Kester and Schultz

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

1. All prior parenting orders are discharged.

2. The mother shall have sole parental responsibility for X born (omitted) 2005 and Y born (omitted) 2007 (“the children”).

3. The children shall live with the mother.

4. 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.

5. All outstanding Applications and Responses are removed from the list of cases awaiting finalisation.

6. 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

1. This is round three in the parenting dispute between Ms Kester (hereinafter “the mother”) and Mr Schultz (hereinafter “the father”).

2. Round one ended with consent parenting orders being made on 14 October 2009.

3. 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.

4. 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.

5. 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…