KEDVES & SEGAL
[2020] FCCA 67
•17 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KEDVES & SEGAL | [2020] FCCA 67 |
| Catchwords: FAMILY LAW – Parenting – parental responsibility – how a child’s time with her father should progress in circumstances where the parents are in high conflict and cannot communicate. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA |
| Cases cited: Bell & Bell [2017] FCCA 173 |
| Applicant: | MR KEDVESMR KEDVES |
| Respondent: | MS SEGAL |
| File Number: | MLC 6671 of 2017 |
| Judgment of: | Judge Small |
| Hearing dates: | 4-6 February 2019 |
| Date of Last Submission: | 15 April 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 17 January 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Anglin |
| Solicitors for the Applicant: | Salvos Legal Humanitarian |
| Counsel for the Respondent: | Ms Rothschild |
| Solicitors for the Respondent: | Brendan Rothschild Legal Group |
| Counsel for the Independent Children's Lawyer: | Ms Mansfield of Counsel |
| Solicitors for the Independent Children's Lawyer: | Altavilla Family Lawyers |
ORDERS
In addition to the Orders made by consent on 26 February 2019:
The parties shall have equal shared parental responsibility for the child [X] born … 2015 (“the child”).
In the exercise of equal shared parental responsibility:
(a)as soon as either parent becomes aware of a major issue in relation the child’s care, welfare and development which requires a joint decision, that parent shall raise the issue with the other parent;
(b) the first parent shall communicate with the other parent in writing, via email, text message or other electronic means, and state concisely the matter requiring decision, that parent's proposed course of action, and a timeframe within which a response is sought from the other parent; and
(c)the other parent shall respond in a timely manner.
In the event the parties cannot come to agreement about a major long term issue, and save in the case of an emergency, the parties shall attend Family Dispute Resolution and make genuine attempts to arrive at a joint decision, and if unsuccessful, the mother shall make the final decision and advise the father by email or text message of the outcome immediately after making that decision.
The child shall live with the mother.
The child shall spend time with the father:
(a)During school terms in 2021:
(i)On each Wednesday from the conclusion of school to 7:00 p.m. commencing in the second week of the first school term;
(ii)On each alternate weekend from the conclusion of school on Friday to 5:00 p.m. on Sunday commencing on the second weekend of the first school term;
(iii)at other times by agreement between the parties in writing;
(b)during school term holidays in 2021:
(i)for three consecutive nights in the Term 1 holidays by agreement between the parties and failing agreement from the conclusion of school on the last day of term to 5:00 p.m. on the following Monday;
(ii)for four consecutive nights in the Term 2 holidays by agreement between the parties and failing agreement from 5:00 p.m. on the first Wednesday to 5:00 p.m. on the following Sunday;
(iii)for five consecutive nights in the term 3 holidays by agreement between the parties and failing agreement from 5:00 p.m. on the second Saturday to 5:00 p.m. on the following Thursday;
(iv)at other times by agreement between the parties in writing;
(c)During the long summer holidays in 2021-2022:
(i)for six consecutive nights in the first half of the holidays by agreement between the parties in writing and failing agreement from 5:00 p.m. on the Saturday after Christmas to 5:00 p.m. on the following Friday;
(ii)for seven consecutive nights in the second half of the holidays by agreement between the parties in writing and failing agreement from 5:00 p.m. on the second Saturday in January 2022 to 5:00 p.m. on the third Saturday in January 2022;
(iii)at other times by agreement between the parties in writing;
(d)During school terms from Term 1 2022 onwards:
(i)In Week 1: from the conclusion of school on Tuesday to the commencement of school on Wednesday;
(ii)In Week 2: from the conclusion of school on Friday to 6:00 p.m. on Sunday, or 6:00 p.m. on Monday if the Monday is a public holiday;
(e)For half of each school term holiday period from 2022 onwards by agreement between the parties and failing agreement:
(i)from the conclusion of school on the last day of term to 6:00 p.m. on the second Saturday in even-numbered years;
(ii)from 6:00 p.m. on the second Saturday to 6:00 p.m. on the day before the commencement of the next school term in odd-numbered years;
(iii)at other times by agreement between the parties in writing;
(f)for half the long summer holidays in 2022 – 2023 by agreement between the parties and failing agreement on a week about basis commencing at 6:00 p.m. on the first Saturday and concluding at 6:00 p.m. on the last Saturday;
(g)For half the 2023-2024 long summer holidays and each year thereafter by agreement between the parties and failing agreement the first half in even numbered years and the second half in odd numbered years, and for the purposes of this Order, the long summer holidays shall be deemed to commence at the conclusion of school on the last day of the school year and to conclude at 6:00pm on the Sunday before the commencement of the next school year.
