Kester and Schultz
[2014] FCCA 174
•19 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KESTER & SCHULTZ | [2014] FCCA 174 |
| Catchwords: FAMILY LAW – Parenting – what order for parental responsibility is to be made – with whom the children are to live – what time, if any, are the children to spend with the parent with whom they do not live. |
| Applicant: | MS KESTER |
| Respondent: | MR SCHULTZ |
| File Number: | PAC 2802 of 2009 |
| Judgment of: | Judge Dunkley |
| Hearing dates: | 18, 19 and 20 December 2013 |
| Date of Last Submission: | 20 December 2013 |
| Delivered at: | Parramatta |
| Delivered on: | 19 February 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Paraska |
| Solicitors for the Applicant: | Claremont Legal |
| Counsel for the Respondent: | Self Represented |
| Counsel for the Independent Children’s Lawyer: | Mr Schroder |
| Solicitors for the Independent Children’s Lawyer: | Adams & Partners Lawyers |
ORDERS
All prior parenting orders are discharged.
The mother shall have sole parental responsibility for X born (omitted) 2005 and Y born (omitted) 2007 (“the children”).
The children shall live with the mother.
The mother shall continue to attend upon CatholicCare at (omitted) for as long as the convenor deems appropriate so as to receive such assistance as that organisation can provide.
All outstanding Applications and Responses are removed from the list of cases awaiting finalisation.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Kester & Schultz is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2802 of 2009
| MS KESTER |
Applicant
And
| MR SCHULTZ |
Respondent
REASONS FOR JUDGMENT
Background
This is round three in the parenting dispute between Ms Kester (hereinafter “the mother”) and Mr Schultz (hereinafter “the father”).
Round one ended with consent parenting orders being made on 14 October 2009.
Round two of the dispute ended on 9 August 2011 when Federal Magistrate Harman (as he then was) made orders by consent. Those orders provided that the mother and father have equal shared parental responsibility for their two children, X born (omitted) 2005 and Y born (omitted) 2007. By this order, the children were to live with the mother and spend significant and substantial time with the father as defined in those orders.
Before the orders of 9 August 2011 were made, an expert report was prepared by Dr C and released to the parties on 7 July 2011.
That Report is Exhibit A in the current round of proceedings. Starting at line 764 in the report, the following recommendations were made:
1. I recommend that the children continue to reside with Ms Kester. I believe that they are reasonably stable with her and that she’s providing adequately for them. I do have major concerns about her ability to continue to cope in the long term; however, with adequate supports she may be able to continue to cope. X will need ongoing educational support and Y is likely to start school in the next year or two.
2. I recommend that contact occur on a regular basis. I would suggest that there be contact 3 out of 4 weekends. The aim would be to encourage a close relationship between the children and the father and also give Ms Kester some time without the burden of all the children. The contact should be from after school Friday to Sunday and in additional half the school holidays.
3. I recommend that neither parent denigrate the other parent or any of the other adults in front of the children.
4. I recommend that none of the adults use any drugs or alcohol when caring for the children.
5. I recommend that both parents have some respective individual counselling to help support them through the stressful time.
6. I recommend that the parents utilise mediation.
7. I recommend that DOCS be involved and provide some oversight, support and supervision. I believe that the situation with these two girls and also for the other children is extraordinarily fragile. There are enormous risks that either or both parental relationships and situations will become unstable.
8. I don’t have any particular concerns about Ms S having contact with the children. The major concern is if and when E is restored to Ms S and Mr Schultz’s care that this could provide an extra burden that may make it difficult for them to cope with their load. I am not aware of Ms S being a danger to children and I have no reason to suspect that she is an unacceptable risk of harm to the children. I believe the major objection from Ms Kester is the fear that she may [sic] Ms S may replace her as a mother figure rather than a direct danger to the children.
9. Ms S and Mr Schultz need to support and encourage mother’s relationship with children. Ms Kester needs support and encourage the relationship with Ms S so that at least the animosity between the parties is kept to a minimum as it is unlikely that either couple is likely to be able to cope adequately in the longer term.
