Kyte and Kenward
[2017] FCCA 2521
•8 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KYTE & KENWARD | [2017] FCCA 2521 |
| Catchwords: FAMILY LAW – Entrenched longstanding parenting dispute – elder children already moving to live with father – risks of alienation of younger child in both parents’ homes – both parents lacking insight and using children as pawns in their own interpersonal dispute – youngest child to remain primarily with mother – interim orders only to be made – matter to be reviewed in 9 months. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 65DA(2) |
| Goode & Goode [2006] FamCA 1346 |
| Applicant: | MS KYTE |
| Respondent: | MR KENWARD |
| File Number: | MLC 3108 of 2011 |
| Judgment of: | Judge Burchardt |
| Hearing dates: | 2 and 3 October 2017 |
| Date of Last Submission: | 3 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 8 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Turner |
| Solicitors for the Applicant: | Samantha Ward Pty Ltd |
| Counsel for the Respondent: | Mr Lovering |
| Solicitors for the Respondent: | Perisic Lawyers |
ORDERS
All previous parenting orders be discharged.
The matter be adjourned to this Court for mention before Judge Burchardt on 13 August 2018 at 9.30 am.
The parents have equal shared parental responsibility for the children X born (omitted) 2001, Y born (omitted) 2003 and Z born (omitted) 2008.
X and Y live with the father and spend time with the mother in accordance with their wishes.
Z live with the mother and spend time and communicate with the father:
(a)Each alternate weekend from the conclusion of school Friday until the commencement of school Monday;
(b)Each alternate Monday from the conclusion of school until 8.00pm;
(c)For one half of each Victorian gazetted school term holiday period by agreement and failing agreement the first half;
(d)For one half of the long summer school holiday period on a week about basis with changeovers at 3.00pm each Friday commencing the second week in 2017/2018 and the first week in 2018/2019;
(e)In the even numbered years for Christmas from 4.00pm Christmas Day until 6.00pm Boxing Day and in odd numbered years from 4.00pm Christmas Eve until 4.00pm Christmas Day;
(f)In the even numbered years for Easter from 4.00pm Easter Sunday to 4.00pm Easter Monday and in odd numbered years from 4.00pm Easter Saturday until 4.00pm Easter Sunday.
(g)On Father’s Day each year from 5.00pm on the Saturday prior to Father’s Day until 5.00pm on Father’s Day;
(h)On the father’s birthday each year on a school day from the conclusion of school until 6.00pm and on a non-school day from a period of five hours by agreement and failing agreement from 10.00am until 3.00pm.
(i)On Z’s birthday on a school day from the conclusion of school until 6.00pm and on a non-school day for a period of five hours by agreement and failing agreement from 10.00am until 3.00pm.
(j)Such further and other times as agreed between the parties.
The father’s time with Z be suspended as follows:
(a)For one half of the Victorian gazetted school term holidays by agreement and failing agreement the second half thereof;
(b)For one half of the long summer holiday period on a week about basis with changeovers at 3.00pm each Friday commencing the first week in 2018/2019;
(c)In odd numbered years for Christmas from 4.00pm Christmas Day until 6.00pm Boxing Day and in even numbered years from 4.00pm Christmas Eve until 4.00pm Christmas Day;
(d)In odd numbered years for Easter from 4.00pm Easter Sunday to 4.00pm Easter Monday and in even numbered years from 4.00pm Easter Saturday until 4.00pm Easter Sunday;
(e)On Mother’s Day each year from 5.00pm on the Saturday prior to Mother’s Day until 5.00pm Mother’s Day;
(f)On the mother’s birthday each year on a school day from the conclusion of school until 6.00pm and on a non-school day for a period of five hours by agreement and failing agreement from 10.00am until 3.00pm;
(g)On Z’s birthday each year on a school day from 6.00pm until 8.00pm and on a non-school day for a period of five hours by agreement and failing agreement from 3.00pm until 8.00pm;
(h)Such further and other times as agreed between the parties.
All changeovers that do not occur at the school occur with the parents whose time is concluding deliver the children to the other parents residence in the absence of any other party, or otherwise as agreed between the parties.
Without admitting the necessity for same both parties be restrained from consuming alcohol to excess or illegal substances whilst the children are in their care for a period of 24 hours prior to the commencement of time.
Both parents forthwith enrol in and complete the Our Kids Parenting Orders program through CatholicCare (omitted).
