Jeong & Kantor
[2021] FedCFamC2F 24
•8 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jeong & Kantor [2021] FedCFamC2F 24
File number(s): BRC 1055 of 2019 Judgment of: JUDGE JARRETT Date of judgment: 8 September 2021 Catchwords: FAMILY LAW – The Family Law Act and related legislation – parenting orders assessment of competing proposals. Legislation: Family Law Act 1975 (Cth) ss 11F, 60CC, 61DA(2), 62G(2) Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Division: Division 2 Family Law Number of paragraphs: 133 Date of last submission/s: 9 December 2021 Date of hearing: 18 August, 8 & 9 December 2020 Place: Brisbane Counsel for the Applicant: Mr Sayers Solicitor for the Applicant: Legal Aid Queensland The Respondent: Self-represented
Table of Corrections 10 September 2021 In order 2 the spelling of the child Z’s name has been amended. 10 September 2021 In order 4(a) the words on Tuesday have been added to the first line. ORDERS
BRC 1055 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS JEONG
Applicant
AND: MR KANTOR
Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
8 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.All previous orders are discharged.
2.The parties have equal shared parental responsibility for decisions concerning the major long term issues for their children W born in 2008, X born in 2010, Y born in 2013, and Z born in 2016.
3.The children live with the applicant.
4.The children live, spend time and communicate with the respondent at all reasonable times as may be agreed to between the parents, but failing agreement, during school terms as follows:
(a)in week one, from after school or 3:00pm (as the case may be) on Tuesday until before school or 9:00am (as they case maybe) on Wednesday; and
(b)in week two, from after school or 3:00pm (as the case may be) on Friday until before school or 9:00am (as they case maybe) on Monday, with the father to ensure the children’s attendance at music lessons (if any ) during their time with him.
5.Notwithstanding any other order herein, unless otherwise agreed between the parents, on special days the children will spend time with the applicant and the respondent as follows:
(a)During the Christmas special days:
(i)In even numbered years, with the children to spend time with the applicant from 10.00am on 24th December (Christmas Eve) until 3.00 pm on the 25th December (Christmas Day) and the children to spend time with the respondent from 3.00pm on the 25th December (Christmas Day) until 3.00pm on 26th December (Boxing Day).
(ii)In odd numbered years, with the children to spend time with the respondent from 10.00am on 24th December (Christmas Eve) until 3.00pm on the 25th December (Christmas Day) and the applicant to spend time with the Children from 3.00pm on 25th December (Christmas Day) until 3.00pm on 26th December (Boxing Day).
(b)During Easter special days:
(i)In even numbered years, with the children to spend time with the applicant from 10.00am on Good Friday until 3.00 pm Easter Saturday and the children to spend time with the respondent from 3.00pm Easter Saturday until 3.00pm Easter Sunday.
(ii)In odd numbered years, with the children to spend time with the respondent from 10.00am on Good Friday until 3.00 pm Easter Saturday and the children to spend time with the applicant from 3.00pm Easter Saturday until 3.00pm Easter Sunday.
(c)in the event that the children are not otherwise with the respondent on Fathers’ day, that the children spend time with the respondent from 9.00am until 5.00pm on that day.
(d)in the event that the children are not otherwise with the applicant on Mothers’ day, that the children spend time with the applicant from 9.00am until 5.00pm on that day.
(e)On the children’s birthdays, as follows:
(i)On school days, from after school until 5.00pm with the parent who did not wake with the children in their household;
(ii)On non-school days, from 9.00am until 1.00pm with the parent who did not wake with the children in their household.
6.Time pursuant to order 4 herein is suspended for the duration of the children’s school holiday periods.
7.The children will spend time with the applicant and respondent during the children’s school holiday periods as follows:
(a)In even numbered years, the respondent to spend the first week of each school holiday period and each alternate week thereafter and the applicant to spend the second week of each school holiday period and each alternate week thereafter.
(b)In odd numbered years, the applicant to spend the first week of each school holiday period and each alternate week thereafter and the respondent to spend the second week of each school holiday period and each alternate week thereafter.
(c)The school holiday period shall be deemed to commence from 3.00pm on the Friday of the week that the school term finishes and conclude at 3.00pm on the Friday immediately preceding the commencement of the new school term and changeover shall occur at 3.00pm on the Friday of each week.
(d)The children’s time with the respondent pursuant to order 4 herein shall resume on the first weekend after the commencement of the new school term in even years and the second weekend after the commencement of the new school term in odd years.
8.The respondent shall be at liberty communicate with the children by telephone between 5.00pm and 5.30pm each Monday and for this purpose, the respondent will telephone the applicant’s mobile phone and the applicant shall facilitate the call.
9.For the purposes of changeover, the following shall apply:
(a)during school terms, all changeovers shall take place at the children’s’ school or schools or other care or education facility at which a child might be attending;
(b)otherwise changeover shall take place at the McDonalds Family Restaurant at Suburb B.
10.During the time the children are with either parent, the parent shall:
(a)respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)speak of the other parent respectfully;
(c)not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children;
(d)not expose the children to family violence or parental conflict.
11.Both parties are restrained by injunction from discussing these Court proceedings or any other Court proceedings involving the parties in the presence or hearing of the children or allowing anyone else to do so.
12.Both parties shall keep the other informed of a residential address, email address and contact telephone number (either a land line, mobile telephone or both if parents have both connected) and shall advise the other parent within forty-eight (48) hours of any change occurring.
13.The applicant and the respondent shall communicate with each other by email or text message for the purposes of exchanging any information relevant to the education, health or welfare of the children
14.The applicant and respondent notify each other prior to commencement and upon any changes being made to the children’s attendance (specifying dates, times and contact details) of regular organized activities and extra-curricular activities.
15.Neither party shall enrol or commit the children’s attendance upon any extra- curricular activity or event during those periods the children are with the other parent without first obtaining consent in writing.
16.The applicant and respondent are at liberty to attend the children’s school (including events) and extra- curricular activities and to contact the children’s school, teachers and coaches to ascertain how the children are progressing. The respondent is to advise the applicant by text message of his intention to attend school events within twenty-four (24) hours prior to the event save for an emergency.
17.Both parties shall ensure that all of the children’s belongings are returned with the children at changeover.
18.This order operates as an authority for any professional care provider of the children (whether a school, doctor, hospital or otherwise) to release any information concerning the care, welfare and development of the Children to both parents. Should either parent seek any documentation in relation to the Children (including but not limited to school notices, school reports, and school photograph order forms), that parent shall be at liberty to do so, with the parent seeking any documentation to be responsible for any expenses involved.
19.The applicant shall provide the respondent with a list of the professional care providers for the children within seven (7) days of the date of this order and the applicant and respondent will advise the other within seven (7) days of any changes to this list.
20.Otherwise, all outstanding applications and responses are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Jeong & Kantor has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JARRETT:
This case concerns the parenting arrangements for four children, W (born in 2008), X (born in 2010), Y (born in 2013) and Z (born in 2016). Presently, the children live with Ms Jeong and spend time with Mr Kantor according to the cumulative effect of interim orders that were made on 31 January and 6 December, 2019 and 18 August, 2020. Those orders when read together provide:
(a)for W and X to spend one overnight in one week (Tuesday night) and three overnights in the other week (Friday, Saturday and Sunday) being a total of 5 nights each fortnight; and
(b)for Y and Z to spend some hours from after prep to 5.00pm each Tuesday and from Saturday morning to Monday morning every other week (two nights per fortnight).
The orders also provide that:
The children be at liberty to communicate with either parent at any reasonable time that they express a desire to do so and the residential parent shall do all things reasonably necessary to facilitate that communication and shall afford the children peace and privacy for the purposes of that communication.to be telephone communication between the children and the father each day.
At the commencement of the trial, Mr Kantor sought orders that the children live with him and subject to the children being “safe” in Ms Jeong’s care, they should spend half of their time living with her. If they were not considered to be “safe” by the court in her care then any time between the children and her should be supervised.
At the commencement of the trial Ms Jeong sought orders that the children live with her and spend each alternate weekend with Mr Kantor. In effect she advocated for a reduction of time between the children and Mr Kantor.
It was uncontroversial that during the course of the parties’ relationship, there were frequent arguments between them to which the children were exposed. Both accepted that they yelled and screamed at each other, sometimes in the presence of some or all of the children. It is also uncontroversial that the parties, but Ms Jeong in particular, yelled at the children. There was no dispute that she physically disciplined them with objects such as a Golf club (although there was an issue as to whether it was a steel club or a plastic “wobbly” Golf club) and a plastic cricket bat. Mr Kantor disagreed with corporal punishment of the children, although Ms Jeong and the children say (the children to a family consultant) that Mr Kantor would also physically discipline the children.