At the time of the Final Hearing in this round of proceedings, the father remained married to his current partner, Ms S. The mother, although she has had other relationships, was not at the time of this hearing in a relationship. Her last relationship was with Mr D which existed from about February 2011 until May 2012. Since May 2012, Mr D has not been involved with the mother nor has he spent any time with X and Y.
The mother and father separated on a final basis on 16 February 2009 and have, since the first Application was filed on 18 June 2009, been constantly involved in litigation regarding X and Y.
The mother has one other child, Z born (omitted) 2010. Z is a child of the mother’s relationship with Mr N. Z lives with the mother and spends time with Mr N.
Ms S has five children from other relationships. One of those children, A, is cared for by Ms S’s mother, A’s grandmother. A has severe autism. Three of Ms S’s children, B aged nine, C aged eight, and D aged six, were removed from her care by the Department of Family and Community Services and remain in permanent out of home care. Her other daughter, E aged three, spent some time in care but was returned to Ms S’s care in March 2011.
Ms S and the father have one child, W born (omitted) 2013.
The father regards E as his “psychological daughter”.
E has mild autism.
The mother, Ms Kester, is not in paid employment. She is engaged in home duties.
The father works fulltime as a (occupation omitted). He works from 8.00am to 6.00pm Monday to Friday although his work can sometimes have him finish at 2.00pm. He also works some Saturdays, usually from 7.00am until either 10.00am or 11.00am.
He is dependent upon his wife, Ms S, to help care for the children because of his work commitments.
Ms S is currently not in paid employment. She does voluntary work ten hours per week for an organisation known as “(omitted)”. That work involves her moderating the organisation’s Facebook page and providing information to interested people. She hopes, if the organisation obtains a charity status, that she will be paid to work for that organisation and she would then expect to work some thirty to forty hours per week. She expects some of that work would be home based. She expects that some of the work would be out of home. She anticipates that there might be some overnight travel involved.
In November 2011, X was diagnosed with Inattentive Deficit Hyperactivity Disorder.
The children, X and Y, were living with the father from 25 June 2012 until 10 May 2013. During that time, they were spending time with the mother from 10.00am Saturday until 4.00pm Sunday.
On 10 May 2013, following the release of the Family Report by Ms M which became Exhibit C in the proceedings, the father and the mother and the Independent Children’s Lawyer entered into interim orders by consent that provided:
·All prior parenting orders with respect to X and Y be suspended;
·The mother have sole parental responsibility for the children;
·The children live with the mother;
·The children spend supervised time with the father for a period up to three hours per fortnight.
The Final Hearing in this round of the proceedings commenced on 18 December 2013 and continued on 19 and 20 December 2013.
During that Final Hearing the father was a self-represented litigant.
Orders sought
At the commencement of the Final Hearing, the father, contrary to what was sought in his Response filed 12 July 2012, indicated that he sought the following orders:
·That the parties have equal shared parental responsibility for the children.
·The children live with the father.
·The children spend time with the mother each alternate weekend from Friday afternoon until Monday morning, for half of each school holiday period, and on special occasions at Easter, Christmas, Mother’s Day and birthdays.
During the course of the father’s cross examination, the father said that if he was unsuccessful with his application for the children to live with him that he did not want to spend any time with the children.
Counsel for the mother in her Outline of Case document filed at the commencement of the Final Hearing summarised the orders that the mother sought as follows:
·That the Mother have sole parental responsibility for the children, X born (omitted) 2004 [sic] and Y born (omitted) 2007.
·That the children live with the Mother.
·That the Mother continues to attend upon CatholicCare at (omitted) and that she is to receive such assistance as that organisation is willing to provide.
During the course of the mother’s cross examination, she indicated that if the children did not live with her that she wanted to spend equal time with them.
In submissions at the conclusion of the Final Hearing, Counsel for the Independent Children’s Lawyer proposed that the Court make orders as sought by the mother in her Counsel’s Outline of Case document.