In the event that any of the children are too unwell to attend school the parent with whom they are spending time or living with shall provide a medical certificate to the other parent and shall otherwise ensure that the children attend school.
Without admitting the necessity for same, both parties be restrained from exposing the children to violence.
Each parent advise the other of any change of telephone number within 24 hours of any such change.
Each parent be authorised to obtain copies of all school reports, newsletters, photograph order forms and any other documentation that parents would ordinarily receive.
Each party be at liberty to attend any school or extra-curricular events parents would ordinarily attend.
Each parent be restrained from denigrating, insulting, rebutting or belittling the other parent or their family or their children to the children or in their presence or hearing.
The mother engage with a counsellor to assist her with the difficulties identified in this judgment including but not limited to developing a parenting relationship with X and Y in the absence of them living with her.
Z be supported by the parents to continue treatment with her current counsellor.
AND THE COURT NOTES THAT:
(A)The parties agree to facilitate any further time requested by the children with the other parent.
(B)The parents shall provide a copy of these orders to each of the children’s schools.
IT IS NOTED that publication of this judgment under the pseudonym Kyte & Kenward is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 3108 of 2011
| MS KYTE |
Applicant
And
| MR KENWARD |
Respondent
REASONS FOR JUDGMENT
Introductory
This is a terribly dispiriting parenting dispute about the best interests of a young girl, Z, born (omitted) 2008, and therefore now somewhat over nine years old. Although no longer the subject of actual dispute, the circumstances of her older siblings, X, born (omitted) 2001, and Y, born (omitted) 2003, are directly relevant to the matter. The applicant mother proposes that Z should continue to live predominantly with her and spend time with the father, whereas the father seeks that Z live with him and the other two siblings, who already live with him. In the ultimate, although not without hesitation, the mother agrees that the two elder children should live with the father and spend time with her in accordance with their wishes.
For the reasons that follow, I am of the view that Z should remain living with her mother for a further interim period. As I hope will become apparent, it is not appropriate to make final orders at this stage.
Some background
These two parties have been in litigation against one another since the father lodged an application in the Geelong Magistrates Court seeking equal time for all three children as long ago as 25 February 2011. In their preliminary affidavit material, the parties agreed that they had lived in a de facto relationship between (omitted) 2001 until July 2010. Following the transfer of that proceeding to the then Federal Magistrates Court, final orders were made by consent on 28 July 2011 before Federal Magistrates Hughes (as her Honour then was). These orders were made by consent, following the release of a family report, at a time when both parties were legally represented. All three children were to live with the mother and spend time with the father.
There matters stood, so to speak, in terms of court proceedings, until the father’s contravention application lodged in April 2013. That was withdrawn in May 2013, but by then the mother had filed a further initiating application. In the ultimate, those proceedings were compromised by final orders made by consent before Judge Curtain on 25 August 2014. Once again, this followed the release of a family report and the orders were made when the parties were legally represented. It should be noted that one new matter of importance was the emergence of Ms M, the father’s new partner, she having entered into a relationship with him in (omitted) 2013.
Once again there was a period of litigation-free time, until the mother filed an initiating application on 28 April 2016, seeking a recovery order because X had been over-held. It should be noted that in her affidavit in support, at paragraph 14, the mother asserted that X had been brainwashed by the father.
Judge Wilson ordered a section 11F report on 15 June 2016, and that report led to interviews on 8 September 2016 and a written report the following day. It is appropriate to record that in April 2016, X left the mother’s home to live with the father, and that in June 2016, the mother stopped the father’s time with Y and Z. The mother raised issues of the father’s drug use and blamed the father for the then-state of affairs. The report writer was, to an extent, critical of the mother, recording, inter alia:
Ms Kyte presented as more adult-focused in her thinking and was unable to hear information in relation to X. She tended to hold Mr Kenward responsible for the ceasing of time and refused to believe that he had encouraged X to spend time with her.
It should be noted that X expressed the view to the report writer that he loved his mother and wanted to see her regularly, but was refusing to go because his mother had told him that she would not allow him to return to his father following time with her.
The report also noted the assertion by X that he was expected to do a lot of household chores, and was not expected to do so in his father’s home, and the report writer expressed the view that both parents would benefit from completing a parenting orders program.