Both parties have, from time to time suffered from depression, whether that be formally diagnosed or simply suspected by their treating doctors. They have each been prescribed medication for those depressive symptoms although have not always taken what has been prescribed for them.
It is also uncontroversial that since separation and especially since mid-2019, the relationship between W and Ms Jeong has deteriorated and W exhibits very challenging behaviour towards her mother. Ms Jeong attributes this deterioration to the undermining effect of Mr Kantor’s communications with W and his desire to promote his own relationship with her and the other children ahead of the relationship that they have with Ms Jeong.
In light of those matters which were emphasised by the parties both in their evidence and in their submissions and analysed against the framework established by s. 60CC of the Family Law Act 1975 (Cth), the issues requiring resolution so as to inform an order which is in the best interests of these children include:
(a)whether the children are at an unacceptable risk of physical harm in Ms Jeong’s care by reason of being exposed to physical violence;
(b)whether the children are at an unacceptable risk of emotional harm in Ms Jeong’s care by reason of being exposed abuse or violence from Ms Jeong;
(c)whether the capacity of either parent is impaired such that one or other of them or both cannot properly meet the children’s emotional needs and in particular the need for a proper relationship with each of their parents; and
(d)whether the quality of the co-parenting relationship between Mr Kantor and Ms Jeong suggest that together they can together meet the emotional needs of the children.
PROCEDURAL BACKGROUND
These proceedings were commenced by Ms Jeong on 30 January, 2019. The matter came before the court on that day and the parties agreed on certain interim parenting orders that could be made between them. Those orders provided for the children to live with Ms Jeong and for them to spend time with Mr Kantor on a fortnightly basis as follows:
(a)for W and X:
(i)in week 2 commencing 9 February, 2019 from their music lesson on Saturday until before school Monday with changeover to take place at the music lesson and school on Monday;
(ii)each fortnight from after school Tuesday until before school Wednesday with changeover at the school;
(b)for Z:
(i)in week 2 commencing 9 February, 2019 from 9:00am until 5:00pm on Saturday and Sunday with changeover at Church C on Sunday and McDonalds Suburb B Saturday;
(ii)in week 1 and 2 from 1:00pm until 5:00pm each Tuesday with changeovers to take place at McDonalds Suburb B;
(c)for Y:
(i)for a period of six (6) weeks as follows:
(A)in week 1 from Tuesday after Prep until 5:00pm;
(B)in week 2 commencing 9 February, 2019 from Saturday 9:00am until Sunday 5:00pm;
(ii)after six (6) weeks as follows:
(A)in week 1 on Tuesday after Prep until 5:00pm; and
(B)in week 2 on Saturday from 9:00am until before school on Monday; and
(iii)with changeovers to occur at McDonalds at Suburb B.
On that occasion the court made an order for the preparation of an advice pursuant to s.11F of the Act. The application returned to the court on 1 February, 2019 at which time a dispute about the school at which W should attend was quelled. An order was made for her to attend at College D.
The matter returned to court on 18 March, 2019. With the benefit of the report prepared pursuant to s.11F of the Act the parties agreed to further orders to regulate the parenting arrangements for the children. The orders included the way in which the parties would communicate about issues concerning the children.
An order was made for the preparation of a family report pursuant to s.62G(2) of the Act. That report was prepared by Ms EE, a social worker and family consultant working within the Federal Circuit Court of Australia. The report was released to the parties on 25 June, 2019.
On 13 August, 2019 the application was fixed for trial on 6 December, 2019. When the application came before the court on that day both parties were represented by counsel. The parties sought that the application be adjourned. They agreed to the making of certain interim orders that varied the order made on 31 January, 2019. By the varied orders the children continued to live with Ms Jeong but spent the following time with Mr Kantor:
(a)for W and X:
(i)in week one (1) from after school on Tuesday until before school on Wednesday;
(ii)in week two (2) from after school on Friday until before school on Monday (with the father to ensure the children’s attendance at music lessons during his time with them);
(b)for Y:
(i)in week one (1) from after prep on Tuesday until 5:00pm;
(ii)in week two (2) from 9:00am on Saturday until before school on Monday;
(c)for Z:
(i)in each week, each Tuesday from 1:00pm until 5:00pm;
(ii)in week two (2), each Saturday from 9:00am until 5:00pm with changeover to occur at the McDonalds Family Restaurant and each Sunday from 9:00am until 5:00pm with changeover to occur at Church 1; and
(d)unless otherwise identified in these orders, changeover is to occur at the McDonalds Family Restaurant at Suburb B.
There was an agreed order for Ms Jeong to undergo a psychiatric assessment. That report was prepared by Dr M, consultant psychiatrist and filed on 18 May, 2020.
On 5 June, 2020 the application was adjourned to 18 August, 2020 for another attempt at a trial. Further trial directions were made.
The trial commenced on 18 August, 2020 but did not complete on that day. The applicant was represented by counsel and Mr Kantor appeared in person. At the conclusion of the hearing I made a further interim order varying the orders made on 6 December, 2019. The variation discharged order 3(c) made on 6 December, 2019 and in its place, order 3(b) of those orders was varied to include both Y and Z within in its terms. The application was further adjourned to 8 December, 2020 for continuation of the trial. The further hearing of the trial proceeded on 8 and 9 December, 2020.
THE EVIDENCE
Ms Jeong relied upon an affidavit filed by her on 6 August, 2020. Counsel for Ms Jeong also tendered a bundle of documents comprised of various documents produced on subpoena from various organisations. They are exhibit 1. In addition to that there was a report prepared by Dr M that was appended to an affidavit sworn by Ms Jeong’s solicitor and filed on 18 May, 2020. There was no objection to my receipt of that affidavit or its annexure.
I also have the report from Ms E. That report is exhibit 2 in the proceedings. Ms Jeong also tendered a USB memory device upon which there are stored electronic recordings of conversations that she has recorded. Transcripts of some of the recording were a focal point of her evidence but the accuracy of the transcripts was in dispute. Accordingly counsel for Ms Jeong tendered the recordings on the USB device. Four of the files on the USB became exhibit 3.
Mr Kantor relied upon his affidavits filed on 3 December, 2019 and 3 August, 2020. He also relied upon an affidavit sworn by his son Mr V Kantor filed on 4 August, 2020. On the resumed hearing Mr Kantor tendered some documents he identified as important that had been produced on subpoena from a psychology service called Healthcare Centre F. There were two bundles of such documents and those identified by Mr Kantor as being those upon which he wished to rely were marked as exhibits 4 and 5 respectively. On the last day of the trial, Mr Kantor identified some documents upon which he wished to rely from the documents produced on subpoena from the Queensland Police Service. The documents so identified are exhibit 6 in these proceedings.
THE APPLICANT
Ms Jeong was born in 1980 and is presently 40 years of age. She was born in Country G and lived there until she moved to Australia in early 2008. She moved to Australia approximately six months before she and Mr Kantor were married. She is a permanent resident of Australia. English is her second language. She is able to read, write and speak English however sometimes she needs the assistance of an interpreter. Presently, she does not have any employment. She holds no formal qualifications.
Apart from the four children who are the subject of these proceedings, Ms Jeong has no other children. There is no suggestion that Ms Jeong is in anything other than good physical health.
The evidence shows that following the birth of the parties’ first two children, Ms Jeong’s general practitioner thought that she may have had some postnatal depression and she was referred to a psychologist for assistance with that. She was also prescribed medication. She saw the psychologist for two visits but thereafter discontinued her engagement. Although her affidavit evidence suggests that she was taken off the prescribed medication by her doctor, in cross-examination she said that she took it once and then she said “I’m not really interested in taking it. It doesn’t make any changes”. It seems tolerably clear that she ceased taking of her own volition.
Ms Jeong was interviewed (with the assistance of an interpreter) by Dr M on 20 February, 2020 for the purposes of a forensic psychiatric assessment. Dr M’s report is dated 6 May, 2020. Dr M was not cross-examined by either party.
Dr M first conducted an interview with Ms Jeong and formed a provisional diagnosis based upon that interview. Dr M could find no evidence of any major mental illness and in particular he thought there was no evidence of psychosis or major mood disorder. Although he noted that Ms Jeong had consulted her general practitioner following the birth of her first two children and there was a suggestion of depression at that time, he did not think that she was suffering from a major depressive disorder then or at any other time. He thought that she may have some personality vulnerabilities and that they would “be in the cluster C range”.
