KISTLER & MUNSON - [2017] FCCA 499

FEDERAL CIRCUIT COURT OF AUSTRALIA

KISTLER & MUNSON

[2017] FCCA 499

Catchwords:
FAMILY LAW – Parenting – neither parent deemed able to care for their two children aged twelve and eight – order made pursuant to section 91B of the Family Law Act 1975 (Cth) requesting the Department of Health and Human Services to intervene and interim orders for the children to live with the Mother subject to her complying with the directions of the Department of Health and Human Services and to spend supervised time with the Father – matter adjourned for six months.

Legislation:

Family Law Act 1975, s.91B

Applicant:

MR KISTLER

Respondent:

MS MUNSON

File Number:

MLC 1194 of 2013

Judgment of:

Judge Bender

Hearing date:

6 March 2017

Date of Last Submission:

8 March 2017

Delivered at:

Melbourne

Delivered on:

17 March 2017

REPRESENTATION

Counsel for the Applicant:

Ms Daly

Solicitors for the Applicant:

Fitzroy Legal Centre

Counsel for the Respondent:

Self-Represented

Solicitors for the Respondent:

Self-Represented

Counsel for the Independent Children's Lawyer:

Ms Dowler

Solicitors for the Independent Children's Lawyer:

McKean Park

ORDERS

The matter be adjourned to 29 September 2017 at 9:30am for mention.
All previous parenting orders be discharged.
Pursuant to section 91B of the Family Law Act 1975 (Cth) the Department of Health and Human Services is requested to intervene in these proceedings in relation to the children [X] born …2004 (“[X]”) and [Y] born …2008 (“[Y]”).
Subject to the Mother’s compliance with Orders (4)-(14) herein, [X] and [Y] live with the Mother.
The Mother comply with all directions of the Department of Health and Human Services as to the care and welfare of [X] and [Y], including but not limited to:
(a)their education, including the immediate enrolment of [X] at Specialist School or such other school as recommended by the Department of Health and Human Services;
(b)their health and medical needs; and
(c)the undertaking of all recommended psychological and educational assessments.
[X] and [Y] spend time with the Father at Berry Street Contact Centre at such times, dates and places as nominated by the Team Leader of the Children’s Contact Service, or such other contact service nominated by the Independent Children’s Lawyer (“the contact centre”).
For the purposes of the Father’s time with [X] and [Y] pursuant to Order (6) herein:
(a)each parent submit their application forms to the contact centre by 4:00pm on 24 March 2017;
(b)each parent attend any intake session, interview, or follow any other reasonable request and/or lawful direction of the Team Leader of the contact centre in order to complete intake with the contact centre; and
(c)it is requested that should either party fail to comply with this order, the Team Leader notify the Independent Children’s Lawyer and the Independent Children’s Lawyer notify the Court.
[X] and [Y] be at liberty to communicate with the Father in accordance with their wishes.
The Father continue to attend upon his psychologist, Ms A or her nominee for so long as is deemed necessary by Ms A and the Independent Children’s Lawyer be at liberty to request a report from the Father’s psychologist as to his progress.
Each party:
(a)keep the other informed of their current residential address, contact telephone number, email address or other contact details and advise the other within 24 hours of any change; and
(b)immediately notify the other in the case of an emergency affecting [X] and/or [Y] and provide the other party with details of any treating professional.
Each party be at liberty to:
(a)receive school reports, newsletters and any other communication usually sent to parents by [X] and [Y]’s school, extra-curricular activity provider or other organisation engaged with the children;
(b)communicate with any school, education, medical, health or other professional engaged with [X] and [Y] and receive information from them about the children’s welfare and progress;
(c)provide a copy of the Family Report dated 6 February 2017 and Affidavit of Dr E filed 3 March 2017 to any school or medical practitioner or allied health professional engaged in treating or otherwise involved with [X] or [Y];
and each parent may produce a copy of these Orders as evidence of same.
Each parent notify the other parent should [X] and/or [Y] suffer an emergency or serious illness whilst in their care.
Without admitting the necessity for same the parents, their servants and agents are restrained by injunction from the following:
(a)denigrating, intimidating, rebuking or belittling the other parent in the presence or hearing of [X] or [Y], or allowing anyone else to do so;
(b)denigrating the other’s family members or partner in the presence or hearing of [X] or [Y] or allowing anyone else to do so;
(c)discussing the family law proceedings with [X] or [Y], or allowing anyone else to do so;
(d)removing [X] and/or [Y] from the State of Victoria;
(e)changing [X] and/or [Y]’s school, withdrawing them from school or enrolling them in a different school.
Each of MR KISTLER and MS MUNSON and their servants and agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of [X] born …2004 and [Y] born …2008 from the Commonwealth of Australia.
[X] and [Y] be and are hereby restrained from leaving the Commonwealth of Australia.
It is requested that the Australian Federal Police give effect to the preceding order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until further order.