On 21 September 2016, Judge Riley made orders for X to live with the father. Thereafter the parties filed various affidavits to which it will be necessary to return. Relevantly for these purposes, however, on 25 May 2017 the mother filed an application in a case seeking a recovery order in respect of Y, which elicited a response on 13 June 2017, in which the father sought that all three children live with him and spend time with the mother in accordance with their wishes. I note that the father’s contemporaneous affidavit deposed that he had undertaken a parenting course and that Z had been withheld following Y’s decision to go and live with him. He also traversed in some detail matters to do with Y’s iPad and other possessions to which it will be necessary to return.
Subsequently, the father proposed, in an amended response dated 2 October 2017, that Z spend each alternate weekend with her mother. I will come back to the affidavit materials subsequently filed by the parties in due course.
It should be noted that the Court has received a family report dated 25 August 2017 prepared by Ms S, which has been tendered as exhibit S2, to which likewise it will be necessary to return.
I have set out this procedural snapshot of the case to illustrate one matter that I commented on during the running of the trial. These parties have been in high conflict for many years. They have been litigating intermittently since 2011. On each prior occasion that they got to court for final trial, the matters resolved with the assistance of their legal representatives and previous family reports. I should say now that it became quite clear to me, as indeed I said during the currency of the proceeding, that these two parties have been waiting for many years to vent and get off their chest, so to speak, the various dissatisfactions they have with one another. Each of them wants the Court to blame the other, as they do, for all the problems that have befallen them.
I have said before, and would repeat again, that it is no part of this Court’s proper discharge of its functions to be gratuitously rude to litigants or witnesses, who are, after all, in a disempowered position in court. Nonetheless, and I repeat, this is a dispiriting case. The way the parties have run their case makes it impossible for the Court to determine the matters the parties have raised without being critical and, indeed, trenchantly critical, of each of the two primary players.
The parties’ relevant affidavit material
Neither of the parties sought to rely upon affidavits filed in the earlier tranches of proceeding, and although I have read the file, I have paid little regard to the earlier matters, save as indicated already.
The mother’s first affidavit, filed contemporaneously with her initiating application on 28 April 2016, refers to the then-extant orders that the children live with her, but notes the over-holding of X alleged to have taken place in April 2016. The mother deposed that X had told his mother on the telephone that he was not coming home, and referred to reports of arguments, including physical violence, between the father and Ms M. As earlier indicated, paragraph 14 of the affidavit suggested that X had been brainwashed by his father.
The father’s affidavit, filed contemporaneously with his response, sworn 11 October 2016, details a number of uncontroversial matters. The father was born on (omitted) 1978, and the mother on (omitted) 1981. Inconsistently with the agreed position put in their earlier affidavit material, the father now deposed that the relationship with the mother commenced in approximately 2000 and finished in approximately 2009. Having traversed the history of the then-extant orders, the father deposed that over the Easter weekend, X had become extremely distressed and told him that he wished to live with the father and Ms M.
The father referred X to the father’s GP and then a counsellor. He deposed that X had refused to return to his mother at the end of the holiday. He went on to depose to alleged abuse when Y and Z were returned at the end of the holidays, and abuse by the mother of Ms M in very insulting terms. It is not necessary to traverse the terms of the affidavit more particularly, but they went on to assert a number of alleged deficiencies in the mother’s behaviour towards all three children, and difficulties that had obtained between the parents in the past.
Ms M filed an affidavit sworn 11 October 2016, which deposed to her relationship with the father. She also deposed as to the children enthusiastically meeting her own daughter, A. She deposed as to insults uttered to her by the mother from time to time (both on a hearsay and direct evidence basis) and denied any family violence in the household.
The mother’s responding affidavit essentially put in issue the matters asserted by the father and Ms M (affidavit sworn 25 November 2016). The mother’s next affidavit was filed in support of her application in a case seeking a recovery order for Y, being sworn on 24 May 2017. The mother deposed to the extant orders that Y live with her, and the fact that Y was refusing to return home. I note that at paragraph 10 the mother deposed:
There is a set routine at my home when the children have a prescribed chores to carry out but prior to the 4th May, Y was rebelling against the boundaries I had set.
The mother went on to assert that the father had no boundaries for Y at his house and to infer that this was why she might have moved.