(h)at other times by agreement between the parties in writing.
Changeover shall take place as follows:
(a)when the father’s time with the child is expressed to commence at the conclusion of the child’s school day, the father or his partner shall collect the child from her school at the commencement of that time, and the mother shall collect the child from the father outside the supermarket in the Shopping Centre A at the conclusion of that time;
(b)when the father’s time with the child is not expressed to commence at the conclusion of the child’s school day, the father shall collect the child from the mother at Shopping Centre B at the commencement of that time, and the mother shall collect the child from the father outside the supermarket in the Shopping Centre A at the conclusion of that time;
(c)any changes to the arrangements contained in subparagraphs (a) and (b) hereof shall be by consent of both parties in writing no later than 48 hours before the child is to be collected or returned.
Should the father be unable to spend his scheduled time with the child during school holidays because of work commitments, he shall advise the mother of that fact no later than 35 days prior to the commencement of his scheduled time, and:
(i)if the mother consents to care for the child, she shall advise the father within 7 days, and the child shall be returned to her care for the period of time that the father is unavailable; and
(ii)if the mother does not consent within 7 days, for whatever reason, the father shall be responsible for the child’s care during his scheduled period of time with the child, and if he arranges child care or school holiday programs for the child during that time, he shall bear the cost of any such childcare or school holiday program.
Unless otherwise specified in these Orders, all time the child spends with the father pursuant to paragraphs 5(a) and 5(d) hereof shall suspend during school holidays and recommence after the holidays as if the holidays had not intervened.
The Order of Judge Small, dated 21 August 2017 appointing the Independent Children’s Lawyer is discharged.
All extant applications are otherwise dismissed and the proceedings removed from the list of pending cases.
IT IS NOTED that publication of this judgment under the pseudonym Kedves & Segal is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 6671 of 2017
| MR KEDVESMR KEDVES |
Applicant
And
| MS SEGAL |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting matter between Mr Kedves (“Mr Kedves” or “the father”) and Ms Segal (“Ms Segal” or “the mother”).
There is one child of the relationship, [X] born … 2015 (“[X]” or “the child”).
[X] lives with her mother and currently spends time with her father pursuant to Orders made by consent on 26 February 2019, three weeks after the trial. It is to the parties’ great credit that they were able to agree on those quite extensive orders. However, they require judicial determination on five remaining issues as follows:
A.The allocation of parental responsibility;
B.The configuration of school term time and school holiday time from 2021;
C.Whether the Father’s school holiday time should be reduced should he not be able to take all of the holiday period off work;
D.The changeover venue; and
E.Whether the Father ought to be present or in substantial attendance during the time [X] is in his care.
The Mother seeks orders that:
· She have sole parental responsibility, but before any major long term parenting decision is made, she communicate with the Father via email as to the nature of the decision to be made, and request that the father provide a response within 7 days thereafter. If the father provides a response pursuant to the mother’s request, the mother shall consider it and upon making any determination as to that decision, notify the father accordingly;
· The father spend time with [X] during school holiday time as follows:
o In 2022:
§ 4 days of each period of the Victorian gazetted school holidays;
§ For three 4 day blocks of the December/January long school holidays in weeks 2, 3 and 6.
o In 2023:
§ 5 days of each period of the Victorian gazetted school holidays;
§ For three 5 day blocks of the December/January long school holidays in weeks 1, 4 and 6.
o In 2024:
§ 6 days of each period of the Victorian gazetted school holidays;
§ For three 6 day blocks of the December/January long school holidays in weeks 2, 3 and 6.
· The father collect [X] from school and the mother collect [X] from Shopping Centre B;
· The father be in substantial attendance during the time he spends with [X];
· Each party be responsible for the fees for [X]’s attendance at activities or programs in which the party enrols [X] (noting that this was not identified as an issue the Court was required to decide at Final Hearing, and was included in the submissions prepared by the mother’s counsel).
I note that the mother’s written submissions do not propose any specific regime for [X]’s time with the father in 2021 when she starts school, although she does refer to a rather contradictory regime, which does not mention 2021, when discussing changeover venues.
The Father seeks orders that:
· The parties have equal shared parental responsibility;
· He spend time with the child for half of school holidays, each alternate weekend and Tuesday overnight each week.
