Kiesel & Haywood
[2023] FedCFamC2F 1736
•23 May 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kiesel & Haywood [2023] FedCFamC2F 1736
File number(s): NCC 1438 of 2023 Judgment of: JUDGE BETTS Date of judgment: 23 May 2023 Catchwords: FAMILY LAW – Parenting – interim hearing – two children, aged 8 and 4 – where both parties raise significant risk issues – where the father seeks that the children be moved into his care – where the mother seeks that the children remain living in her care – where the Court considers that the children remain in the mother’s care but spend regular and consistent time with the father – where the Court has put in place strict injunctions and the requirement of drug testing – best interests of the children. Legislation: Family Law Act1975 (Cth), Pt VII Division: Division 2 Family Law Number of paragraphs: 80 Date of last submission/s: 23 May 2023 Date of hearing: 23 May 2023 Place: Newcastle Solicitors for the Applicant: Gillard Family Lawyers Solicitors for the Respondent: Umbrella Legal ORDERS
NCC 1438 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR KIESEL
Applicant
AND: MS HAYWOOD
Respondent
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
23 MAY 2023
THE COURT ORDERS THAT:
Parental Responsibility
1.The parents have equal shared parental responsibility for the children X born in 2014 and Y born in 2018 (“the children”).
2.Except where an urgent decision is needed or it is otherwise impractical to do so, in the exercise of their parental responsibility the parties are to communicate in writing by way of a parenting app to be agreed between the parties as soon as possible, with each party to download the app within seven (7) days and each party to pay their own costs relating to the app.
3.Where an urgent decision is needed or it is otherwise impractical or not appropriate to use the app, the parties are to communicate by text message.
Live with
4.The children live with the Mother.
Spend time with
5.The children are to spend time with the Father as follows:
(a)Each alternate weekend from Friday after school or from 3.00pm if a non-school day until the commencement of school/daycare or 9.00am if a non-school day the following Tuesday, commencing Friday 26 May 2023;
(b)Each other Friday after school or from 3.00pm if a non-school day until 12 noon Saturday;
(c)Each Wednesday following the time in Order 5(b), from after school or 3.00pm if a non-school day until 7.00pm.
6.Handovers are to occur at the school or daycare as appropriate and failing that at the footpath of the parents’ home who is about to spend time with the child.
FaceTime
7.The Father have FaceTime communication with children each Thursday between 6.00 and 6.30pm, or at such other time as agreed between the parties.
8.The Mother have FaceTime communication with the children each alternate Sunday (when the children are in the Father’s care) between 6.00 and 6.30pm, or at such other time as agreed between the parties.
Injunctions
9.Pursuant to section 68B of the Family Law Act1975, both parties are restrained from:
(a)Perpetrating or knowingly exposing the children to “family violence” as defined in section 4AB of the Family Law Act, a copy of which section is attached to these Orders;
(b)Physically disciplining the children;
(c)Disciplining either child by locking one or both of the children in an enclosed space including a room;
(d)Denigrating the other parent or members of the other parents family or household to or in the presence of the children, or allowing the children to remain the presence of any other person engaging in such denigration; or
(e)Possessing, consuming or being in any way affected by any illicit drug when the children are in that parent’s care, or for twenty-four (24) hours before the children are in that parent’s care.
10.Pursuant to section 68B of the Family Law Act1975, while the children are in the Father’s care, the Father is restrained from consuming alcohol to such extent that he would be unable to lawfully drive a motor vehicle.
Information sharing
11.Each party is to notify the other as soon as is practicable of:
(a)Any serious medical problems or serious illnesses suffered by the children whilst in their care;
(b)The children being hospitalised;
(c)Any medication that has been prescribed for the children;
(d)Any school, sporting, religious or extra-curricular activities/functions which the children are to attend; and
(e)Any medical appointments that the children are to attend.
12.Within one (1) month, the Mother is to provide the Father with copies of all specialist medical reports relating to either child that are in her possession.
13.Each of the parents are at liberty to provide a copy of this Order to any medical or allied health professional relating to the children.
14.These Orders authorise the children’s treating medical and allied health professionals to provide any information relating to the children requested by either parent at that parent’s expense.
