CALDERA & MATEO
[2014] FCCA 1686
•5 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CALDERA & MATEO | [2014] FCCA 1686 |
| Catchwords: FAMILY LAW – Practice and Procedure – rules of evidence. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 61F, 62G, 65DAA, 69ZT, 69ZV, 69ZW Children and Young Persons (Care and Protection) Act 1998 (NSW) |
| Re F Litigants in Person Guidelines (2001) FLC 93-072 Reports cited: | ||
| Applicant: | MR CALDERA | |
| Respondent: | MS MATEO |
| File Number: | SYC 1051 of 2008 |
| Judgment of: | Judge Harman |
| Hearing dates: | 10, 11, 12 & 13 June 2014 |
| Date of Last Submission: | 13 June 2014 |
| Delivered at: | Parramatta |
| Delivered on: | 5 August 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Self-represented |
| Counsel for the Respondent: | Mr Weaver |
| Solicitors for the Respondent: | Louise Coady Family Lawyer |
| Counsel for the Independent Children's Lawyer: | Mr Gutteres |
| Solicitors for the Independent Children's Lawyer: | Robertson Solicitors |
ORDERS
All prior parenting Orders with respect to the children [X] and [Y] (each born [in] 2005) shall be and are hereby discharged.
Ms Mateo, the mother of [Y] and [X], shall have sole parental responsibility for them.
[X] and [Y] shall live with their mother Ms Mateo.
[X] and [Y] shall spend time with their father, Mr Caldera:
(a)Each alternate weekend during NSW school terms from the conclusion of school Friday until the commencement of school the following Monday (or Tuesday is it is a long weekend or pupil free day), first such period to commence the weekend immediately following the making of these Orders and to resume on the first weekend of each NSW school term.
(b)For the first half of each short NSW school holidays, being from the conclusion of school Friday until 5pm on the middle Sunday of the holiday period.
(c)For one half of the Christmas school holiday period in each year and being:
(i)From the conclusion of school on the last day of school attendance December 2014 until 5pm 9 January 2015 and each alternate year thereafter; and
(ii)From 5pm 9 January 2016 until 5pm 27 January 2016 in the 2015/2016 Christmas school holidays and each alternate year thereafter.
(d)From the conclusion of school Friday until the commencement of school Monday for the Father’s Day weekend in each year (and provided that in the event that [X] and [Y] are scheduled to spend time with their father on the Mother’s Day weekend in any year that time for that weekend shall be suspended).
For the purpose of [X] and [Y] passing into the father’s care,
Mr Caldera shall cause [X] and [Y] to be collected from their school or if changeover is to occur other than on a school day, Ms Mateo shall deliver [X] and [Y] to the home of the paternal grandfather or such other place as may be agreed between the parents.
At the conclusion of each period of time that [X] and [Y] spend with their father, Mr Caldera shall ensure that [X] and [Y] are delivered to school at the commencement of the school day or, if not a school day, delivered to the home of their paternal grandfather (or such other place as may be agreed between the parents from time to time) for the purpose of Ms Mateo collecting them therefrom.
Mr Caldera shall, within 7 days, purchase a pre-paid or post-paid mobile telephone (the service to be registered in Mr Caldera’s name) for use by [X] and [Y] and shall provide that mobile phone to [X] and/or [Y] or Ms Mateo and ensure that they are all advised of the mobile number for the service and upon its provision:
(a)Each parent shall ensure that the phone travels with [X] and [Y];
(b)Mr Caldera shall be entitled to telephone and speak with [X] and [Y] on any day when they are not and have not been in his care; and
(c)Ms Mateo shall be entitled to telephone and speak with [X] and [Y] on any day when they are not and have not been in her care.
For the purpose of telephone communication:
(a)The parent wishing to speak with [X] or [Y] shall telephone [X] and [Y] on the above mobile phone number and between the hours of 5:30-6:00pm;
(b)The parent in whose care [X] and [Y] are at any time shall ensure that [X] and/or [Y] have the mobile phone with them and that it is switched on, in credit, charged and in a mobile service area between 5.30-6.00pm; and
(c)The parent with whom [X] and [Y] are at any time shall ensure that upon the other parent telephoning, that [X] and [Y] are able to speak with that parent with privacy and without interruption or distraction.
Each parent shall, if they have not already done so, do all things, sign all documents and give all consents, authorities and instructions necessary to enable the details of each parent to be recorded with the school attended by the children, as a parent and emergency contact person and to enable each parent to obtain directly from that school such information, documents and reports (whether oral or written) as they may desire and to attend all and any events at the school to which parents are invited or encouraged to attend.
Each parent shall advise the other immediately of any significant illness or hospitalisation relating to the children or any of them, such notice to be given contemporaneous with the event and to include sufficient information and authority to enable both parents to be fully consulted, advised and involved in any treatment decisions and to visit and stay with the children or any of them if hospitalised.
Each parent shall keep the other advised at all times of their current residential address (and thus the address at which the children will live whilst in their care) and an emergency contact telephone number.
Each parent shall be and is hereby restrained from providing to any other person (save as required by these orders) the address and contact details of the other parent and further shall be restrained from contacting the other parent, save and except for the purpose of addressing matters directly relevant to the children’s wellbeing and welfare.
Ms Mateo shall forthwith and within seven (7) days contact the Department of Education (NSW) and take all necessary steps to ascertain from the Department of Education what steps are required (including, if necessary, presenting [X] and/or [Y] for any necessary testing or intake processes) to enable [X] and [Y] to be enrolled in a school whereby they will be given access to an IM class and:
(a)If the children are assessed as suitable for enrolment at such a school and in such a class then Ms Mateo shall do all things necessary to facilitate that enrolment and the children’s attendance at that school and shall ensure that Mr Caldera is advised of the children’s enrolment details; and
(b)In the event that the children are assessed as not suitable for such assistance then they shall continue to attend at [O] Primary School or at such other school that is able to offer the children access to special education programs, equal or comparable to those in which they are presently enrolled.
Ms Mateo shall ensure that [X] and [Y] and each of them continue to attend upon speech pathology and upon a psychologist for so long as those persons upon whom [X] and [Y] are attending consider it necessary for them to do so and/or for so long as the children’s treating paediatrician should consider it necessary.
Ms Mateo shall ensure that [X] and [Y] and each of them attend for reviews with a paediatrician being, if at all possible, Dr T and if not possible, Dr F or his nominee with such regularity as the paediatrician may direct.
Ms Mateo shall ensure that in the event that the children are attending upon a paediatrician other than Dr T that copies of all reports produced by Dr T (including but not limited to those filed in these proceedings) are provided to that paediatrician.
Ms Mateo shall within seven (7) days of these orders, request from the children’s present treating psychologist Ms M a referral to the [C] Family Service (contact telephone number [omitted]) and Ms Mateo shall thereafter do all things, sign all documents and give all consents and authorities necessary to facilitate and attend the first available and offered intake assessment by that service and subject to acceptance by that service then attend at such times, dates and places and do all things reasonably requested by that service to enable [X] and [Y] to participate in that service.
Each party shall be and is hereby restrained from causing any material to be posted by them to their or any other persons Facebook page or allow any entry to be posted or remain posted by any other person to their Facebook page which refers to the other parent or any member of the other parent’s household.
Request that the Independent Children’s Lawyer arrange a meeting with [X] and [Y] to occur if at all possible within seven (7) days of the making of these Orders and for the purpose of advising [X] and [Y] of the Orders made and explaining them to them and attempting to answer any questions asked by [X] and [Y] with respect to the Orders and their future care arrangements.
Request that the Director of Family Consultancy Services [omitted] appoint a Family Consultant to assist in the implementation of and to supervise implementation of these Orders, such supervision to occur for a period of 12 months from the date hereof and such supervision to be admissible as communications with the Family Consultant pursuant to section 11C of the Family Law Act 1975.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Discharge the Independent Children’s Lawyer with the Court’s thanks.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.
IT IS NOTED that publication of this judgment under the pseudonym Caldera & Mateo is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYC 1051 of 2008
| MR CALDERA |
Applicant
And
| MS MATEO |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings are representative of, if not emblematic of, proceedings before the Federal Circuit Court of Australia in its family law jurisdiction.
These proceedings represent the four features of the Court’s workload which are all too common if not uniform, namely:
a)The matter is complex. Complexity runs through the history of the parties, the issues faced by their children and the ability to appropriately determine past history and make findings of fact and address those findings in a fashion that will allow Orders to be formulated which will then best meet the children’s future interests is problematic and complex.
b)There are significant difficulties with respect to evidence. These arise principally from the twin difficulties of:
i)The Applicant being self-represented (of choice) and thus requiring significant procedural assistance from the Court consistent with the Court’s obligations pursuant to Re F Litigants in Person Guidelines (2001) FLC 93-072. Difficulties thus flow as regards the preparation and presentation of the Applicant’s case which will be touched upon further in these Reasons.
ii)Further, difficulties arise through the increasing trend to ignore the rules of evidence (which I am satisfied is not entirely created by or reflective of the amendments to Division 12A and in particular section 69ZT of the Family Law 1975 (Cth) but reflective of an increasing decline in understanding of, observance of, and preparation and presentation of a case in compliance with rules of evidence).
c)The issues in the case reflect the increasing overlap between the private and public law jurisdictions exercised under, respectively, the Family Law Act, at a Federal level, and the Children and Young Persons (Care and Protection) Act 1998 (NSW) at a State level. Indeed, the difficulties created by the constitutional divide between public and private family law disputes are represented abundantly by this case. A consolidation of the two jurisdictions would be ideal but short of constitutional change these difficulties will continue.
d)Finally and perhaps most significantly the fulcrum of this case is, to a large extent, the issue of family violence and consequently the children’s need to be protected and shielded from such behaviours. That is not to suggest that the case will be dealt with in any fashion other than by the children’s best interests being treated as paramount (as section 60CA of the Act requires). However as has been identified throughout the evidence of the parties and that of the expert witness and in submissions in the closing of the case, issues of family violence are very much to the fore, particularly as, in the circumstance of this case, the children have clearly been impacted by their past exposure (and potentially exposure of a quite recent nature) to family violence.
The parties
The parties to these proceedings are the parents of two young children.
The Applicant in the proceedings is the children’s father, Mr Caldera.
Mr Caldera was born [omitted] 1972 and is, at the date of hearing 41 years of age (shortly to turn 42).
Mr Caldera has re-partnered and lives with his fiancée, Ms K born [omitted] 1989. At the date of hearing Ms K is 25 years of age having recently had her 25th birthday.
The Respondent to the proceedings is the mother of the subject children, Ms Mateo. Ms Mateo was born [omitted] 1975 and was, at the date of hearing, 39 years of age having recently had her 39th birthday.
Ms Mateo has also re-partnered to some extent and to Mr L. Mr Caldera and Mr L have some history especially arising from their membership and former membership, respectively, of the [omitted] Motorcycle Club.
The children
The two children the subject of the proceedings are twins, [X] and [Y] born [omitted] 2005. Shortly prior to the hearing the children had their 9th birthday.
There are a number of other children who are relevant to the proceedings comprising:
a)
A child, [A] born [omitted] 2000 (aged 13 years at the date of hearing). [A] is the child of Ms Mateo and her former partner
Mr S.
b)
Children [B] and [C] aged 7 and 5 years of age respectively. [B] and [C] are, subject to some controversy in the evidence which cannot be resolved, the children of Ms K and her former partner. As indicated some controversy was raised as to the paternity of the younger of the two children, [C] (whose date of birth is not disclosed in the proceedings by Ms K). Their dates of birth are disclosed in records produced by the [N] Hospital and the children are accordingly, [B] born [omitted] 2007 and [C] born [omitted] 2009. On Ms K’s evidence she was, at the time of at least [B]’s conception, in a “casual relationship” with
Mr Caldera. Some suggestion was raised in the evidence that [C] is, accordingly, the child of Ms K and Mr Caldera. Mr Caldera in his evidence has variously referred to [B] and [C] as Ms K’s “two children” (see for example paragraph 21 of his Affidavit filed 7 September 2012) and at other times has referred to [C] as “my son” (see paragraph 3 (l) of the father’s Affidavit filed 31 July 2013).
c)Mr Caldera and Ms K have a child of their relationship (as to which there is no controversy) being a child [D] born [omitted] 2013.
d)Ms Mateo’s partner Mr L (and there is some controversy as to whether they are in a residential or non-residential relationship) has three children with former partners namely, [E] (aged 17 years), [F] (aged 14 years) and [G] (aged six years).
The evidence of the parties
One of the difficulties in conducting the case has been the inability of the parties (and particularly the Applicant) to comply with Orders as to the filing of evidence for trial.
On 17 October 2013 trial directions were made. The proceedings were listed for hearing for four days to commence 10 June 2014. The matter occupied all of those days of hearing, although only a portion of the fourth day.