· Revised arrangements for time spent should the father not be able to take leave from work during school holidays;
· The father or the father’s partner collect [X] from school and the mother collect [X] from the supermarket at Shopping Centre A.
· There be no requirement of the Father to be in substantial attendance when the child is in his care.
The Independent Children’s Lawyer seeks orders that:
·The parties have equal shared parental responsibility, and in the event the parties cannot agree, the Mother make the final decision;
·During school terms, the child spend 2 nights a fortnight with the Father commencing in 2021 and thereafter 4 nights a fortnight commencing in 2022;
·During school term holidays, the child spend time with the father:
oThree consecutive nights in the Term 1 holidays in her first year of school in 2021;
oFour consecutive nights during the term 2 school holidays in 2021,
oFive consecutive nights during term 3 school holidays in 2021;
o6 nights and then later a period of 7 nights in the 2021-2022 long summer holidays, with the aim of entering into a regime for half of all school holiday periods with each parent from the school year commencing 2022.
·Revised arrangements for time spent should the father not get time off work during school holidays;
·For the father to collect the child from school and deliver the child to the mother at Shopping Centre A at the conclusion of time.
·There be no requirement for the Father to be in substantial attendance when the child is in his care.
Final Hearing commenced on 4 February 2019 and the matter ran for 3 days. The mother, the father and the Independent Children’s Lawyer were all represented by counsel.
Witnesses at trial were the Mother, the Father and Ms C, the family report writer (“Ms C”), who gave her evidence by telephone.
To the great credit of the parties, extensive Final Parenting Orders on issues that did not require judicial determination were made in chambers by consent on 26 February 2019.
Following the conclusion of evidence and after receiving written submissions by all parties in relation to outstanding issues, the last submissions being received on 5 April 2019, I reserved my decision.
Background
Mr Kedves is 33 years old, having been born on … 1986 in Town D, South Australia. He is in good physical health. He is employed as a tradesperson. He lives with his partner, Ms E in Town F.
The father has a significant criminal and psychiatric history.
Ms Segal is 32 years old, having been born on … 1987 in Melbourne, Victoria. She is in good health and at the time of trial was engaged in home duties. She lives in rental accommodation in Suburb G.
The parties met in about September/October 2014 and commenced cohabitation in December 2014.
[X] is 4 years old, having been born on … 2015. She is in good health, although she suffered from several conditions requiring specialist treatment when a baby.
In about late October/early November 2016, the parties separated under the one roof. In about mid-December 2016, Ms Segal vacated the parties’ home in Suburb H and moved to her current accommodation in Suburb G.
Issues and Evidence
It is not possible to refer to every fact and/or matter raised in the trial of these proceedings and nor is it necessary to do so. The parties should understand that I have had regard to the whole of the evidence, including my notes and the demeanour of the parties at trial, and if I have not referred to a particular fact or matter it does not mean that I have not considered it.
Issue A: Whether the parties should retain equal shared parental responsibility for the children or whether Ms Segal should have sole parental responsibility
The Father seeks orders that the parties retain equal shared parental responsibility for the children. That proposal is supported by the Independent Children’s Lawyer.
The Mother seeks sole parental responsibility, but proposes that before any major long term parenting decision is made, she communicate with the Father via email as to the nature of the decision to be made and her proposals for the same, and request that the father provide a response within 7 days. If the father provides a response pursuant to the mother’s request, the mother would then consider that response and upon making any determination as to that decision, she would notify the father accordingly.
The law in relation to parenting responsibility is found in S.61DA of the Family Law Act 1975 (Cth) (“the Act”), which provides as follows:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Therefore, if I have reasonable grounds to believe that either parent has engaged in child abuse or family violence, then the presumption of equal shared parental responsibility does not apply, and the question of parental responsibility is to be decided on the basis of whether equal shared parental responsibility would be in the child’s best interests.
That is because an order in relation to parental responsibility is a parenting order, and the law in relation to parenting orders states that when making such an order, the children’s best interests must be the Court’s paramount consideration: see s.60CA of the Act.
The Evidence
It is not disputed that there was family violence in the relationship between the parties, and the father concedes that he behaved in an abusive and on at least one occasion, violent manner towards the mother.
He alleges that the mother behaved in a controlling manner in relation to his relationship with [X].
In those circumstances, the presumption of equal shared parental responsibility does not apply, and I must consider whether it is in [X]’s best interests for her mother to have sole parental responsibility for her.