15.This Order authorises the children’s school and daycare centres to provide any information to either parent concerning the child as requested by that parent and at that parent’s expense, including but not limited to photograph order forms from the school or daycare centre, or other reports or documents.
16.Each of the parents are at liberty to provide a copy of this Order to the children’s school or daycare.
17.If the children miss a day of school, the Mother is to advise the Father in writing and give him a reason for the absence including a copy of any medical certificate if applicable.
Drug testing
18.Within twenty-eight (28) days, the Father may request in writing that the Mother undertake a chain of custody urinalysis test for illicit drugs (by provision of urine screen in accordance with the Australian/NZ standard 4308:2008) with the Mother to undertake the test within twenty-four (24) hours if practicable or otherwise within forty‑eight (48) hours. The Father may make the request through the parenting app or through the parties’ legal representatives and the Father is to pay for the costs of such test in the first instance.
19.In the event that the urinalysis test results are positive for illicit drugs, then:
(a)The Mother is to reimburse the Father the costs of the test; and
(b)The proceedings are to be urgently re-listed before his Honour Judge Betts to consider the immediate removal of the children from the Mother’s care into the Father’s care.
20.No earlier than 30 June 2023, the Father may request in writing that the Mother undertake a hair strand test for the presence of illicit drugs, with the Mother to undertake the test within five (5) days of receiving the request. The Father may make the request through the parenting app or through the parties’ legal representatives and the Father is to pay for the costs of such test in the first instance.
21.In the event that the hair strand test results are positive for illicit drugs, then:
(a)The Mother is to reimburse the Father the costs of the test; and
(b)The proceedings are to be urgently re-listed before his Honour Judge Betts to consider the immediate removal of the children from the Mother’s care into the Father’s care.
22.The Mother is to provide a copy of this Order to the testing authority in relation to the urinalysis drug test and the hair strand test, with this Order authorising the testing authority to give a copy of the test results to the Father or his legal representatives as soon as they are available.
Case management
23.All extant interim applications are dismissed.
24.The proceedings remain listed before a Judicial Registrar on 29 May 2023 at 12.00pm for consideration of further directions.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
These reasons for judgment were delivered orally. They have been corrected from the transcript in order to make them easier to read.
OVERVIEW
I have before me an urgent interim application brought by a father, Mr Kiesel, in relation to his two (2) sons X born in 2014 and Y born in 2018. The respondent to the father’s application is the boys’ mother, Ms Haywood.
In a nutshell, the father brings this application to seek that the children be urgently removed from the mother’s care and placed into his full-time care, on the basis that they are presently at unacceptable risk of harm and/or neglect if they remain living with the mother. The father’s ‘fallback’ position is that, if the children remain living with the mother, that he should be spending substantial and significant time with them.
The mother’s Response initially sought orders that the children remain living with her and that the boys spend supervised time with the father. Sensibly, in the course of today’s hearing, the mother abandoned her application that the father’s time be supervised and she now consents to the father continuing to spend time with the children on alternate weekends, together with one (1) afternoon each alternate week. She raises issues of risk concerning the father, but it would be fair to say that the risks she raises about him – at this stage, at least – would not warrant the making of an order for supervised time.
THE HEARING
The matter came on before me today at which time Ms Wilson, solicitor, appeared for the father and Ms Howells, solicitor, appeared for the mother.
Ms Wilson relied upon the father’s Case Outline Document filed 23 May 2023, the father’s Initiating Application filed 15 May 2023, the father’s affidavit filed 12 May 2023, and the father’s Notice of Child Abuse Family Violence or Risk filed 12 May 2023.
The mother relied upon her Response filed 22 May 2023, the mother’s affidavit filed 22 May 2023 and the mother’s Notice of Child Abuse Family Violence or Risk filed 22 May 2023. The mother also tendered a bundle of medical and allied health material in relation to the two boys, which was marked as exhibit 1.
I have read and considered all of that material, as well as taking into account the submissions made by each of the solicitor advocates in the matter.
As is my usual approach, I challenged each of the advocates as to various weak points in their own case, from which I was able to elicit some further useful information and concessions.