Dr M then considered the documentation that had been sent to him by the parties. That included a letter of instruction together with the affidavits filed by the parties up to that point in time. After reviewing those documents Dr M expressed a further opinion about Ms Jeong’s mental state as follows:
With respect to the diagnostic issues in the mother, given the considerable dispute of fact, this is obviously somewhat fraught. There is nothing in the documentation that would suggest the presence of a major mental illness in the mother with no suggestion of psychosis. I note that the father reports the mother had suffered post-natal depression. This appears to have presented as an increased fastidiousness and irritability rather than a true depressive episode. While the mother reports to being stressed at the time of the apparent diagnosis, she denied any symptoms consistent with the Major Mood Disorder at that time and one suspects that a major depressive episode can be discounted, as could a bipolar type illness.
Certainly, cross sectionally, the mother was not presenting with any features of a major depressive, hyper manic, or manic illness.
It is certainly possible that the mother developed anxiety symptoms that perhaps heightened any underlying personality vulnerabilities, but given the mother’s essential denial of any specific issues consistent with the development of a Depressive/Anxiety Disorder, or increased fastidiousness and features of Obsessive – Compulsive Disorder/Obsessive – Compulsive personality, it is difficult to draw any firm any (sic) conclusions.
As to the mother’s personality, Dr M concluded:
As to the issue of the mother’s personality, it is particularly fraught, given the considerable dispute between the parties. If the mother’s account is to be believed, the fact that she remained in a relationship with the father as characterised and had difficulty with setting limits, to what she describes as significant pathology in the relationship with the father and ongoing ambivalence with respect to the relationship, may suggest personality vulnerabilities in the cluster C range, although other cultural and religious factors may also play a part. If the father’s account is to be believed, the mother would be seen to be displaying features of obsessive-compulsive personality traits as well as possible cluster B traits, with difficulties in emotional regulation and that these became heightened in the context of the postpartum period. If the court found that the father’s description of the mother was, in fact, factual and the mother’s continual denial of the same, also raises concerns about the mother’s ability to prioritise the needs of the children ahead of her own within the court process, and would be suggestive of more profound character pathology in the cluster B range, although again cultural factors may also contribute to this however.
Dr M then made a number of qualified recommendations. These recommendations formed a significant focal point for Mr Kantor and his argument in support of the orders that he asked the court to make. I will return to these recommendations later in these reasons.
Given the dependence of Dr M’s opinions upon the resolution of the factual issues raised in the material, I will defer my findings about Ms Jeong’s mental state until I have considered the facts more closely.
THE RESPONDENT
Mr Kantor was born in 1975. He is presently 46 years of age. He has a son from a previous relationship, Mr V who was born in 2001. Mr V is presently 20 years of age. Mr Kantor relied upon an affidavit sworn by Mr V in these proceedings, but he was not cross-examined.
Mr Kantor is in reasonable health. He has a back injury which he suffered in a car accident and for which he takes anti-inflammatory medication. He also attends upon his general practitioner from time to time for the management of that injury.
Mr Kantor was diagnosed with depression during the parties’ relationship in about 2012. He was prescribed medication for a short period of time but his evidence is that he no longer takes medication. He did not present any forensic psychiatric assessment of his mental health for the court’s assistance although he insisted upon the mother undergoing such an assessment at his cost.
Mr Kantor is employed as a “father’s support worker” at a community organisation.
THE EVIDENCE
A preliminary issue
At the commencement of the trial an issue arose about whether Mr Kantor had been provided with recordings of certain telephone conversations between him, the children and Ms Jeong. Ms Jeong had extracted within the body of her trial affidavit transcripts of conversations between Mr Kantor and one or other of the children upon which she relied to demonstrate the undermining nature of Mr Kantor’s interactions with the children. Mr Kantor took issue with the accuracy of those transcripts and suggested that they were “highly edited”. That led to me enquiring of Mr Kantor about the steps he had taken to conclude that they had been “highly edited” and in particular, I asked whether he had compared the transcripts to the recordings of the conversations from which the transcripts were said to have been made. Mr Kantor then asserted, forcefully, that despite having asked for the recordings to be provided to him they had never been provided.
Counsel for Ms Jeong submitted that the telephone recordings had been provided to Mr Kantor in January, 2020 by providing a USB with those recordings on it to his solicitors. Mr Kantor denied ever receiving the telephone recordings. I was satisfied that the telephone recordings had been provided to Mr Kantor’s solicitors in January, 2020 but they may not have been passed onto him. In any event, to resolve this issue I took evidence from the solicitor who had previously acted for Mr Kantor, Mr Greg Lutvey. Mr Lutvey’s evidence satisfied me that Mr Kantor had contacted him on 30 July, 2020 requesting the USB upon which the telephone recordings were stored. Mr Lutvey gave evidence that he made the USB available to Mr Kantor on 31 July, 2020 and that he had collected it about a week later on or about 5 August, 2020. Subsequently Mr Lutvey received an email from Mr Kantor requesting the password for the USB. The password was provided.
Mr Lutvey’s evidence directly contradicted the statements made by Mr Kantor to me that he had never received the telephone recordings or the USB upon which they were stored. Mr Kantor’s submissions to me on this issue about his ability to access the telephone recordings were disingenuous and misleading. More than that, having been provided with the means to check the accuracy of the transcripts against the recordings of the relevant telephone calls Mr Kantor failed to undertake that exercise. He had many months to do so before the trial resumed in December, 2020. He asserted, without any foundation and without even listening to them, that the recordings were also “highly edited”. When I asked why he had not compared the transcripts to the recordings he told me that it was too painful to listen to the children speak in the recordings and that he was otherwise too busy with his work.
These matters demonstrated that Mr Kantor was prepared to make allegations and assertions, without foundation and then when presented with the opportunity to make good his allegations and assertions he deliberately chose not to take up that opportunity. I formed the view that he either knew that his assertions and allegations about the transcript and the recordings were untrue or simply did not care whether they were true or false. In either case it demonstrated that his evidence generally was likely to be unreliable where it consisted merely of assertion or allegation. I have treated Mr Kantor’s evidence and the assertions that he has made with considerable caution.
More than that, there are examples of Mr Kantor attempting to positively mislead the court. Perhaps the best example relates to the enrolment of the children at College D. Annexed to Ms Jeong’s trial affidavit is an enrolment form which is signed by both Ms Jeong and Mr Kantor. When the form was put to Mr Kantor he admitted that it was his signature. Nonetheless, he had previously cross-examined Ms Jeong on the basis that there was a version of the enrolment form that did not have his signature on – the inference being that he had not signed it and yet the children had been enrolled at that school. His attempt to establish that Ms Jeong had enrolled the children without his consent failed miserably as did his attempt to mislead the court.
Ms Jeong’s first language is not English. However, she gave most of her evidence in English but had the assistance of an interpreter to call upon when she wished to do so during her cross-examination. She used the interpreter on a couple of occasions. She was cross-examined personally by Mr Kantor.
At the commencement of the hearing on 18 August, 2020 I dismissed an application by her that Mr Kantor cross-examine her remotely. I was not persuaded that it was appropriate to make that order for the reasons that I gave on that day.
Notwithstanding Ms Jeong’s lack of command of the English language and what I was told was her anxiety about being cross-examined by Mr Kantor in person, I found Ms Jeong’s evidence difficult at times. Even making concessions for the matters I have just mentioned, she was argumentative and despite my impression that she understood the questions that were asked of her, she refused on a number of occasions to answer the questions that were put to her, preferring to provide a non-responsive answer. These episodes detracted somewhat from the reliability of her evidence. Her demeanour did not impress me as anxious or overborne.
Notwithstanding its length, Ms Jeong’s written evidence was not particularly impressive. It is characterised by generalised conclusion and opinion. She is given to using labels as a convenient way of summarising what I infer is behaviour that she says she has experienced or perceived, without providing evidence of that behaviour. Thus, I was left to draw a conclusion about whether the label she wished to attach to various conclusions was accurate. The absence of evidence upon which those labels were based however, made it impossible to form such a view. That is not to say that Ms Jeong did not give some examples of particular incidents on which she relies to make out her opinions and conclusions. She does, but the significance of those individual incidents ebbs away when only one or two examples are given of what was sworn to be “many occurrences” or “many incidents” or “many examples” of the offensive behaviour she was attempting to ascribe to Mr Kantor.
The parties’ relationship
The parties commenced their relationship in 2005. They started living together in 2008 and were married in 2008. They initially separated in 2013 and they were in an “on again, off again” relationship until final separation occurred in 2018. Upon separation, Mr Kantor left the parties’ former home and Ms Jeong has remained living there ever since with the children.