I will discuss the law and evidence in relation to [X]’s best interests later in these Reasons, but the parties should understand that I have all that law and evidence in mind when considering this issue and making this decision.
Decision: Issue A
The parties appear to be able to communicate about [X]’s care in a reasonable fashion most of the time, despite a mutual lack of trust, and indeed some suspicion in each as to the other’s motives when they disagree.
I suggested to the parties at trial that they might consider using an Application such as My Mob to communicate about [X]’s care and welfare, and although I acknowledge that the My Mob Application is no longer available, there are other similar Applications such as 2houses or My Family Wizard which they could use.
In general, the Court has no doubt that these parties will be able to communicate effectively about major issues in relation to their dearly loved little girl as long as they are not required to discuss those issues face-to-face.
Removing a parent’s responsibility for making major decisions about the care and welfare of a child, as Ms Segal asks the Court to do, is a serious step, as it might give the child a negative impression about that parent, and has the potential to cause a fissure to develop in an otherwise positive, caring and beneficial relationship.
In those circumstances, I will make an order that provides for the parties to have equal shared parental responsibility for their daughter, and, save for in an emergency, for them to attend Family Dispute Resolution if they are unable to agree on major issues like where [X] should go to school, whether she should have any particular kind of medical treatment or surgery, whether she should follow a particular religion, and other like matters.
However, there comes a time in every child’s life when particular decisions need to be made, and so in this case, where there is little trust between the parties, I will provide for the mother, with whom [X] lives most of the time, to make those decisions in circumstances where Family Dispute Resolution does not result in agreement. She will nevertheless be required to seek and take into account the views of [X]’s father in doing so. I note that at trial, both parties essentially agreed to a proposed order that would require them to consult about major decisions, with the mother making the final decision in circumstances where they are unable to agree.
Issue B: What time is [X] to spend with her father during school terms and school holidays?
The Orders made by consent on 26 February 2019 provide for [X]’s care until she begins school in 2021.
Thus, there is an outstanding issue of when she ought to spend time with her father after that life-changing first day at school in January or February of that year.
An order for a child to spend time with a parent is, unsurprisingly, a “Parenting Order” under the Act.
The law in relation to Parenting Orders is found in Part VII of the Act.
As already stated, s.60CA makes clear that when a court is making a Parenting Order, its “paramount consideration” must be the child’s best interests.
Section 60CC then sets out 16 separate factors that the court must consider when it is considering what orders to make in the child’s best interests, and I will address each of these factors in turn by reference to the evidence before the Court.
There are two “primary considerations” set out in s60CC(2) and they are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
S.60CC(2A) requires the court to give greater weight to the need to protect a child from harm than to the benefit to the child of having a meaningful relationship with both parents.
The question of what constitutes a “meaningful relationship” has been discussed in many cases before this court and the Family Court of Australia.
In Mazorski v Albright (2008) 37 FLR 518 Brown J said, at paragraph 26:
[…] a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
In other words, it is not the amount of time that a parent spends with a child that makes it “meaningful” – it is the quality of that time.
In Tait & Dinsmore [2007] FamCA 1383, Cronin J said, at paragraph 170:
To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
I would add to that definition the words of Ms I, who wrote in the Family Report in a previous case [1] of “a close, reciprocal and nurturing relationship”.
[1] Bell & Bell [2017] FCCA 173
In this case, the evidence of both parties, and of Ms C, clearly shows that [X]’s relationship with her mother is strong, loving and beneficial to her in every way. She has lived with her mother her whole life and the Court has no concerns about the nature or quality of that relationship.
Evidence about [X]’s relationship with her father is found in the evidence of the father himself, his partner Ms E, Ms C, and in the report of the Family Contact Service provided after the father had spent several months of supervised time with [X].
While the mother has raised some concerns about whether Mr Kedves is capable of caring for [X] appropriately because of his criminal and psychiatric history and his history of family violence, those concerns do not affect the “meaningfulness” of [X]’s relationship with him, and even Ms Segal acknowledges that [X] adores her father and that her relationship with him is of benefit to her.
It must be noted that all three independent reports about Mr Kedves’s capacity to provide and foster a beneficial relationship between him and [X] - the report of the family Contact Service, the Family Report of Ms C, and the psychiatric report of Dr J – speak in positive and even glowing terms of that capacity.
The evidence of Ms E supports that of the father and Ms C, and there is no cause for the Court to find otherwise than that the relationship between father and daughter is meaningful and of benefit to [X].