IT IS NOTED that publication of this judgment under the pseudonym Kistler & Munson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 1194 of 2013

MR KISTLER

Applicant

And

MS MUNSON

Respondent

REASONS FOR JUDGMENT

Introduction

This is a parenting matter relating to the living arrangements for the parties’ children [X] born …2004 (“[X]”) and [Y] born …2008 (“[Y]”).
The Applicant Father initially sought that orders be made for him to spend time with the Mother’s eldest daughter [MS C] born …1993 (“Ms C”). Given Ms C’s age and wishes, he is now not pursuing any orders in relation to her.
The Father is seeking that the Court make Interim Orders for him to spend supervised time with [X] and [Y] at Berry Street Contact Centre or such other contact centre that is made available to the parties at an earlier date, for the Mother to enrol [X] at the Specialist School and the Mother be prevented from removing the children from the state of Victoria.
The Mother is seeking orders that she have sole parental responsibility for [X] and [Y], that they live with her and spend no time with the Father.

Background

The Father was born on …1969 and is aged forty-seven. He is employed as a professional and is not in any current relationship.
The Mother was born on …1966 and is aged fifty years. She is presently engaged in home duties and is not in a relationship.
The parties commenced cohabitation in …2002 and separated in February 2011.
The Mother has two children from a previous relationship, MR D born …1993 (“Mr D”) aged 23 years and MS C born …2000 (“Ms C”) aged 16 years. Mr D and Ms C lived with the parties during the relationship.

The Father

The Father was a heavy user of marijuana from the age of twenty.
The Father suffered from depression most of his life and required admission to hospital in 2009/2010 and again in 2014.
It is the Father’s evidence that he has abstained from the use of marijuana for the last two years and that his mental health is stable as a result of his seeking assistance from a drug and alcohol counsellor and his continued attendance upon a psychologist.
After the parties’ separation, [X] and [Y] remained living with the Mother and spent intermittent time with the Father. It is the Father’s evidence that this is because the Mother obstructed his time with [X] and [Y]. It is the Mother’s evidence that this is because the Father would disappear out of [X] and [Y]’s life without explanation.
In 2013, the Father commenced litigation in the Federal Circuit Court of Australia seeking parenting orders. Interim Orders were made for him to spend supervised time with [X] and [Y], such time to be supervised by members of the paternal family.
The Father discontinued these proceedings. It is his evidence he did so because of the Mother’s indication to him that they would be able to make arrangements between themselves for the living arrangements for [X] and [Y]. It is the Mother’s evidence that the Father discontinued the proceedings because of his lack of commitment to [X] and [Y].
For most of 2014, the Father spent reasonably regular time with [X] and [Y] and Ms C by agreement between the parties.
In October 2014, the Father was admitted to Hospital suffering from severe depression and because he was exhibiting suicidal ideation. He received ongoing treatment over the next six months from a treating psychiatrist. He did not tell the Mother of this relapse in his mental health and she only discovered this had occurred as a result of documents subpoenaed in the course of the current proceedings.
The Father spent time with [X] and [Y], and particularly [Y] for most of the 2014/2015 long summer vacation. It is the Father’s evidence that [Y] disclosed to him that she had seen an inappropriate YouTube called “Willy Bum Bum” and that her older brother Mr D had been giving her and [X] sips of wine and puffs on his cigarettes.
The Father sent an appropriately worded concerned email to the Mother because of these disclosures. She responded to the Father’s email in a very angry and vitriolic way.
It is the Father’s evidence that after the Mother received his email she told him that he was not welcome to contact her or seek to speak to or spend time with [X] and [Y].
Other than for the preparation of the Section 11F Child Inclusive Conference and the Family Report in the proceedings, the Father has not spent time with or communicated with either [X] or [Y] since January 2015.