Through his solicitor, the father made some concessions in relation to a past family violence order protecting the mother from him, which he had omitted to mention in his Notice of Child Abuse, Family Violence or Risk. He also made admissions as to a previous act of family violence wherein he – seemingly in a drunken rage, as best I can ascertain – caused quite significant damage to a motor vehicle registered in the mother’s name, although his solicitor tells me that the father was the one who paid for that vehicle, and that he ultimately paid for the damage as well.
The mother conceded that her application for the father to spend supervised time was no longer appropriate. Ms Howells also made the concession, upon questioning from me, that the mother’s use of illicit “drugs” referred to in her affidavit was a reference to an illicit drug.
The mother’s affidavit had deposed that, around late 2022, she had tested positive to a roadside drug test due to “drugs” still being present in her system, which she said she had taken some two (2) days prior. In the course of submissions, Ms Howells conceded that the drug in question was an illicit drug.
The mother also properly conceded that she had been using illicit drugs between late 2022 and a date in early 2023. She had attended drug rehabilitation for some five (5) days in early 2023, but admits that she relapsed and used illicit drugs on one (1) occasion since.
FACTUAL BACKGROUND
By way of brief background in the matter, the parties were in a relationship which commenced around 2013 and they finally separated sometime in 2019, although the separation date is a little unclear.
The mother has always been the primary carer of the boys. After separation, she relocated from Region B in New South Wales to Region C, where she has taken up residence in Town D. The father followed her there and the parties have, broadly speaking, implemented an arrangement whereby the children live primarily with the mother, but spend alternate weekend time with the father.
The mother engaged in full-time home duties. The father works as a contractor to E Company, which provides services to primary industry.
The mother lives with the children and has not, at this stage, got a partner. She had previously been in a relationship with one Mr F after separating from the father, but it is common ground that Mr F was violent to her on one occasion (at least) and that he was ultimately charged by Police as well as having an AVO taken out against him for the mother’s protection. That relationship, mercifully, is over. I say “mercifully” because I have real concerns about Mr F, given that the father tells me in his affidavit material that Mr F was apparently a drug dealer and/or drug user, and it seems to me that, given the real question marks around Mr F, that these children – and, I would add, the mother – are much better off at this stage without him in their lives.
The mother subsequently re-partnered with a Mr G. Each party tells me different things about him. On the father’s evidence, Mr G is a drug-using “layabout” (my expression) who apparently chooses to be unemployed and is not a particularly good role model for the children. On the mother’s case, Mr G is in employment and has not used drugs, certainly not to her knowledge. That is to say, there are no concerns about him whatsoever from the mother’s perspective.
In any event, Mr G is now just a friend to the mother and nothing else.
The father has re-partnered and he lives with his partner, Ms J. They have been together since approximately late 2019, although they did not start living together until around late 2020. His partner has three (3) children to prior relationships: H who is 16, K who is 12, and L who is 10. The father says that these children live primarily in their home but spend time with their respective fathers in an amicable arrangement.
It is unclear exactly what the nature of the relationship between the father and Ms J is in the sense that, like many matters in this case, it is hotly contested and, quite simply, both parties cannot be right. The father effectively says that he is in a stable and settled relationship which is free of any suggestion of family violence as between himself and his partner. He says they have a loving and respectful relationship with one another and that neither of them take illicit substances or drink alcohol to excess. He says that in their respective employment, each of them effectively working in primary industry in one form or another, that they are both required to complete alcohol breath tests each day at work as well as random drug urinalysis tests.
The mother says that the father and his partner are in a tumultuous on-again-off-again relationship which has been characterised with at least one episode of family violence when X reported back to her that the father and his partner had been in some sort of violent altercation. I take it as a given that the father denies that this is the case. The mother also says that the father is a very heavy user of alcohol, indeed she describes him as a “functional alcoholic” although, regrettably, in terms of her affidavit material, she really does not give the Court any solid evidential platform for such a statement. It is really more in the nature of conclusionary opinion than evidence, per se.
Nonetheless, I accept that this is the mother’s perception of the father and I do note his admission that he has one previous alcohol-related charge, and I also note that on the occasion in 2012 when he seems to have flown into a drunken rage and damaged the mother’s car, that he was obviously drunk.