Following separation, Ms Jeong and Mr Kantor agreed that the children should continue to live with Ms Jeong and spend time with Mr Kantor. Both parties agree, more or less, that there was no set arrangement and the parties communicated frequently to make arrangements for the children to spend time with Mr Kantor. The parties cooperated in respect of the care of the children. Ms Jeong’s evidence is that on school days, Mr Kantor often helped her collect W from school and met her at the Art Gallery H to drop W off to her. On most Sundays from 11:00am or 12:00pm until between 4:00pm and 5:00pm the children also spent time with Mr Kantor and sometimes on Saturdays from 1:00pm until about 4:00pm or 5:00pm. The parties agreed that during school holidays the children should spend time with Mr Kantor and they did so on average, every second day for approximately four hours, if Mr Kantor was working that day, or six to eight hours, if he was not working. There were other occasions of ad hoc time when Mr Kantor would request it and Ms Jeong would facilitate it. Sometimes she would not facilitate a request made by Mr Kantor because the children had other events or activities that engaged them.
Ms Jeong identifies that in around November or December, 2018 she and Mr Kantor began to fall into disagreement about the arrangements for the children. She claims that Mr Kantor made many threats to take the children off her and told her that he is going to get “full custody” of them. Despite those threats, however, save for one occasion that I will deal with later in these reasons Mr Kantor has never taken the children off her.
According to Ms Jeong’s evidence, an example of one of the “threats” that Ms Jeong says that Mr Kantor made in this regard (and I take it one of the best examples of such a threat given that it was one of the only examples mentioned in her affidavit of that behaviour) occurred on 27 January, 2019. On that day Mr Kantor spoke to Y on the telephone. X was present as was Ms Jeong. The conversation was being conducted over a loudspeaker. It seems uncontroversial that Mr Kantor said to Y “ .. when you are at school, I have got special people watching and looking after you, ok? “. Mr Kantor said in his evidence that that was a common thing that he said to the children to make them feel more secure at school or kindergarten. However Ms Jeong says that she took that to be “Mr Kantor threatening me that someone could take Y from my care at any time, which made me feel frightened that this would occur”. Whatever Ms Jeong might have thought about the comment, in my view on any objective view of it, it could not mean what she now contends she thought it meant. To construe the comment made by Mr Kantor to Y in the way in which Ms Jeong has construed is in my view, contrived. Given that that seems to be the only example of such threats in Ms Jeong’s evidence, I am not satisfied that Mr Kantor made threats to take the children off her or that he was going to get “full custody” of them.
The parties’ relationship continued to deteriorate. There was an episode in early December, 2018 when Mr Kantor attended the children’s Sunday school to collect them. They had not finished Sunday School but he had become accustomed, with Ms Jeong’s agreement to pick them up early from Sunday School. However Ms Jeong only wanted the children to be picked up early from Sunday School each alternative Sunday and so she instructed the pastor of the Sunday School to ensure that Mr Kantor told Ms Jeong that he was going to remove the children early. He did so and Ms Jeong did not agree that he should take the children early. It was clear that the parties disagreed about the children spending time with Mr Kantor by leaving Sunday School early. Mr Kantor had his view and Ms Jeong had her view. Quite disingenuously in my view, Ms Jeong seems to paint that disagreement between them as some form of coercion or aggression on the part of Mr Kantor rather than recognising it for what it was, simply a disagreement between parents about what should happen. Each tried to assert their will over the other and as it turned out, Ms Jeong won out. The episode is also inconsistent with Ms Jeong’s more generalised assertion that she generally gave in to Mr Kantor’s demands because she was frightened or overwhelmed by him.
On the same day, but after Sunday School had completed, Ms Jeong describes that there was a discussion between Mr Kantor and the church pastor in which she says Mr Kantor was using “very aggressive hand gestures”. She does not describe the hand gestures in any other way. In the absence of context that might be derived from the words that were being spoken, this evidence is probative of very little.
Ms Jeong says that thereafter the conflict between she and Mr Kantor worsened and it was harder to make arrangements for the children’s time with Mr Kantor. She says that she struggled to communicate with him effectively to make arrangements. This is Ms Jeong’s way of saying that Mr Kantor was becoming more demanding of time with the children – he was pursuing overnight time with them which was not occurring at that point and had not occurred since separation – and she did not agree with his demands. She controlled the time the children spent with Mr Kantor very closely. Her evidence was that Mr Kantor did not agree with the decisions or requests that she made and by inference, she did not agree with the requests or decisions that he made.
Ms Jeong does not mention in her evidence that in November, 2018 Mr Kantor attempted to engage her in mediation for the purposes of settling the arrangements for the children. He engaged a lawyer who sent a letter to Ms Jeong. She never responded to that letter. Although she was cross-examined about the letter and said that she never received it, I do not accept her evidence about that. I prefer the evidence of Mr Kantor about that.
By the commencement of 2019 the children were not spending overnight time with Mr Kantor. Not surprisingly, he was asking Ms Jeong to allow the children to spend overnight time with him. She would not agree, for reasons that are not expressed in her evidence and required him to wait until they had “done mediation”, although why that was necessary was not explained by her.
There was an altercation between the parties in 2019. On that day Mr Kantor had collected W from her music lesson. Ms Jeong was not expecting him to do so. Mr Kantor was of the view that he was acting in accordance with his usual practice of collecting the children on a Saturday. Whatever is the case, there was an altercation between the parties. Ms Jeong was in her car with Y and Z. Mr Kantor got out of his vehicle, which was parked in the entrance to the car park to the music teacher’s premises. The altercation was recorded by Ms Jeong. I am satisfied that Mr Kantor did not know it was being recorded.
Each paint a different picture of the altercation, although each seem to agree that the children were distressed to a degree by what occurred. Mr Kantor told me in evidence that the children in Ms Jeong’s car were crying and asking to go with him. The recording that was played in court of this incident, however, did not demonstrate that to be so. This is another example of Mr Kantor embellishing his evidence so as to place a more favourable complexion on it than would otherwise be the case.
Nonetheless, the recording shows neither party in a particularly good light. Ms Jeong claims in her affidavit that she was frightened of Mr Kantor but her words and her demeanour as heard in the recording of this incident do not demonstrate any fear on her part. Both parties behaved badly. The episode was demonstrative, in my view, of the deterioration in their co-parenting relationship brought about by Mr Kantor desire to spend more time with his children and in particular overnight time and Ms Jeong’s insistence that the time be during the day only and according to her timetable.
After the altercation in the car park at W’s music lesson Mr Kantor then collected X from his music lesson (at a different establishment). Ms Jeong says that she saw him driving towards X’s music lesson and decided not to collect X. Ms Jeong claims that there was no agreement between she and Mr Kantor for “Mr Kantor to spend time with the children that day”. However Mr Kantor’s evidence was that he ordinarily spent time with the children on Saturdays and collected them from their music lessons and this particular occasion was an attempt by Ms Jeong to “set me up” in relation to a protection order that she had applied for only days earlier and without notice to Mr Kantor.
The evidence discloses that in 2019 Ms Jeong went to the police and made a complaint about Mr Kantor which led to the making of a temporary protection order on 17 January, 2019. Mr Kantor was given no notice of the application nor was the temporary protection order served on him. There is nothing in the communications between the parties to which I was taken in the course of the evidence that suggested that what had generally occurred on a Saturday was not to occur on this particular Saturday. Whilst I do not accept Mr Kantor’s hypothesis that Ms Jeong attempted to set him up in relation to the protection order, it seems to me that the altercation took place on this day was symptomatic of the parties co-parenting relationship and their inability or unwillingness at that point to communicate one with the other.
Mr Kantor sought to have time with Y and Z that afternoon. However Ms Jeong refused to let those children spend time with Mr Kantor on the basis that she was worried about what had happened that day “and I was concerned that Mr Kantor would withhold all the children from me”. That is to say, it seems that Ms Jeong was worried about Mr Kantor doing just what it was that she was doing, namely preventing the children from spending time with one of their parents.
Unreasonably, Mr Kantor retained W and X in his care. He did not return them to Ms Jeong. She sought for them to be returned to him but he ignored her requests. He asked whether he could spend time with Y and Z but his requests were similarly ignored or refused. Both parties continued to behave appallingly.
On 22 January, 2019 Ms Jeong engaged solicitors who sent correspondence to Mr Kantor. Mr Kantor’s solicitors responded raising his concerns about Ms Jeong’s care of children. Mr Kantor tried to organise telephone time between he and Y and Z but that turned out to be problematical. Ms Jeong explains that she did not always receive Mr Kantor’s calls because he would not give notice of when he was going to call, but occasionally the children were able to speak to Mr Kantor.