By those directions the Applicant, Mr Caldera was to file and serve all Affidavit material upon which he sought to rely by close of business 4 April 2014. Mr Caldera did not file any Affidavit material by any person other than himself. Mr Caldera’s Affidavit was filed on Friday 6 June 2014 (the working day prior to the trial) and served on the Respondent and Independent Children’s Lawyer over the June long weekend preceding the trial.
The Respondent’s trial Affidavit was filed 29 May 2014. The Affidavit was slightly late. The Respondent had delayed filing to await service of the Applicant’s material (trial directions having been made for sequential filing of material).
At the time the trial directions were made it was noted that Mr Caldera would be calling evidence from himself and his partner, Ms K.
An Affidavit by Mr Caldera’s partner, Ms K, had been filed 7 November 2012 (over 18 months prior to the hearing) and leave to rely upon that Affidavit (together with each of Mr Caldera’s previous Affidavits) was granted to avoid prejudice to him.
When the matter was listed for trial it was noted that the Respondent proposed calling evidence from herself and her partner.
Ms Mateo filed a trial Affidavit by herself only. During the course of the hearing and, in fact, on day three of the hearing, a proof of evidence by Ms Mateo’s partner, Mr L was provided and Mr L made available for cross-examination that day.
Neither party sought to call evidence from the children’s paternal grandfather, Mr C. Mr C is 81 or 82 years of age (on Ms Mateo’s allegation, Mr Caldera being silent on his father’s age).
No explanation was provided by either party for why he had not been called to give evidence and noting that he has played a role of some significance in the children’s lives and in the proceedings.
To the extent that there is thus a deficiency in the evidence through a failure to call Mr C Senior it is clear that:
a)Mr Caldera is and would be in a far better position to call evidence from his father than Ms Mateo might be (although she, notwithstanding Mr Caldera’s evidence to the contrary, clearly enjoys a cordial and working relationship with him).
b)I can place no weight upon anything suggested to emanate from Mr C Senior (whether by way of conversation reported within the parties’ evidence or otherwise).
c)To the extent that a Jones & Dunkel (1959) 101 CLR 298 inference might flow through the absence of evidence called from Mr C Senior it would impact upon both parties but predominantly Mr Caldera.
d)The parties, at least, agree that Mr C Senior is a person of importance to the children and continues a relationship with the children, particularly through Ms Mateo making the children available to him (without the need for order or other compulsion).
e)The evidence would suggest that there is some difficulty in the relationship between Mr C Senior and Mr Caldera and, more significantly, Mr C Senior and Mr Caldera’s partner Ms K. Absent him being called by Mr Caldera, I am inclined to accept that those difficulties exist.
Notwithstanding the above difficulties the following evidence has been received by me.
In the case of the Applicant I have read and considered each of the following documents:
a)Initiating Application filed 7 September 2012.
b)Affidavit of Mr Caldera filed 7 September 2012.
c)Affidavit of Mr Caldera filed 7 November 2012.
d)Affidavit of Mr Caldera filed 31 July 2013.
e)Affidavit of Mr Caldera filed 15 November 2013.
f)Affidavit of Mr Caldera filed 6 June 2014.
g)Notice of Child Abuse, Family Violence, or Risk of Family Violence filed 7 September 2012.
h)Notice of Child Abuse, Family Violence, or Risk of Family Violence filed 15 November 2013.
i)Affidavit of Ms K filed 7 November 2012.
A Case Outline Document was not provided by Mr Caldera.
Mr Caldera had also filed in the proceedings an Affidavit by a person described as “a former friend” of Ms Mateo, namely, Ms W. That Affidavit was filed 19 July 2013. Leave was not granted to rely upon that Affidavit as Ms W was not available for cross-examination. However, a number of the annexures to that Affidavit (Ms W’s evidence going largely to Ms Mateo’s attitude towards Mr Caldera and his partner Ms K) were admitted into evidence without objection.
In the case of the Respondent I have read and considered each of the following documents:
a)Ms Mateo’s Response filed 17 September 2012.
b)Ms Mateo’s Amended Response filed 30 May 2014.
c)Notice of Child Abuse, Family Violence or Risk of Family Violence filed 17 September 2012.
d)Affidavit of Ms Mateo filed 4 February 2014.
e)Affidavit of Ms Mateo filed 29 May 2014.
f)Proof of Evidence of Mr L (marked as Exhibit M9) and dated 12 June 2014.
I have otherwise been provided with a Case Outline Document by Counsel for the Respondent.
The Independent Children’s Lawyer has not filed any Affidavit material.
Two Reports were received in the proceedings having been commissioned pursuant to section 62G of the Family Law Act 1975 and Part 15 of the Federal Circuit Court Rules 2001. These comprise:
a)A Family Report dated 7 October 2013; and
b)An Affidavit (annexing Reports regarding each of the children [X] and [Y]) by Dr T, Paediatrician, such Affidavit having been filed 16 October 2013.
A number of documents have also been received into evidence by way of exhibits and these comprise and can be enumerated as:
a)Exhibit M1 a Child Support Assessment regarding [X] and [Y] and with respect to which Mr Caldera is the liable parent.
b)Exhibit M2 School Reports for the children, 2014.
c)Exhibit M3 notes with respect to an admission to the [N] Hospital of Ms K 29-30 September 2012.
d)Exhibit M4 notes with respect to Ms K’s attendance at [N] Hospital 5 June 2006.
e)Exhibit M5 material produced by the Department of Family and Community Services relating to Ms K and dated November 2012
f)Exhibit M6 material produced by the Department of Family and Community Services relating to Ms K and allegations of domestic violence 2012.
g)Exhibit M7 further notes from the Department of Family and Community Services regarding Ms K and allegations of domestic violence.
h)Exhibit M8 the Child Support Assessment with respect to the child [D] (in which Ms K is the eligible parent and Mr Caldera is the assessed parent).
i)Exhibit M9 the Proof of Evidence of Mr L.
j)
Exhibit M10 a Letter/Report from the children’s Psychologist,
Ms M.
k)Exhibit M11 a Minute of Orders proposed by Ms Mateo and tendered at the close of the case.
l)
Exhibit ICL1 clinical notes from [N] Hospital with respect to
Ms K September 2012.
m)Exhibit ICL2 a Contact Record from the Department of Family and Community Services 29 August 2012.
n)Exhibit ICL3 a number of text messages forwarded by Ms Mateo to the father and/or Ms K.
o)Exhibit ICL4 a number of Facebook postings by Ms Mateo.
p)Exhibit ICL5 a Psychometric Assessment Report with respect to the child [Y].
q)Exhibit ICL6 a Psychometric Assessment Report with respect to the child [X].
r)Exhibit ICL7 a Pharmaceutical Benefits Scheme (PBS) schedule of prescriptions filled by Mr L.
s)Exhibit ICL8 a referral letter relating to Ms Mateo and a referral for psychiatric assessment.
t)Exhibit ICL9 a COPS event entry with respect to Mr L 2001.
u)Exhibit ICL10 clinical notes from Dr A regarding Mr L.
v)Exhibit ICL11 Criminal History of Mr L.
w)Exhibit ICL12 clinical notes of a Dr D and Dr A with respect to Ms Mateo.
x)Exhibit ICL13 a number of COPS event entries from New South Wales Police, relating to the parties and Mr L.
y)Exhibit ICL14 a Minute of Orders proposed by the Independent Children’s Lawyer and tendered at the close of the case.
I have also had reference to a number of Orders made by the Court or other Courts and comprising:
a)Orders made on an interim basis by the Local Court [omitted] 22 February 2008 (relating to previous proceedings which had been commenced by Ms Mateo in that Court and subsequently transferred to the Federal Magistrates Court (as it then was) Sydney).
b)Orders made by consent by the Federal Magistrates Court, Sydney (as it then was) 6 May 2008.
c)Interim parenting Orders made by the Federal Circuit Court, Parramatta 19 September 2012.
d)Interim parenting Orders made by the Federal Circuit Court Parramatta 8 November 2012 (which Orders also included the Order for the preparation of a Family Report).
e)Orders made by the Federal Circuit Court, Parramatta 17 October 2013 listing the matter for trial.
Finally, I have had regard to three social science reports largely in the nature of meta-analysis reports and comprising:
a)Holt, S, Buckley, H and Whelan, S, ‘The impact of exposure to domestic violence on children and young people: A review of the literature’, Child Abuse & Neglect, vol 32 no 8, 2008, 797-810.
b)Wilcox, K (editor), ‘Family Law and family violence: research to practice’, (2012) Australian Domestic and Family Violence Clearinghouse.
c)Flood, M, An assault on our future: the impact of violence on young people and their relationships, A White Ribbon Foundation Report, November 2008.
Each of the reports were identified by me well prior to the close of evidence on the second day of trial and in anticipation of the Family Report Writer being called the following day. Copies of each of the three reports were provided to each of the parties and the Independent Children’s Lawyer and my intention to raise matters from that research with the Family Report Writer and to specifically rely upon that research was made known.
I am satisfied, on the above basis, that the parties and the Independent Children’s Lawyer have each had abundant opportunity to consider that research and the matters which have been specifically referred to in questions or comment by me during the course of the trial and to address submissions regarding those matters. Specific matters were put to the Family Report Writer arising from that research. It is that which was put to the Report Writer that I propose to take into account and to the extent that it has been adopted by or commented upon by the Report Writer.
The above steps were taken as I am abundantly conscious of the requirement to afford due process to the parties (and the Independent Children’s Lawyer) regarding reliance upon social science research and that absent such due process, same would reflect an inappropriate consideration of extraneous material.
I have also been conscious to ensure that the research has been raised with the Family Report Writer, so that opportunity has been available to the Report Writer, as an appropriately qualified person, to comment upon it and address its relevance (if any) to these parties and children rather than simply to seek to rely upon and interpret that research as regards the facts and circumstances of this case.
The above research had particularly been raised and identified to the parties in light of concerns that I had raised at the outset of the trial regarding the Family Report, its methodology and contents, and the reliance which might be placed upon it in light of the difficulties perceived of it and which will be discussed in due course.
The proposals of the parties
These proceedings were commenced by Mr Caldera at a time when the children were in his care. On any version of the evidence this had reflected a change in the prior parenting arrangements for the children and was, indeed, contrary to the Orders which were then in force as between the parties.
By his Initiating Application Mr Caldera proposed Orders as follows:
1. That the terms of Settlement Orders [sic] dated 6 May 2008 be vacated.
2. That the children [X] born [omitted] 2005 and [Y] born [omitted] 2005 (“the children”) live with MR CALDERA (“the Father”).
3. That the Applicant father have sole parental responsibility for the Children.
4. That MS MATEO (“the Mother”) spend time with the “children” [sic] by telephone twice a week. The father to facilitate the telephone calls. The children to spend time with the Mother each Saturday for 3 hours, times to be decided by the court, this to be supervised by a person suitable to both parties.
At the opening of his case and repeated in submissions, Mr Caldera affirmed his position that he sought Orders for the children to live with him and for he to have sole parental responsibility for them.
Mr Caldera proposed that for a period of 6 to 12 months that the children would spend no time and have no communication with
Ms Mateo and would, after that time, commence limited periods of time each fortnight such time to be supervised.
Ms Mateo by her Response as initially formulated, and filed 17 September 2012, proposed that the parties would have equal shared parental responsibility for the children, that the children would live with her and that they would spend time with their father each alternate weekend from 5pm Friday until 5pm Sunday and at such other times as might be agreed between the parties.
By her Amended Response filed 30 May 2014, Ms Mateo proposed that the children would live with her and would spend time with their father for alternate weekends from after school Friday until 5pm Sunday, for one half of each school holiday period and for times on special occasions (such as Christmas Day and Father’s day etc.). The mother proposed a number of other restraints and specific issues orders.
At the close of her case Ms Mateo, through her counsel, tendered a Minute of Orders proposed by her which augmented the relief sought by her and specifically related to issues regarding the children’s ongoing “special needs” (a matter of great moment in the proceedings but poorly defined) being addressed.
At the close of the case the Independent Children’s Lawyer tendered a Minute of Orders (Exhibit ICL14) which proposed:
1. That the parental responsibility for the children…be allocated to their father, [Mr Caldera]…
3. That the children live with the father [Mr Caldera].
4. That the children spend time with their mother… [Ms Mateo]:
i. during school terms, each alternate weekend from after school Friday until before school Monday…
ii. one half of all NSW school holidays…
iii. time on special occasions…
An extensive raft of additional Orders were proposed relating to the address of the children’s education and other “special needs”.
Chronology of events
It is difficult to formulate any clear or specific chronology of events.