The Mother

In 2014 both [X] and [Y] attended at School 1 Primary School (‘the school’).
[X] has struggled with his learning since he started school. At times he became frustrated and acted out. In October 2014, [X] was suspended from school for two days because of an incident with another student. It is the Mother’s evidence that when this occurred the school advised her that they considered [X] may have Oppositional Defiant Disorder (“ODD”).
Because of [X]’s difficulties, the school organised for there to be a full assessment of [X] conducted through the Department of Education.
It is the Mother’s evidence that in November 2014, [Y] was assaulted by the Assistant Principal’s sister. On the same afternoon, the Mother was abused/assaulted by another parent at the school who then attacked Mr D.
It is the Mother’s evidence that the abuse from this parent continued for the following two weeks in front of [X] and [Y], teachers, parents and other students.
On 1 December 2014, the Principal of School 1 Primary School served the Mother and Mr D with a trespass notice which banned them from further attendance on the school premises. This notice was issued because of what was alleged to be inappropriate behaviour by the Mother and Mr D at the school.
On 2 December 2014 the full assessment of [X] was undertaken.
It is the Mother’s evidence that it was not until July 2015 that the school notified the Mother of the outcome of the testing that was undertaken in relation to [X]. The testing disclosed [X] to have a low IQ of 60 and made a formal diagnosis that [X] has a mild intellectual disability.
It is the Mother’s evidence that after [X] was diagnosed with an intellectual disability, the school did not provide [X] with the appropriate supports to assist him with his learning and that he continued to be subjected to bullying by other students. In August 2015 the Mother removed [X] from School 1 Primary School and has been home schooling him since that time.
In October 2015 the Mother removed [Y] from School 1 Primary School because of issues of bullying and intimidation. She enrolled [Y] at School 2 Primary School where she continues to this day.
The Mother sought to obtain an Intervention Order against the parent she alleged was abusing her through Suburb K Magistrates’ Court. It is the Mother’s evidence that the President of the school council at School 1 Primary School’s husband is an employee at Suburb K Magistrates’ Court and at the behest of his Wife, this person intervened and unduly influenced those at the Suburb K Magistrates’ Court such that the Mother has not been able to properly obtain protection from that Court.
It is the Mother’s further evidence that the Principal of School 1 Primary School has written a letter that she has circulated to other schools and to the Education Department in which she and her son, Mr D are unjustly and falsely denigrated.
It is the Mother’s evidence that the school principal and the President of the school committee denigrated her and continue to denigrate her to the rest of the school community and the Suburb L Community in general such that she and her children have been ostracised in their community and parents have refused to allow their children to come to the Mother’s home to play with [X] and [Y].
The Mother has and is pursuing the alleged unprofessional behaviour of the Principal of School 1 Primary School with the Education Department, the Education Department Ombudsman and with the Independent Broad-based Anti-Corruption Commission (“IBAC”).
It is the Mother’s evidence that the matter is now in the hands of the Deputy Premier who is pursuing the issue on her behalf.
It is the Mother’s evidence that the Principal, Assistant Principal, Council President and the parent who allegedly assaulted her have all taken out and obtained Interim Intervention Orders against her.
It is the understanding of the Court that those applications continue to be played out in the Magistrates’ Court and that there are contested hearings taking place in April 2017.
It is the Mother’s evidence that because of the school president’s husband’s membership of Victoria Police, he has been able to influence the Police’s response to the Mother such that the Police are now persecuting her by attending at her home, making unannounced visits, serving her with the intervention order applications taken out by others inappropriately and by not investigating or pursuing allegations raised by her in relation to her safety and the safety of Mr D and [X] and [Y].
The Mother has and is pursuing the conduct of the Police, with the Police Ombudsman. It is her evidence the Victorian Inspectorate is now investigating these matters on her behalf.
It is the Mother’s evidence that because of her experience with the Victorian education system, she will not agree to [X] being educated within that system. Whilst [Y] is currently at School 2 Primary School, it is her evidence that in the long term she will be seeking to home educate or privately educate [Y] as well.
It is the Mother’s evidence that she is half way through doing a reversion to the Commonwealth and she does not accept the State of Victoria has the authority to govern or direct her or the lives of her children.
When asked to explain what she meant by this statement, the Mother indicated that she is “autonomous and self-governing” and she is therefore not bound by the laws of the State. It is the Mother’s position that she is an executrix and therefore the owner of her property and as her children are her property, she is the only one who can make decisions in relation to them.
When giving her evidence, the Mother was most uncomfortable in being referred to as Ms Munson. To better explain this discomfort, the Mother provided the Court with a copy of correspondence sent by her in response to a request from the Ombudsman and IBAC Coordinator, Integrity and Assurance Division, Department of Education and Training to clarify whether Ms Munson and Ms Munson are one in the same.
The Mother’s response was as follows:
“Re: Clarification of the “Name/s of Munson
As you and the Minister would be aware, the name Munson, is the cestui que trust established via the recording and Registration of one’s live birth and subsequently administered by the Trustee (Matthew 6:9-13).
As a living [wo]man with spirit, we were given the appellation of Ms Munson of the Munson family to use and be known by while I AM here.
As such we are known by various appellations depending on who we are associating with at the time, such as; Ms Munson, and the government, legal and banking system/s uses GLOSS such as MS MUNSON and numerous derivations of the name for commercial purposes and to create the legal ‘person’. (my faith regarding the ‘person’ refers to James 2:9 KJV)
The Commonwealth Public Governance, Performance and Accountability Act 2014 also defines these roles/persona’s as an “accountable authority”, a “Commonwealth entity” and a “commercial Commonwealth entity”
I trust this clarifies any misunderstandings regarding the ‘Name/NAME’ etc.
Yours Faithfully
By:Ms Munson
The Office of the Executrix (Executor)
For the Ms Munson Estate
The proposal of the Independent Children’s Lawyer, which is supported by the Father, is that the Court make Interim Orders for [X] and [Y] to spend supervised time with the Father and for the matter to then return to Court to assess how that time has progressed, whether the Father’s mental health and drug issues have remained stable and to consider the possibility of [X] and [Y]’s time with the Father progressing beyond professional supervision.
Given the Mother’s evidence, she considered herself to be self-governing and autonomous, she was asked what she would do in the event the Court was persuaded to make orders for [X] and [Y] to spend supervised time with the Father as proposed by the Father and the Independent Children’s Lawyer.
The Mother responded as follows:
“What I would have to do is quickly submit my paperwork to the treasury and to the governor-general. Everything he said and has done will be wiped because I will no longer be a legal fiction.”
The Mother was asked whether that which would be wiped would include any orders made by the Court. She responded “she did not know about that.”
It was explained to the Mother that this is a Commonwealth Court and in response to the Mother’s question, one that has inherent jurisdiction. The Mother was asked in those circumstances whether the orders of this Court would also become null and void upon her renouncing her “legal fiction” and if they did not, would she comply with them.
The Mother responded that she did not know if the Court’s orders would become null and void. However it is her evidence that even if the Court orders were not null and void, if she believed the Court orders put [X] and [Y] at risk, she would not comply with them.
It is the Mother’s evidence that she wishes to take [X] and [Y] out of Victoria because of the victimisation by the Victorian Education Department and Victoria Police.