In any event, these matters highlight the highly conflictual nature of the evidence in this case.
The children have been through an enormous amount of tumult in their lives and each of them have substantial vulnerabilities, though for entirely different reasons. The children’s vulnerabilities complicate an already-difficult case in terms of what are the appropriate interim arrangements to implement, pending a full hearing.
X, the oldest child, who is eight (8) years of age, has been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and Oppositional Defiance Disorder (“ODD”). He has had difficulties in terms of his expressive communication, and was diagnosed with Autism as early as 2019, when the parties were still in a relationship. In particular, early 2019 is the date when he was effectively certified as being on the Autism Spectrum for both social communication and restrictive and repetitive behaviours. This certification came from Dr M, general paediatrician, a Ms N, a speech pathologist, and a Ms P, registered psychologist.
The mother says the father never accepted X’s Autism diagnosis, and that appears to have a ring of truth about it. In the father’s own affidavit, he does not mention autism at all, and in the course of today’s hearing, when the various medical reports were handed over by Ms Howells to Ms Wilson for the purpose of tendering as exhibit 1, Ms Wilson indicated that at least some of them had not been provided before.
It certainly appears that the father may not have accepted that X has Autism, but realistically, it is something that would require a fuller hearing for the Court to make definitive findings.
One thing that is clear about young X is that he is oppositional and he has enormous difficulty in managing his emotions and his behaviours. So much is clear from the medical material set out in exhibit 1. In particular, he was given some challenges by his Occupational Therapist, who records as follows:
During sessions, when the therapist has set a challenge, such as an obstacle course, and asked [X] to repeat the instructions back to her, [X] has been noted to enter a heightened state of arousal resulting in refusal and crying. Despite improvements, [X] can be impulsive and seeks control of activities, reducing his ability to concentrate and attend to the task at hand. He requires prompting to wait for activities to be explained before beginning.
X’s schoolteacher also reported that he was struggling to keep friends, that he tended to drift between friendship groups and that he did not seem to be able to sit still for very long and always had to “fidget” or make a sound or place things in his mouth.
In a report prepared by Ms Q (provisional psychologist) and Ms R (psychologist) the following opinion was expressed:
[X] presents with a number of complex comorbid conditions and has experienced and continues to experience a number of possibly traumatic family events that may be impacting on his behaviour. These factors should be taken into consideration when developing therapy and learning plans to support [X]’s ongoing development.
In more recent times, X has been expressing real difficulty in wanting to go to school, manifested by school refusals. It is common ground that the mother has struggled to get him to school and that he has had quite a few absences this year alone. The absences are set out in the father’s affidavit. They reveal that as at the date of the annexure, being current to 11 May 2023, X had had sixteen (16) whole days absent from school and 10 partial absences for the year. The father expresses a concern that the mother simply cannot get the boy to school. He also raises other concerns about the mother’s mental health and drug use, which I will come to shortly.
In relation to Y, his problems in some way have been more profound again.
As a young child, in 2021, he was diagnosed with what seems to be a very rare medical condition. To the enormous credit of both of these parents, despite their own difficult and, at times, woeful ability to work together to parent the children, it seems that they made a Herculean effort to manage Y’s condition. He underwent treatment in Country S, in the course of which the father, apparently drawing from superannuation but also assisted by some form of Government allowance as well, travelled to Country S to accompany him for some three (3) months. The treatment seems to have been a resounding success, and certainly on the evidence before the Court, Y is in remission, and one would hope that he has a long and happy life ahead of him. It is to the enormous credit of the parties that they were able to access and obtain such treatment for Y, and particularly to the father, who dropped everything to get over to Country S. It is the true act of sacrifice of a loving parent, and in my view, it is a significant matter.
Nonetheless, Y does have some ongoing health difficulties, as might be expected given what he has been through. He requires an MRI every three (3) months in order to check that there has been no relapse of the illness. No doubt this is a very stressful experience, perhaps not so much for this little boy - who is no doubt ‘as tough as nails’ frankly - but I rather suspect that any parent in the position of this mother and this father would frankly be a little terrified as each MRI approaches. And I do not for a moment doubt the enormous stress on a human level that each of these parents goes through four (4) times a year for this young boy.
