submits that the reduction in time proposed by Ms Benedict will “ruin” his meaningful relationship with the children. He submits that he feels he would not have a meaningful relationship with the children and believes that it would not be sustainable. The evidence also does not support those submissions.
On Ms Benedict’s proposal, the children will continue to have the opportunity to spend alternate weekends, holidays, and special occasion time with Mr Kresinger. I am not satisfied they will be deprived of benefiting from a meaningful relationship with him.
The need to protect the children from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence
Both parties propose that the children spend significant overnight time with each of their parents. I am not satisfied that the children are at unacceptable risk of harm in the relevant sense in either party’s care.
I reject Mr Kresinger’s suggestion that cutting X’s hair in a way that he apparently did not like is child abuse.
Additional considerations
Any views expressed by the children and any factors (such as their maturity or level of understanding) that are relevant to the weight to be given to their views
Mr Kresinger submits that he feels the children should have an opportunity to express their views. They are aged 9 and 6 years old respectively. Despite that submission, Mr Kresinger sought that the Court vary the existing Orders on the evidence now before it. He accepted the inconsistency in those positions, but made no application to adduce further evidence, or obtain any expert evidence.
Mr Kresinger submits that he considers the children would likely express their support for an equal time arrangement. There is no evidence to support the submission. Neither party adduced evidence in relation to any views expressed by the children.
I place minimal weight on Mr Kresinger’s conclusory evidence that the “children enjoy extra-curricular activities, learning activities and bonding time with their Father”.[32] It is devoid of sufficient particularity to ascertain any views the children may have expressed, or what weight should be given to them.
The nature of the children’s relationships with each of their parents and other people, including any grandparent or other relative
[32] Affidavit of Mr Kresinger filed 25 May 2023, paragraph 14.
In 2018, Ms J, psychologist, observed X’s interactions with his father to be “authentic and energised”.[33] Mr Kresinger submits that he has a really good relationship with the boys. Ms J also observed there to be an “ease of interaction between the children and their mother”.[34]
[33] Affidavit of Mr Kresinger filed 25 May 2023, annexure 2, paragraph 36.
[34] Affidavit of Mr Kresinger filed 25 May 2023, annexure 2, paragraph 37.
Ms Benedict submits that not much has changed since the time of that family report. The evidence does not suggest the children have anything other than a loving relationship with each of their parents.
Mr Kresinger gave oral evidence that the two children have a “great bonding relationship between them”. So much is consistent with Ms J’s earlier opinion that the sibling bond appeared “entirely appropriate”.[35]
The extent to which each of the children’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the children, to spend time with the children, and to communicate with them
[35] Affidavit of Mr Kresinger filed 25 May 2023, annexure 2, paragraph 44.
There is no suggestion either party has not availed themselves of such opportunities.
The extent to which each of the children’s parents has fulfilled or failed to fulfil their obligations to maintain the children
Whilst there were factual disputes between the parties as to who was required to pay child support for the children at various times, I have insufficient evidence before me to reach any conclusions about this consideration.
The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents, or any other child or other person, including grandparent or other relative, with whom they have been living
Acceding to Ms Benedict’s application will deprive the children of the opportunity to spend mid-week time with their father during the school term. They will lose the opportunity to participate in the extra-curricular activities he has enrolled the children in. However, the children’s present attendance at those activities occurs only in alternate weeks because Mr Kresinger has not obtained Ms Benedict’s agreement for the children’s attendance.
By Mr Kresinger’s application, it is not proposed that the children will separated in a strict sense from Ms Benedict, with whom they have been living.
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
It is not suggested that any practical difficulties or expenses affect the children maintaining regular personal relations and direct contact with both of their parents.
The capacity of each of the children’s parents and any other person, including any grandparent or other relative of the children, to provide for the needs of the children, including emotional and intellectual needs
Although Ms J opined in July 2018 that “individually each parent is highly competent and attuned to the needs of the children”,[36] the capacity of Mr Kresinger to provide for his children’s needs is called into question by his failure to comply with the Court’s Orders.
[36] Affidavit of Mr Kresinger filed 25 May 2023, annexure 2, paragraph 45.
At a previous determination of contravention applications on 12 July 2021, Mr Kresinger accepted that the then presiding judicial officer had said to the parties, words to the effect of, “Comply with the Orders, and I don’t want to see you back here”. Despite that adjuration, Mr Kresinger has continued to repeatedly contravene the Orders.