The Independent Children’s Lawyer has prepared an extensive and considered chronology of events and I incorporate that herein.
| DATE | EVENT | EVIDENCE SOURCE |
| [omitted] 1968 | Mr L born currently aged 44 years. | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 79. |
| [omitted] 1972 | Mr Caldera born currently aged 41 years of age. | Affidavit of Mr Caldera filed on 7 September 2012 at paragraph 4. |
| [omitted] 1975 | Mother born currently aged 39 years. | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 2. |
| 00.00.1999 | Mother and father meet through friend [Mr O] at the [omitted] Clubhouse at [R]. | Affidavit of Mr Caldera filed on 6 June 2014 at paragraph 11. |
| [omitted] 2000 | [A] born (stepsister) currently aged 13 years and six months. | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 7. |
| 00.06.2004 | Father and mother started going out together on a casual basis. | Affidavit of Mr Caldera filed on 7 September 2012 at paragraph 5. |
| 00.06.2004 | Shortly after the Respondent became pregnant and the father asserts that the mother had drunk heavily throughout the pregnancy. | Affidavit of Mr Caldera filed on 7 September 2012 at paragraph 8. |
| [omitted] 2005 | [Y] and [X] born currently aged 8 years. | |
| Estimated 00.12.2005 | Mother asserts when she was over three months pregnant father and mother had an argument which mother asserts was about money. Mother asserts father grabbed her and threw her against the wall and she started to bleed and was admitted to hospital for a few days. Mother asserts that she separated from the father after this event. | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 20. |
| [omitted] 2006 | Mother asserts she was at home sitting on the bed with [A] and said to the father, “Are you going to stay with the boys at the hospital?” Mother asserts father said, “I’m tired.” Mother asserts she said to father, “They are your kids as well.” Mother asserts that father slapped her across the face and she fell to the side of the bed and knocked [A] off the bed. | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 22. |
| 00.09.2006 | Mother asserts that father verbally and physically assaulted her. Mother asserts father hit and bruised her face and she want to see Dr. [omitted] for the bruising on her face. | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 24. |
| Mid 2007 | Mother and father separate permanently. | Affidavit of Mr Caldera filed on 7 September 2012 at paragraph 10. |
| Late 2007 | Maternal grandmother diagnosed with cancer and mother and children move to the Central Coast by way of the mother securing a housing transfer. Mother asserts the arrangement was the children live two weeks with her and two weeks with the father with the father living with the paternal grandfather. | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 27. |
| 00.01.2008 | Mother asserts father did not return to the children and mother commenced Family Court proceedings. | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 28. |
| 29.04.2008 | Parenting Orders made in the Federal Magistrates Court. | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 29. |
| 06.05.2008 | Orders made in the Federal Magistrates Court of Australia at Sydney by consent. | Affidavit of Mr Caldera filed on 7 September 2012 at Annexure A. |
| [omitted] 2008 | Maternal grandmother passes away. Father attends the maternal grandmother’s funeral. | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 30. |
| 00.10.2008 | Mother moves to [O]. | Affidavit of Mr Caldera filed on 6 June 2014 at paragraph 36. |
| 00.10.2008 | Father commences cohabitation with mother. | Affidavit of Mr Caldera filed on 6 June 2014 at paragraph 38. |
| 00.10.2008 | Mother and children secure a housing transfer and move back to [O]. Mother asserts she resumes relationship with father but they did not cohabitate. | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 31. |
| 00.11.2008 | Mother asserts father assaulted her by ripping her hair and threw a punch at the mother. Mother asserts she was hit in the face. She was holding [A] at the time when the father hit her. | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 25. |
| 00.00.2009 | Father was at mother’s home and mother asserts he started to abuse her. Mother asserts she was holding baby [X] and father held her by the throat with his fist in her face. Mother asserts [A] ran out of the house screaming and a short time later the Police arrived and AVO was put in place for 12 months protecting the mother. | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 32. |
| 00.00.2010 | [A] (stepsister) is diagnosed with ADHD. | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 58. |
| 00.06.2011 | Ms K and father commence cohabitation. | Affidavit of Mr Caldera filed on 6 June 2014 at paragraph 43. |
| 28.08.2011 | There are physical altercation at father’s home between mother and Ms K. | Affidavit of Mr Caldera filed on 6 June 2014 at paragraph 49. |
| 29.08.2011 | Mother allegedly sends text message to father. | Affidavit of Mr Caldera filed on 6 June 2014 at paragraph 51. |
| 00.09.2011 | Father asserts [Y] arrived at the property at [R] with a large bruise on his face and when asked what happened he replied, “Mum hit me in the face for saying I wished Ms K was my real mummy.” | Affidavit of Mr Caldera filed on 6 June 2014 at paragraph 54. |
| [omitted] 2011 | Father and Ms K found out expecting twins. | Affidavit of Mr Caldera filed on 6 June 2014 at paragraph 53. |
| Late 2011 | Father asserts [Y] and [X] were in the bath together and [Y] tried to hold [X]’s head under the water and Ms K walked into the bathroom as this was happening and Ms K swiped [Y]’s hand at [X]’s head when she checked to see that [X] was okay and Ms K allegedly said words to the effect, “What the hell were you doing that to your brother for that is very dangerous he could have died.” [Y] then proceeded to say, “Yeah I know I want him to.” | Affidavit of Mr Caldera filed on 6 June 2014 at paragraph 55. |
| Late 2011 | Father receives text message from mother allegedly saying, “If you’re whore ever smacks one of my sons again I’ll fucking kill her.” Father asserts he replies, “She tapped his hand, it’s not a big deal now please stop with this message.” | Affidavit of Mr Caldera filed on 6 June 2014 at paragraph 56. |
| 00.01.2012 | Ms K miscarriages the twins at four months gestation at [omitted] General Hospital. | Affidavit of Mr Caldera filed on 6 June 2014 at paragraph 53. |
| 00.03.2012 | Mother asserts she received a telephone attendance from father who said words to the effect, “It’s over between me and Ms K. The filthy whore cheated on me behind my back.” | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 37. |
| 00.05.2012 | Paternal grandfather allegedly said to mother, “[Mr Caldera] has moved out of the home and he is living with Ms K… I don’t know where he is living. He won’t tell me.” | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 39. |
| 00.06.2012 | Ms K and father move into property at [S]. | Affidavit of Mr Caldera filed on 6 June 2014 at paragraph 60. |
| 20.07.2012 | At 6:30pm mother asserts she received a telephone call from paternal grandmother who said words to the effect, “[Mr Caldera] has just turned up at my home and we argued and he snatched the twins and he took them with him. I do not know where he is going. He said to the boys that they will never see me again.” Mother asserts she sent a text to father’s mobile phone saying, “I’ve just been informed of what happened. That wasn’t right. When you bring them home you and I will sit down and have a talk.” Mother asserts she did not get a reply. | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 41. |
| 22.07.2012 | Children are returned to the mother. In a text message father allegedly says to mother, “I don’t give a fucking shit. They are my boys and I can do what I want. Pop is nothing but an old cock sucking cunt.” Mother asserts she could hear the children in the background when father said this to her. | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 41. |
| 12.08.2012 | Mother asserts the children were at paternal grandfather’s home and telephone message received from paternal grandmother said, “[Mr Caldera] has come over and grabbed the kids and walked out.” Mother asserts she sent a text message to father’s phone saying, “You better get my kids home here and fast… or I’m ringing the Police.” Mother asserts she received a text message from father saying, “You are a wanker.” Mother telephoned the Police who came to the home. | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 43. |
| 17.08.2012 | Mother takes children to paternal grandfather’s home. | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 44. |
| 18.08.2012 | Father drops children to mother’s home and mother allegedly observes Ms K in the car and mother allegedly said words to the effect, “Fuck you cunt how dare you bring that whore to my house I’m going to kick that fucking baby out of her cunt.” Father asserts this happened in the presence of the children. | Affidavit of Mr Caldera filed on 6 June 2014 at paragraph 61. |
| 18.08.2012 | Paternal grandfather contacts mother and says words to the effect, “[Mr Caldera] has just turned up again out of the blue and taken the twins.” Mother asserts she telephoned father and father said words to the effect, “I don’t care. What I’m doing is not wrong.” Father returned children at 8:45 that evening. | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 44. |
| 24.08.2012 | Mother allegedly receives a telephone attendance from [Mr Caldera]’s sister who says words to the effect, “[Mr Caldera] has dropped the children here. Can you come and collect them?” | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 45. |
| 26.08.2012 | Father asserts he received a text message from mother saying, “If u bring that fucking whore to my house you know wat I’m goin 2 do her leave her on the corner she should b usd to that I mean it [Mr Caldera] u bring her here I’m goin to jump on her head.” | Affidavit of Mr Caldera filed on 6 June 2014 at paragraph 62. |
| 31.08.2012 | Mother takes children to paternal grandfather’s home. Next day mother asserts she received a telephone attendance from paternal grandmother who said words to the effect, “[Mr Caldera] has taken the children again. I don’t know where they are.” Mother asserts she sent a text message to father saying, “Where are you? Where are the children?” Mother asserts father telephoned her on Sunday evening and said words to the effect, “I will be bringing the children home in the early hours of Monday morning for school.” Mother asserts father did not return the children to her. | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 46. |
| 02.09.2012 | Father asserts when the children and father were returning from a trip to paternal aunt’s place [Y] said, “I don’t want to go home [A] keeps poking my bum.” Ms K said, “That’s not nice baby.” [Y] further replied, “She hurt my bum when she tried to put a spider in there. I don’t like when she does that.” Father then said, “What did you just say?” [Y] replied, “[A] puts toys in my bum and it hurts.” Father said, “That’s not good buddy.” Father stopped the conversation there. Father commences family law proceedings. | Affidavit of Mr Caldera filed on 6 June 2014 at paragraph 64. |
| 03.09.2012 | Mother asserts she received a text message from father saying, “I’m not returning the boys to you. I’m concerned about their physical and mental wellbeing. I’m keeping them with me. I have seen a solicitor. I’m going full custody. This is being taken to the Family Court. I’m not breaking the law. I am their legal guardian and there is no Court Orders in place just a Mediation Agreement.” | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 47. |
| 05.09.2012 | [X] attended the Aboriginal Medical Service at [omitted], Dr. G. [X] was in the 25th percentile for height. He is below the 3rd percentile for weight and body mass and BMI was 11.5. | Affidavit of Mr Caldera filed on 7 September 2012 at Annexure B. |
| 05.09.2012 | Report from Aboriginal Medical Service from Dr. G in relation to [X]. [X] was identified below the 25th percentile for height. Below the 3rd percentile for weight and body mass. BMI has dropped from 12.51 a year ago to 12 today. [Y] explicitly described to the doctor today without prompting an event whereby his sister [A] took a toy spider and “rogered” him with it. He demonstrated this to be poking something into his anal orpheus. He said [A] is 11 and has done this several times. His stepmother Ms K also witnessed this. | Affidavit of Mr Caldera filed on 7 September 2012 at Annexure B. |
| 09.09.2012 | Father and Ms K had an Apprehended Personal Violence Order made. | Affidavit of Mr Caldera filed on 6 June 2014 at paragraph 67. |
| 17.09.2012 | Mother files a Notice of Child Abuse Family Violence or Risk of Family Violence. | Affidavit of Mr Caldera filed on 6 June 2014. |
| 19.09.2012 | Orders made in the FMC by Federal Magistrate Harman and an INDEPENDENT CHILDREN’S LAWYER was appointed. | |
| 19.09.2012 | First return date for Initiating Application filed by Mr. Caldera. | |
| 19.09.2012 | Interim Court Orders made in the Federal Circuit Court of Australia, Parramatta. | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 48. |
| 30.09.2012 | TA from father to mother advising that he as stuck at work and not able to make changeover until 7:30pm. | Affidavit of Mr Caldera filed on 7 November 2012 at paragraph 3(c). |
| 02.10.2012 | Mother takes children to paternal grandfather’s home. | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 50. |
| 05.10.2012 | Mother collects children from paternal grandparents’ home and children allegedly said, “We saw Daddy for a little while and he went home to Ms K.” | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 50. |
| 11.10.2012 | Police attend at mother’s home and mother arrested. AVO made with the mother as the person of interest and the protected persons were father and Ms K. | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 52. |
| 11.10.2012 | Mother asserts she heard Ms K’s voice at [O] Primary School and heard Ms K say, “I’m here to pick up my stepsons.” The mother asserts the Principal spoke to her and said, “I have told Ms. K that she cannot take the children.” The mother asserts the Principal then said, “I’ve spoken to [Mr Caldera] on the telephone and he became verbally abusive. I told him to calm down or I’ll be calling the Police.” Mother asserts she waited at the school until 4:00pm and this is when [Mr Caldera] came to collect the children. | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 51. |
| 01.11.2012 | Father receives message from mother, “The children will not be available to collect this afternoon [X] and [Y] have just told me that you grabbed him from around the back of the neck with such force that he said you choked him, you left visible bruising. I have reported it to my doctor has made a report of it. Please contact your solicitors. My solicitor has sent a letter from the doctor’s report to your solicitor and your solicitor is not normal its ur solicitor.” Father denies that allegation. | Affidavit of Mr Caldera filed on 7 November 2012 at paragraph 3(d). |
| 03.11.2012 | Father arrives at PGN and mother was present. Father asked mother to leave as she was in breach of the AVO on Ms K which also covered father. Father asserts Ms Mateo then started to verbally abuse him. Father then phoned the Police. Father asserts he had an argument with his sister and then left. Father asserts that he was later arrested under allegations made by mother stating that he had physically assaulted his sister and verbally threatened Ms Mateo’s life. Father asserts he was released with no charge. | Affidavit of Mr Caldera filed on 7 November 2012 at paragraph 3(e). |
| 08.11.2012 | Orders made by Federal Magistrate Harman in the FMC, Parramatta Registry. | |
| 02.04.2013 | Orders made by Judge Harman in the FCCA. | |
| 03.05.2013 | Paediatric Assessment and Review conducted by Dr T in relation to [Y] and [X]. | |
| Mid 2013 | The children start speech therapy through the [O] Primary School with [name omitted]. | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 63. |
| 05.08.2013 | Orders made by Judge Harman in the FCCA. | |
| 00.10.2013 | Mother moves from [O] to [M]. | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 76. |
| 17.10.2013 | Orders made in the FCCA, Parramatta Registry by Judge Harman and matter listed for trial. | |
| 24.10.2013 | [Y] and [X] reviewed by Dr. T. | |
| 03.02.2014 | Orders made in the FCCA, Parramatta consolidating the Application in a Case filed on 15 November 2013 by Mr. Caldera to 10 June 2014. Order made for a Family Dispute Resolution Conference. | |
| 28.03.2014 | Orders made by consent after a mediation in relation of time between the children and their father made by Judge Harman. | |
| 04.04.2014 | Mother asserts she collected [X] and [Y] who said words to the effect, “Ms K has said she has been to see Dr. F and he said they aren’t allowed to take their medicine anymore.” | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 74. |
| 07.05.2014 | Mother and father meet with Dr. F about trialling Ritalin and mother asserts father said, “There is nothing wrong with the boys it’s the environment that they are in.” | Affidavit of Ms Mateo filed on 29 May 2012 at paragraph 75. |
The above chronology of events is somewhat problematic (and intending no disrespect to the Independent Children’s Lawyer who has clearly devoted substantial time in seeking to understand the evidence of the parties and formulate a mutual and non-contentious chronology). However, those difficulties arise from variation in the evidence of the parties during the course of the proceedings and particularly following their cross-examination.