In terms of his own issues, Y appears to have some, according to the medical material in exhibit 1, “medical conditions”. He has some surgery. The opinion of his treating practitioners is that he would have an impairment but that he simply was not going to comply with the part of the examination that would have proven this. There were no major deficits detected. However, he did have some pain, but perhaps more significantly and consistent with his experience in life so far, Y has suffered from what is described as “extreme separation anxiety which makes it difficult for him to visit his father” as well as night terrors. These are matters that are a cause for some concern. The mother says that Y avoids eye contact with his father during weekend visits and that he has become resistant at times to seeing his dad and does not even want to wind the window down to talk to him.
The Court is dealing with two young and vulnerable children. Each of these parents, in my view, has demonstrated a capacity to be selfless and to care for these children very well in what have been difficult circumstances. However, the parents do have some difficulties in their parenting and particularly in their co-parenting.
ANALYSIS
Questions of risk do arise in this case and need to be considered by the Court and weighed up carefully.
This is an interim hearing. The Court cannot make findings about disputed facts. The Court has to do the best it can to arrive at a best interests decision for these children in the absence of, at this time, any independent documents save what the parties have provided to the Court today.
I have little doubt that there are many documents out there which could be subpoenaed and which would shed further light on this family history, including:
·Police records, specifically in relation to the father and the events of 2012 where he damaged the mother’s car, as well as his apparent alcohol-related offence;
·the mother’s drug rehabilitation records relating to her attendance at rehabilitation in early 2023;
·medical records, which no doubt will be subpoenaed in due course; and
·no doubt there are other records as well that will shed further light on where the truth is in this case.
Unfortunately, I do not have that independent material, which is why I rather vigorously challenged each party’s solicitor, when the matter first came on, to try and get as much truth out as I could.
The real issue in this case is one of balancing risks. I do not propose in these reasons to set out all of the section 60CC considerations to which I am obliged to have regard.
The major issues in this case, in my view, relate to risk and to the impact of change on these children, given that they both have high needs.
I take it as a given that the children would benefit from having a meaningful relationship with both of their parents.
I turn, then, to questions of risk. In the mother’s case, the number one risk without doubt is her use of illicit drugs. The mother concedes that she used illicit drugs in the period from late 2022 through to a date unknown in early 2023. Notably, she said she was using illicit drugs once or twice per week at its peak.
The illicit drug is a devastating drug. It is, no doubt, the bane of many people’s lives in this country, from the Department of Communities and Justice workers to Police who have to attend at sometimes grisly scenes where people on illicit drugs have done something horrific to themselves or others, or both, and it is a scourge, the dangers of which need to be fully appreciated.
I accept that the mother has been under enormous stress in this case in terms of managing the children, and I accept that, at least prima facie, she used drugs as a form of ‘escapism’ from what she probably saw as a rather challenging and difficult life. This does not, by any means, excuse the use of the drug. Illicit drugs are dangerous for the user, dangerous for children. As I have said to more than one parent, illicit drugs and children do not mix.
The mother’s evidence is that she did take illicit drugs, but never in the presence of the children, and nor was she drug-affected while the children were in her care. I rather doubt that that is true, frankly, particularly if she still had illicit drugs in her system two (2) days after taking it in late 2022.
But to the mother’s credit, she seems to have voluntarily attended upon the T Health Service in early 2023 where she spent some five (5) days, and in that sense, she at least showed the insight and the willingness to accept that she had a problem and to take steps to do something about it.
Many people live in denial about their own drug use. On the evidence before me, the mother in this case does not live in denial but accepts that she has had a problem. The more fundamental problem for her is that she has, on one (1) occasion on her case, relapsed by taking illicit drugs again on an unknown date earlier this year.
I asked the mother, through her solicitor, where she obtained this drug, and the advice was “from a friend”. With friends like that person, the mother has little need of enemies.
If these children are removed from the mother’s care, it will be because of the risks related to illicit drug use. It is far and away the major concern that I have about the mother.