Mr Kresinger gave oral evidence that “I guess I have to consider that there’s court orders in place, and I’m – I just don’t want to withhold the children because it’s not – that’s going to be damaging for the children”. He therein emphasised the necessity for him to comply with Court Orders and the damage to his children caused by withholding them, contrary to those Orders.
Nevertheless, he has repeatedly done precisely that. He did not challenge Ms Benedict’s evidence that he returned the children late to her 28 times between July and December 2021, 33 times in 2022, and 6 times in the first six weeks of 2023.[37]
[37] Affidavit of Ms Benedict filed 21 February 2023, annexure 1, page 58 to 66.
On Mr Kresinger’s own evidence, he has contravened orders which is damaging for the children. He has done so despite his evidence that “I am trying to use my skills and, you know, I’ve read lots of books, I’ve done lots of studies…” and that “I’m hopeful that the children do – that the boys can have a good routine.”
Mr Kresinger also gave oral evidence that “I am trying to do what’s in the best interests of the boys and I’ve always got their best interests at heart and their wellbeing both, you know, emotionally, physically, you know, their overall wellbeing; their mental health.” The difficulty is that Mr Kresinger’s endeavours have not resulted in his compliance with the Court’s Orders.
Mr Kresinger’s inability to comply with Orders to avoid damaging his children raises significant concerns about his capacity to provide for his children’s emotional needs.
Ms J previously opined that “difficulties at changeover, if not sensitively addressed, will become the basis upon which the children experience the transition between homes as a source of stress”.[38] Mr Kresinger’s repeated and regular failures to deliver the children to the designated changeover location have resulted in just that outcome. Ms Benedict gives the following unchallenged and uncontradicted evidence, which I accept:
The father's non-compliance with the orders is also affecting the children in a profound way and I am concerned for their well-being. The children are exposed to inconsistency around changeover arrangements. The father does not seem to understand that they need consistency and routine. [X] is especially sensitive to the effects of overholding and makes excuses for his father, including suggesting that it is his fault he is late returning. The children's behaviour has deteriorated and become more difficult to manage. They come home to me often irritable and argumentative.[39]
[38] Affidavit of Mr Kresinger filed 25 May 2023, annexure 2, paragraph 45.
[39] Affidavit of Ms Benedict filed 21 February 2023, paragraph 18.
Ms Benedict gives evidence that the children are having behavioural issues, including fighting amongst themselves in an increasingly physical manner, returning to her home exhausted, and defying her instructions. She deposes to X having difficulties with school peers and having low tolerance for everyday conflict or minor disagreements, resulting in significant outbursts of anger and frustration. I accept her unchallenged evidence. Although I have no current expert evidence about the causes of any behavioural issues, the source of stress identified by Ms J resulting from difficulties at changeover, is likely to be a contributing factor.
Ms Benedict deposes to Mr Kresinger withholding consent for school counselling for X. Whilst that may have now been remedied, any delay in such consent being obtained due to Mr Kresinger’s actions is not in X’s best interests.
Despite Orders to do so, Mr Kresinger has repeatedly failed to communicate with Ms Benedict about matters of significance. He failed to renew his subscription to the ordered messaging application for around three months with the result that there was no communication at all between the parties during that period.
Mr Kresinger’s failures to communicate have occurred despite his oral evidence that “I know that it is very, very important and it’s going to be most beneficial for the children if both parents are working together and on the same page, along with other professionals like the schools and coaches and other things.” Mr Kresinger’s incapacity to communicate adequately and appropriately with Ms Benedict also raises significant concerns about his capacity to provide for the children’s emotional needs.
Ms Benedict gives evidence that X had a significant number of absences from school in 2022 when in Mr Kresinger’s care. She deposes to the absences being unexplained other than during the week of 7 February 2022. She refers to a pattern whereby X is absent on Monday and/or Tuesday, and then late on Wednesday when in Mr Kresinger’s care. Even where Mr Kresinger does take X to school, she deposes that he is often late. Mr Kresinger did not challenge Ms Benedict’s evidence, but submits that her evidence “should be verified, because it’s not true”.
Correlating the school attendance records with the alleged contraventions, it is possible to identify the deficiencies in attendance during X’s time with his father in 2022. Leaving aside the week of 7 February 2022, X missed 16 full days, which is more than three weeks of school in his father’s care.
By comparison, the only full day of school he missed in his mother’s care (again aside from the week of 7 February) in 2022 was one day in October.