[X] and [Y]

Given the longstanding issues faced by [X] and the paucity of any independent evidence in relation to his diagnosis, prognosis and needs, and the concern that the Mother was not addressing his needs, orders were made requiring the Independent Children’s Lawyer to arrange for an independent paediatric assessment of [X]. An assessment of [Y] was also ordered as there was very little evidence as to [Y]’s circumstances and whether she too had undiagnosed issues that needed to be addressed.

The Independent Children’s Lawyer arranged for both [X] and [Y] to be examined by Dr E, Director of Melbourne Development and Behavioural Paediatrics and Consultant Paediatrician.
Dr E’s assessment of [X] and [Y] contained in his reports dated 13 July 2016 are annexed to his affidavit sworn 2 March 2017.
Both parties accepted Dr E’s assessment of [X] and [Y]. It is noted the Mother does not agree with Dr E’s recommendations about [X]’s future educational requirements. Dr E was not required for cross-examination.
Dr E’s affidavit and reports are annexed to this judgment in their entirety.
In relation to [X], Dr E concluded as follows:
“[X] has developmental delays and formal IQ testing in the intellectually disabled range. He has had behavioural issues at school and residual attention problems by parent reported at home. He does not present as autistic. He may have some minimal cerebral palsy to explain his calf and Achilles tendons tightness, calf wasting on the left and brisk tendon reflexes. We should follow up on this with a brain MRI at some stage.
Ms Munson has taken heat out of the situation at school by home schooling him this year. However he will need to go back to school next year and I strongly recommend she look at Specialist School or School 3 Community School, the former preferred. He won’t cope with a regular mainstream secondary school.”
In relation to [Y], Dr E concluded as follows:
“[Y] has learning difficulties associated with a mild speech articulation weakness. She has been exposed to psychological stressors and moving schools which has worked out well.
The immediate need is for [Y] to undergo formal psychological testing, ideally through the DEECD school psychologist. We would like to request a WISC IV to quantify her cognitive strengths and weaknesses and help plan for her educationally. This letter will be cc’d to the school to see if we can facilitate this.”