The father sets out various other complaints about the mother, which are, in a sense, interrelated to the drug issue. In addition to the children missing school, the father says that on some of these occasions, the mother was asleep, which is corroborated by text messages sent to him from X. He also points to the mother behaving in what he thought was a strange manner, on one occasion holding her arms across her chest and refusing to make eye contact with him on 21 April 2023. He refers to the mother behaving in a manner said to be erratic in terms of attendances at hospital, either for herself or for X.
The father paints the picture that the mother is behaving erratically and simply not coping with the children and that she is struggling to send X to school in particular - and that these matters tend to indicate, to him at least, that she does not have the capacity to properly care for the children and/or that she may be under the influence of drugs, and in particular, an illicit drug. He says that the mother seems to be, in his description, ‘frazzled’ and in a bit of a daze and that he has heard ‘word on the street’ as it were, that she has been using illicit drugs. He also says she has lost weight. She has visible bags under her eyes, and, effectively, that her recent erratic behaviour is such as to cause him grave alarm for the children. He also says that when he collects Y from the mother’s house, he can regularly smell illicit substances coming from inside of the house and that Y is in his pyjamas at 3 pm when he attends to pick him up.
The father also questions whether the mother has some form of mental health condition, which is another concern of his.
These things raised by the father cause me a degree of concern. They are serious matters. He is right to raise them with the Court. They are matters which do require proper consideration and ensuring a curial response that does not expose the children to unacceptable risk.
But, as I indicated earlier, there are many disputed facts in this case, and as is always the case in this jurisdiction, there are two (2) sides to every story.
In terms of the mother’s mental health, she admits that she has a mental health condition, namely complex post-traumatic stress disorder. She says – although, at this stage, I have no independent evidence of this – that the condition from which she suffers is a direct result of the father perpetrating abuse against her during the relationship in the form of family violence. I do not know and cannot make a finding about this.
The father, in his Court documents, did not raise any issues of family violence. However, his Notice of Child Abuse, Family Violence or Risk was notably silent as to his own past AVO protecting the mother from him, and it was only the course of the hearing that he volunteered through Ms Wilson that he had, in fact, damaged the car registered in the mother’s name. That is to say, some evidence of family violence of, in fact quite a serious nature, is now before the court. Of course, it could have been a one-off event, but it might also have been part of a larger pattern of behaviour. I do not know, and I cannot make a finding, but certainly, the mother alleges that the father has behaved in an emotionally abusive manner towards her during the relationship and, indeed a time subsequently.
The mother also annexes to her affidavit a rather unfortunate text the father sent her, which is marked as an annexure to the mother’s affidavit. In that message, the father says to the mother, obviously it seems in anger:
And just so you’re aware, that ratty GF you think you know all about [this is a reference to the father’s current partner] has always looked after her and supported her kids with the job. Very different from you. Can’t even keep a job. Yes, you do. You won’t make an agreement. What was your offer, [Ms Haywood]? You can’t control them. You constantly ring and message me, asking me to help you because [X] isn’t doing what you want. Clearly, you’re not capable of parenting but care more about your Centrelink and child support than the kid’s best interest lol because you see my car apparently means I’m available. Sorry, you do not dictate my life, and I’m not your babysitter. I make plans for when “you” decided I could have my kids, which is every second weekend, so if you want to change it, more than happy to see your suggestions. Otherwise, do not ring and message me daily with your issues.
This message troubles me. It is demeaning. It is a put-down. It is the father who comes to this Court, criticising the mother’s care and capacity to look after the kids, positively refusing to help her. No, he is not a babysitter; he is a parent. Parenting involves a degree of sacrifice. He should know that. Of all people, he should know that, having travelled to Country S for three (3) months. This message is an example of when parents let their anger towards the other overwhelm the best interests of their own children. It may be indicative of a family violence theme or of themes of criticism which the mother says the father regularly levels at her.
With all of the difficulties these parents have had with these children, I do not see why it would be in any way helpful for these children for the father to attack the mother in this way. No doubt there is a ‘back story’ to this message, and perhaps it will all be explored later, but my point is, I have before me evidence of:
·some family violence by the father towards the mother;
·a suggestion, at least, that she has complex post-traumatic stress disorder as a result of his behaviours to her; and
·a message to the mother in his own hand which is disparaging and demeaning and most unhelpful.