Whilst W and X were in Mr Kantor’s care, the parties fell into disagreement about the school at which W should attend. She was then attending Suburb B School and Mr Kantor formed the view that she should continue there. Ms Jeong had made arrangements for W to attend College D in accordance with what she asserted was an agreement with Mr Kantor that she should go there. It seems uncontroversial that W did not wish to attend College D. Mr Kantor attempted to engage Ms Jeong in relation to the issue concerning W’s school but on her own evidence, she simply did not engage with him but rather ignored his text messages about the issue. The parties could not agree and ultimately W’s school was decided by the court on 1 February, 2019. She commenced to attend College D.
Ms Jeong commenced these proceedings on 30 January, 2019. She sought a recovery order for W and X. The matter was listed before me on 31 January, 2019. However, before the matter was dealt with in court, Ms Jeong resorted to her own self-help and collected W and X from their school on 30 January, 2019 before Mr Kantor could collect them. Her actions showed contempt for the court process that she had initiated and must have been unsettling for W and X given that they were unprepared for Ms Jeong to collect them. Indicative of that is Ms Jeong’s evidence that X said that he wanted to return to his father’s house.
Ms Jeong complains in her affidavit evidence that from 19 January, 2019 until an order was made on 31 January, 2019 providing for W and X to be returned to her care the following day, that W and X were in Mr Kantor’s care and Y and Z were in her care and the children were not able to see each other in that time. Her assertion is wrong in at least three respects. First, there was no order made on 31 January, 2019 or at any other time for the children to be returned to her care. By that time they had already returned to her care. Second, whether the children spent any time with each other during that period was something about which Ms Jeong could have made her own decision. She could have permitted Y and Z to spend time with Mr Kantor who had been asking to spend time with them. No doubt, they would have also spent time with W and X. Third, Ms Jeong in fact collected W and X from school on the day she commenced her proceedings, namely 30 January, 2019. It is simply false to say that W and X and Y and Z did not spend any time with each other between 19 January, 2019 and 31 January, 2019 given that she collected the former two children from school on 30 January, 2019.
Ms Jeong complains that Mr Kantor has repeatedly threatened her that he was going to report her to the “child safety” and to the police for physically abusing the children. She does not set out any particular threat either by reference to an occasion upon which the threat was made or the words used and which are said to constitute the threat. I do not accept her generalised allegations about these matters.
The orders made in January, 2019 and varied in December, 2019 provide for the children to have telephone time with Mr Kantor more or less on a daily basis when they are not in his care. These telephone calls have become a source of conflict and evidence gathering for both parties. They are the telephone calls the partial transcripts of which appear in Ms Jeong’s trial affidavit and the recordings of which are on the exhibit 3.
It is clear from Ms Jeong’s evidence that when the phone calls occur they occur on a speakerphone and she is able to hear the conversations between the children and Mr Kantor. It is clear that she does not give the children peace and privacy for the telephone calls and they are not permitted to engage in the telephone calls in any sort of private way, despite the orders for the calls to occur in that way. Her explanation for having the phone on a speakerphone was that the children fight and it was easier to do it that way rather than provide for the children to talk to their father individually. I do not accept her explanation about that. If what she says is correct, it demonstrates an incapacity on her part to manage the behaviour of her children such that they can have individual time with their other parent on the telephone in accordance with an order of the court. The more likely explanation for the use of the loudspeaker is so that she could record the telephone conversations. That is in fact what occurred. Ms Jeong’s evidence was that she would record telephone conversations on an iPad which she would place nearby but of which, she says, the children were unaware. However the content of at least one of the telephone conversations (see paragraph 114 of her trial affidavit) demonstrates that W (and I infer the other children) knew that Ms Jeong recorded the telephone conversations. When cross-examined about this, Ms Jeong naïvely asserted that the children did not know she was recording the conversations because they would not be able to see that the iPad was recording. She gave that evidence notwithstanding the evidence that appears at paragraph 114 of her affidavit. Her naïveté is breathtaking. That she would persist with recording the telephone conversations knowing that the children, or at least W, knew that she was doing so is also very concerning. Her assertion that she has tried to ensure that the children were not exposed to adult conflict falls flat in the face of her conduct in this regard in the presence of the children.
I accept that the transcripts of the telephone conversations are accurate. They were not demonstrated to be otherwise. The content of some of the conversations between Mr Kantor and the children, but particularly W and to a lesser extent X, demonstrate a lack of capacity on his part to understand the needs of these children. His attempts at interrogating them and obtaining information about what is happening in Ms Jeong’s household and his general denigration of Ms Jeong in some of those conversations is simply appalling.
Much of Ms Jeong’s case depends upon her assertion that she is frightened or scared of Mr Kantor. I do not accept her assertions about that. Whilst I accept that on occasions he has attempted to intimidate her and that she may have found some of his behaviour intimidating, I am not satisfied that she is frightened or scared of him. Nor do I accept her explanations for what otherwise appears to be an ability to cooperate with him when it suits her to do so. As I have set out above, there were aspects of Ms Jeong’s evidence that I found disingenuous and contrived. I have referred to these matters further later in these reasons.
Mr Kantor complains in his affidavit material that Ms Jeong continually breaches the current orders of the court. But his complaints are based on misinterpretations of those orders. One example will suffice. He complains that Ms Jeong sends W for sleepovers on a weekend at her friend’s house. He says that in those circumstances the orders require Ms Jeong to send W to him. But the order only requires Ms Jeong to give Mr Kantor the opportunity to care for the children if she is unable to do so. That is a different scenario to one which might present where a child is having a sleepover at a friend’s house on a weekend. Whilst I have no doubt that there have been difficulties between these parties with telephone communication, Mr Kantor’s assertions that Ms Jeong constantly breaches court orders has no foundation. Indeed the evidence seems to suggest that she is an adherent to the court orders.
Mr Kantor placed much emphasis upon the evidence given by Mr V, his son about his experiences growing up with Ms Jeong. The psychology records that Mr Kantor tendered during the course of the trial went towards corroborating his case that Ms Jeong treated Mr V Kantor appallingly. Mr V was interviewed by Ms E and some of the things that he told Ms E are consistent with the matters sworn to by Mr V Kantor in his affidavit. However, in reaching her recommendations, Ms E took into account her interview with Mr V. For my own part, I see little probative value in the evidence from Mr V Kantor. That is largely because the dynamic between Mr V Kantor and Ms Jeong is different to the dynamic between Ms Jeong and the children who are the subject of these proceedings. So much was said by Ms E in her evidence.
CONSIDERATION
Neither party suggests that the children not benefit from a meaningful relationship with the other. The orders that they seek are predicated on the basis that there will be a benefit to be derived by each of the children from having a meaningful relationship with the other parent. The opinion of Ms E supports that approach.
Mr Kantor presents a case that there is an unacceptable risk of harm to these children by reason of being exposed to abuse or family violence in Ms Jeong’s care. I accept that in the past she has physically disciplined the children as Mr Kantor alleges. I am satisfied that she has hit them with implements including a plastic cricket bat and a plastic golf club. The evidence is that she has since desisted from that behaviour. Her evidence is that culturally it is acceptable in Country G to implement physical punishment using objects so that a physical distance is presented between the child and the parent meting out the discipline. I accept her evidence about that. I also accept her evidence that since it has been pointed out to her (by somebody other than Mr Kantor) that it is generally not seen as acceptable in Australian culture to hit children with objects as a form of physical discipline, she has desisted from that practice.
Further, there is nothing in anything that either W or Mr V Kantor said to Ms E during the course of their interviews with her that suggested the children are at an unacceptable risk of physical harm in the care of Ms Jeong.
I find that the children are not at an unacceptable risk of physical harm whilst they are in the care of Ms Jeong.
Nor am I satisfied that they are at an unacceptable risk of emotional harm in her care. Whilst I am not satisfied that her capacity to properly foster, facilitate and encourage a relationship with Mr Kantor is all that could be, I am not satisfied that the apparent impairment to her capacity (as to which see below) is impaired such that it presents an unacceptable risk of harm to the children.
I am not satisfied that Ms Jeong’s mental health presents a risk of harm to these children. Dr M’s opinion was that if I was accepting of all of the factual matters relied upon by Mr Kantor then there might be reason to be concerned about aspects of Ms Jeong’s personality. However, I am not satisfied of all of the factual matters upon which Mr Kantor relies, as I have set out above, and accordingly, I am not satisfied that the concerns flagged by Dr M in his report that were dependent upon those factual matters are valid. To the extent that Mr Kantor argues that until Ms Jeong meets the recommendations made in Dr M’s report, the children should have supervised contact with her, I reject his argument. Moreover, I reject his argument that it is necessary for Ms Jeong to meet or satisfy whatever recommendations he perceives might appear under the heading “recommendations” in Dr M’s report.