Counsel for the Independent Children’s Lawyer further submitted that there should not be orders made for the children to spend time with the father. He clarified this to mean the orders should be silent as to the time the father spends with the children but the orders should not prohibit time between the father and the children.
History of orders made in proceedings
To illustrate the protracted nature of the proceedings between the parents about the children, the following history is included.
On 16 July 2009 orders were made by consent and pending further order that:
·The parties have equal shared parental responsibility for the children;
·The children live with the mother,
·The children spend time with the father from 12 noon on 19 July until 12 noon on 22 July 2009, and thereafter each week from Monday 9.00am until Thursday 9.00am, on Father’s Day and as agreed.
On 14 October 2009, final parenting orders were made by consent that:
·The parties have equal shared parental responsibility for the children;
·The children spend time with the father until the first child commences school:
·In Week 1 from 9.00am Wednesday until 9.00am Saturday; and
·In Week 2 from 9.00am Friday to 9.00am Monday;
·For half of the school holiday periods.
·From the time the first child commences school the children were then to spend time with the father:
·In Week 1 from the conclusion of school Wednesday until 9.00am Saturday;
·In Week 2 from the conclusion of school on Friday until the commencement of school Monday extending to Tuesday if Monday was a public holiday; and
·For half of the school holiday periods.
On 3 March 2011, orders were made pending further order that:
·All prior parenting orders with respect to the children be discharged.
·The parents shall have equal shared parental responsibility for the children.
·The children shall spend time with their Father:
·Each alternate weekend during school terms from the conclusion of school Friday until 5pm Sunday;
·Each intervening weekend during school terms save for each fourth weekend from the conclusion of school Friday until 2pm Saturday;
·For the first half of each short NSW school holiday period from 10am on the first Saturday until 6pm middle Saturday;
·Such further and or other times as are agreed between the parents from time to time.
·The children shall live with their Mother.
On 9 August 2011, final orders were made by consent that:
·All prior parenting orders with respect to the children are discharged;
·The parties have equal shared parental responsibility for the children;
·The children live with the mother;
·The children spend time with the father from after school Thursday to before school Monday each alternate week, and from after school Thursday to before school Friday in each other week.
On 13 July 2012, it was ordered that:
·The orders made on 9 August 2011 are suspended.
·The children shall live with the father.
·The children shall spend time with the Mother each Saturday between 10.00am and 4.00pm and each Sunday between 10.00am and 4.00pm.
On 21 August 2012, the orders of 9 August 2011 were varied by consent and pending further order such that the mother spent time with the children for defined periods in August and September 2012 and commencing 6 October 2012 for three consecutive weekends out of four from 10.00am Saturday until 4.00pm Sunday.
On 10 May 2013, it was ordered by consent and pending further order:
·All prior parenting orders were suspended;
·The mother to have sole parental responsibility for the children who were to live with her;
·The children were to spend time with the father for a period up to three hours in a supervised setting.
On 18 July 2013, it was ordered by consent and pending further order:
·The mother to have sole parental responsibility for the children;
·The children were to live with the mother;
·The children were to spend time with the father supervised at the (omitted) Children's Contact Centre.
At times during the above proceedings recovery orders were also sought and made as enforcement of existing parenting orders.
Documents relied on
The mother
·Initiating Application filed 2 July 2012;
·Affidavit of Ms Kester. sworn 21 October 2013 and filed 22 October 2013;
·Notice of Child Abuse, Family Violence or Risk of Family Violence filed by the mother on 2 July 2012;
·Outline of Case document prepared for the Applicant mother.
The father
·Response filed 12 July 2012;
·Affidavit of Ms R sworn 8 July 2012;
·Affidavit of Ms E sworn 11 July 2012;
·Affidavit of Ms D sworn 11 July 2013;
·Affidavit of Ms S sworn 11 July 2013;
·Affidavit of Mr Schultz sworn 11 July 2013.
Exhibits
·Exhibit A: Expert Report of Dr C dated 15 June 2011 and released to the parties on 7 July 2011.