The Family Report

Ms F, family consultant with the Federal Circuit Court of Australia prepared a family report in this matter dated 6 February 2017. Ms F also gave viva voce evidence at the hearing.
In her family report at paragraphs 61 to 64, Ms F described in detail the interaction between the Father, [X] and [Y]. [X] and [Y] had not spent any meaningful time with the Father for some two years until this interaction.
Ms F observed that after initial “coolness” between [X] and [Y], both children interacted with their Father and appeared genuinely happy to spend time with him. She noted there was no observed fear or anger throughout the observation but rather childish and age appropriate curiosity and interest of mutual sharing information. Ms F noted the Father to be patient and responsive and that he explained things in a manner that seemed to be easily understood by both [X] and [Y].
In contrast to the Father’s behaviour when with [X] and [Y], Ms F noted that despite asking the Mother to refrain from making negative comments about the Father to [X] and [Y] in front of them, the Mother’s capacity to maintain boundaries and quarantine [X] and [Y] from her negative views completely disintegrated and she continued to speak about her issues with the school and with the Father both in front of the children and playroom staff.
Under the heading “Evaluation”, Ms F summarised this matter very effectively as follows:
69. This report concerns the parenting arrangements for the children, [X] aged twelve years and [Y] aged eight years whose parents, Mr Kistler and Ms Munson are in dispute about what time the children are to spend with their father. Mr Kistler seeks to spend consistent periods of time with the children. Ms Munson, at these interviews indicated she remains opposed to the children spending any time with Mr Kistler.
70. The children have remained living with their mother post separation and she has primarily parented the children and ensured their special needs are prioritised, with restricted input from Mr Kistler. The children initially spent supervised time and then each alternate weekend with their father, which ceased when the mother became concerned about the father’s alcohol use and her perception that his mental health was deteriorating and the impact of this on his parenting.
71. Ms Munson’s continued pre-occupation with the issues that occurred at the school in 2014, and her erroneous perceptions and conspiracy theory regarding the police, has been to the children’s detriment, as she is not emotionally present and available for [X] and [Y].
72. [X] aged twelve years should be commencing secondary school in 2017. He has a number of special needs, which include physical limitations and a mild intellectual disability, which has reportedly compromised his education in mainstream schools. [X]’s home schooling appears to have curbed his opportunities for social interactions and is now also overshadowed by Ms Munson’s historical dispute with not only the school he attended, but the Department of Education. [X] is strongly bonded to his half- brother Mr D.
73. [Y] also has special needs, although no physical disabilities. [Y] was recommended to have psychological testing to determine her strengths and weaknesses so as to plan for her future learning. Developmentally [Y] is in a period when she should be relatively settled in school and consolidating her friendships and learning. For [Y] this period has been disrupted with changes of schools and exposure to her mother’s dispute, which appears to have taken centre stage to the children’s needs, with questions regarding Ms Munson’s emotional availability to them.
74. Both parents have significant individual susceptibilities, which have and will impact on their parenting of the children. Mr Kistler’s mental health can spiral into depression which is severe, if he is faced with numerous life and situational stressors. According to the material from DHHS, Ms Munson does not present as a risk to the children, and Ms Munson self-reported she does not have any mental health concerns which would impact on her parenting, but there have been numerous reports to DHHS with concerns regarding Ms Munson’s mental health and presentation. Nonetheless her presentation at these interviews was considered reactive and combative, coupled with unbridled verbal aggression. Ms Munson’s unshakeable belief that an injustice has occurred and must be redressed, drives all her interactions with professionals and services, and has perhaps contributed to her belief that no-one will assist her, joined with her increasing frustration.
75. [X] and [Y] have been exposed to what is now an historical drama played out by their mother, and one which as young children each probably believed they were the cause and it was their fault. [X] does have a number of issues, both physical and cognitive, which have impacted on his capacity to tolerate mainstream education, which Ms Munson has actively sought to address, but the ongoing dispute has now become the centre of her world, to the harm of the children.