Nevertheless, the Court has an obligation to ensure that [X] is protected from harm, and while there is no evidence to suggest that she is at risk of harm from her mother, Ms Segal has raised the issue of Mr Kedves’s criminal and psychiatric history as a cause for concern about [X]’s safety in her father’s care.
It is not surprising that she does so in circumstances where she has borne the brunt of the father’s antagonistic and aggressive behaviour during and for some time after the parties’ relationship, and I do not for one moment downplay the effects upon her of that behaviour.
I have said before that when the rock of family violence, whether it is the size of a pebble or a boulder, is thrown into the pool of family life, it goes straight to the core of the family, and its ripples run very wide indeed. It is clear to the Court in this case that Ms Segal continues to feel the effects of the father’s behaviour some years after their separation.
It is her evidence that she believes the father is “over the top” in his affection for and commitment to [X], and she fears that if placed under stress, Mr Kedves might revert to his previous behaviour and place [X]’s safety in jeopardy.
Mr Kedves makes no bones about his history: he grew up in a neglectful and violent home and spent time in foster care before being imprisoned in South Australia in 2008 for a number of violent offences. His criminal history goes back to 2001, when he was 15 years old.
In October 2008 the father faced court again after he committed a violent home invasion, as a result of which he was diagnosed with Borderline Personality Disorder and suicidal tendencies and sentenced to three years and ten months in prison backdated to … 2008. He completed a Spectrum course for offenders with Personality Disorders, attending two days a week, and voluntarily underwent psychiatric treatment for nine to twelve months. He was released on parole in 2010.
Documents provided under subpoena from the South Australian Department of Correctional Services described Mr Kedves in late November 2010 as “struggles being told no when it is against his wishes”.
I note that that description is congruent with behaviour described by Ms Segal during and since the parties’ relationship.
In 2012, after moving to Victoria, Mr Kedves was again imprisoned for about three months, and on his release he was ordered to serve a Community Corrections Order.
It was his evidence at trial, uncontested by Ms Segal, and supported for the most part by records produced under subpoena by Victoria Police, that he had not committed any crimes of violence since 2012.
During these proceedings, Mr Kedves was ordered to attend a Men’s Behavioural Change Program and to file an Affidavit upon completion deposing to what he had learned from that program. He complied with those orders, attending all but one session of a 16 session program, and his Affidavit showed considerable insight into his behaviour and its effect upon those around him. That insight is noted by both Ms C and Dr J (“Dr J”), who prepared a psychiatric assessment of Mr Kedves, and I note that he displayed considerable insight into his prior behaviour when giving evidence at trial. Specifically, he did not try to diminish his responsibility for his behaviour, stating that he had learned much from his mistakes and that he simply wanted to be the best father for [X] that he could possibly be.
There is no evidence in the report of the Family Contact Service, in Ms C’s Family Report, in Dr J’s psychiatric report, or in the evidence of Ms E, to suggest that Mr Kedves poses a current risk to [X]’s safety, and indeed, Dr J’s report states specifically that he does not.
Therefore, I cannot find that the meaningfulness of the father’s relationship with [X] is compromised by or in any way in conflict with the need to protect [X] from harm.
However, the relationship between [X]’s parents remains fragile as a result of Mr Kedves’s prior aggressive and sometimes violent behaviour. It will take a long period of Mr Kedves refraining from such conduct before Ms Segal is able to develop any trust in his ability to relate to her in a civil and appropriate manner.
The Act then sets out, in s.60CC(3), 14 “additional considerations” which the court must take into account when deciding what orders to make in a child’s best interests.
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
[X] is too young to have expressed any views, save that she is reported to have asked her father if he could spend overnight with him, and to have been reluctant to leave him at the end of their time together.
(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
As mentioned above, [X] has a close, supportive, and loving relationship with her mother, with whom she has lived all her life.
Ms Segal comes from a large, close family, and [X] is reported to have excellent relationships with her extended maternal family.
Her relationship with her father has developed well since the commencement of these proceedings, and there is no reason to believe otherwise than the father/daughter relationship is also close, loving and appropriate.
Ms E’s relationship with [X] is also reported to be developing as an appropriate stepparent/stepdaughter relationship.
It is of note that both parents describe the other as having a loving relationship with [X].
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
It was the evidence of both parties at trial that it has been Ms Segal who has, until now, made most, if not all major decisions about [X]’s care, welfare and development.