I also have the mother’s evidence that the father’s older daughter to a previous relationship, U, has chosen to have nothing to do with him, apparently because:
[U] has informed me that [Mr Kiesel] used to hit her when she was in his care, leaving marks. I’m concerned this may have happened to [Y], given his strong desire not to go anywhere near [Mr Kiesel]. [Y] won’t even make eye contact with [Mr Kiesel] anymore. I’m aware that [U] sees a therapist due to issues with [Mr Kiesel]. [Mr Kiesel] told [U] if she wanted to see the boys, it had to be through him to try and manipulate her into seeing him. When [Mr Kiesel] became aware I had taken the boys to [Ms V]’s –
[U’s mother]
…to spend time with [U], [Mr Kiesel] became extremely aggressive and hostile towards [U], which resulted in a massive meltdown from [U]. [U] has stated abuse [sic] from [Mr Kiesel] - she multiple therapist [sic] due to [Mr Kiesel]’s treatment towards her.
It seems to be common ground that U does not, in fact, spend time with her father. One wonders why that might be the case. Perhaps she is a child who is going through her own issues; she is fifteen (15) after all. But if what the mother says is true, and I cannot make a finding one way or the other, then this would be further evidence of the father lashing out in a way that certainly does not do him credit as a parent. I do not know if he was violent to U, but he might have been, and if he punished her in some way, made life difficult for her because she chose to see her two half-brothers through the mother than through him, then perhaps he should reflect on his own contribution to why that happened rather than pointing the finger at the mother.
I give this advice to him because my view is that both of these parents need to take a good, hard look at where they are headed in this case, and it is not a pretty place. This is a very high conflict case. High conflict cases lead to poorer outcomes for children. I do not want these children, who each parent loves so dearly and have done so much to support and parent, to suffer as a result of the conflict between the parents. Each parent needs to take the conflict down several notches - each of them.
The mother also raises concerns – as I have indicated – about the father’s very limited involvement in the extensive medical and allied health support provided to these children. At paragraph 44, she sets out, in detail, all of the supports that she has been obtaining for them, including, in her description, “engaging [X] with:
(1)coordinator of supports – [Ms W] at [Z Centre] at [Town D];
(2)a paediatrician, previously seen, [Dr AA], at [BB Centre];
(3)a dietician at [BB Centre];
(4)speech therapist with [BB Centre];
(5)occupational therapist, [Ms CC] from [DD Centre];
(6)a psychologist from [EE Centre] in [Town D];
(7)school counsellor at [Town D School];
(8)behavioural therapist, [EE Centre], previously [DD Centre]; and
(9)Assistant Principal at [Town D School], assisting with [X]’s personalised learning and support plan.”
Whether the father has chosen to be an absent father in terms of these appointments, or whether the mother has not communicated them to him – and there is, obviously, dispute going both ways on that issue – the fact of the matter is that the mother has had to do all of the “heavy lifting” in terms of X on a day-to-day basis. She has also been making an NDIS application, and, no doubt, has put significant effort in in that regard as well.
The suggestion that the children could easily transition into the father’s care – these particular children – and simply spend time with the mother at a Contact Centre, strikes me as unrealistic, and I am very concerned about what the impact would be on these two (2) children, if I were to move them to the father immediately, and to put in place such a limited period of time with their mother as he suggests. Nonetheless, if I consider that the children are an unacceptable risk in the mother’s case, I will have no choice but to do so.
Section 60CC(2)(b) provides that one of the primary considerations for any Court hearing a parenting dispute is the need to protect the child from physical or psychological harm, from being subject to, or exposed, to abuse, neglect, or family violence.
In this case, the issues relating to the mother concern the school attendance of the children, questions of neglect, but far and away, the most significant issue, drug abuse. I note, also, the mental health issues that are raised, but it seems to me that, on the evidence before me, this is the lesser concern, and drug use is, without doubt, the major concern I have.
But that is not to say that the father presents a risk-free picture, in terms of his household either. There is evidence of the father perpetrating family violence, as I have indicated. There is evidence that the father has had little involvement in the special needs of these children, and there may even be disputes, on his part, as to exactly what their needs are. While the father says, for example, that X does not complain, or raise with him, issues about textures of food that he does not like – he still nonetheless deposes in his own affidavit that X is very underweight, and refuses to, “eat sufficiently at meal times with us”. So it seems to me that there is no magic solution to X’s Autism, ADHD, and ODD and related behavioural problems, they are just problems that the parents have to work through, and they are joint problems.