X was also late to school in his father’s care on 22 occasions in 2022.
Mr Kresinger was to be responsible for X’s school attendance on three mornings each fortnight. Assuming ten week school terms, over the course of four school terms, he had that responsibility on sixty days across the school year. For twenty-seven per cent of those days, Mr Kresinger did not take X to school at all. For thirty-seven per cent of those days, he delivered X to school late. He was only able to ensure X’s complete attendance on approximately thirty-seven percent of the days X was in his care. So much demonstrates a significant incapacity in Mr Kresinger providing for his children’s educational needs.
Mr Kresinger’s submission that things have improved in 2023 is not supported by any particularised evidence that would enable the Court to be so satisfied.
Ms Benedict gives unchallenged evidence that X is refusing to go to school in her care because he does not have to go to school when he is with Mr Kresinger. She deposes to X challenging her directions to do so, arguing with his brother and refusing to get dressed or get into the car. Mr Kresinger’s lack of capacity to ensure X’s reliable school attendance is accordingly having a deleterious effect on his education, not only in his father’s care, but also in his mother’s.
Mr Kresinger makes unilateral decisions in relation to the children’s extra-curricular activities. He deposes as follows:
The Mother refuses to take [X] to extra-curricular activities. This includes [sports activities]. I have had to choose sports the children can participate in which do not require the Mother's co-operation.
In 2022 and now again in 2023, [X] has only been able to play and train in [sports] every second week during his Father's time. The Mother refuses to take him. I do not know how long this can last and I feel this behaviour is irrational and detrimental to [X]. If the children's time with their Father is reduced they will miss out on a wide range of activities that the Father organises.
The Mother pulled [X] out of [sports] because I was taking him during my time. The Mother did not believe I should be allowed to take the children during my time. This irrational behaviour is not only against Court Orders but has a negative impact on the children. I have not filed a contravention for these breaches, though I will if this continues.
[X] continues to play [sports]; however it is disappointing that he can only play and train every second week. I encourage these activities to help with [X]'s social and focus skills.
I have enrolled the children in [sports], [extra] classes are allowed for the week when they are with their Mother and I have been able to take them twice during my time.[40]
[40] Affidavit of Mr Kresinger filed 25 May 2023, paragraphs 87 to 91.
What is clear is that Mr Kresinger unilaterally selects extra-curricular activities during the children’s time with him and then complains that Ms Benedict does not take them. He gave oral evidence that Ms Benedict did not agree to the various extra-curricular enrolments he has made. His failure to negotiate with Ms Benedict about those activities also reflects poorly on his capacity to provide for his children’s needs.
Mr Kresinger alleges that Ms Benedict is abusive of X by cutting his hair. He deposes to having corresponded with Ms Benedict about X “having a hair cut against his will and often after he’s had a haircut in the Fathers care”.[41]
[41] Affidavit of Mr Kresinger filed 25 May 2023, paragraph 154.
He gave the following oral evidence:
…for the last two and a half years, the mother has been giving X] a haircut and [Y] up in [Town G], and [Y] has said to me that he doesn’t want to get his hair cut – like, he’s getting really, really upset. One time, I had given him a haircut that he really liked, and then he went into his mother’s care a couple of days later. The mother has then gone and shaved his head off and – and shaved it off to number 1, and he was absolutely traumatised.
…
…every single school holidays, he has been forced to get his hair cut. I called – [X] was very upset, very distressed. I called the hairdresser in [Town G], and she explained to me. She said, “Yes, I noticed that the mother was carrying [X] in kicking and screaming to get a haircut.” She goes, “He clearly didn’t want a haircut. But then when he left, the grandma – and grandma talked him into getting a haircut.” [X] told me that the mum said, “If you don’t get your hair cut, you won’t be allowed to watch your tablet for the whole time that you’re at the farm and for the whole trip home.” Fast forward to the first term holidays, she gave him a haircut again, and he was very distressed. Two weeks prior to the end of second term ending, I was called into a meeting at the school with four teachers – two of his classroom teachers, the wellbeing coordinator, and the vice principal – and they all said to me, “Can you please explain why [X] is in the classroom cutting his hair every day”, and I said that he’s – I know he’s traumatised by getting his hair cut, and then when I spoke to [X] he said he was cutting his hair every day because he wanted to show everyone that, “Hey, my hair doesn’t grow.”