·Exhibit B: Letter from Relationships Australia NSW to the father dated 30 September 2013 advising of the scheduled supervised contact visits.
·Exhibit C: Family Report of Ms M dated 29 April 2013 and released to the parties on 2 May 2013.
·Exhibit D: Tagged pages of the material produced on subpoena by the Department of Family and Community Services.
Issues to be determined
·What order for parental responsibility is to be made.
·With whom are the children to live.
·What time, if any, are the children to spend with the parent with whom they do not live, subject to what, if any, conditions.
Chronology
(omitted) 1979 The father is born.
(omitted) 1983 The mother is born.
(omitted) 2004 The parties marry.
(omitted) 2005 X is born.
(omitted) 2007 Y is born.
16 February 2009 The parties separate.
June 2009The mother relocates with the children to (omitted).
July 2009The mother is ordered to return to live in Sydney.
14 October 2009 Final parenting orders made by consent.
(omitted) 2010 The mother’s child, Z, is born.
4 December 2010 The father retains the children.
18 January 2011 A Recovery Order is made requiring return of the children to the mother.
May 2012The mother separates from Mr D.
2 July 2012The mother files an Initiating Application and Notice of Child Abuse, Family Violence or Risk of Family Violence.
9 July 2012The mother consents to an Apprehended Domestic Violence Order to protect the children.
10 May 2013 Orders were made by consent for the children to live with the mother and spend supervised time with the father.
11 October 2013 Apprehended Domestic Violence Order restraining the mother and protecting the children expires.
19 October 2013 The father has first supervised visit with the children at the (omitted) Contact Centre.
The evidence
The mother
She lives at (omitted) in western Sydney. She is engaged fulltime in home duties.
She says that X has difficulties with phonics and reading and her ability in both is at a level less than her peers. The mother understands from discussions with the school counsellor that X is two years academically behind her peers. X has been diagnosed with Inattentive Attention Deficit Disorder. She said her paediatrician has recently changed her medication.
She conceded, in answering a question from Counsel for the Independent Children’s Lawyer, that she had recently changed the children’s Church attendance from a (religion omitted) type Church at (omitted) to the (religion omitted) at (omitted). She conceded that she did not consult with the father regarding this change. She says that she has otherwise always consulted with the father about issues relating to the children, even though they have not been able to reach agreement.
She said that X and Y attend the same primary school. X will be in Year 4 in 2014 and Y will be in Year 1 in 2014.
She described the post separation parenting relationship between her and the father as hostile but said that her biggest concern as it relates to the children is Ms S and her ongoing attitude of conflict with her.
She was critical of the father during their relationship as being inattentive to the needs of the children saying “He preferred to play video games or smoke marijuana than parent the children”.
She acknowledged that she had complained about the father’s actions in withholding the children from her on two occasions since the parties’ separation. She conceded having withheld the children from the father on one occasion since the parties’ separation.
She denied that she abused or mistreated the children particularly as set out in the Affidavits of Ms R, Ms E and Ms D.
She denies physical chastisement of the children. She says that she prefers either time out or the 1-2-3 Magic techniques as discipline strategies for the children.
She was of the view that X has early signs of the onset of puberty. She says that from time to time Y will throw tantrums.
She agreed that until recently she continued with a counsellor at CatholicCare. She said that she is willing to be further engaged with that counsellor.
In recent times she says that each of the children have asked her when they are going to see their father.
She says that Z spends alternate weekends with her father, Mr N.
She asserted that she was the primary carer of X and Y and set out in paragraph 7 of her Affidavit the parenting tasks that she undertook.
She and the children live in a four-bedroom home in (omitted) rented through (omitted).
She is critical of Ms S in what she says is “undermining” her to other mother’s at the children’s school and on messages on facebook. She says some of those messages that Ms S has placed on facebook include “who wants to go on a killing spree, Mr Schultz’s ex is pissing me off”.
The father
In addition to his work as a (omitted), he also runs a small business but has an employee do all the work for him in that small business.