It appears that Mr Kedves has accepted that situation until the commencement of these proceedings, in that there is no evidence that he has objected to any of the decisions the mother has made. For instance, Ms Segal enrolled [X] in day-care without consulting Mr Kedves, but it was his evidence at trial that he was happy for [X] to be so enrolled.
Between the date of final separation in December 2016 and the date of an Interim Intervention Order being made against Mr Kedves on an ex parte basis in May 2017, both parties agree that [X] spent significant time with Mr Kedves, including overnight time on a regular basis.
[X], who was then 18 months old, then spent no time with her father until orders were made in this Court for supervised time on 21 August 2017.
While there have been some fairly minor issues of consistency in the time spent, an issue occurring in many cases before this Court, Mr Kedves has taken every opportunity to spend time and communicate with [X] and now seeks to extend that time.
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The evidence before the court shows that [X]’s mother has supported and maintained her, with the assistance of child support paid by Mr Kedves pursuant to Child Support Assessments, since the parties separated in December 2016.
Ms Segal raised some issues at trial about the consistency and level of child support paid by Mr Kedves, but she acknowledged that any current arrears were the fault of the Department of Human Services (Child Support) and not the result of any reluctance to pay on Mr Kedves’s part.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
There is no suggestion that [X] will be separated from any of her parent figures. Indeed, the regime under which she has been living since orders were made on 26 February 2019, extended time with her father to overnight, and the Court is unaware of any issues which have arisen as a result.
It was Ms Segal’s evidence at trial that she does not intend to move her place of residence any distance from her current home, where she has the support of family members and friends in the community.
Mr Kedves, too, appeared at trial to be living in a stable and settled relationship with Ms E, and it is unlikely that any changes made to orders about the time Mr Kedves spends with [X] will have other than a positive effect on her.
(f)the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
Ms Segal’s capacity to care for [X] is unquestioned. She has been fed, clothed, sheltered, educated and supported appropriately by her mother for her whole life.
The only cause for concern in relation to Ms Segal’s parenting capacity is the possibility that her genuinely-held fears that Mr Kedves’s mental health might relapse, might pass a message to [X] that her father is a risk to her safety.
However, it was Ms Segal’s evidence at trial that she had received therapeutic counselling as a result of the breakdown in her relationship with Mr Kedves, and it is to be hoped that she would again seek such counselling if those fears became overwhelming.
Mr Kedves’s capacity to care for [X] in the material sense is also unquestionable. During the period that his time with [X] was being supervised for instance, he brought appropriate snacks for her and changed her nappy at appropriate times, and there is nothing in any evidence before the court to question his ability to meet those needs.
However, Ms Segal is afraid that if Mr Kedves is placed under stress while [X] is in his care, he might revert to previous tendencies to become aggressive and even violent towards her. Those fears arise from her experience of living with Mr Kedves and of attempting to co-parent with him after separation, and Mr Kedves concedes that some of his behaviour towards the mother of his daughter was intimidating and inappropriate at times.
It must be said that there has never been any suggestion that Mr Kedves has treated [X] other than in a loving, caring and protective manner, but that does not negate the fear which lingers in [X]’s mother.
Mr Kedves will need to be patient, and allow trust between him and Ms Segal to build over time so that her concerns about his capacity to parent their daughter can be allayed.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
Both parties appear to be reasonably mature adults, and their ability to behave as mature parents is evidenced by an incident where [X] told her mother that Ms E had “smacked her on the bum”. Ms Segal wrote to Mr Kedves in measured and civil terms asking him whether Ms E had behaved in such a manner, and he responded in similar terms reassuring Ms Segal that Ms E had not smacked [X], that he agreed that [X]’s parents should be the ones to discipline her, and that he did not believe that she should be smacked at all.
That was a situation which might have escalated in a number of ways had either party responded in a different manner, and it is clear from the parties’ response to that incident, that when they correspond civilly and do not immediately rush to judgement of each other, they are able to resolve issues they might have in relation to their daughter in appropriate ways.
Mr Kedves has Country K heritage, but he has little contact with his family of origin, for good and cogent reasons, so it is unlikely that [X] will see that heritage as an important part of her life. That is unfortunate, but absolutely understandable in the circumstances of this family.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
[X] does not have any Aboriginal or Torres Strait Islander heritage.
(j) any family violence involving the child or a member of the child’s family;
I have discussed issues of family violence earlier in these Reasons and will not repeat that evidence here, save to say that both parties concede that incidents of family violence occurred between them, and that it is clear that Ms Segal continues to feel the effects of Mr Kedves’s aggressive and abusive behaviour.