Mr Kresinger was unable to recall whether he had corresponded with Ms Benedict after the meeting at school. The correspondence he attached to his affidavit is dated January 2023. In that correspondence, he wrote:
If [X] does get another hair cur against his will. Or by Coercing, manipulation, bullying or anyway that is considered Familiy Violence, by you or other members of your family. I will be reporting this to Child Protection Services and any agencies or professionals necessary to ensure this child abuse stops.[42]
[42] Affidavit of Mr Kresinger filed 25 May 2023, annexure 12, page 137.
In or around July 2023, despite being unable to recall whether he again raised the issue with Ms Benedict, Mr Kresinger took the children to Child Protection to make a report of child abuse by Ms Benedict. He was asked what effect he thought it had on the children to take them to Child Protection in those circumstances. He gave the following oral evidence:
The children were very, very traumatised, your Honour. They – they didn’t want to go back to their mum. They – they were saying that they hated their mum. They said they don’t want to go back to the [house]. I was trying to counsel them. I got them to call the Kids Helpline to try and counsel them.
Mr Kresinger was repeatedly asked who told him to take the children to Child Protection. His answers were evasive. He eventually accepted that no one told him to take the children to Child Protection. He was then asked why he had done so. He gave the following oral evidence:
Because I was concerned for the boys’ wellbeing.
He was subsequently asked what he was trying to achieve by taking the children to Child Protection. He gave evidence that:
I was hoping that, yes, it – she could maybe try and empathise with the – with the boys.
When he was asked whether he thought taking the children to Child Protection was his way of trying to get their mother to empathise with the children, he gave the following evidence:
No. Taking the boys – making the report is me noticing that I – I believe that – it’s – it’s an ongoing thing and it’s not a one-off thing, and it’s repeated all the time, and it’s really affecting [X]'s – really affecting [X]. He’s – he’s – he’s getting into fights at school, he’s – he’s getting bullied at school.
Mr Kresinger did not tell Ms Benedict that he had taken the children to Child Protection. Totally lacking from Mr Kresinger’s evidence was any degree of insight into the impact of his conduct in taking the children to the agency that has power to remove children from their parents. He considered that his actions were wholly justified despite his evidence that he was not acting on any advice to take the children there and that he is “trying to advocate” for X’s wellbeing.
Mr Kresinger took the children to Child Protection despite not having been asked to do so by that agency. He also took them there despite having no knowledge of any notifications made by anybody else to Child Protection.
Mr Kresinger’s reaction to what he says was X’s upset about a haircut, demonstrates a very poor capacity to provide for the children’s emotional needs. Rather than to seek to appease his son, he has reacted by taking both children to see an agency who might consider removing them from their parents.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of their parents, and any other relevant characteristics of the children
There is no specific evidence before the Court referrable to this consideration.
If the children are Aboriginal children or Torres Strait Islander children, their right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture), and the likely impact any proposed parenting order will have on that right
It is not suggested that the children are Aboriginal or Torres Strait Islander.
The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents
Mr Kresinger’s repeated contravention of Court Orders over an extended period of time reflects very poorly on his attitude to the responsibilities of parenthood. The paramount consideration in the making of the Orders is the children’s best interests. Implicit in the parties’ consent to the Orders made on 29 November 2019, is an assertion by each of them that those Orders were in the children’s best interests. Despite repeatedly contravening the Orders, Mr Kresinger made no application to vary them until closing address. Mr Kresinger’s contraventions were contrary to the children’s best interests and are reflective of a poor attitude to the responsibilities of parenthood.
Mr Kresinger’s disregard for the obligations imposed by the Orders impacts upon the children’s primary care giver. Ms Benedict gives the following evidence:
As a result of the father overholding the children, I wait for long periods of time, with little or no information regarding when or where the children will be available for changeover. I am unable to leave my home to work, study, attend to household errands or plan for any social outings on changeover days. If compulsory work or educational commitments coincide with changeover days, due to the uncertainty that the father's behaviour creates, I get extremely stressed. I have to manage that stress as well as meet my responsibilities. I find that I am distracted and unable to fully focus on my work or study.
…
The situation has become so bad that I have had to take a leave of absence from [work], change jobs at the end of 2021, and alter the way in which I schedule aspects of my personal life and the children's appointments or extracurricular activities to mitigate the chance of overholding impacting on both mine and the children's lives. I have experienced significant levels of emotional distress and my physical health has also been impacted. I suffer with frequent colds and viral infections. My [medical condition] and associated condition has become unstable. I feel a deep sense of despair that the father ignores the orders which perpetuates the conflict between us.[43]
[43] Affidavit of Ms Benedict filed 21 February 2023, paragraphs 15 and 17.