He lives in a three-bedroom home with Ms S. They have one room and E has the other room. If X and Y live with him, they would occupy the large bedroom.
He proposed that Ms S would do most of the day time care of the children whilst he was at work.
He acknowledged that he and the mother are unable to communicate about decisions relating to the children.
He conceded at one time having not provided X’s medication to her. He said that X’s paediatrician was “okay to a trial stopping”. He said that he was now of the view that X needed her medication.
He conceded having said to X words to the effect “that if she wishes to masturbate she has to do so in the privacy of her own bedroom”. Notwithstanding X’s age he thought there was nothing wrong with this comment.
He said that his relationship with Ms S began in 2010 and they began living together in about October 2010.
He agreed that he withheld the children from the mother, contrary to Court orders, in 2010 because he was concerned about neglect. He agreed that in June 2012 he again withheld the children.
In his view, he felt that Ms M who prepared the Family Report was hostile towards himself and Ms S during the preparation of the report.
He agreed that he had said to X and Y “I don’t like your mother”. He said that he told them “My feelings should not affect your feelings towards your mother”.
He was aware that Ms S’s children had been removed because the Department of Family and Community Services had concerns that she could not cope with them. Notwithstanding this, it was his proposal that she would do most of the caring for E, X, Y and W.
He was aware that Ms S was preparing to begin a process to see if she could have the three children that are in care returned to her care. He said that those three children, B, C and D, have visits with Ms S eight times a year.
In answer to a question from Counsel for the Independent Children’s Lawyer he said:
If the girls don’t live with me I don’t want supervised times. Given the hostility I think it better I not see them at all if they don’t live with me.
He said that he had discussed this outcome with Ms S.
He conceded that he was aware that this would cause X and Y to have feelings of abandonment. He agreed with the assessment that his application is essentially “all or nothing”.
Ms S
She is currently on maternity leave.
She described her son A as having severe Autism and Obsessive Compulsive Disorder. She says that she spends time with him weekly, but he is otherwise living with her mother, A’s grandmother.
She acknowledged that the Department of Family and Community Services took her other three children into care because of issues relating to domestic violence and neglect.
She said that she is beginning a process of applying to the Department to see if the children can be returned to her care.
She described E as being mildly autistic.
She agreed that there had been angry exchanges between her and the mother at changeovers involving name-calling.
She says that when she returns to work, if the children were living with her, that she and the father would rely on extended family or before and after school options for the care of the children. She said that she had a large support network but acknowledged that none of that support network were on Affidavit in the proceedings.
In response to questions by Counsel for the Independent Children’s Lawyer, she agreed that she had downloaded the template for the Affidavits for the father, Ms R, Ms E and Ms D. She agreed that each of Ms R and Ms E had come to her home at (omitted) “to work” on their Affidavits.
She agreed that she had said to Ms M, during the course of the preparation of the Family Report, that she thought that “Ms Kester had golden uterus syndrome”. By that, she meant that the mother wanted absolute control regarding the children. She said that she had read about the syndrome online from American sources when she was doing research for her work for the organisation “(omitted)”. She described that organisation as being a parent’s support group in battles with the Department of Family and Community Services and Family Courts. She said that she no longer believes that the mother has “golden uterus syndrome” but now regards her as a very selfish mother. She held this belief notwithstanding that she had not seen the mother for more than ten months.
She said that the father had told her that if the children do not live with him that he will not spend time with the children. She said notwithstanding this, she herself believed that children need both parents in their lives.
She was confident that if all of her children were returned to her care and Y and X also lived with them that she could confidently manage all seven children.
Ms D
She described herself in her Affidavit as a part time Department of Family and Community Services contact worker.
When asked about paragraph 26 of her Affidavit she said she did not know what it meant and she did not know how that paragraph had been inserted in her Affidavit.
When cross examined by Counsel for the Independent Children’s Lawyer, she says that she only does Department of Family and Community Services contact work when she supervises her sister’s time with her children. She is not paid by the Department.