Particularly problematic is the inability to find any agreement between the parties as to the commencement and conclusion of their relationship with each other and with others.
In her Application filed in the Local Court [omitted], Ms Mateo had alleged that the parties had commenced their relationship 1 July 2003. However throughout these proceedings, since their commencement in September 2012, Ms Mateo has been consistent in alleging that the relationship (which the parties would each appear to agree did not or did not substantially involve residence under the one roof on a fulltime basis) commenced mid-2004.
Mr Caldera had, until the filing of his Affidavit 6 June 2014, alleged that the parties met and commenced their relationship in June 2004. Mr Caldera was clear in typifying the relationship as a “casual relationship” and indicating his desire (and suggested communicated intent) that the relationship would not be “serious”.
In his trial Affidavit 6 June 2014, at paragraph 11, Mr Caldera alleged that the parties had:
“… met… in 1999 at the [omitted] club house [motorcycle club] [R] through a friend “Mr O” who at the time was having a casual sexual relationship with Ms Mateo, she [Ms Mateo] was known as the local [club omitted] hang around.”
Mr Caldera, no doubt with the intent and desire to impugn the character and reputation of Ms Mateo suggests the introduction was through “Mr O”. However, this allegation is entirely inconsistent with the four earlier Affidavits sworn and filed by Mr Caldera.
In his Affidavit filed at the commencement of the proceedings
Mr Caldera alleged that the parties had “separated permanently” in mid-2007. However, such clarity as to the termination of the parties’ relationship is not apparent from the balance of the evidence.
Mr Caldera did go on to indicate that he would go back to Ms Mateo from time to time “to make sure the boys were ok”.
It would appear from Mr Caldera’s subsequent evidence (consistent with that of Ms Mateo) that their relationship with each other resumed some time during 2008 and continued (albeit on a non-permanent residential basis) until July-August 2011 (on Mr Caldera’s evidence) or September 2011 (on Ms Mateo’s evidence).
During this period and in June 2011 Mr Caldera and Ms K commenced cohabitation.
It is also clear that Ms Mateo has, at all times, maintained a separate residence for herself and this has not been shared on a fulltime or permanent basis by Mr Caldera or, although Mr Caldera is non-specific in his allegation, has not been shared on a fulltime or permanent basis for any consistent or significant period.
At the time that the relationship between the parties commenced (taking that as June 2004) Ms Mateo maintained Department of Housing accommodation at [omitted]. Mr Caldera would appear to have been living with or primarily with his father.
In October 2007 and after the separation of the parties (that which had been referred to by Mr Caldera as their “permanent separation”),
Ms Mateo relocated to the Central Coast. Ms Mateo indicates that this move had occurred as her mother, living on the Central Coast, was terminally ill and she wished to be living with or near her mother to provide assistance to her.
In early to mid-2008 Ms Mateo returned from the Central Coast to [O] and in the latter part of 2013 relocated from [O] to [M].
Throughout the relationship of the parties (or at least from June 2004) Mr Caldera was living with his father at his father’s home at [R]. Ms K corroborates that she and Mr Caldera commenced their relationship together in June 2011 by moving into this property together.
In July 2012 Mr Caldera and Ms K relocated to their present rental accommodation at [S].
The birth of the twin boys [X] and [Y] occurred on [omitted] 2005. The twins would appear to have been some eight to thirteen weeks premature (depending upon which version of the evidence is considered, although nothing of great significance turns upon those differences).
Mr Caldera alleges that Ms Mateo had, throughout her pregnancy, consumed alcohol and possibly other substances and that this had been the cause of significant dispute between them. Mr Caldera also seeks to lead evidence as to conversations between he and the mother’s treating doctor regarding this issue but clearly that material is hearsay and notwithstanding the provisions of section 69ZT of the Family Law Act 1975, little if any weight (see section 69ZT(2)) could be placed upon those assertions at least to the extent that they are sought to be used to corroborate the father’s allegation. The father’s allegations with respect to this issue, as indeed with respect to most if not all issues, are denied by Ms Mateo.
Ms Mateo alleges that during her pregnancy Mr Caldera was violent towards her and that this had resulted, on at least one occasion, in her seeking medical attention.
The children’s living arrangements following their birth are less contentious, although the subject of significant controversy as regards the level and quality of care provided.
On the basis that the parties are in relative agreement that they have not cohabited on a fulltime basis at any time (although at times Mr Caldera alleges that he had attended at Ms Mateo’s home on a daily or near daily basis to spend time with the boys) the children would appear to have been, chronologically if nothing else, in Ms Mateo’s “primary care”. I do not use the term “primary care” as a term of art or by reference to any social science definition of it. Indeed such definitions would appear in most cases and most assuredly in this case, to be irrelevant and erroneous.
Mr Caldera alleges that following the breakdown of the relationship (that which he refers to as “permanent separation” although his subsequent evidence would suggest that it was not permanent), that the two children were in his fulltime care for a period of 5 months.
Ms Mateo denies this allegation and her evidence would appear preferable, particularly as there are a number of corroborative records, particularly those tendered from the New South Wales Police regarding complaints to them during this period, which would suggest a circumstance contrary to and inconsistent with Mr Caldera’s allegation.
There is relative agreement between the parties that following
Ms Mateo’s move to the Central Coast in October 2007, the parties began to practice something in the nature of a shared care arrangement. Whether this occurred on the basis of the children spending two weeks with each parent or on some other basis is unclear but the parties are in agreement that from approximately October-November 2007 and until proceedings were commenced in the Local Court [omitted] in February 2008 that the children were shared between their parents.
At the time that Ms Mateo commenced proceedings in the Local Court February 2008, the children were alleged by her to have been retained by Mr Caldera and, as a consequence of that, Orders were made by the Local Court 22 February 2008 which provided for a “two week about” care arrangement for the children. It would appear from the evidence of each of the parties that this arrangement, for whatever reason (each blaming the other) did not ever actually occur.
Orders were then made by consent 6 May 2008 and after the proceedings had been transferred to the Federal Magistrates Court Sydney (as it then was). Those Orders provided that the children would live with/spend time with their father “…for any three days of the week and the children live with/spend time with the mother at all other times”.
The evidence of Mr Caldera would suggest that this arrangement also never occurred or at least not significantly or consistently. Mr Caldera complains that Ms Mateo would provide the children at her whim and that on whatever basis and for whatever reason, and after these Orders were made that the relationship between the parties had resumed for some significant period and it was only after the relationship between Mr Caldera and Ms K was made abundantly clear, and apparent to all (and somewhat catastrophically to Ms Mateo) in August 2011 that arrangements for time between the children and their father (again irregular, infrequent and inconsistent) resumed.
Mr Caldera’s evidence suggests that in May-June 2008 he commenced a “casual relationship” with his current partner and fiancée Ms K.
Mr Caldera and Ms K are due to be married [omitted] 2014.
Mr Caldera asserts in his trial Affidavit that when the relationship between he and Ms Mateo resumed (on his evidence the resumption of the relationship occurring due to his concern for the children’s welfare whilst being cared for by Ms Mateo and thus his desire to be present with them frequently and regularly) that his relationship with Ms K ceased and that the relationship did not resume until after the breakdown of the relationship between Mr Caldera and Ms Mateo.
Ms K’s evidence does not support this position.
I make clear at this point that no moral judgment is made with respect to the chronology of each relationship. It is, however, relevant as regards:
a)Issues of credit or perhaps more relevantly, the reliability of the evidence given by the parties and each of them; and
b)The significant issues which have arisen as regards Ms Mateo’s attitude and behaviour towards Ms K.
Ms K’s evidence is that she and Mr Caldera “had been seeing each other casually for four years and within the last two year [sic] have cohabited”. That statement was made by Ms K in her Affidavit filed 7 November 2012 and thus the relationship between she and Mr Caldera would appear to have commenced in late 2008 or thereabouts. Ms K does not suggest that “seeing each other casually” ceased at any time during that period.
Ms Mateo alleged from the witness box (although not in her material) that Ms K had met Mr Caldera whilst Ms K was working as a prostitute and, presumably, whilst Mr Caldera was a client. There is simply no evidence to support that contention. It is also to be noted that the allegation was raised by Ms Mateo following a question to her as to why she considered it appropriate (verbally, in text messages, in emails and by Facebook postings) to refer to Ms K as “a whore”. I do not accept Ms Mateo’s contention.
Ms Mateo also raised issues with respect to [C]’s parentage and as touched upon above. Again there is no evidence which would support a finding with respect to [C]’s parentage, nor is it particularly relevant or germane to the issues in dispute in these proceedings.
Mr Caldera and Ms K are consistent in the commencement of their fulltime cohabitation with each other, being June 2011. Ms K had, by her Affidavit November 2012, asserted that she and Mr Caldera were planning to marry in early-mid 2013. However, that did not occur and the evidence of Mr Caldera is that the marriage is to now occur [omitted] 2014.
Ms K was clear that the delay in their marriage was not reflective of any lack of commitment by her but purely as a consequence of the birth of their child [D] and difficulties arising from this litigation.
By the 28th of August 2011 Ms Mateo was clearly aware of the relationship between Mr Caldera and Ms K. On that date a particularly unpleasant incident, in the presence of a number of children (including at least [X] and [Y] and Ms Mateo’s daughter [A]) occurred. Following this incident (and others) an application for an Apprehended Domestic Violence Order was made by Ms K seeking prohibitions against
Ms Mateo. An Order was ultimately made for a period of 12 months (although this Order has now expired).
I do not propose to canvass further the evidential issues between the parties and arising from their evidence, save to return to relevant issues in a consideration of the evidence of the parties and each of them whilst discussing the legislative pathway. To the extent that I have not above and do not following refer to each and every portion of the evidence of the parties and witnesses I make clear that:
a)All of the evidence presented by the parties has been taken into account and considered; and
b)I will refer to the parties’ evidence in an illustrative nature rather than seeking to recite it in its entirety.
History of proceedings
As would be apparent from the above discussion these proceedings were commenced by an Application filed by Mr Caldera 7 September 2012. It would appear that an attendance upon a Registrar occurred and the Application was listed at short notice.
The proceedings came before the Court on 19 September 2012. On that date, Mr Caldera appeared in person and Ms Mateo appeared and was legally represented. Both parties had filed an Application or Response and Affidavit material.
An interim hearing occurred and a number of Orders were made on that date which are of some significance including:
a)The Independent Children’s Lawyer was appointed.
b)A section 69ZW Order was utilised to obtain information (substantial as it has transpired) from the Department of Family and Community Services and NSW Police.
c)Interim parenting Orders were made which provided for the suspension of the 2008 Orders regulating [X] and [Y]’s time arrangements between their parents and which otherwise provided:
i)That the children were to live with their mother;
ii)That the children were to spend time with their father each alternate weekend from after school Thursday until before school the following Monday; and
iii)That for the purpose of changeover Mr Caldera would collect the children from school and deliver them to school on school days and otherwise that changeovers would occur at a nominated location.