During his own cross-examination, Mr Kresinger sought to object to Ms Benedict’s assertion that she had to change jobs due to his contraventions of the Orders. He nevertheless failed to cross-examine Ms Benedict on her evidence. I find no basis to reject Ms Benedict’s evidence about the impacts upon her of Mr Kresinger’s failure to comply with Orders. Those failures have resulted in her ceasing tertiary study, changing jobs, and have had a deleterious effect on the mental and physical health of the children’s primary care giver. They reflect very poorly on Mr Kresinger’s attitude to the responsibilities of parenthood.
Mr Kresinger accepts he has not apologised to Ms Benedict for his behaviour, merely asserting that he did “feel bad” because he was late on occasion. Whatever contrition he may now feel, he has historically failed to modify his behaviour.
As has been observed, Mr Kresinger unilaterally enrolled and took Y to a kindergarten whose identity he kept secret from Ms Benedict, despite her repeated requests for information. It is extraordinary that in order to identify her son’s kindergarten, she had to drive Y around the relevant municipality kindergartens for him to point it out to her. So much also reflects very poorly on Mr Kresinger’s attitude to the responsibilities of parenthood.
Mr Kresinger submits that Ms Benedict is “causing the conflict so she can get full custody”. The evidence does not support the submission. I find the primary source of the parties’ conflict to be Mr Kresinger’s repeated contravention of the Court’s Orders.
Ms J opined 5 years ago that “in contemplating parenting plans for the future emphasis must be placed on the development of a more functional co-parenting relationship between the parties”.[44] Certainly the pattern of co-parenting appears now to be no more functional on the evidence before the Court. Ms J also opined that “ongoing conflicts will create restraint to the development of flexible and responsive parenting arrangements”.[45] Those conflicts persist and have resulted in subsequent litigation between the parties.
[44] Affidavit of Mr Kresinger filed 25 May 2023, annexure 2, paragraph 45.
[45] Affidavit of Mr Kresinger filed 25 May 2023, annexure 2, paragraph 45
Any family violence involving the children or a member of their family
Ms J reports that X was witness to the conflict between his parents over the Christmas period in 2017. She reports that it is “not disputed that [X] was at the centre of the tug-of-war and remained distressed and confused for some time after the incident”.[46] She characterised the family violence during the parties’ relationship as “conflict or separation instigated violence” and noted that there had been no further reported incidents of family violence.[47]
If a family violence order applies, or has applied, to the children or a member of their family, any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order, and any other relevant matter
[46] Affidavit of Mr Kresinger filed 25 May 2023, annexure 2, paragraph 39.
[47] Affidavit of Mr Kresinger filed 25 May 2023, annexure 2, paragraph 39.
After the parties’ separation, in late 2017, New South Wales Police successfully applied for a family violence order against Mr Kresinger to protect Ms Benedict. In 2018, Ms Benedict applied to extend and register the Order in Victoria. She withdrew her application in 2021. Mr Kresinger applied for an Intervention Order, which was struck out in June 2022. The evidence before the Court does not permit any particular inferences to be drawn.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children
Both parties agitate for substantial variations to the extant parenting Orders. Whilst the contravention application now arising for determination may not be the ideal vehicle by which their respective positions could have been agitated, to decline to now make substantive parenting orders would inevitably result in further proceedings in relation to the children.
Ms Benedict submits that she most wants to avoid having to come back for further litigation. Mr Kresinger submits that he does not want to come back to Court again. Despite my reservations about the comprehensiveness of the evidence now available to the Court, I accept the parties’ submissions that the proceedings should now be concluded by dealing with their respective proposals for substantive variations to the Orders.
Any other relevant fact or circumstance
Not relevant.
Parental responsibility
I am to apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them. The presumption may be rebutted by evidence that satisfies me it would not be in the children’s best interests for their parents to have equal shared parental responsibility for them.[48]
[48] Family Law Act 1975 (Cth), s 61DA.
Despite nearly four years having elapsed since the making of a final Order for equal shared parental responsibility, the Order has repeatedly been contravened without reasonable excuse by Mr Kresinger. His unilateral actions and forcing his will upon the situation by enrolling Y at a kindergarten, taking him there, and keeping its location secret from Ms Benedict, was inconsistent with Y’s best interests.