The father’s affidavit sworn 13 June 2017 relevantly deposed to his having completed a parenting course. He deposed to the way in which Y had come to live with him (a somewhat involved history, on any view of the matter). I note that it was asserted that the mother had attended school to see Y, and that when Y refused to see her, the mother asked for Y’s iPad, phone and school uniform to be returned to her. The father also asserted that since Y and X had refused to spend time with the mother, the mother had refused to allow Z to spend time with him.
The father’s next affidavit, filed on 22 September 2017, was his trial affidavit. He again put the duration of the relationship from 2000 to 2009. He recapitulated the insults allegedly uttered by the mother to Ms M when X first moved to him and he returned Y and Z. In truth, the affidavit is in essence a recapitulation of earlier materials, although I note the denial by the father of an alleged assault on Z on 23 June 2017. I further note, at paragraph 80(c), the following assertion:
I am concerned that Ms Kyte has recently bought Z a puppy and is trying to influence Z. I am concerned that Z’s expressed desire to live with Ms Kyte is as a result of Ms Kyte’s attempts to influence and alienate her from me.
I note further that both X and Y were attending counselling with Headspace.
Dr B, a consultant psychiatrist, filed an affidavit on 27 September 2017, annexing his report about the mother. Generally speaking, this gave the mother a clean bill of mental health and Dr B was not required for cross-examination.
The mother’s trial affidavit was filed on 28 September 2017. Once again it is largely a recapitulation of earlier material. At paragraphs 34 and 35, the mother deposed:
I do not believe that it was in the interests of Y to continue to live with the father who has demonstrated in relation to X and her that he will go to extreme lengths to try and alienate the children from me.
For this reason I have not made Z available to the father as I am afraid by reason of his conduct to date with our two eldest children he has tried to properly seduce Z also to live with him and cut off all contact with me, due to the incident that occurred at her father’s.
At paragraph 53, the mother deposed:
I do not accept many of the factual matters referred to in the family report and I certainly do not accept the recommendations that Z live with the father. unfortunately I believe that I have no alternative other than to accept the father that both X and Y want to live with the father for reasons for which I believe are that he provides no boundaries in relation to their behaviour that they are free from doing any chores around the house and generally they are left to their own devices.
It should be observed that the affidavits filed by the father and mother from time to time are uniformly critical and derogatory of one another.
The family report
It should be noted that neither party has referred to earlier family reports, nor suggested in submissions that the Court should have any regard to them. I have, accordingly, not done so.
Ms S’s report, dated 25 August 2017, commences with background. I note that both parents live in unexceptionable housing in the (omitted) area. The father was then employed casually as a (occupation omitted) and Ms M was studying a course in (omitted). The mother works approximately nine afternoon shifts per fortnight in (employment omitted), and had recently bought a caravan to be placed in the backyard for X to live in, should he return to her care. Ms S noted, in paragraph 4, that the prior spend-time arrangement broke down after Y went to her father’s home after school on 4 May 2017 and refused to spend time with her mother thereafter. It should be noted that it is common cause that X had spent time with the mother from the time he left to go to his father’s until the difficulties with Y emerged.
Ms S noted the duration of the relationship and an alleged incident of family violence at the point of separation. She noted the commencement of the relationship between the father and Ms M in 2013, and at paragraph 7:
While there have been reports to the Department of Health and Human Services in the past there has been no ongoing or current involvement by them with this family. There have been no family violence orders in place.
Ms S noted the prior history of the dispute (in which she had had involvement as the 11F reporter in 2016) and that the Court had dismissed the mother’s application for a recovery order for Y in May 2017. Ms S noted that following one weekend spent by Z with her father thereafter, Z had since refused to spend any more time with him. The siblings have not spent any time together as a sibling unit since June 2017.
Ms S analysed the positions of the parties, and I note that at paragraph 13, she observed:
At interview, Ms Kyte could not provide a cohesive plan for what it was she was seeking. Rather, her primary goal was to have Y returned to her and expressed some hope that X may as well. In the absence of this, she did not propose a plan for what it was she sought.
At paragraph 15, under the heading Family Violence and Abuse, Ms S noted:
Both parents gave examples of a strained relationship with high levels of verbal abuse, perpetrated by both. Mr Kenward alleged that at times Ms Kyte was physically violent towards him, and Ms Kyte alleged there had been an incident at separation whereby Mr Kenward held a machete above her head. Both reported no fear of the other, and while Police were involved at the point of separation, no reports were made.