Following the commencement of proceedings and during the adjournment prior to the next return date allegations were raised by
Ms Mateo as to physical abuse of the children by Mr Caldera. An Application in a Case and Affidavit material were then filed.
As a consequence of the above when the proceedings were next before the Court, 8 November 2012, further interim parenting Orders were made and made by consent. Those Orders provided for Mr Caldera’s time with the children to significantly reduce such that he would spend time with the children from 10am until 4pm each Sunday, for a period from Christmas Day until New Year’s Day and for all time to take place in the presence of the paternal grandfather.
Orders were also made requiring that Ms Mateo obtain a referral from her general practitioner to enable the children to be assessed by a Dr T, Paediatrician and Orders were made for the preparation of a Family Report.
There was subsequently a delay in preparation of a Report by Dr T (which was to proceed as a precondition to the preparation of the Family Report). The delay was principally related to financial issues which were resolved by Orders made 2 April 2013.
When the proceedings were next before the Court, 5 August 2013,
Dr T’s Report was still outstanding and thus the matter could not progress. The proceedings were further adjourned.
When the proceedings returned to Court, 17 October 2013, both Dr T’s Report and the Family Report had been completed. The proceedings were not resolved and accordingly, the proceedings were adjourned for hearing (as detailed above).
It is of note that shortly after the release of the Family Report, Mr Caldera caused to be filed an Application in a Case seeking that the children forthwith pass to live with him and that the children thereafter spend supervised time with Ms Mateo. This would appear to have been principally motivated by two considerations on the part of Mr Caldera:
a)The recommendations of the Family Report may well have been interpreted by him as providing support to his case; and
b)Ms Mateo had disclosed in the course of Family Report interviews that she had commenced a relationship with her present partner, Mr L (a person known to Mr Caldera as they had both been involved as members of the [motorcycle club omitted]) and Mr Caldera expressed some concerns regarding Mr L (and thus sought Orders that the mother’s time with the children not commence until Mr L had “passed random alcohol and drug testing for a minimum of three months”.)
What is clear is that upon release of the Family Report the relationship between Ms Mateo and Mr L was disclosed to and known by
Mr Caldera and the Independent Children’s Lawyer.
The Application in a Case filed by Mr Caldera came before the Court, 3 February 2014. At that time the Application in a Case was consolidated for hearing with all outstanding applications. An Order was also made for the parties to attend Family Dispute Resolution.
Following the parties’ attendance at Family Dispute Resolution limited agreements were reached as to further interim Orders and, importantly, Orders providing for the children’s referral to and assessment for intake into either [P] House or [R] House. The utility of those services in addressing the children’s special needs has been raised by Dr T in his material and, in addition, by the Family Report Writer.
The interim Orders made 28 March 2014 provided, in effect, for
Mr Caldera to spend alternate weekend time with the children from after school Friday until 5pm Sunday.
The proceedings next came before the Court for trial and, as indicated above, substantially occupied the four days allocated to the matter.
Consideration of the evidence
The evidence of Mr Caldera
Each of the deponents of Affidavits read in the case was required for cross-examination. During Mr Caldera’s cross-examination it became apparent that there were a number of internal inconsistencies with his evidence and, as the evidence unfolded (particularly that of Ms K and following the tender of material) it was not possible to accept portions of his evidence.
Mr Caldera has asserted throughout the proceedings that he loves his children deeply and is concerned for their welfare. I make clear that I wholeheartedly accept that proposition. However, certain aspects of
Mr Caldera’s evidence are troubling and cannot be accepted by me.
Most significantly, Mr Caldera’s evidence with respect to family violence is not accepted by me and I made this clear to both parties and to the Independent Children’s Lawyer during the course of the trial and as early as the second day thereof.
Following Mr Caldera’s evidence I was satisfied that his position was that:
a)The diagnoses of Attention Deficit Hyperactivity Disorder (ADHD) and Obsessive Compulsive Disorder (OCD) which were alluded to in the evidence or at least advised as diagnoses which should be seriously considered were not accepted by Mr Caldera.
b)Mr Caldera was of the view that the children’s disturbed behaviours and disruption in their development and functioning were the product of “their environment”. Specifically Mr Caldera was of the view that the children’s “failure to thrive” (as it might be so described) was occasioned by an inadequacy of care by and by the behaviours of Ms Mateo.
c)Mr Caldera denied that he had ever perpetrated physical violence upon any partner with whom he had been involved in a relationship and specifically Ms Mateo and Ms K.
d)Mr Caldera conceded that he had perpetrate “verbal violence” (to use his words) upon Ms Mateo and asserted that she had equally perpetrated “verbal violence” upon him as well as physical violence both upon him and the children.
e)Mr Caldera asserted that at times when the children had been in his care (the period of 5 months suggested from June/July 2007 to February 2008 (which allegation I do not accept) and following his retention of the children immediately prior to commencing these proceedings September 2012) that the children had demonstrated significant improvement in their behaviours and educational outcomes.
f)No evidence to support or significantly support those positions is available. The only document relating to same comprised a letter from [R] Public School (where Mr Caldera had enrolled the children whilst briefly in his care August/September 2012) and which had been tendered as an exhibit in interim/interlocutory proceedings 19 September 2012. That letter did not confirm any improvement in presentation but simply confirmed that:
i)Mr Caldera and his partner Ms K were known to the school;
ii)The children attended that school for a limited period (5 September to 19 September 2012); and
iii)Both children “appear to have learning difficulties with a reading level of 1 and poor concentration in class” and that both children “had difficulty managing their social skills in the playground”.
g)
Mr Caldera did not pay child support to Ms Mateo as assessed and had never done so. Mr Caldera asserted that he had provided unspecified sums to Ms Mateo in the past by way of cash payment. However, no explanation was provided by Mr Caldera for this absence of financial support, save to indicate that he was concerned that the money would not be applied by Ms Mateo for the children’s benefit. This position is consistent perhaps with
Mr Caldera’s Affidavit evidence that during an argument with
Ms Mateo during 2009 that he had said to her “fuck off it’s my money I’ll do what I want with it”.
h)Mr Caldera was cross-examined at some length with respect to his payment of child support and attitude towards provision of financial assistance. It was clear that Mr Caldera had not made any provision towards any of the specialist medical costs incurred regarding the children’s treatment, including speech pathology and counselling and notwithstanding that those costs were, by reference to Ms Mateo’s sole income being derived from Centrelink benefits, significant.
i)Mr Caldera was of the view that he and his partner Ms K were able to provide a “more stable environment” and “more structured environment” for the children, although how this was so was not articulated nor particularly specified.
j)
Mr Caldera did not hold or express a positive attitude towards
Ms Mateo as a person or as a parent. Mr Caldera was unable to concede that there was a benefit to the children of having a relationship with their mother and when pressed was able to offer, in response to the question as to whether there was any benefit in such a relationship, “I’ll always say yes. It’s not right to stop it”.
k)
Similarly, when pressed to indicate whether he believed
Ms Mateo was a good mother he initially responded “she tries” and when pressed further indicated “I don’t think so”.
There was some basis for the criticisms of Mr Caldera as regards
Ms Mateo particularly as regards her language, demeanour and behaviour towards Mr Caldera and Ms K particularly following the disclosure of the relationship and cohabitation between Mr Caldera and Ms K from mid-2011. The incident which occurred at the home of the paternal grandfather 29 August 2011 is particularly disturbing both as to its ferocity and the presence of [X] and [Y] (and other children).
It is suggested by Mr Caldera that Ms Mateo had sought from him proof that he was in a relationship with Ms K. Mr Caldera’s evidence (paragraph 47 of his Affidavit filed 6 June 2014) is that he then sent a picture of he and Ms K to Ms Mateo’s mobile phone and that after this there was quiet for some days. Ms Mateo’s version of events has some degree of factual overlap but is otherwise significantly inconsistent in that she alleges that while she had received a photograph it was coupled with a message reading “Call her…. she’s a real fucking woman and you’re a fucking piece of shit” (paragraph 34 of
Ms Mateo’s trial Affidavit).
The events which occurred 28 August 2011 do no credit to either party or Ms K.
It is suggested by Mr Caldera that Ms Mateo arrived at the home of the paternal grandfather and that Ms K was “sitting on my [Mr Caldera’s] lap and I [Mr Caldera] handed her [Ms K] Ms Mateo’s house key to pass to her as she walked towards us; Ms Mateo instantly started hurling abuse saying words to the affect [sic] “you fucking ugly fucking whore who the fuck to do you think you are being around my children grow some fucking balls [X] and talk to me and give me the house key yourself”. Ms Mateo was somewhat silent in her Affidavit material regarding this event although was cross-examined with respect to it (it is also the subject of a COPS event entry comprised within one of the Exhibits).
It is clear then that both parties and Ms K were engaged in swearing in front of the children.
Mr Caldera alleges that Ms Mateo attempted to strike Ms K but that the blow hit Mr Caldera instead. In addition to the adults being engaged in swearing and screaming it would seem that Ms Mateo’s daughter [A], who was present and sitting in Ms Mateo’s car, was also involved in “crying and screaming profanities about [Ms K]”.
Ms K is suggested to have spoken to Ms Mateo in an attempt to diffuse the situation and notwithstanding that expressed intent, Ms K is suggested to have said “both of you pull you [sic] heads in this is not healthy for your kids they don’t need to see this fucking shit Ms Mateo piss off into your car and leave and do not ever come back”. Mr Caldera is then suggested, on his own evidence, to have added “come on Ms Mateo piss off out of here…”.
It is easy to accept that alleged of Ms Mateo as regards her behaviour and language on this occasion, particularly in relation to Ms K, in light of the material that is tendered as to her text messages and Facebook posting with respect to Ms K. I do not propose, for the sake of the gentle reader, to recite each of those entries (being very voluminous and well over 40 pages of messages as contained within Exhibits and the parties’ Affidavit material). Ms K is therein referred to in the most foul and atrocious language.
Whilst it is not intended, in any fashion, to condone the behaviour or to minimise it, it would seem that the period for which such behaviours are alleged are from about the time that the relationship between
Ms Mateo and Mr Caldera deteriorated (proceeding which the relationship between Mr Caldera and Ms K would appear to have continued or resumed and certainly extended to commencing cohabitation) and it would appear, at least by mid-2013, to have ceased.
No doubt the above evidence is one of the bases upon which it is proposed by the Independent Children’s Lawyer that Orders should be made which preclude and restrain such behaviour (although my confidence in any such Order procuring a change in behaviour of the parties let alone a change in attitude is limited).
It was put to Mr Caldera by the Independent Children’s Lawyer that both he and Ms Mateo had used foul language in the presence of their children. He conceded “we’re both as bad as each other”. This is so notwithstanding Mr Caldera’s Affidavits consistently making no such concession as regards himself and asserting such behaviour with respect to Ms Mateo alone.
I accept and find that each of the parties have engaged in the use of foul and profane language to and in the presence of their children and that this is the most likely explanation for the foul and profane language used by these recently turned 9 year old children.
Concern also arose from Mr Caldera’s cross-examination as to his recognition of or acceptance of the possibility that these children, [X] and [Y], have real and organic medical and psychological needs. These would appear to include but not be limited to:
a)The need for counselling to address past experience;
b)Speech pathology;
c)Special assistance with their education;
d)Intervention, monitoring and case management by a paediatrician; and
e)Referral to and engagement with an intensive community based child and adolescent mental health service.
What was also clear from Mr Caldera’s cross-examination is his failure to follow through with services or provide assistance with respect to the children. In this regard:
a)Mr Caldera made clear that he had not contacted [P] House or [R] House as had been suggested by Dr T (and ordered by consent). He offered that he was uncertain as to the means by which to do this and had understood that he could not and that Ms Mateo as the parent with whom the children lived, needed to do so. The Orders that had been agreed to by Mr Caldera and made by the Court, made clear the obligation of both parties to pursue referrals.
b)Mr Caldera had declined to provide any financial assistance with respect to the children’s counselling (a cost of $62 per child per week). This was on the basis that he had not agreed to it, nor seen it as necessary.
c)Mr Caldera conceded that he had made no contribution towards the children’s speech pathology costs.
d)Mr Caldera conceded that he had not attended to payment of child support in accordance with the very modest assessment issued by the Child Support Agency (requiring payments by him of $48.64 per week) and as he did not believe that the money would be provided by Ms Mateo for the children’s benefit. It was also conceded that arrears in excess of $4,000 had accumulated representing approximately two years of child support (and reflecting the totality of the period since an assessment was first issued). Difficulties with the assessment of child support were also compounded by the fact that Mr Caldera has not, for some years lodged a tax return.