She agreed with the proposition that at the time of the swearing of her Affidavit she was primarily involved in home duties. She said that she had been helped by Ms S in the preparation of her Affidavit.
Ms R
She said that she did not exaggerate in her Affidavit her description of the mother’s abuse of X and Y that she witnessed when the mother and the children were staying at her home.
She was of the view that X and Y needed to be protected from their mother.
Ms E
She confirmed the contents of her Affidavit.
She was adamant the mother had slapped her eldest child, did swear at the children and had pulled one of the children’s hair.
She was confused as to how her Affidavit came to be in existence, initially believing that it had been prepared by the police. She conceded that it was possible that she spoke to Ms R about what should go into the Affidavit and that Ms R arranged for its preparation and that it was sent to her for signature and return.
Ms M
She prepared the most recent Family Report. That Family Report became Exhibit C.
She said, during cross examination, that if the father carried through with his proposal not to spend time with the children if they did not live with him then that would cause X and Y to likely feel abandoned by him. She thought such an outcome indicated that the father was prioritising his new family over his older children.
She agreed with the proposition that the mother not shielding the children from her emotions and distress is a problem for them and could cause them psychological harm.
She was of the view that X and Y needed an ongoing relationship with the father. She thought that that could best be had by day time periods without Ms S being present if the children were to live with the mother and not the father.
At paragraph 24 of the Family Report, Ms M records:
According to Mr Schultz, the previous report by Dr C “got it wrong. He said that he particularly objected to Dr C describing him as “naïve” in his attitude to Ms S. He said that now that he has “proof” about what a bad mother Ms Kester is he believes that that the children will stay with him. Mr Schultz said that it would be a “nightmare” if the children were to live with their mother.
At paragraph 26 of the Family Report, Ms M records:
Mr Schultz said that the children know, “We don’t like her” as “we have told them that”…
At paragraph 42 of the Family Report, Ms M describes having observed what she considered to be a close relationship between X and Y and E and Z.
At paragraph 44 of the Family Report, Ms M describes:
When X was interviewed, she identified positive aspects of being with both parents but seemed rather reluctant to speak about her family life with either parent. She did mention that sometimes her mother yells when she gets angry.
At paragraph 45 of the Family Report, Ms M describes:
Y appeared to become upset when talking about her mother and father. She said that her mother and father “do not like each other”, but according to her, they do not fight but “Ms S [Ms S][sic] and Mum fight” and she said that this upsets her. Y said that she would like to spend much more time with her mother. She said that she thinks that her father would get angry if she told him this. She said that he “does not want to hear about it”. She explained that he does not listen if she talks about missing her mother.
At paragraph 46 of the Family Report, Ms M records:
When the children were observed with their mother, Ms Kester was obviously distressed, as she had been crying immediately prior to the observation. She did not seem concerned about the children seeing her distress and they both comforted her when they saw her. She initially seemed to have some difficulty engaging in activity with the children…
At paragraph 47 of the Family Report, Ms M records:
When observed with their father, X and Y seemed comfortable and relaxed. Mr Schultz interacted with them in an appropriate manner. When Ms S joined them they were happy to involve E and Ms S in their play. Y was observed to seek close physical contact with her father.
At paragraph 48 of the Family Report, Ms M says:
Mr Schultz and Ms Kester have been involved in conflict about X and Y’s parenting since their separation. The children have had little stability during this time…
At paragraph 50 of the Family Report, Ms M concludes “the children appear to have attachments to both parents”. She also says in that paragraph:
They also appear to be very aware of their parents’ conflict and the conflict between their mother and Ms S. It appears that at least Mr Schultz and Ms S are very ready to share their extremely negative view of Ms Kester with the children. Neither Mr Schultz nor Ms S seem to have any understanding of the distress that this is likely to cause X and Y.
At paragraph 51 of the Family Report, she writes:
Ms Kester is obviously very upset by the current situation and the allegations that have been made against her. She does not seem to shield her children from her distress and emotions. Ms Kester seems unaware that it is difficult for the children to be exposed to her distress.