Ms S noted the mother’s allegation that the father was a regular and problematic drug user, including a current concern as to methamphetamines. The father denied such drug use and had provided a consistent series of drug screens, all clear of any illicit substances.
The report went on to note the interviews with the parties. The interview with the mother noted the mother’s “varied and constantly changing emotional state”. At paragraph 23, the report recorded:
Ms Kyte expressed significant dissatisfaction that both X and Y were now living with their father and she struggled to comprehend the reasons behind this. She was adamant that Y had previously “hated” her father and could not understand why she would now choose to live with him. She expressed a level of fear regarding Mr Kenward’s proposal stating that if he had all three children with him she would “have nothing” and stated that this was not fair. She further commented she would no longer be a mother if this occurred, and in that event she would fight until it was reversed.
When asked why time with Z and the father had ceased, the mother asserted that this was because the father had grabbed Z’s arm and pushed her on the bed the last time she attended, and that she now no longer wished to do so. The mother commented that Z was “petrified” at the prospect of having to see her father at assessment.
I note that at paragraph 27, the report continued:
After the prior assessment, it had been recommended that both parents attend the parenting orders program in order to address the very poor communication and high conflict. Ms Kyte reported she had attended but concluded there was “nothing new they could teach me.” This is unfortunate, as given the children’s ages; the best pathway to resolution would be for the parents to improve their communication. It would appear this is unlikely to change.
The report then traverses the interview with the father. I note that Z had previously (that is to say, prior to the father’s interview with Ms S) met her father and ran to him and embraced him warmly. The father described his endeavours to make X spend alternate weekends with the mother and the subsequent arrival of Y at his home. The report continued, at paragraph 31:
Mr Kenward was most distressed when discussing Z. He expressed considerable concern of the emotional harm she would be subjected to in her mother’s care. He expressed a high level of relief that she had greeted him so unambiguously and warmly as he had been led to believe she really did not wish to see him. Mr Kenward said this sort of rejection was typical of what he had observed with both X and Y in the past and believed Ms Kyte was manipulative to such an extent that the children could only withstand it to a certain point.
I note that the father expressed a willingness to facilitate any time between the children and Ms Kyte (paragraph 34).
An interview with Ms M is then set out. It is unremarkable and Ms M was supportive of the father’s position. Ms M commented on the verbal denigration of her by Ms Kyte, Ms M being surprised at the strength of Ms Kyte’s words. Ms M denied any drug use on the father’s part, and denied any family violence between her, (Ms M), and the father.
At paragraph 36 and following, the report continued:
Ms Kyte and Mr Kenward have a long history of entrenched conflict, which has involved the children both subtly and explicitly. Mr K reported numerous times when despite court orders the children were withheld from him, often for excuses that he found lacked substance. Ms Kyte is observed to have a high level of reactivity while Mr Kenward presents as more placid. This dynamic is likely to continue to cause conflict between the parties that neither seems capable of removing the children from.
Communication between the parents is virtually non-existent and counterproductive when it occurs. Mr Kenward expressed a high degree of concern that Ms Kyte had taken to filming the children at the attempts for changeover. He reported the children being distressed by this and refusing time due to it. Ms Kyte alleged that she needs to do this in order to prove that Mr Kenward is not encouraging the children to attend, which will further her case as her reported concerns are Mr Kenward does not facilitate the time she spends with the children.
While there is some sort of impasse at the moment in relation to X and Y, there is concern expressed by Mr Kenward that Ms Kyte is deliberately withholding Z as some sort of pay back for X and Y having opted to live with him. Ms Kyte’s narrative around this was sketchy, with moments whereby she alleged Mr Kenward had harmed Z in his care, and moving between statements such as “if he gets Z as well I end up with nothing.”
Furthermore there was an alleged incident whereby Ms Kyte reported that Mr Kenward had grabbed Z by her arm and thrown her to the bed. She said it was this event that had seen Z refuse to return to the father’s home. Mr Kenward described this incident, whereby he said Z had become upset and wanted her mother. Mr Kenward told her she could call her in the morning as she was at work. He described Z getting very upset and crying uncontrollably. He then said he wrapped his arms around her firmly and held her in order to contain her. He said she settled down, went to sleep and remained with him for the remainder of the weekend.