Mr Caldera’s evidence with respect to his employment is also concerning. Mr Caldera’s Affidavit evidence states (his Affidavit 7 November 2012) that he leaves for work at 5:30am “every morning” (paragraph 4a) and “usually gets home ranging from 3:00pm-6:00pm depending on job site location” (paragraph 4c) and “we [Mr Caldera and Ms K and the children in their household] will all sit down and have dinner together provided I am home by 6:00pm”.
During his cross-examination Mr Caldera suggested that his employment was anything but regular and whilst there was no specific indication of his hours or days of employment one was left with the impression that his work was far more limited than his Affidavit material suggested. It is possible that arrangements had changed since his earlier Affidavits. However, I am inclined to accept that
Mr Caldera’s employment is far more substantial than he would have the Court believe at this time.
I am not critical of Mr Caldera for engaging in employment when the children are in his care or otherwise. It is entirely appropriate and commendable for any parent to be engaged in employment so as to support themselves, their household and their children and to role model the behaviour of a responsible member of civil society. However, Mr Caldera clearly fails in a number of respects regarding the above in that:
a)As he has not lodged tax returns or returns of any nature one can only assume that he has not attended to the payment of tax (being self-employed).
b)
From whatever income he has derived Mr Caldera has made no provision for financial support of the children. The provisional income used for the purpose of the modest Child Support Assessment relating to [X] and [Y] is $13,440 per annum (whereas Ms Mateo’s provisional income, with her sole source of income being Centrelink benefits, is $18,170). Further,
Mr Caldera’s provisional income for the purpose of the Child Support Assessment issued with respect to his son [D] (and obtained by Ms K) is $44,758 per annum, that assessment having been issued with exactly the same commencement date namely 27 August 2013.
What is abundantly clear from Mr Caldera’s evidence (which I do accept) is that his childhood was significantly deficient. Mr Caldera has not detailed the matters which were problematic in his childhood, however, it is clear that difficulties have occurred which have impact upon him emotionally and educationally.
Mr Caldera makes clear, to his credit and with frankness and candour, his genuine desire for [X] and [Y] to have far greater educational opportunities than he received. It was clear and apparent that
Mr Caldera’s reading skills are not high.
The deficiencies in Mr Caldera’s upbringing, such as they may have been, have created a desire by him to seek fellowship and camaraderie through his association with the [motorcycle club omitted] (whom he refers to as “a brotherhood”) and may well have contributed to troubles that he has experienced in his earlier life.
Difficulties in childhood deficiency were common between Mr Caldera and Ms Mateo, as well as Ms K. Indeed I had expressed to the parties during the course of the hearing and at the conclusion of evidence on day two that:
a)I have the greatest empathy for each of them for the difficulties that they had experienced.
b)I have significant understanding for the difficulties that they had faced in life and in parenting their numerous children as a consequence of those deficiencies.
c)That the difficulties that they have faced are entirely explicable in light of those deficiencies.
d)That notwithstanding my empathy for them, in light of those difficulties, that a decision could not be made based upon misericordia but must be based upon the children’s best interests and ensuring, as best as the Court can, that those interests are met in the future.
The evidence of Ms K
Ms K’s evidence by her Affidavit is somewhat brief and antique.
During her cross-examination Ms K presented as a perfectly pleasant young woman. This is so notwithstanding the language suggested to have been used by her (and each of the parties) in the children’s presence.
Ms K has had a most troubled upbringing with respect to which she was quite clear and candid. Ms K was exposed to family violence perpetrated by her father against both her mother and stepmother from an early age (3 and 8 years respectively) and as a consequence she has had a troubled period through her teenage years when she experimented with drugs and alcohol. It is also clear from the material put to Ms K and ultimately tendered in the proceedings that Ms K:
a)Has had suicidal thoughts at various times since the age of approximately 12-13 years and has, at times, acted upon those thoughts actively through self-harm of non-lethal nature.
b)Has in all probability, been diagnosed with mental illness in the past and for which she has received treatment.
c)Has at different times, been prescribed medication to provide assistance to her (whether that medication has been taken or not is less clear).
Ms K identifies as Aboriginal and is claimed by the [omitted] mob in South Australia. Ms K indicated that her culture and heritage are important to her although she has led no evidence with respect to her cultural practice nor was she questioned with respect to it.
Ms Mateo also identifies as Aboriginal (from the [omitted] mob). It is to be noted at this time that neither Ms K nor Ms Mateo has led any significant evidence regarding cultural practice or kinship issues (as section 61F of the Act would require). Further and to the extent that culture has been raised as an issue (although I am satisfied for reasons that will become apparent that it is not of significance in this case) that:
a)The absence of significant knowledge by Ms Mateo of her family lineage and kinship connections is entirely explicable. The laws and practices applied to past generations are such that many Aboriginal identified members of the community have been precluded engagement with their culture and/or practice of culture.
b)The cultures of Ms K and Ms Mateo are not homogenous. There is no assumed homogeneity of culture between Aboriginal mobs throughout Australia. There are many different groups and language groups and the specific practices of each are of relevance and importance. For these children, who through Ms Mateo’s Aboriginality are also Aboriginal, it need not be assumed that they receive or would receive appropriate cultural practice and participation in culture through others unrelated to their mob.
Otherwise, as regards Ms K’s evidence the most significant issue of concern for me arises with respect to the issue of family violence between her and Mr Caldera.
Ms K denies that any family violence has occurred in her relationship with Mr Caldera or that any separation has ever occurred between them. However the records tendered with respect to Ms K’s hospital admission 29-30 September 2012, together with other material before the Court does not allow me to accept Ms K’s evidence.
Late in the case the Child Support Assessment issued by the Child Support Agency regarding the child [D] (the child of Mr Caldera and Ms K) was introduced. That Assessment clearly shows Mr Caldera’s address as the home of his father at [R] and undertakes an assessment of child support. The Assessment is prefaced upon Ms K having 100% care of [D].
It is not possible for an assessment to issue absent an application by an eligible parent (i.e. Ms K). Accordingly only two possibilities arise:
a)That Ms K has fraudulently alleged that she and Mr Caldera had separated or do not live together and has thus unnecessarily or improperly sought to obtain an Assessment of Child Support; or
b)That the application for assessment has been made by Ms K on the basis that they are not living together and have thus separated. Both she and Mr Caldera deny this.
Ms K’s denial of family violence sits poorly with the evidence available from the various Exhibits and particularly Exhibits M3 to M7. The [N] Hospital notes make clear that Ms K self-presented to the [N] Hospital on the evening of 29 September 2012. Ms K was discharged on the morning of 30 September 2012. At the time of the admission
Ms K was 18 weeks pregnant with the child [D].
The discharge summary provides as follows:
Thank you for reviewing MS K a 23 Years [sic] old Female to be discharged on 30/09/2012…MS K presented to this facility with trauma in pregnancy. 18/40 gestation. Alleged assault at home, punched in abdomen and thrown across room, knocked unconscious... Cannot remember hitting ground.
Ms K refused social work assistance or intervention and declined various services offered to her or the provision of further information. The discharge summary concludes:
Represent [sic] if concerned.
Will be going to parent’s home, will be safe.
2 children are with grandparents, safe.
Social admission declined.
When faced with this record Ms K suggested that the assault had been occasioned upon her by her sister [name omitted] whom Ms K alleged experiences mental health problems. She indicated that her evasiveness and failure and refusal to provide information to the hospital staff were on the basis that she was concerned that her sister not be gotten into trouble. She identified that her sister was, at that time, living in [omitted] although she had now moved to [omitted]. She indicated that Mr Caldera was not present at home on that weekend and had gone away with friends.
Additional records were, however, tendered relating to the admission and which cast serious doubt upon that alleged by Ms K.
Consistent with Children and Young Persons (Care and Protection) Act 1998 obligations it would appear that a member of hospital staff made a notification to the Department of Family and Community Services following the admission. This includes the following record (contained in Exhibit M6):
Caller said that Ms K was uncooperative & guarded in her answers to health staff questions. Ms K did say that her partner had picked her up & thrown Ms K but Ms K would not provide health staff with any details of her partner & whether he is the father of her unborn.
Ms K did say that she was knocked out & had a loss of consciousness after her partner picked her up & threw her.
Ms K also refused health offers of getting a social worker & police involved but caller said that health will be informing police anyway of the incident.
Health staff asked Ms K if she has any other children & if they were exposed to the DV incident tonight & Ms K informed health staff that her children are fine & that they were not exposed to the incident. Ms K has then told another health worker that her children have been at her partner’s parents’ home this weekend - caller is not aware of any details of Ms K’s born children such as their ages & names or the grandparent’s details…
Caller said that Ms K has been polite to health staff but very guarded in what she says to staff at the hospital indicating that she has something to hide. Caller will be informing local police of health concerns re DV incident.
A significant risk of harm report is also comprised within the Exhibits in which it is suggested “only disclosure to AMS [omitted]” (being a disclosure of domestic violence). It is to be noted that the AMS records are not produced to the Court or if they have been so produced, are not tendered into evidence.
The risk of significant harm is indicated as being determined.
Based on the above records, which, whilst business records rather than first hand reports I accept as most likely accurate and contemporaneous notes, I do not accept Ms K’s evidence as to the perpetrator of the assault upon her. I am satisfied that the assault was perpetrated upon Ms K by Mr Caldera.
This creates a number of difficulties as regards both Ms K’s evidence and Mr Caldera’s case, including but not limited to:
a)Mr Caldera has provided a total denial of the allegation. In fact, Mr Caldera’s evidence was somewhat more oblique suggesting that issues with respect to the alleged assault were matters that would need to be taken up with Ms K rather than him as he denied them.
b)Ms K’s evidence regarding the suggested perpetrator is inconsistent with that which had been reported by her (and in turn reported by the recipient of that information to the Department of Family and Community Services) and I am satisfied is a concocted version of events.
c)Ms K was also, when challenged with respect to her past mental health issues (as to which I make no criticism of her particularly having regard to the circumstances she has described of her childhood experiences) denied same and when confronted with records corroborating allegations, then made limited and guarded concessions which did not satisfy me as to her frankness and candour.
In light of the above I am satisfied and so find that Mr Caldera has in all probability perpetrated family violence upon Ms K and that Ms K has colluded with Mr Caldera to seek to conceal and deny same. Accordingly, I cannot be satisfied that Ms K is able to appropriately respond and act protectively in relation to such matters.
The above matters (as were raised with and adopted by the Family Report Writer) are consistent with the evidence presented in these proceedings.
Ms Mateo’s evidence is that physical family violence commenced upon her during her pregnancy with the twins and continued unabated after their birth.
The parenting arrangements for the children were further disorganised (or to adopt the Family Report Writer’s terminology “chaotic”) as a consequence of the nature of the relationship between the parties whereby they did not reside together substantially, if at all, on a fulltime basis. There were, instead, constant comings and goings. Those difficulties were further contributed to by Ms Mateo’s health difficulties (for which she is not criticised) which saw the children’s care devolved unto others (including the paternal grandfather) for periods when Ms Mateo was unwell.
In all of the above circumstances and having regard to that evidence I am particularly concerned that family violence (as the Family Report Writer had opined) is a central and fundamental issue in this case and perhaps the most significant risk from which the children must be protected. It does not represent the totality of considerations going to the children’s best interests. But their protection from further exposure to such behaviours is important.
I do not accept the submissions of the Independent Children’s Lawyer that I must have “substantial and significant concern as regards Mr L” as a person who will expose the children to domestic violence.
Whilst I accept that Mr L has certainly come to the attention of the Police and has convictions with respect to domestic violence offences (which have included exposure of children to that domestic violence on at least one occasion) the evidence, as addressed above, does not suggest the occurrence of any such behaviours in Mr L’s relationship with Ms Mateo or of recent times. Further, the compounding issue which arises (in relation to Mr L’s past use of drugs and alcohol and untreated or inappropriately or inadequately treated mental health difficulties) would appear to be addressed or more adequately addressed at this time than previously.
As already indicated, set against the fug of suspicion which is suggested to have encircled Mr L (and which I do not accept) I have the clear findings of fact which I have made as to Mr Caldera’s culpability for perpetrating family violence on both Ms Mateo and
Ms K. In accordance with the COPS event entries tendered this has, at least as regards family violence towards Ms Mateo, exposed [X] and [Y] to family violence.
In light of the above and by reference to section 60CC(2A) I propose to give greater weight to the need to protect the children from physical and psychological harm, to exposure to abuse, neglect and especially family violence, than the benefit to the children and each of them of having a meaningful relationship with the other parent.
Meeting the children’s needs
It is submitted that the children’s needs, emotionally, educationally and developmentally, “may be” better met by Mr Caldera than Ms Mateo. I, again, reject that submission and find that it is not supported by the evidence.
As the above consideration of evidence would make clear the only active steps that have been taken to introduce external supports for the children have been sourced, arranged, facilitated and funded by Ms Mateo. It is Ms Mateo who has arranged and facilitated:
a)The children’s special education support group and attendance at their present (catholic) school;
b)The children’s speech pathology;
c)The children’s counselling; and
d)The assessment or the referral of the children to [P] House (Ms Mateo having pursued that referral notwithstanding Mr Caldera’s evidence that she has failed to take any active steps and which active steps, in fact, Mr Caldera has not taken).