At paragraph 61 of the Family Report, Ms M says:
Ms Kester would need to demonstrate the she is prepared to accept the support and directions that she is given by Catholic Care if the children are to be returned to her care.
Ms M made a number of recommendations including:
66. It is recommended that the parent with whom the children live have sole parental responsibility for the children
67. It is recommended that, if the Court determines that the children are not at risk of harm when living with their mother, the children live with their mother
68. It is recommended that for the first six months after the children move into their mother’s care, the children spend time with their father at a contact centre or other professional supervision and if this is not possible that they not spend any time with their father for the first six months that they live with their mother
69. It is recommended that the children then spend time with their father each alternate weekend and for half the school holidays
Determination
At first impression it would seem, having regard to the Affidavits of Ms E, Ms D and Ms R, that the mother was abusive of and neglectful of her children in the incident observed by those ladies. However, first impressions are deceptive. As a result of the cross examination, it became apparent that each of the witnesses had discussed their evidence with the other prior to the preparation of their Affidavits.
Ms D had no explanation as to how one paragraph had been included within her Affidavit.
It is also clear that Ms S was intimately involved in the preparation of those documents. I am satisfied that she has exaggerated the contents of those Affidavits, and the deponents then signed them thereby adopting exaggerated statements.
I am not satisfied as to the reliability of those Affidavits. As a consequence, there is no evidence that causes me to conclude that the children would be at risk if they were to live with the mother.
Each of the parents have significant deficits.
The mother has an emotional fragility which calls into question her capacity to care for the children. She is unable to shield the children from that emotional fragility. To her credit she has sought help from CatholicCare, but if the children were to live with her she would need to continue her involvement with CatholicCare.
The father, because of his work commitments, is dependent upon Ms S to care for the children. She has, in the past, been found incapable of care of her children. She is highly critical of the mother. She does not and would not shield the children from her negative views, and is unconcerned as to the impact this has and would have on the children.
There is a naivety to the father and Ms S’s proposal that they could easily care for X and Y, their young baby W, and E, especially if Ms S was to become more involved in her work with “(omitted)”.
If Ms S were successful in having her other three children returned to her care, there would then be seven children in that household if X and Y were to live with her and the father. They would not be capable of caring for that many children with some of the difficulties that some children have.
The father’s alternate proposal of “all or nothing” is demonstrative of a lack of focus on the needs of X and Y. That he is aware that they would feel abandoned by him but intent upon that course is worrying.
X was able to identify to Ms M positive aspects of both of her parents. Y told Ms M that she would like to spend more time with her mother. She also told Ms M that her father does not listen if she tells him she is missing her mother. This is the extent of the evidence available with respect to the views of each of X and Y.
X and Y have a relaxed and comfortable relationship with their father. Y sought close physical contact with her father. Ms M concludes that the children appear to have attachments to both parents. I agree with that conclusion and make such a finding.
X and Y were observed by Ms M to have close relationships with each of E and Z and in the observation session were happy to engage with Ms S.
The mother and father are unable to participate, in any real sense, in making decisions regarding long term issues for X and Y. At best, they seem able to parallel parent. Both have, on occasions, acted unilaterally and withheld the children from the other’s care. They can tell each other things but they cannot, do not and have not reached nor made joint decisions about the children since 2009.
Each of the parents has met their obligation to maintain the children.
The children have had a number of changes in parenting since their parent’s separation in 2009 living for several periods of time with each parent and spending time with the other parent. Currently they live with the mother and spend supervised time with the father by virtue of consent orders made in May 2013. There have been a number of visits between the children and the father at the supervised contact centre starting in October 2013 and continuing. That is a period of five months. There seems no need for that supervision to continue if the time between the children and the father occurs in the absence of Ms S.
Indeed there would be no need for supervision at all if the father and Ms S refrained from criticising and denigrating the mother in the presence and hearing of the children and shielded them from their extreme negativity of her. The period of supervision that has occurred would fulfil one of Ms M’s recommendations.