76. Ms Munson’s capacity to facilitate the children having a relationship with their father is questionable. She has either created a reason not to attend when supervised time was organised, and/or displays continued resistance to time spent with Mr Kistler occurring and exposes the children to negative comments about their father.
77. DHHS assessed in July 2015, that neither parent presents as a risk to the children. Mr Kistler’s psychiatric assessment report indicated as long as his mental health remains stable there is no reason for him to not commence spending time with the children. The complexity of the dispute, Ms Munson’s steadfast and repeated refusal to comply with orders of the Court, which include the children spending time with their father, present a situation with very limited options. The children will benefit from relationships with each of their parents that are consistent and where they are not triangulated in the parental conflict.
78. In disputes such as this where one parent is actively engaging in alienating the children from the other parent, a consideration can be a change of residence, at least in the short term, to provide the children with relationships with each parent and allow the other parent a period in which to adjust their patterns of behaviours.   A change of residence is not considered an option in this matter, as Mr Kistler’s mental health and documented vulnerability to life stressors would place the children at risk, if he was unable to cope with the role of a primary parent and his application is not for primary or shared care. Ms Munson has parented the children appropriately, however, her focus on what is now an historical matter, instead of on the wellbeing, education and emotional development of the children has left [X] and [Y] with an uncertain and insecure future. It is on this basis the writer is unable to consider recommendations for final orders, but rather a period of time to test the children spending increasing and eventually unsupervised periods of time with their father, and for Ms Munson to comply with Court Orders, which includes attendance for a psychiatric assessment and maintenance of any recommended treatment programs.
Under the heading “Recommendations”, Ms F set out her proposals for the way forward with this family as follows:
79. Based on the available information and in the absence of evidence to the contrary, it is respectfully recommended that;
a)[X] and [Y] remain living primarily with their mother.
b)Both parents are to retain equal shared parental responsibility for the children, but Ms Munson is to have day-to-day responsibility. Ms Munson and Mr Kistler are to establish a means of communication regarding their children’s needs, via text messaging, email and/or telephone discussions.
c)[X] is to be enrolled in a school for 2017, with preference that the parents individually inspect Special School, School 4, which was recommended by Dr E as appropriate and able to meet [X]’s educational needs and his intellectual disability.
d)The parents are to attend a Parenting Orders Program (POP) Family Relationship Centre Suburb K. There are also sub locations at Suburb M and Suburb N with limited operating hours.
e)[X] and [Y] are to commence spending supervised time with Mr Kistler at Berry Street, Suburb O at least each fortnight for two hours from: 18/3/2017 and 1/4/2017 which is school holiday time, 15/4/2017 and 22/4/2017.
f)If this time progresses without incident and a report from Berry Street does not identify any concerns regarding Mr Kistler’s interactions with the children, it is recommended that after four supervised periods or two months, [X] and [Y] are to commence spending time with their father during the day. This time could occur on either Saturday or Sunday each alternate weekend, for at least three hours on 6/5/2017, 20/5/2017, 3/6/2017, 17/6/2017, 1/7/2017, 15/7/2017 and 29/7/2017.
g)Mr Kistler is to attend for supervised drug and alcohol screens as requested by the ICL.
h)Mr Kistler is to continue attendance at with Ms A or another qualified professional on a weekly basis to monitor his mental health. A report from Ms A or other professional working with Ms A is to be made available to the ICL. This report will assist the Court in determining whether the time the children spend with their father can progress initially to day time during alternate weekends.
i)Changeover is to occur at Berry Street or an agreed neutral venue and when/if overnight time commences, at the school.
j)It is the writer’s view that Ms Munson would benefit from a psychiatric assessment with a Court appointed psychiatrist. Ms Munson is to attend for a psychiatric assessment , and to follow any treatment plans, prescribed medications or recommendations from that assessment.
k)It is recommended the ICL remain involved whilst there is a period of testing whether the parents will comply with the Court Orders and any other recommended treatments for the children and in regard to their own ongoing mental health. Ms Munson’s psychiatric assessment report, a report from Berry Street and a progress report from Mr Kistler’s treating family therapist or psychologist are to be sent to the ICL.
l)This report is made available to agencies and treating professionals involved with Mr Kistler, Ms Munson, [X] and [Y].
Ms F confirmed her observations and recommendations when giving her viva voce evidence.