There is certainly more that could have been done whether by
Ms Mateo, Mr Caldera or the two of them. But what has been done, has been done solely by Ms Mateo.
To the extent that Ms Mateo is criticised for “the people she has around the children” this criticism is largely confined to Ms Mateo’s daughter [A] and to Mr L, being Mr Caldera’s former [motorcycle club omitted] brother.
A number of medical interventions (including a Ritalin trial) have not proceeded as a consequence of disagreement between the parents and thus the reluctance of medical practitioners to engage in treatment. That issue, of itself, would favour an order for sole parental responsibility let alone a consideration of the moribund communication between these parties and their active dislike and distrust each of the other.
The active dislike and distrust that each party has and has had for each other has led to allegations being raised by each (whether historical or presently) which are, at best, exaggerated. These have, in the present context, particularly included the above allegations of Mr Caldera and/or Ms K, neither of whom is willing to see any good or potential good in Ms Mateo as a person or parent.
Ms Mateo has certainly contributed to those views through her own behaviour, particularly, in the case of Ms K for whom Ms Mateo owes a substantial and significant apology (which I have no confidence will ever be forthcoming). However, Ms Mateo is, I accept, very much demonised in the eyes of Mr Caldera who can see no positive good in her and whenever presented with a circumstance will immediately adopt and leap to the most negative consequence that can be envisaged and one inherently involving the attribution of culpability solely to
Ms Mateo.
I am conscious that neither parent has demonstrated great capacity to reflect upon their past behaviours particularly the children’s exposure to family violence and verbal argument between the two and the impact that this has had upon their children leading to their present difficulties. However, to the extent that each has any insight into those factors there is some optimism that the children’s future may yet be turned around from its present calamitous course towards adult disadvantage.
In light of the above and by reference to the primary considerations I am satisfied that the most overwhelming concern is to ensure that the children are not exposed to family violence in the future. Further, I am satisfied that the greater risk of the children’s exposure to family violence would arise through the children’s placement into the care of Mr Caldera.
Additional considerations
Views
There is no evidence before the Court as to the views of [X] and [Y] as to their further care arrangements, or at all.
The closest one comes to such matters is comment in the Family Report that the children express some joy and enjoyment with each of their parents.
The highest that the Family Report Writer is able to describe with respect to the children’s relationship (absent views having been sought or offered) is to comment (at paragraph 53):
a)That the children “appeared very comfortable with…” their mother and sister [A].
b)When observed with their father the children:
…seemed comfortable and relaxed with him and appeared very happy to see him and interact with him. They were observed to greet Ms K very warmly and seemed very happy to play with [B] and [C]. They showed an interest in their brother [D], but where [sic] much more interested in interacting with their father, [B] and [C].
c)When the children are observed with their father for a second time, the Report notes “they seemed very happy to see him and chatted with him [the father] in a comfortable manner” and “[Y] was observed to be very physically affectionate towards his father” (at paragraphs 54-55).
d)“When they are observed with their mother on the second occasion they again seemed comfortable although they played a little less together when they were with their father” (at paragraph 56).
There is no evidence as to the children’s views. That is particularly concerning in light of the Family Report Writer’s recommendation (as supported by the Independent Children’s Lawyer) that the children live with their father. This move was acknowledged by the Family Report Writer in cross-examination as “it would be a massive change if they went to live with their father”.
That does not mean that it would be a change that the children could not benefit from or cope with. However, the children’s views as to that change could and should have been elicited and canvassed with them both as to their view of living with their father and their view of leaving their mother’s (and sister’s) care.
Nature of the relationship of the children with each parent and other persons
Each of the parents concedes that [X] and [Y] enjoy an excellent relationship with their paternal grandfather. That relationship is facilitated by each parent and, on the evidence, it would appear that the relationship between [X] and [Y] and their paternal grandfather is presently facilitated primarily by Ms Mateo.
The evidence would suggest that [X] and [Y] enjoy an excellent relationship with each of their siblings, [A], [B], [C] and [D] (and using the term “sibling” in its broad sense and on the basis of the children’s perception).
The children clearly enjoy a good relationship with Ms K (subject to the complaint raised by them to the Report Writer that she is “sometimes angry” but upon which I place no great weight) and would appear to be developing a relationship with Mr L. As indicated above I am not satisfied that the relationship with Mr L presents an unacceptable risk to the children.
The extent to which each of the parents has taken or failed to take the opportunity to participate in decision-making, spend time with the child or communicate with the child
One could not criticise Mr Caldera for failing to participate in decision making, spending time or communicating with [X] and [Y].
Prior to the June 2012 amendments subsection (c) had been incorporated within subsection (4) of section 60CC. This had allowed a consideration of both the extent to which each parent had taken opportunities as well as the extent to which each parent had precluded the other parent’s opportunity.
Each parent has precluded the other parent’s participation at different times in both decision making and in spending time and communicating with the children.
Mr Caldera has a pattern of withholding the children (certainly in 2008 and 2012 and, on Ms Mateo’s complaint, regularly and consistently in between).
Mr Caldera complains that Ms Mateo has permitted his relationship with the children to occur at her whim and whenever offended by any matter or event that she has withheld the children, including, for significant periods since the proceedings have been on foot. Ms Mateo was not cross-examined with respect to those matters and I am not satisfied that a finding can be made that it is so.
The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
Mr Caldera has failed to maintain [X] and [Y]. He does not and has never paid child support as assessed or at all.
Mr Caldera has not submitted tax returns (as required by law) for some years and this has hampered the issue of an assessment.
There is a significant issue as to whether Mr Caldera is in fulltime self-employment as a [omitted] or whether he is working more sporadically (as his evidence during cross-examination would suggest).
Mr Caldera’s evidence that he is working only causally and for limited periods would, by any application of the “reasonable acquisition test” give basis for some concern with respect to his evidence. Notwithstanding Mr Caldera’s provisional income that was used for child support purposes, being less than Ms Mateo’s income (derived solely from Centrelink benefits), he is able to meet all of his expenses such as they may be (there being no evidence particularising them).
During cross-examination Mr Caldera gave clear evidence that he has not contributed to the cost of the children’s counselling or speech pathology as he “was not involved in the decision”. That further aggravates the criticism of Mr Caldera arising from his failure to provide financially for the children through non-payment of child support.
Mr Caldera does allege some cash payments (not particularised) to
Ms Mateo to provide assistance to her. However Ms Mateo denies the receipt of any funds and to that extent I prefer her evidence.
Likely effect of change, including separation from either parent or other children or people with whom the children have been living
The proposals of Mr Caldera and the Independent Children’s Lawyer involve a significant and substantial change for [X] and [Y]. It would see them leaving their mother’s care and the household in which they have lived with their sister since birth. They have lived, since birth, primarily absent their father.
A change in the children’s primary living arrangements so as to see them move into the care of Mr Caldera would also see the children ultimately (at the conclusion of the present school year) leaving their school and the group of peers, teachers and others with whom they have formed associations, that which might be referred to as their “social capital”.
Whilst the existence of those relationships and past arrangements is relevant, it does not bind the Court’s discretion. The Court is obliged to make the decision that is in the children’s best interests and by considering all relevant factors and considerations of which this is only one.
However, I am not satisfied that the effect of separation of the children from their mother, their sister and their established “social capital” would be warranted absent clear and specific evidence to suggest that their needs would be far better met through that change and/or are not presently met.
The above is all the more so having regard to the proposals of
Mr Caldera whereby he envisages that the children would, for at least 6-12 months, spend no time with nor communicate with their mother or sister and would thereafter spend limited periods of supervised time with their mother.
This factor would not support a change in the children’s present living arrangements.
It is also to be noted that there are presently final orders in force (albeit and suspended as a consequence of the interim and interlocutory orders made earlier in these proceedings and being orders made by consent), whereby the children’s living arrangements with their mother had been cemented. That is not to suggest that the order cannot and should not be changed if a change in circumstances is established (perhaps in this case best established through a continuation and further deterioration in the poor relationship between the parents) and arrangements are identified which would better meet the children’s needs. Neither parent nor the Independent Children’s Lawyer has sought to raise a Rice & Asplund (1979) FLC 90-725 issue.
I am not satisfied that the children’s placement in the father’s household would better meet their needs.
The evidence has spoken broadly of the father’s household “possibly” providing “a more stable or more structured arrangement” for the children. I do not accept that the evidence supports that this is or would be so.
In the case of the Family Report Writer, who has opined that this “may” be so, I am conscious that she had misinterpreted the evidence of Dr T as lending support to that proposition when it has done no such thing. Indeed, Dr T was clear in disavowing such a position had ever been adopted or expressed by him.
Whilst there are clear and certain deficiencies in Ms Mateo’s capacities as a parent (which are not criticised for any purpose other than to acknowledge that Ms Mateo’s parenting skills are not significantly greater than those of Mr Caldera) she has been the only parent who has taken any active step, during the currency of these proceedings, to address the detriments that the children are presently experiencing.
I am also conscious that the evidence, particularly that of Mr Caldera and the Report Writer, which would seek to apportion blame to
Ms Mateo for deficiencies in parenting of these children, ignore the reality that those deficiencies have arisen through the joint behaviours of Ms Mateo and Mr Caldera both as regards their fractured and unorthodox casual relationship with each other (over which Mr Caldera would appear to have exercised some slightly greater degree of control) and by minimising, if not entirely overlooking the significant impact of Mr Caldera’s perpetration of family violence upon both Ms Mateo and these children.
Practical difficulty and expense
I incorporate herein section 65DAA(5) of the Act and address each of the factors therein as follows.
How far apart the parents live from each other
Ms Mateo lives at [M] and Mr Caldera lives at [S]. The parties are no significant distance apart geographically although the traversing of that distance during peak hour traffic (as would be required to collect the children from or return the children to school) would appear to make that journey something in the nature of 35-45 minutes. That period is able to be addressed subject to Mr Caldera’s and/or Ms K’s availability.
Mr Caldera is and will be significantly dependent upon Ms K to facilitate parenting arrangements. There remains the significant issue as to Mr Caldera’s actual hours and days of employment varying between his evidence earlier in the proceedings (that he worked each and every day from 5:30am until 3-6pm) and his more recent evidence that his employment is far less burdensome.
Ms K is a person with her own fragilities. She has the care of three young children within her household, at least two of whom have some degree of special need. She has also been the victim of family violence perpetrated upon her by Mr Caldera. Accordingly, the distance that the parent’s live apart, whilst not significant, is compounded by these difficulties.
The parents’ current and future capacity to implement an arrangement for equal or substantial and significant time
The parties had for a very brief period (comprising a period from no earlier than mid-2007 until no later than mid-2008) shared the care of these children. That was not particularly beneficial to the children as their developmental needs would not appear to have been met and their behaviours and special needs increased and became cemented during that arrangement.
I am not satisfied that the parents could possibly implement an arrangement for equal or substantial and significant time at present bearing in mind their completely hostile attitudes towards each other (and the attitudes of others in their households), their work commitments, financial circumstances and, importantly, their complete lack of cooperation or communication with each other.
The parents’ current and future capacity to communicate and resolve difficulties
This is a significant issue for these parents and has been for many years.
The Family Report Writer observes (paragraph 68):
The parents now have an extremely conflictual relationship and are unable to communicative (sic) in any meaningful way about [Y] and [X]. Mr Caldera does not seem to have an interest in having a co-parenting relationship with Ms Mateo and she seems to have given up on the possibility of establishing such a relationship. It seems unlikely the parents will ever be able to establish a positive co-parenting relationship. It therefore seems that the best option for the children would be for them to live with one parent who has sole parental responsibility or (sic) their long term welfare and for them to have regular contact with the other parent.
I accept that reportage and observation.
For many years these parents have not been able to communicate effectively. There is certainly a significant volume of material that has passed between them particularly by way of text message; however, that material has been anything but effective communication. It has been nothing short of scandalous and hostile abuse.
The impact of the arrangement on the child
The arrangement proposed by Mr Caldera (that the children pass into his care and for 6-12 months have no communication whatsoever with their mother) is so reflective of a lack of insight into the children’s needs that I am bewildered as to how he could possibly formulate the proposal. The fact that he has, lends some support to Ms Mateo’s expressed concern that Mr Caldera is openly hostile towards her and anxious to “punish” her. The view is certainly contrary to the evidence of Dr T and the Family Report Writer as to what would meet the children’s needs.
If punishment of Ms Mateo were Mr Caldera’s motivation then that alone would not be problematic, save perhaps that whilst not his intent or purpose the net impact and effect of the proposal would be to punish [Y] and [X]. Mr Caldera fails to see that it could be so.