The father, however, proposes that if the children do not live with him then he does not wish to spend time with them. If the children were ordered to spend time with him and he did not exercise that time, then they are likely to feel more abandoned by him than if there is no order for him to spend time with the children. If they do not spend time with him they will miss him, and their relationships with him will suffer. This is a conundrum.
Both parties have access to transport and live within close enough proximity of each other to enable the children to spend time with the parent with whom they do not live without too much difficulty or expense.
There are parental capacity deficits with each of the parties’ presentation and proposals.
The mother needs to regularly engage with CatholicCare. I accept Ms M’s conclusion in this regard because of the mother’s emotional fragility and her inability to shield the children from this fragility. She will likely need assistance in managing this fragility, given its longstanding nature, for a long period.
The father’s proposal for the care of X and Y is naïve. He is dependent upon Ms S who has a demonstrated incapacity to meet the needs of her children. To add two more children into their current household runs the risk of overwhelming her capacity especially if she persists with her application for the return of her three other children to her care and they are returned.
X is a young girl with significant needs that impact her education. She also seems to be going through early puberty.
Careful management of X and Y in all of their aspects of parenting will be necessary to maximise their potential.
It is not clear that either the mother or the father alone could do this. Indeed, an arrangement whereby the children live with one parent and spend significant and substantial time with the other parent would be the best outcome.
However, the father’s attitude that he would not be involved with the children if they do not live with him causes grave concern as to his attitude. It is unlikely that if the children lived with him and Ms S that they would promote the children’s important relationship with their mother.
The parties have been engaged in a long history of litigation that has created instability for the children. If history is an indicator to the future then it is likely that there will be further litigation notwithstanding any orders that are made in these proceedings.
As I have said, I am satisfied that the children would not be at risk if they live with the mother. They again commenced to live with their mother in May 2013. A further change in their lives with arrangement will only increase the instability for the children and that is to be avoided given their age and the number of changes that have occurred in their past.
Each of X and Y will do best if there are stable parenting arrangements in place and a parent is able to focus on meeting their needs.
The mother, for the above reasons, is the best placed of the children’s two parents to be able to do this.
For these reasons there will be an order that the children live with the mother.
These reasons would also cause there to be an order for the children to spend significant and substantial time with the father.
Equal time would never have been in their best interests given the inability of the parents to cooperatively co-parent given their long, conflicted history post separation, and the extremely negative view that Ms S holds with respect to the mother.
Significant and substantial time would, however, have been in their best interests as it would have enabled some respite for the mother and continued to allow the children to maintain the important and attached relationship that they have with the father and the children in his household.
However, his “all or nothing” attitude means that if there is an order for him to spend significant and substantial time with the children and he does not do so then they will be regularly reminded, as those periods come around, that they are or have been abandoned by him as there would be an obligation on the mother to ensure that the children were taken to the point of changeover and then for them to be disappointed.
Given the father’s attitude, orders for him to spend time with the children must therefore be silent so as to protect them from emotional upset.
If the father were to change his mind and seek to spend time with the children, then that of course would involve the parties in further litigation. The children do not need further litigation but further litigation about time with the children, if the parties could not agree, would likely be less destructive for the children than the feelings of abandonment that would regularly arise if the father did not spend time with them as ordered.
On balance, the least-worst alternative is then to make orders that are silent as to the time that the father is to spend with the children rather than make it an order for time by agreement.
Conclusion
The parents need to focus on bringing to an end their long running litigation.
If they do so, the outlook for each of X and Y will be improved immensely.
I am satisfied that the orders made at the commencement of this judgment, for the reasons set out in this judgment, are in X and Y’s best interests and are also reasonably practicable. They are reasonably practicable because the parties no longer need to consult about parenting. There is no arrangement for time so practicality is not an issue. The mother is also already engaged with CatholicCare so this does not raise issues with practicalities.
I certify that the preceding one hundred and forty-five (145) paragraphs are a true copy of the reasons for judgment of Judge Dunkley.
Date: 19 February 2014
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