Conclusion

[X] and [Y] are both vulnerable children who have very special needs.
[X] was born with a club foot. Whilst it has been surgically treated it continues to impact on his mobility. He is observed to toe walk. Dr E has raised the possibility that he has mild cerebral palsy.
When he started school, [X] struggled both academically and socially and in 2014 a WISC-IV Assessment of [X] was undertaken by the Department of Education. [X] was diagnosed as having mild intellectual disability. An occupational therapy assessment revealed severe fine motor and visuospatial weaknesses.
In [Y]’s paediatric assessment, Dr E identified that she too has learning difficulties associated with a mild speech articulation weakness and stated there was an immediate need for her to undergo formal psychological testing, in particular a WISC-IV Assessment to quantify her cognitive strengths and weaknesses and to help plan for her educationally.
The parties in this matter had a highly conflicted relationship and separated in February 2011. Their relationship has remained highly conflicted.
At separation [X] and [Y] remained living with the Mother and spent sporadic and irregular time with the Father.
The Father has a long history of marijuana abuse and severe depression. This has at times required hospital intervention when at its most severe.
The evidence before the Court is that the Father has not used marijuana for the last two years having undertaken drug and alcohol counselling. The Father’s mental health is also stable and he continues to appropriately engage with his psychologist who assists him in maintaining that stability.
The Father has not spent time with [X] and [Y] since January 2015, now well over two years.
In the 12 months prior to the cessation of time between the Father and [X] and [Y], the Father concedes that he was having difficulty in his relationship with [X] and in managing [X]’s more outrageous behaviour. He agrees there was one occasion when [X] was in his care that [X] became very agitated with him and pulled a knife and then locked the Father out of the house. At this time the Father felt he had no other option but to call the police to intervene in the altercation between himself and [X]. To use his own words, the relationship between himself and [X] “needs some work”.
Despite the concerns raised in the paediatric assessments of Dr E in relation to both [X] and [Y], it is the Father’s evidence that he has not made any enquiries of [Y]’s school, [X]’s former school or of any of the medical practitioners who have been engaged with either of [X] and [Y]. The Father has not visited the schools recommended by Dr E for [X]. It is the Father’s evidence that he had not done so as he did not want to “rock the boat” or create further difficulties in his relationship with the Mother.
It is apparent from the evidence that it has been the Mother who has borne the bulk of the responsibility for caring for [X] and [Y] since their birth.
It is also apparent from the evidence that until late 2014, the Mother provided appropriate care of [X] and [Y]. She changed [X]’s school when she identified that they were not assisting him with his learning and sought appropriate medical assistance to assist with his club foot.
In late 2014 the Mother became embroiled in a dispute with [X]’s then-school School 1 Primary School.
Since that time the Mother has become completely consumed by this dispute and it has overtaken her life, and sadly it would appear, the life of her eldest son Mr D, who is also totally embroiled in this ongoing dispute.
The Mother’s belief that there is a conspiracy against her perpetrated by the Education Department and Victoria Police is well set out in this judgment. It is her belief that she is autonomous and self-governing, that she is the trustee for her children and that she is not bound by the laws of Victoria or by any orders that might be made by this Court.
What is of major concern is that in her preoccupation and obsession with this dispute, the Mother is now failing to meet the needs of [X] and [Y].
In August 2015 the Mother removed [X] from his school because of her assessment that he was not coping with education at that school, that he was being bullied and that the school was unable to meet and provide the necessary support to [X] to enable him to thrive in that environment.
Since August 2015 the Mother has been home-schooling [X].
When asked to detail what [X]’s home-schooling consists of, it is the Mother’s evidence that she has taught him to shower independently, that he has now read all the Harry Potter books and that he sometimes engages in Kumon Mathematics online.
It is her evidence that [X] is, to use her words: “mentally retarded” and unable to write. Because he tires easily he needs lots of rest during the day. It is apparent that the Mother does not have a lesson plan for [X] and that he is not being home schooled in any structured way, or in reality being home schooled at all.
[X] primarily spends his time on his computer gaming. It would also appear that [X]’s only social interaction with his friends, with whom he spent lots of time with at school, is now via electronic communication only. It is the Mother’s evidence that because of the campaign by the school principal and the president of the school committee at [X]’s former school, parents will not let [X]’s friends visit her home.
[X] has also not received any recent medical interventions save for some recent botox injections to release some of the tension in his lower legs.
It is the Mother’s evidence that she had five appointments for [X] to be seen at the Royal Children’s Hospital in 2015/2016, but all those appointments were cancelled “because of a letter written to the Royal Children’s Hospital by the Independent Children’s Lawyer”.
When it was called for, the letter in question was the very balanced instructions and information provided by the Independent Children’s Lawyer to Dr E for the purposes of his independent paediatric assessment of [X] and [Y].
The Mother’s belief that the Independent Children’s Lawyer wrote to the Royal Children’s Hospital and this caused [X]’s appointments to be cancelled is because Dr E has rooms at the Royal Children’s Hospital and the correspondence from the Independent Children’s Lawyer was sent to him at that address.
There is therefore no explanation as to why the five appointments for [X] were cancelled by the Royal Children’s Hospital or any evidence from the Mother that she contacted the Royal Children’s Hospital to make further appointments for [X].
[X] attended upon an occupational therapist in early 2015 for assistance with the identified issues around his fine motor skills. This therapy stopped after only five sessions and there has been no explanation from the Mother as to why that intervention stopped or why she has not sought further therapy for [X].
It is Dr E’s assessment that [X] will not cope with mainstream secondary school. However, Dr E is very clear that it is imperative that [X] return to school in 2017. Dr E makes a very strong recommendation that he attend Specialist School.
It is the evidence of Ms F that Specialist School caters for children with mild intellectual disability and would be ideal for [X].
It is the Mother’s evidence that she has researched “special schools” and that they have a known history of abuse of disabled children. The Mother however has not made any specific enquiries in relation to Specialist School and whether it is a school that has ever been identified with having issues of inappropriate management of their students.