I do not consider that the father has a ‘magic bullet’ and that there will suddenly be no problem with these children if they move into his care. Quite the contrary, I think their circumstances, and particularly Y’s, will be vastly destabilised, particularly given Y’s separation anxiety. These children should only be disrupted where – in my view – where it is necessary to do so in their best interests, because of unacceptable risk. But the father’s home is not a risk-free option either.
I’ve indicated earlier that the school absences trouble me perhaps less than they appear, at first blush. Many of the school absences are explained, for example, five (5) of them relate to an attendance for a holiday at FF Venue, which relates to Y and his health scare. I do not consider that they should be “counted” as absences for the purposes of this case. There are numerous entries in which the child is sick, but I certainly accept that there are seven (7) or eight (8) unjustified absences, or thereabouts. They include a very recent day – I think yesterday it was – when Y had an MRI, and the mother had no-one to look after X, so she took him to the MRI as well. These parents need to work together much better than they are.
Fundamentally in this case, I am troubled about the risks of neglect and harm to the children if they remain in the mother’s care under the current environment. Her use of illicit drugs is troubling, to say the least. But equally, if I were to move them immediately to the father’s care, this would be a dramatic upheaval, which I am of the view would likely cause them emotional harm, most particularly, in relation to X’s behaviours – which are already difficult to manage – but also in relation to Y and his separation anxiety. This boy has been through a tougher experience, and more stress, than many people go through in an adult lifetime. I do not want this boy to be caught up in a power struggle between two (2) parents, and I do not want these children to be unnecessarily uprooted, and to have their stability thrown to the four winds based on allegations, unless I am satisfied there is an unacceptable risk of harm.
I am also, I should add, troubled by the suggestion by the mother that it is up to X, or Y, as to what time they spend with their father. I could not disagree more. The father needs to spend quality time with each of these children regularly. I do not suggest it is an easy thing to manage X – quite the contrary. But in relation to Y, it seems to me that at his age – and he’s not yet five (5) – he really has no say whatsoever in the time he spends with his father. This is not a callous statement by me, it is a statement of fact; four (4) year-olds do not decide time they spend with the other parent. That is up to parents; they have to decide these things.
The mother needs to ensure that the children go to their dad. She needs to ensure that X goes to school. She needs to ensure that Y and X are made available to see their dad in accordance with orders of the Court. The father needs to understand that if the mother is crying out for help, the best thing he can do, for these children, is to step up and help, if he can, rather than to stand back, point his finger, and criticise her, and accuse her of not being able to cope. If he takes the latter approach, he is simply making it harder for the mother of children - it is that simple.
I am alarmed about the prospect of the mother continuing to use illicit drugs, if she has the children in her care. I am alarmed about the prospect of the sheer amount of disruption, and stress, and chaos that these children will go to if I move them into the father’s care immediately, and particularly if I were to give the mother such a limited amount of time with them at a Contact Centre. I do not understand the father’s application for formal Contact Centre supervision; it seems to me that if the issue primarily relates to drugs, then there needs to be drug-testing orders.
Having considered the matter today, and having reviewed the evidence again, and having thought about what each of the solicitor-advocates said to me, I have come to the conclusion that, with appropriate restraints, safeguards, and ‘guardrails’ if you like – in place - that the children ought, for now, to remain with the mother, but subject to very strict injunctions, and I propose now to set out the orders that I intend to make, which I am satisfied do not place the children at unacceptable risk of harm, and appropriately balance the considerations to which I have referred.
I propose to make the following orders till further order.
ORDERS DELIVERED
For these reasons, I propose to make these orders and otherwise to dismiss all extant applications. In a nutshell, the father will be spending much more time with these kids regularly and consistently than he ever has. It is a platform. His time can only go up if the mother is foolish enough to relapse into illicit drugs and catches up with her so-called “friend”. She can complain about it to someone else when I take her kids off her. It is that simple.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Associate:
Dated: 23 May 2023
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