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
On 11 May 2017, Ms Segal obtained an ex parte Interim Intervention Order against Mr Kedves naming both herself and [X] as Affected Family Members.
On 27 September 2017 Mr Kedves consented to a Final Intervention Order to last until 26 June 2018, which named only Ms Segal as an Affected Family Member, that order being made without him making any admissions as to the allegations contained in the Application and Summons.
It would appear from the records provided by Victoria Police under subpoena that on 8 January 2018 Mr Kedves was fined without conviction for breaching the Interim Intervention Order.
That apparent breach was not given any prominence during the trial, and I mention it only because it contradicts the father’s evidence that he has not been in trouble with the police since 2012.
On 23 October 2018, Ms Segal applied for an extension of the Intervention Order and a further Interim Intervention Order was granted.
However, on 12 November 2018 that application was dismissed, and at the time of trial there were no Intervention Orders in place between the parties.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
At the time of trial [X] was three years old. She is now four years old, and it is impossible for the court to see into the distant future when making orders.
However, [X] will begin school at the commencement of the 2021 school year, and the orders I make will be clear and detailed so that the parties are unlikely to seek further orders until there is some major change in [X]’s circumstances. Even in that circumstance, the parties will need to attend Family Dispute Resolution before instituting further proceedings in relation to [X]’s care.
(m) any other fact or circumstance that the court thinks is relevant.
The father has a history of mental health problems, sometimes requiring him to take psychoactive medication, although there does not seem to be any current issue about his mental health.
Ms Segal’s concerns about Mr Kedves’s mental health related mainly to a fear that a relapse might lead to aggressive behaviour towards her and possibly towards [X].
Dr J’s psychiatric evaluation of Mr Kedves does not cause the Court any concern in relation to the father’s ability to monitor his mental health and seek professional assistance should he need to do so.
Paragraphs 14 to 16 Of the Orders Made by Consent on 26 February 2019 require the father to undertake further therapeutic counselling, and to provide a report to the mother or her solicitors after six months of such counselling.
Those six months have now elapsed and the Court has not been made aware of any concerns raised in relation to the father’s mental health.
Decision: Issue B
Ms Segal is cautious about allowing [X] to spend extended time with her father. Her concerns are genuine and there is no doubt in my mind that she continues to suffer the effects of living in an abusive relationship.
However, as I said to the parties at trial, it would be an extremely cynical Judge who was not prepared to entertain the possibility that a person might change their behaviour upon being provided with the tools to do so.
The balance I must strike in this case is between allowing the close, loving and supportive relationship between [X] and her father to flourish, while at the same time allowing for Ms Segal to regain a sense of trust in Mr Kedves.
I will therefore make orders which provide for [X]’s time with her father to progress gradually so that she is able to settle and enjoy longer times with her father from the beginning of the 2021 school year.
The orders I propose to make in relation to time spent during school terms and school holidays essentially reflect the proposals of the Independent Children’s Lawyer with some minor adjustments.
Issue C: Whether the Father’s school holiday time should be reduced should he not be able to take all of the holiday period off work?
The father proposes that [X] spend half school holidays with him, and if he is unable to care for her during that time, that he gives the mother 30 days’ notice of his inability to do so.
The mother’s submissions do not appear to have addressed this issue specifically.
The Independent Children’s Lawyer takes no issue with the father’s proposal.
This issue was not the subject of any specific evidence provided at trial, save that there was some mention that the father might enrol [X] in a holiday program if he could not get time off work during the holiday time when [X] is to be in his care.
The mother’s only comment about that matter in her counsel’s written submissions is that if the father were to do so he should bear the cost of such programs.
Children at state schools have holidays from school for approximately 12 weeks a year. Working parents are often unable to take leave for the whole of the children’s holiday periods, and must therefore make other arrangements for them.
When parents separate, and both are working, they must make arrangements for their children which take those issues into account.
I do not think it is acceptable for a parent to claim that they wish to spend half of all school holidays with their children, but then to add the caveat that if they are unable to take time off work during the children’s holidays, the other parent will just have to take responsibility for the child’s care. That is especially so when the other parent, too, is in employment.
Decision: Issue C
Children have been attending school holiday programs, where they have fun and have social contact with other children, for more than half a century.
If Mr Kedves wishes to be a parent to [X] in the fullest sense of that word, and he wishes to spend half of all school holidays with her, then, like myriad other working parents, he will have to make arrangements for her care during those times when he has to work.