It is the Mother’s evidence that she will not allow [X] to return to the Victorian State School system and that he will continue to be home-schooled.
It is the Mother’s evidence that she would like to be able to obtain a tutor for [X]. When questioned as to how she would afford this, it is her evidence that this will be possible when she is paid the appropriate compensation by the Education Department/government for the wrongs that have been done to her and her family by the principal of School 1 Primary School.
When asked what she would do in the event her dispute with the Education Department does not resolve in the manner she thinks it should, or is not resolved speedily, the Mother was unable to grasp this as a possible outcome to her ongoing dispute.
Despite Dr E’s report being made available to the parties in July 2016, there has been no assessment of [Y] as recommended by him.
It is the Mother’s evidence that arrangements have been made through Hospital for an assessment of [Y]. The Mother was unable to indicate to the Court a date when this is to occur and what organisation is going to undertake the assessment.
It is also the Mother’s evidence that whilst [Y] currently remains at school and that she seems happy and well-settled, [Y] too will be removed from school by the Mother to be home-schooled.
It is clear from the evidence that at this time neither the Mother or the Father are able to meet [X] and [Y]’s needs and cannot be considered appropriate carers for their children.
The Father has no relationship with the children at this time and has never exhibited an ability to meet their needs on a full time basis.
Whilst the Mother attends to [X] and [Y]’s basic needs in that they are well fed, housed, clothed and loved, it is quite clear that she is unable to meet their educational, physical or mental health needs whilst she remains consumed by her dispute with the Department of Education and Victoria Police and continues in her belief she is self-governing and autonomous and not bound by the law of the State or the orders of this Court.
In these circumstances, I am of the view that this is a matter where an order should be made pursuant to section 91B of the Family Law Act 1975 (Cth) requesting the Department of Health and Human Services to intervene in these proceedings so that they can work with the Mother to ensure that the appropriate interventions are put in place to ensure that [X] and [Y]’s most fundamental rights to a proper education, evaluation of their needs and their medical and special needs are met.
In relation to the question of [X] and [Y] spending supervised time with the Father, it is very apparent from their interaction with him for the purposes of the preparation of the Family Report that this is something that they both would genuinely like the opportunity to explore and must be seen to be in their best interests. This of course will be subject to the Father exhibiting the capacity to maintain his commitment to that relationship and remaining illicit substance-free and in good mental health.
Orders will therefore be made adjourning this matter for a period of six months, the Department of Health and Human Services intervene in these proceedings, subject to the Mother following all reasonable directions of the Department in relation to the care of [X] and [Y], including [X]’s attendance at Specialist School or such other school as nominated by the Department, for the appropriate psychological and educational assessment of [X], for the engagement for [X] with the necessary medical interventions for the better management of his club foot/possible cerebral palsy and for there to be occupational therapy to assist in improving his fine motor skills, they continue to live with the Mother and that they spend supervised time with the Father.
Given the Mother’s evidence that she wishes to remove [Y] from her school and flee with [X] and [Y] from Victoria, orders will also be made that restrains her from removing either [X] or [Y] from their school or removing [X] and [Y] from Victoria.
If the Mother is resistant to following the directions of the Department of Health and Human Services in relation to the care of [X] and [Y], it will then be a matter for the Department of Health and Human Services as to what further actions then becomes necessary to ensure [X] and [Y] are properly cared for.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge Bender

Date: 17 March 2017