Nor am I am not satisfied that the children are at an unacceptable risk of physical or psychological harm by reason of being exposed to abuse, neglect or family violence in Mr Kantor’s care. Ms Jeong does suggest that there is a need to protect the children against psychological harm by reason of Mr Kantor’s conduct towards her, which she describes as undermining of her relationship with the children but I will deal with these matters later in these reasons.
W and Mr V Kantor were interviewed by Ms E for the purposes of her report. W told Ms E that her new school was “alright”. She said she was a member of the choir and has made new friends as well as having an existing friendship at the school. She observed that her new school did not have an arts program similar to the one at her previous school, which she had really enjoyed.
W told Ms E that when in an intact family, her mother and father got along well and were always talking to each other. She said they fought “a little bit” but not often. She said it was easier to be in an intact family as one parent could stay home with the little children whilst the other took the older children places, but added now it takes longer to go places. She said her parents are now not friends as they do not do anything together, but communicate by texting each other. She was unsure what either parent thought of the other, as they do not talk about the other.
According to Ms E, W spoke positively about her time with her father. She said that he takes her to ‘‘fun places, I like his church, I have friends there”. She told her that she feels good when she spends time with him as “he’s always nice to me and talks to me”. She described her father as a joker, who has a funny personality. She said her father gets upset if she and her siblings are naughty to each other, stating that he gives them two warnings “then we get a smack”, but added that her father has not smacked her recently. She was unable to recall what makes her father angry.
According to Ms E, W also spoke positively about her time with her mother, stating that it was good to be with her “because I like all the stuff in my room, we have lots of toys”. She described her mother as “a little bit strict and impatient” but added “it depends, sometimes she’s super patient”. She said when in trouble with her mother, she is given one warning, before being hit with a bat her mother keeps in the garage. She was unable to remember the last time she was hit with the bat. She said she is also sent to time out in her bedroom. She said her mother sometimes gets angry at her and her siblings by raising her voice at them if they talk back to her.
W told Ms E that she felt happy with the time arrangements as they were, but would like to “spend a tiny bit more time with dad”. When Ms E explored that with her she said she wants “half and half; time at both houses”. When asked why she would like this arrangement, she paused for quite some time, before adding that “time with dad is a bit short”.
X told Ms E that when his parents were together they would “fight a lot, like once a week” or more, but he does not remember what they would argue about. He said when his parents were fighting, they would send him and his siblings to the garage to be away from the conflict. He believes his parents separated due to the conflict.
According to Ms E X described his father as a ‘nice’ and friendly person. He said when together they watch TV and he enjoys playing pool with his brother Mr V Kantor. He said his father is happy when playing with and watching him and his siblings. He said his father has told him he feels sad “when he can’t see us”. He said his father gets angry if he and his siblings fight, reporting that his father usually allows the younger child to have the toy they are fighting over. He and his siblings all help with chores when at his father’s home.
X told Ms E of similarly positive experiences of his mother. He said that he felt happy when he spends time with her “cause at mum’s house I have a lot of toys and like playing games with my mum”. He said his mother is a good person “cause she does stuff for us”. He said he has chores that are his responsibility at his mother’s house, such as keeping his bedroom and lounge room clean and helping with the washing. He said if he and his siblings are well behaved, he is allowed to have dessert after dinner and play on his electronic devices. He said this happens around three or four times per week. He said if he or his siblings are being silly or naughty, his mother sends them to their room, or gives them a smack or gives them extra chores to do. He said his mother is not a generally angry person, only becoming cranky when he or his siblings are in trouble.
X told Ms E that his parents do not get along very well at the moment as they park a long way from each other and handovers are completed quickly. When asked about the conflict between his parents, he said his mother has explained “that it’s none of our business and we should stay away from adult business”.
X said he often saw his father in addition to the agreed times as his father attends his sporting matches and lessons, adding “it’s good, cause I’m happy to see him, and like seeing him”. X said he would feel sad and would miss his father if his parenting arrangements remain as they are. He said he would feel happy if he spent more time with his father “cause I’ll get to see him equal amount, the same as mum”. When asked to expand, he said “I’ll both get to see them the same time”. X said he has talked with his father about this, who told him “we will later (spend equal time) when we Go to court”. He said his father had told him to “use strong words to say you want equal time “.
Mr Kantor confirmed in cross-examination that he had indeed said such things to X, but that he did not see that as anything other than imploring X to be assertive about things that he felt strongly about.
Y did not engage with Ms E and Z was too young to be interviewed.
It seemed common ground that X, Y and Z have good relationships with each of their parents. At the time of the interviews with Ms E, so too did W. But since her interviews with Ms E, her relationship with Ms Jeong has deteriorated. She behaves poorly towards Ms Jeong and has become physically reactive to her, punching and striking her on occasions leaving bruising. She has also punched X. She is generally argumentative and teasing of the other children. She swears at Ms Jeong and at times is thoroughly disrespectful and unpleasant. According to Ms Jeong’s evidence the severity of these incidents increased in about October, 2019.
On 31 October, 2019 Ms Jeong called the police because of W’s behaviour. On that evening the children and Ms Jeong had been out. They arrived home after 9:00pm. W was in the shower and called out for a towel. According to Ms Jeong’s account she called out on several occasions. Ms Jeong was busy with Y so she asked X to get her a towel. X yelled out that W had flooded the bathroom floor. When Ms Jeong went to investigate she saw that W had directed the shower stream out onto the floor. Ms Jeong turned off the water and she says she “tried to guide W out of the shower by her wrist”. W lashed out and slapped Ms Jeong across the face and ran out of the shower and into the lounge. An altercation ensued between Ms Jeong and W that became physical. W was asserting that Ms Jeong had pulled her hair. Ms Jeong denied that she had done that. Ms Jeong the explains in her written evidence:
159.
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d. W grabbed my hair with both her hands and started pulling and shaking my head. Z started to cry saying “stop W” and tapping W. W pushed Z away and he fell over. Z then came back again to do the same thing again and W was about to punch him with a closed fist, and I put my hand out to block her arm. I said “W stop” and “its ok Z”. By this time, X came and got Z, pulled him aside and was talking with him. I told X to please get my phone. I grabbed the phone, walked into the garage to try to move away from the children, and dialled ‘000’. W kept following behind me.
e. Following this, two (2) female police officers arrived at my house. I explained what had occurred and that I was worried about what had happened and how I could protect the other children. The police officers went and spoke to W for a short time which I estimate was no more than five (5) minutes. At this time, I was in the lounge with Z. The officers told me that they discussed with W, amongst other things, what had occurred and explained that it is wrong to hurt her mum and her siblings and not putting seatbelt on in the car.
Ms Jeong also gives evidence about an altercation that took place in 2019 in her car. Her evidence describes quite a chaotic scene in which she seems to have lost all control over W, Y and Z. She describes another episode that occurred in 2019 in some detail. Despite her assertion that “this behaviour has continued since the interim orders were made on 6 December, 2019”. Ms Jeong gives evidence of only one episode of a similar nature that occurred in 2020. She describes that episode in graphic detail and it depicts a child who is without boundaries.
The parties agree that in 2020 W scratched her arm in an episode that has been described as “self-harm”. She apparently scratched or attempted to scratch a word onto her arm. The school contacted Ms Jeong about W having scratched some letters onto her left arm “lightly”. Ms Jeong informed Mr Kantor of this incident the next day. His response was inflammatory, insightless and not supportive of Ms Jeong. Ms Jeong asserts in her written evidence:
164. I always try to keep Mr Kantor informed of matters affecting the children. However, Mr Kantor usually responds blaming me for things. These text messages are only as and by way of one example of the difficulties I experience when communicating with Mr Kantor.
However, apart from this one example there are no others to which I was taken to support that assertion. Rather than assertions about these matters, the evidence upon which the assertions are based would have been more helpful.
Ms Jeong swears that since around mid to late 2019, X’s behaviour has also started to change “slightly”. Ms Jeong considers that his poor behaviour is mostly in response to W’s behaviour towards him although she describes him as “more emotional as he once was”. She gives evidence of one incident that she says demonstrates this.
Ms Jeong lays the cause of this behaviour at the feet of Mr Kantor and submits that his behaviour is undermining of W’s relationship with her and that he encourages her to behave poorly when in Ms Jeong’s care. She hypothesises that the same is either happening or likely to happen with X and the other children.