Of course, there may be times when Mr Kedves is working during school holidays and Ms Segal wishes to look after [X] for that period. Mr Kedves should therefore be able to ask whether Ms Segal would like to have [X] for that time, but Ms Segal should be able to say no to that proposal if she, too, has to work, or indeed for any other reason. It would then be up to Mr Kedves to make arrangements either for [X] to be cared for by Ms E, or for her to attend a school holiday program at his expense.
Issue D: Where should the changeover take place?
The mother’s proposal is for the father to collect [X] from school, which will be close to her home, at the commencement of his time, and then to deliver [X] to her mother at Shopping Centre B, which is also close to her home, at the conclusion.
The father’s proposal, which is supported by the Independent Children’s Lawyer, is that he or Ms E should collect [X] from her school whenever his time with her is stated to commence at the conclusion of the school day, and that Ms Segal should collect [X] from him at the Shopping Centre A, which is closer to his home, at the conclusion of that time.
It was Ms C’s view that parents ought to share the cost and inconvenience of the travel required for a child of separated parents to spend time with both parents. I concur with that view.
Decision: Issue D
I will therefore make orders that changeover at the commencement of time will take place either at [X]’s school or at Shopping Centre B, and at the conclusion of time at the Shopping Centre A.
I acknowledge the mother’s concerns about having to drive from her employment in the southern suburbs of Melbourne to her home in Suburb B after work, and then having to retrace some of those steps to collect [X] from Shopping Centre A at the conclusion of her midweek time with her father, before again driving home to Suburb B.
However, I do not think that inconvenience is any greater than that of Mr Kedves or Ms E, both of whom are employed – Mr Kedves in the western suburbs - in having to collect [X] from her school whenever Mr Kedves’s time with her is expressed as commencing at the conclusion of school.
Issue E: Whether the Father ought to be in substantial attendance during the time [X] is in his care?
There are some situations in cases that come before this Court, where parents fight for time with their children, only to then leave them with partners, family or neighbours for extended periods to go shopping, or fishing, or to play or watch sport.
This is not one of those cases. That is, this is not a case where the father leaves [X] for long periods so that he can indulge in whatever activities he wishes to take part in.
Indeed, it is the mother’s own evidence that the father spends so much time in playing and engaging with [X] when she spends time with him, that he does not have time to perform any of the other usual parental tasks, such as cooking or cleaning.
There is simply not a scintilla of evidence to suggest that Mr Kedves deflects his responsibility for caring for [X] during time spent by way of being absent. In fact, the opposite is true.
The only situations in which Mr Kedves might need to be absent would be when he is required to work during some of the time when he is to care for [X], or when he leaves her with Ms E for short periods to run errands. In either situation it is his responsibility to ensure that [X] is properly cared for in his absence, and I can see no evidence suggesting that he would do otherwise.
As pointed out by the Independent Children’s Lawyer in her submissions, it is unrealistic to expect that the father will be in attendance for 100% of the time during the time he is to care for [X], and she is confident that he will spend every available moment with [X] because he “has gone to great lengths to pursue his application through the court system for genuine reasons and a desperate desire to be involved in [X]’s life”.
It has been suggested throughout these proceedings, and raised again at trial, that Ms Segal is prone to use Mr Kedves’s time with [X] (or restriction on that time) as a controlling mechanism.
I suspect that any propensity for her to do so comes from a place of concern for [X], but it is also possible that Ms Segal’s proposal that the father be in substantial attendance at all times when [X] is in his care is a method of controlling how much time he spends with his daughter.
Decision: Issue E
In the circumstances of this case, where there is no suggestion that the father will not be in substantial attendance when caring for [X] save when he is not able to care for her directly because of work commitments, I do not see any reason to make an order for him to be in substantial attendance during that time.
Conclusion
[X] is a very lucky little girl. She has two parents who absolutely adore her, a stepmother with whom she has a lovely relationship, and a large maternal family who are an integral part of her life.
She deserves a life where she is able to move between her parents’ homes smoothly and without concern.
It is now up to Mr Kedves to continue to behave in a manner that builds trust with Ms Segal, and for Ms Segal to respond appropriately to that behaviour so that their daughter can grow up in the knowledge that her parents love her and want only what is best for her.
I certify that the preceding one hundred and forty one (141) paragraphs are a true copy of the reasons for judgment of Judge Small
Associate:
Date: 17 January 2020
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