It has also been inconsistent with the children’s best interests for Mr Kresinger to repeatedly take the children to specialist medical professionals, not only without notice to Ms Benedict, but in some cases, contrary to her expressed opposition. Even when the parties agree on the children obtaining treatment, they are unable to agree on the relevant practitioners, with the result that the children are taken to different practitioners by each of their parents.
Mr Kresinger gave oral evidence that the parties are not making joint decisions together, but he believes they are able to. The only examples of joint decisions made by them he could cite were the Town D kindergarten enrolment, which occurred in response to Mr Kresinger’s unilateral enrolment of Y at B Kindergarten. The other example of a joint decision he gave was Y attending the same school as his brother.
I am not satisfied that the parties have the capacity necessary to exercise equal shared parental responsibility in the best interests of the children. The parties’ intractable conflict is inconsistent with the legal obligation attendant upon an order for equal shared parental responsibility.[49] The statutory presumption is rebutted.
[49] Manifold & Alderton (2021) FLC 94-015 at [109] per Austin J.
Mr Kresinger’s repeated contravention of Orders for equal shared parental responsibility, unilateral decision making in relation to the children’s education and medical treatment, his poor attitude to the responsibilities of parenthood, and his limited capacity to provide for his children’s needs, satisfy me that it is in the children’s best interests for Ms Benedict to be solely responsible for significant decision making for the children. I accept her submission that such an outcome is the only way for the children to have the seamless access to the care they need. It is consistent with Mr Kresinger’s own evidence that as a result of the conflict, X is still not receiving the supports he needs.[50]
[50] Affidavit of Mr Kresinger filed 25 May 2023, paragraph 46.
I consider Ms Benedict’s concession that she will consult with Mr Kresinger and advise him of any relevant decisions made by her, to be in the children’s best interests. Given the terms of other extant Orders, it is unnecessary to make a further order that she advise him of treatments received by the children.
Living and spending time arrangements
Mr Kresinger submits that a week about arrangement would be “ideal because it’s easy for the boys”. He contends that it would be “very convenient for the boys”, “smoother for them”, and “will lessen the conflict” in terms of changeover arrangements. He submits that:
They’re both old enough to understand that, which would be really, really beneficial, especially for [X], especially for their routine. Like, their routine is really important. And once they get into a set routine week about it’s – the benefits will outweigh any benefits of the father being with them or having a weekend with them where it’s – you know, a week would have a – a routine with the father, a routine with the mother, they would have a meaningful relationship with the mother. They would have a meaningful relationship with the father.
The evidence does not satisfy me that having week about arrangement is necessary for the children to have a meaningful relationship with their father. I am also not satisfied such an outcome is in their best interests. It will leave the children exposed to Mr Kresinger’s significant incapacities in providing for their needs for extended periods of time. Further, the absence of communication, co-operation and co-ordination between the children’s parents will have a more significant deleterious impact if they are living with each of their parents for one week at a time.
The consequence of the children continuing to spend weekday term time with their father is the continuation of the uncertainty that has affected their lives in the existing arrangements. Mr Kresinger’s repeated failures to ensure the children’s prompt and reliable school attendance, and attendance at changeover at specified times, is contrary to the children’s best interests. Given the extent of those failures over an extended period of time, I have no confidence in his evidence that things will now improve.
Eliminating the weekday time the children spend with Mr Kresinger during the school term will also reduce his opportunity to unilaterally obtain medical treatment for the children. This has resulted already in the children being treated by different podiatrists, dentists and other allied health professionals in each of their parents’ homes. As Mr Kresinger conceded in oral evidence, it is not in the children’s best interests to go to different podiatrists. Given his repeated contravention of the Order for equal shared parental responsibility, I have no confidence that he will cease unilaterally taking the children to medical appointments if he has the opportunity to do so.
I accept Ms Benedict’s submission that a reduction in the children’s time with their father to two nights per fortnight during the school term will still enable them to maintain a meaningful relationship with their father, but with the uncertainty and inconsistency removed from their lives.
I am satisfied that the children’s best interests are now met by Ms Benedict having sole parental responsibility for the children and them spending only weekend time during the school term with Mr Kresinger, as proposed by Ms Benedict.
I certify that the preceding one hundred and eighty-one (181) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 9 October 2023
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