An arrangement that would see the children moved to their father’s care is, I am satisfied, not one which brings advantage that would outweigh detriment (accepting for one moment that it brings advantage which is difficult to apprehend or comprehend in light of the findings that I have made of family violence perpetrated by Mr Caldera).
Whilst the Family Report Writer has expressed a general “sense” that Mr Caldera “may” offer greater stability or structure for the children I do not see, upon the evidence available, that a finding that this is so could be made. Mr Caldera’s household, particularly in light of the finding that Mr Caldera has perpetrated family violence on Ms K, would appear to be equally chaotic and equally if not more likely (and I accept that it would be more likely) to expose [Y] and [X] to family violence and the disruption and damage that would flow therefrom.
In light of the extent of family violence that [Y] and [X] have been exposed to in their past (effectively for all of their life) as well as the dramatically unsettled arrangements which have flowed, partially as a consequence thereof and otherwise as a consequence of the hostile dynamic between the parties and the comings and goings that have occurred in the relationship between them, I am not satisfied that the children would benefit from the change proposed by Mr Caldera and supported, at least in part, by the Independent Children’s Lawyer.
I am satisfied that the disadvantages that would flow to the children through the disruption to the relationship with their mother (with whom they have lived since birth), their sister and leaving behind all social capital presently in place for them and the arrangements presently addressing their needs (such as speech pathology and counselling) is such as to obviate against the proposal.
Capacity of each parent and other persons to meet the children’s needs including emotional and intellectual needs
The Family Report Writer has opined and I accept appropriately so (paragraph 65):
It is possible that neither parent would be able to provide the children with the level of care that they really require.
Ms Mateo has taken steps to meet the children’s present needs and, I am satisfied, will continue to take steps to address the children’s needs as best she can and at least with an acceptance of and insight into the need for such interventions (which insight is not necessarily shared by Mr Caldera whom, I accept, genuinely believes that the children’s present difficulties and needs are caused solely by Ms Mateo, her parenting and the “environment” she has created for the children).
Whilst there are deficiencies in the capacity of each parent to parent (at the risk of conflating the noun and verb) I am satisfied that Ms Mateo’s capacity is at least equal and in all probability greater than that of
Mr Caldera.
Mr Caldera of course has the support of his partner, Ms K. However, I am significantly concerned that the denial, collusion and deception that has surrounded the significant event of family violence 29-30 September 2012, is such that the environment could not be considered without risk or accepted as protective.
Maturity, sex, lifestyle and background of the children and of either of the children’s parents
Both parents (as observed by the Family Report Writer) have commenced life with disadvantage. At paragraph 61 the Report Writer observes:
Both Ms Mateo and Mr Caldera have had very difficult early lives with Ms Mateo experiencing abuse during her childhood and
Mr Caldera experiencing family break up and a conflictual relationship with his father. It is evident that both Mr Caldera and Ms Mateo love [Y] and [X] and both believe that they can provide the twins with the best environment. Unfortunately both parents seem to have limitations in their parenting.
The limitations are further expanded upon by the Report Writer, including in the case of Mr Caldera the Report Writer’s opinion that
Mr Caldera is “obsessed” with proving that [Y] has been abused by [A]. I accept that the “obsession” of Mr Caldera goes beyond this allegation and includes a fervent desire to demonstrate Ms Mateo’s inadequacy and incompetence as a parent.
Some comment is offered upon Mr Caldera’s allegations of family violence, albeit, somewhat minimally. At paragraph 61 the Report Writer observes:
Ms Mateo has made many allegations about Mr Caldera’s treatment of both her and the children. It is not possible to comment upon the veracity of these allegations but if they were correct they would raise curious concerns about Mr Caldera’s ability to provide safe care for the children.
As I have accepted and made findings of fact as regards Mr Caldera’s perpetration of family violence, I thus accept that serious concerns do exist as to Mr Caldera’s ability to provide safe care for the children particularly if he were to be a primary parent.
To the extent that Ms Mateo has raised concerns about Mr Caldera’s parenting capacity consequent upon his membership of the [motorcycle club omitted], I note:
a)Mr Caldera was a member of the club when he commenced his relationship with Ms Mateo.
b)While Ms Mateo has given evidence that she raised concerns about his membership during the relationship they are non-specific.
c)Ms Mateo’s present relationship with Mr L sees her in a relationship with a person who, until recently, was also a member of the same club. She does not express concerns on the issue as regards that (past) membership.
d)Membership of a motorcycle club is not, by and of itself, a matter of relevance or significance. Unless and until some specific matter relating to a party’s behaviour (whether connected with that membership or otherwise) is raised I am no more concerned with the membership by Mr Caldera of the [motorcycle club omitted] as I am with his membership of any other club. I cannot and will not infer anything from it without evidence.
The background of either parent is relevant to some extent.
The deficiencies that each has as a parent (indeed the fragilities that led them to seek out each other) have contributed to the children’s learning difficulties and behaviours. In the vernacular each of the parents has left childhood somewhat “damaged” and each has found comfort in the other as a consequence of their damage and past experience. However, this has led to an accumulation of deficit and which has far more profoundly and significantly disadvantaged [X] and [Y] than it has disadvantaged either of their parents.
There has been an intensification or magnification of the difficulties which each parent experienced in their childhood as a consequence of the parent’s relationship and thus has been reflected in, if not imposed upon, the childhood of [X] and [Y].
[X] and [Y] do have significant developmental, educational and medical needs. They must be addressed and addressed promptly and intensely to afford to them any opportunity to take their place in civil society in future years. If [X] and [Y] continue in their present behavioural course one can predict they will likely become institutionalised one way or another.
If a child is Aboriginal the child’s right to enjoy their culture
Ms Mateo identifies as Aboriginal although she concedes that she does not engage in any extensive cultural practice or have any extensive knowledge of her Aboriginal culture and heritage.
Ms K also identifies as Aboriginal and whilst advancing her pride in her Aboriginality and practice (entirely appropriately) there is no specific evidence before the Court as to what this involves or how it is manifested.
Irrespective of the attitude of the parents towards their own Aboriginality (in the case of Ms Mateo) the children [X] and [Y] are clearly Aboriginal.
The right to enjoyment of culture and cultural practice is the child’s right and thus each parent is obligated to facilitate, foster and encourage those rights. These include the rights expanded upon in section 60CC(6) to maintain a connection with culture and to have the support, opportunity and encouragement necessary to explore culture and develop a positive appreciation including with others of that culture.
I accept that Mr Caldera, as he has conceded in cross-examination, is fully aware of the children’s Aboriginality and the importance of allowing them to explore all aspects of their culture and heritage, both Italian and Aboriginal.
It was suggested in submissions (particularly by the Independent Children’s Lawyer) that Mr Caldera has demonstrated his commitment to the children’s Aboriginality through ensuring their attendance upon Aboriginal medical centres to receive treatment when they have been in his care. However, it cannot be escaped that Mr Caldera has also indicated that he is fully aware of the benefits of such attendance being free service provision. Further, that service provision arises through
Ms K’s Aboriginal identity and her attendance upon Aboriginal medical services and, in all probability she has had a significant role to play in instigating those services.
Overall, I am not satisfied that the children’s right to enjoyment of culture and participation in same would significantly favour one proposal over the other as I am satisfied that the child’s right to culture and practice would be met in either household.
The attitude to the child and responsibilities of parenthood demonstrated by each parent
Each parent has demonstrated a deficient attitude towards their responsibilities as parents. Each has become focused upon their warfare with the other (and in the case of Ms Mateo her warfare against Ms K) rather than the children’s needs and the importance of the children not being witness to that warfare, (let alone engaged within that warfare as “child soldiers”).
The attitude demonstrated by Mr Caldera towards provision of financial support and assistance to his children whilst they are in
Ms Mateo’s care typifies his attitude to the children. If matters are addressed in the fashion that he desires or dictates then he is more than happy to accommodate them and, if not, he withholds financial assistance. Further, the perpetration of family violence (or the exposure of these children to the serious, significant and vile verbal arguments that have occurred) is a black mark upon the report card of each parent.
Family violence involving the child or a member of the child’s family
This has been canvassed at length above but cannot be over emphasised.
I am satisfied that these children have been exposed, from birth, to significant family violence. Indeed the evidence would suggest that the children have been exposed to family violence (in its broadest sense) in utero.
I am concerned, by reference to the social science literature that is canvassed above and which has been raised with the parties and put to the Family Report Writer, that the children’s present behaviours may well have been contributed to and impacted by such exposure. At the very least the children’s fragility and predisposition to disadvantage has been created as a consequence of exposure to family violence.
I am satisfied that the risk of the children’s exposure to family violence in the future and the risk of their exposure to re-triggering trauma (as referred to in the literature quoted above) is increased if the children were to live with their father as opposed to living with their mother.
Family violence orders
There are no family violence orders presently in place.
Ms Mateo has in the past obtained a family violence order against
Mr Caldera but it has expired.
Ms K has previously obtained a family violence order against
Ms Mateo. That order has also expired.
Whether it is preferable to make the order that will least likely lead to the institution of future proceedings
I am satisfied that this factor supports the children’s placement with
Ms Mateo.
Ms Mateo has instigated the only supports and services which the children have received of recent times. Those services have been of benefit to them and are beginning to achieve change (albeit small) to the children’s behaviour. The services have increased their educational outcomes.
Mr Caldera has demonstrated, as the Family Report Writer has opined, his willingness to ignore or act contrary to orders of the Court in the event that he perceives it is appropriate, necessary or desirable to do so, or to his advantage.
I am satisfied that the children’s needs would, in all probability, be better met by Ms Mateo and that Mr Caldera, subject to the extensive orders proposed by the Independent Children’s Lawyer as regards the children’s treatment, would be less likely to comply therewith.
Other facts or circumstances
It is difficult to comprehend a more pessimistic outlook for children than arises in this case.
[X] and [Y] would appear to have been damaged by their parent’s relationship with each other and the dynamic of conflict between them since their birth.
[X] and [Y] have been further disadvantaged, particularly in more recent years, through the inability of their parents to work on any level that would resemble cooperation with each other. This has included and extended to the inability of the parents to agree on the engagement of services that would have provided substantial assistance to [X] and [Y] particularly if implemented at a much earlier time (such as from 2010 when there was clear evidence that a diagnosis of ADHD was offered by the children’s then treating paediatrician [name omitted]).
The diagnosis of ADHD would appear to have been rejected to some degree by both parents, although far more zealously by Mr Caldera who continues to steadfastly oppose a trial of medication notwithstanding that the diagnosis is tentatively offered at this time by Dr T whose opinions Mr Caldera has sought to rely upon in advancing his own cause.
The children’s welfare has been sidelined by parental dispute and focus by the parents and each of them upon their warfare with the other. It has been that way for so long that it is beyond regrettable and is bordering upon the criminal.
How these parents have managed to avoid coming to the attention of the Department of Family and Community Services and with active intervention by that agency on the basis that the children’s needs have not been properly met beggars belief.
Summary
Having regard to the above reasons I am satisfied that the best arrangement that can be arrived at for [X] and [Y] is for their continued care to be primarily provided by their mother, Ms Mateo and for them to spend regular time with their father with whom they enjoy an excellent relationship (notwithstanding the family violence that he has perpetrated upon their mother including in their presence).
The extensive raft of orders proposed by the Independent Children’s Lawyer (whilst favouring the children’s placement with Mr Caldera) would see the Court coercing ongoing treatment and interventions for the children. Whilst ordinarily I would be loath to impose the Court’s coercion upon a parent, so as to direct them as to how to parent their child, I am satisfied that in this case it is appropriate. The circumstances of this case, as would be apparent from the above comments, are exceptional.
Absent coercive order, I am concerned that arrangements may not be followed through with by the parents or either of them and that
Ms Mateo, in particular, may feel that she has “won” and avoided the consequences of Mr Caldera’s application, being her loss of the children’s care. She need labour under no such illusion.
The Court’s scrutiny will remain in that I propose to make an order, notwithstanding the extraordinarily stretched resources of the Court, requiring that a Family Consultant of the Court supervise arrangements for a period of 12 months from the date of these Orders. That will ensure that if appropriate interventions are not obtained and followed through with by Ms Mateo that these failures will be brought to the attention of the Court and Mr Caldera.
As regards the time that the children will spend with Mr Caldera, the Independent Children’s Lawyer has proposed (albeit in reverse order) that time should commence with the conclusion of school Friday and continue through to the commencement of school the following Monday (Tuesday if a long weekend).
This is opposed by Ms Mateo on the basis that “I am pretty OCD about getting the children ready for school”. That is not, in my mind, a sufficient reason to deprive the children of the opportunity of an additional night of time with their father nor his participation in that aspect of their life. Further, I am concerned that the risk to the children of being exposed to a changeover between their parents face to face (which can be avoided by the children being returned to their school) outweighs any detriment.
Accordingly, I make orders as follows.
I certify that the preceding four hundred and sixty-nine (469) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 5 August 2014
Key Legal Topics
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Family Law
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Procedural Fairness
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Jurisdiction
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