The recorded conversations between Mr Kantor and the children, including W tends to support that argument. So too, do the entries in the children’s school diaries. Those entries, concededly written by Mr Kantor, were, he says, intended for the children’s teachers. But they were written in diaries that travelled to and from school with the children. They could access them and read them. The entries send a message to the children that all is not well in their mother’s home and that she is the cause of their problems. Moreover, I accept that some of the words used by W indicate that it is likely that Mr Kantor had talked to W about the proceedings and about the content of evidence that has been put before the court from time to time.
It is uncontroversial that Mr Kantor has been advocating for the children to receive some form of counselling for some time. Initially that was resisted by Ms Jeong, but eventually she took it upon herself to organise some counselling for the children. It is not clear if that was done with Mr Kantor input and consent, but she does say that she kept him “informed of the steps that I have been taking”.
Ms Jeong organised counselling for W with Ms J, a psychologist. She only attended once with Ms J, Ms Jeong says that:
I spoke to Dr J about my concerns regarding W’s behaviour and she informed me that when children are experiencing trauma, behaviour like W is showing is unsurprising and usually directed at a parent or caregiver that a child considers to be a safe place to act out and express their emotions.
Subsequently W and X engaged with therapists from Families K. W had 14 session and X had 7 sessions. Both parents also engaged with the children’s counsellors. Ms Jeong says that:
180. I did ask W’s counsellor about what she thinks is causing W’s behaviour and outbursts. The Counsellor informed me that the trigger for this is unknown and could be for a number of reasons including issues amongst her peers at school, hormonal issues, breakdown of our family unit and/or exposure to the court proceedings and parental conflict.
Despite what appears in her case outline document, this evidence does not suggest that Ms Jeong accepted what she had been told by the counsellor. That must be so because it is her case that it is Mr Kantor’s behaviour that is responsible for the deterioration in the children’s behaviour.
Ms Jeong gives evidence of the organisations with which she has engaged so as to assist her to manage W’s behaviour. She has engaged with an organisation she describes as “Organisation L” and another called “Families M”.
However, despite Ms Jeong’s focus on a single cause for W’s behaviour (and possible deterioration for Mr V Kantor), that cause being Mr Kantor’s inappropriate interactions with the children, the evidence suggests that his behaviour may only be part, or indeed none of the causal picture. On her own evidence, she has been told that there could be many causes beyond that upon which she focuses. Ms J told her that, as did the counsellor from Families K. More than that, this type of deterioration was foreshadowed by Ms E in her report. After assessing that Ms Jeong had a more authoritarian and stricter parenting style and Mr Kantor a more permissive parenting style that was less strict, she said (my emphasis):
152. Instead of creating a complimentary and cohesive parenting style, the parties differing approaches to parenting has created an ongoing pattern of conflict, which in my opinion is likely to continue in their post separation parenting of the children….
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155. The mother may wish to consider whether she softens her authoritarian approach to the children, in light of the father’s permissive style. If she continues to operate in an authoritarian manner, where the father is quite permissive, it is likely that the children may develop a preference towards him. This does not mean the mother needs to change her parenting values but perhaps consider softening the way she instils those values on the children. The father may also wish to consider strengthening his parenting style to adopt a more authoritative style.
156. When there are substantial differences in parenting and lifestyles, how children might transition from one parent’s care to the other can be fraught with complexities and there is scope for the children to receive conflicting attitudes, boundaries and expectations. In these circumstances there is a risk of parent-child conflict occurring in either home as the children may advocate the views of the other parent out of loyalty and /or petulance.
157. There appears to be limited commonalities between the parent’s parenting and their respective home environments, with religion appearing to be the only commonality between them. This is likely to result in the children having to adjust from one home, with its rituals, customs and mores to another, requiring a period of adjustment and is likely to be received in a confusing manner by the children, especially for Y and Z given their young age.
On the evidence, I do not accept that the cause of W’s obnoxious behaviour and the deterioration in X’s behaviour is attributable solely to the conduct of Mr Kantor. I accept that his behaviour has contributed to the conflict that exists between these parents, but it is more likely that the course of the children’s poor behaviour is that conflict.
Both parents described a conflicted relationship throughout the course of their time together. I think both parents have over emphasised in their evidence various incidents during their relationship in an effort to improve the appearance of their claims in this case and advance their own narratives. I think that it is likely that there was some physical violence in their relationship such as damage to property when arguments escalated. However I do not accept the claims by Ms Jeong that Mr Kantor was physically violent towards her. Her generalised evidence about those matters does not bear that out. Her generalised allegations of rape (for that is what they are) made by Ms Jeong at paragraph 222 of her affidavit do her no credit. Serious allegations (especially those alleging criminal behaviour) demand more than inexact proofs and indefinite testimony (cf Briginshaw v Briginshaw (1938) 60 CLR 336, 362).
Similarly, Ms Jeong’s evidence about Mr Kantor’s aggressive tendencies are presented in her affidavit material without context which robs the evidence of most of its probative value. For example, she gave evidence about Mr Kantor getting into a fight with a man outside of the parties’ unit. What she did not mention was that the other person in the altercation had broken into a unit close by to where the parties lived.
Ms Jeong’s attempts to demonstrate that Mr Kantor has had a negative influence on W’s perception and experiences at College D are not borne out in the evidence. At paragraph 78 of her trial affidavit Ms Jeong purports to give two examples of things W has said to her which she says illustrate the difficulties caused with W by Mr Kantor negative influence over her about College D (as deposed in paragraph 77 of her trial affidavit). However neither of those examples tie anything that was said by W to anything said by Mr Kantor to W. Rather, it demonstrates W remonstrating with her mother about something the child perceived Ms Jeong to have said to her (whether her perception is accurate or not) about what would happen if she attended at College D. The second is not tied to anything that Mr Kantor is alleged to have said to W either. The third example given by Ms Jeong in paragraph 79 of her affidavit certainly references Mr Kantor and W telling Ms Jeong that she will tell her father something who will then tell the court something but it is clear, that these children well know their parents are involved in litigation about them and so I cannot conclude that anything that was said by W as reported in that paragraph was as a result of anything that Mr Kantor might have said to her about College D as alleged by Ms Jeong.
Ms Jeong lives in a rented four bedroom home which is about 15 minutes driving time from the children’s school and 15 minutes driving time from Mr Kantor’s residence. She has been a long-term tenant of this property.
W, X and Y attend College D. At the time of the trial W had completed grade 6, X had completed grade 5 and Y had completed grade 1. Z is due to commence prep school in 2022. Academically, the children are progressing at school and there are no concerns from that point of view. However, W has demonstrated some difficult behaviour at school. She has had two internal suspensions (neither of which are mentioned in Ms Jeong’s affidavit but which were raised in cross-examination by Mr Kantor. Although she only mentioned two issues with W’s behaviour at school in her affidavit material, Ms Jeong agreed with Mr Kantor in cross-examination that there had been many difficulties at school with W’s behaviour. She agreed with Mr Kantor’s proposition that W had raised with him on many occasions whilst they were talking on the telephone the difficulties she had with College D. Ms Jeong’s affidavit evidence in relation to behavioural issues for the children and in particular W at school was, in my view, misleading.
Although Mr Kantor suggested at one point in these proceedings that W should return to Suburb B School, he no longer presses that and, accepts that it is now too late for there to be a return to Suburb B School for W.
I have no doubt that each of these parents are able to meet the physical needs of their children.
As with counsel for Ms Jeong, I have difficulty in understanding Mr Kantor’s case that the children are not presently safe living with Ms Jeong. His case seems to be based upon some concerns about Ms Jeong’s emotional stability, some historical concerns about her mental health and some concerns about Ms Jeong’s physical disciplining of the children but that seems to be as far as it goes in terms of the case Mr Kantor is wanting to put about “risk” to the children whilst living in Ms Jeong’s care. As I have already indicated, I am not satisfied that Ms Jeong presents as a risk of physical harm to the children. I accept that she may have acted towards the children in ways that some might consider inappropriate in the past, but I also accept that she has successfully addressed those matters. Nor do I accept that W’s more recent behaviour towards Ms Jeong is demonstrative of any risk of physical harm to the children in Ms Jeong’s care. I accept the submissions made by counsel for Ms Jeong that Mica is acting out emotionally and physically towards Ms Jeong, in all likelihood, I find, for the reasons expressed in evidence by Ms E.
Nor do I accept that Mr Kantor presents as a physical risk to the children. He too, may have acted in ways towards the children that are less than desirable, but none of these matters demonstrate an ongoing risk of physical harm to the children.
However, both parties I find, have an impaired capacity to meet the emotional needs of the children.
Mr Kantor’s capacity is impaired by his desire for the children to spend more time or equal time with him. His comments to the children and W in particular as recorded in the transcripts in Ms Jeong’s evidence and in their school diaries are undermining of the children’s stability and have the potential to undermine their relationship with Ms Jeong. I accept Ms E’s characterisation about these interactions between Mr Kantor’ and the children.
Ms Jeong’s capacity is also impaired. Despite her protestations to the contrary, she does not wish for the children’s time with Mr Kantor to increase or advance. The substantial period of time between separation and when the children commenced spending overnight time with Mr Kantor, something completely unjustified on the evidence, attests to that. The exaggeration and lack of specificity in many of her allegations also demonstrates an impaired capacity to properly meet the children’s emotional need for a proper relationship with Mr Kantor. The only explanation for that type of assertion and generalised case is to advance her narrative so as to support the restrictive orders that she seeks. Probative evidence about these matters to support her assertions would have helped her cause.
But more than these things, the conflict that exists between these parents and the difference in parenting styles described by Ms E present the biggest impairment to the capacity of these parents to meet the emotional needs of these children. There is no suggestion in the evidence that the parties have attempted to address their conflict in any realistic way. There is no evidence that they have engaged in some form of counselling designed to assist them to improve their co-parenting relationship. Whilst Mr Kantor says that he has knowledge of certain programs (such as the circle of security program) I am not satisfied that he implements anything that he might have gained from such a course. His conversations with the children demonstrate the contrary.
I have had regard to the evidence before me about the protection orders that have been made between the parties. Mr Kantor consented to the making of a temporary order but he contests the making of a final order and at the date of the trial before me, that had not been concluded.
CONCLUSIONS
I am satisfied that the presumption of equal shared parental responsibility does not apply in this case. I am satisfied that s.61DA(2) is engaged because there has been family violence as that term is defined in the Act between Mr Kantor and Ms Jeong and Ms Jeong and Mr Kantor.
Nonetheless, I conclude that an order for equal shared parental responsibility is, on the evidence before me, in the best interests of these children. I reach that conclusion because:
(a)these parties have been able to reach agreement on a great many number of issues for these children – they agreed about the time they would spend with Mr Kantor until the end of 2018;
(b)they have been able to reach agreements and accommodations about changes to arrangements when necessary;
(c)significantly, they have been able to agree about counselling for the children in the past; and
(d)they have been able to agree about schooling and the like for X, Y and Z. They originally had an agreement in respect of W. I have dealt with this above.
Moreover, Ms E saw reason to be optimistic insofar as joint decision making was concerned. She said:
151. It is likely that the parties’ experiences of each other during their intact relationship will continue to influence how they interact and co-parent with each other. If the mother’s account is accepted, she remains fearful and concerned for her safety in the father’s company and this may take some time to resolve, if ever. However, the parties’ reports of appropriate handovers gives rise to hope that they may be able to co-parent civilly in the future.
As I have set out above, I do not accept Ms Jeong’s claims that she is fearful and concerned for her safety in the father’s company. Their conduct towards each other at handovers and the matters I have just identified indicate that these parties indeed have the capacity to make joint decisions for their children. Indeed, Ms Jeong swears:
15. I have complied with the interim Orders made and ensured that the children spend time and communicate with Mr Kantor. There have been many occasions when Mr Kantor has asked me via text message to change the times, both in relation to the children’s physical time with him and the telephone time. I have agreed to most of these requests. I have also agreed to Mr Kantor spending additional time on special days, such as Father’s Day.
Ms Jeong swears that she has experienced many difficulties reaching joint decisions with Mr Kantor in relation to issues concerning the children. She asserts that Mr Kantor does not take into consideration her views or opinions and she says on reflection if decisions are made jointly it is usually because she just accepts Mr Kantor’s decision to avoid further conflict whether that decision is in the best interests of the children or not. She, however, gives no evidence from which one might conclude that those assertions are correct. Indeed the evidence is to the contrary. The evidence concerning W’s attendance at College D provides that example. Mr Kantor sought to engage Ms Jeong about that decision but she refused to engage. She did not simply accept the decision and give in to Mr Kantor but rather stonewalled him by refusing to engage. There are no examples given in her affidavit material which would suggest that her assertions in this respect are accurate.
Mr Kantor’s case was that an order for equal shared parental responsibility would be appropriate if “The mother meets certain recommendations.” I have already set out above that I do not consider that on the facts of the case as I have found them to be there is a need for Ms Jeong to meet certain recommendations made by Dr M, even if his report could be construed in the way in which the father contends.
Counsel for Ms Jeong argued that an order for equal shared parental responsibility would not be appropriate given the controlling and manipulative behaviour in which Mr Kantor engages. I accept that some of the evidence tends to suggest that Mr Kantor does engage in manipulative behaviour. In this regard, I have paid particular attention to Ms E’s evidence about the things that Mr Kantor said to her and the way in which he said them during the course of her interview of him for the purposes of her report. She found some of the things he said in the way in which he said intimidating and she thought they were intended by him to exercise some control over the process in which she was engaged.
But the evidence also demonstrates the same of Ms Jeong. One example will suffice. On one particular occasion in the past Ms Jeong did not facilitate the children spending time with Mr Kantor on his birthday. Her explanation for not doing so was, I thought, implausible and was an attempt to use the children’s time with Mr Kantor (or lack of it) as a way to exert control.
On balance, I see no good reason to deprive these children to have the opportunity of having their parents both have input into decisions concerning the major long-term issues for them.
I do not consider that the children spending equal time with each of their parents is in their best interests. Ms E explained both in her report and then again in her cross-examination why an order for equal time was not in the best interests of these children. I accept her evidence about those things. The co-parenting relationship between these parents is not sufficiently peaceful and free of conflict for such an arrangement to work for the children. Ms E explained in cross-examination the disadvantages for these children if they were to be placed in an equal time arrangement having regard to the nature of the co-parenting relationship between Ms Jeong and Mr Kantor.
However, I do not accept Ms E’s opinion that it is appropriate to reduce the amount of time that these children spend with Mr Kantor. Her opinion was based upon a more or less wholesale acceptance of the generalised assertions and other claims made by Ms Jeong. Whilst I have accepted some of her evidence, I have rejected much of it. And, to the extent that Mr Kantor has engaged in behaviour that has a tendency to undermine the relationship between these children and their mother, a reduction in time between the children and Mr Kantor as suggested will not protect them from that, given that the best evidence I have available to me of that undermining behaviour is that it occurs during the course of telephone communications.
I have concluded that a continuation of the current arrangements for these children is in their best interests. It will permit them to continue to have the benefit of a meaningful relationship with each of their parents. It will permit them, particularly the younger children, to remain in the care of the parent who has primarily provided for them since separation. It will provide a measure of protection against the undermining behaviour of Mr Kantor although no orders, save for perhaps an order for no contact, could protect children absolutely against that risk.
The children are not unsafe in Ms Jeong’s care and as I have found above, her capacity to provide for their physical needs is intact. The capacity of each of these parties to meet the children’s emotional needs is impaired as I have set out above.
I do not consider that the proposals contended for by Mr Kantor carry any benefit for these children. His proposals will carry significant detriments for them as Ms E suggests and I have accepted. Similarly, I do not consider that Ms Jeong’s proposals will carry any benefit for these children and a reduction in time will be against the wishes of at least Mr V Kantor and W and that may well cause its own problems.
I have adopted the orders generally speaking that were sought by Ms Jeong. I have made changes consistent with these reasons. Her orders proposed that there be a stepped arrangement in respect of Z but that come mid-2021, the arrangements for him would align with the arrangements for the older children. Given that the time has now passed, the orders that I have made align the arrangements for all four children. There is no special provision made for Z.
I have not made the orders for overseas travel sought by Ms Jeong. Given that I have made an order for equal shared parental responsibility, it will be a matter for parents to cooperate for the purposes of obtaining passports for the children. If the parties are not able to agree about overseas travel, they will have the opportunity to have the matter determined by the court, but I am not of the view that it is appropriate to make an open-ended order for overseas travel such as sought by Ms Jeong in the circumstances of this case. Needless to say, if a proposal for overseas travel is unreasonably rejected by one or other of the parties and an application to the court is necessary, there may be cost consequences for the party who acts unreasonably.
Accordingly, I make the orders that are set out at the commencement of these reasons.
I certify that the preceding one hundred and thirty-three (133) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Judge Jarrett delivered on 8 September 2021. Associate:
Dated: 8 September 2021
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