The report went on to examine the alleged incident of violence at separation, but whoever had the correct version of it, the report noted, at paragraph 40:
Ms Kyte said that Mr Kenward had never physically assaulted her and this alleged incident is reported as the only significant threat. Ms Kyte commented that she had not feared Mr Kenward at all including during this incident.
At paragraph 41, the report continued:
Mr Kenward however alleged that in Ms Kyte’s care the children are exposed to ongoing emotional abuse which is damaging to their sense of wellbeing. He commented that both X and Y had reported to him constant criticisms and high levels of control coupled with a degree of aggression. Ms Kyte denied this and believed X and Y’s decision to live with their father was due to the differences in parenting styles whereby she regarded Mr Kenward as having few rules or boundaries while she had expectations of the children to participate with household tasks.
The report noted the mother’s allegations about drugs, and the fact that the father had complied with numerous drug screens, all of which had been clear. She went on to say, at paragraph 43:
During the assessment, Ms Kyte commented that Z was presenting as bright and bubbly and both X and Y were presenting as somewhat depressed and quiet. She drew a direct correlation that this was due to her being a better parent and that Mr Kenward was solely responsible for the presentation of the children. This insight lacks sophistication or a nuanced approach to why the children may have presented as quieter on the day their family were being assessed.
The report went on to detail the interviews with the children. X presented as somewhat depressed and disengaged. At paragraphs 45 - 47, the report noted:
X spoke of his father informing him that an agreement had occurred whereby he would spend each weekend with his siblings, but this included each alternate weekend with his mother. He described feeling very upset by this event as he knew he would be subjected to a series of questions about why he preferred to live with his father. He spoke of this occurring immediately, resulting in him walking out on the very first evening in an attempt to return to his father. He expressed further disappointment that he was forced to return to his mother.
It is understood that there was a period of approximately three months where X participated with these orders and attended his mothers. He said he ceased going when Y came to live with him and their father, as he knew if he continued to attend that he would be faced with further questions relating to why Y was no longer attending. X described a fairly relentless pattern of questioning which often ended with Ms Kyte stating that Mr Kenward was influencing the children against her. It was clear that X rejected this assessment, and further commented that part of his compliance was to prove that his father was not preventing him from spending time with his mother.
X described his mother making hurtful comments about him in the past such as telling him he doesn’t have any friends. He described a high level of volatility with her and said she angers easily and quickly. X was clear he no longer wanted to live in that environment and preferred the calmer environment with his father. X went on to say that when he lived with his mother he and his siblings were subject to a high degree of pressure to do what she wanted them to. He described being coached by her in preparation for the previous family reports, and said he had struggled to say what he wanted to for fear of repercussions.
Notwithstanding that X did not want to spend time with his mother, the report noted, at paragraph 48:
X went on to say that he always hoped he would have a relationship with his mother and hoped he could be left to define the parameters of it. When asked how often he thought he would attend within that framework, he indicated he would visit regularly, but probably wouldn’t stay overnight.
X had recently commenced counselling through Headspace, and believed this would be helpful.
Y presented to the report-writer as confident and extroverted, but with a high level of stress and vulnerability. At paragraph 50, the report noted:
She described having rejected her father previously and holds her mother responsible for those actions. She said her mother would speak very negatively about her father and said she didn’t have “the guts to ask her to stop”. She also commented that once X left she was negative about him also referring to him as a “little shit”.
At paragraphs 52 - 53, the report continued:
Y said she was very hurt by her mother’s recent actions. She said her mother had asked her friends for her school locker combination and Y believed this was so she could take her iPad back. She also described her mother trying to enlist her friends to influence her to return to her mother. She said this had been harmful to her friendships and had resulted in conflict and breakdown in those relationships. She even described her boyfriend being coopted by her mother to advocate on her behalf, due to her boyfriend’s mother being a friend of her mother. Again, she described this as having an eroding effect, resulting in a recent break-up. Y was concerned about her mother’s presence at her school, which she said occurred periodically. She said this made her nervous about going to school, never knowing when her mother would “pop up”.
When discussing Y’s concerns with her mother, she said that her mother had been “controlling” of her, and often put her down.
The report continued, at paragraph 54:
Y also described a level of unpredictable anger in her mother’s care. She said, “if she gets angry, you run.” Y said that despite all of that, she had never intended on not seeing her mother at all. She said she would like to spend time with her but didn’t trust that her mother would allow her to return to her father’s and therefore was not prepared to go. Y was clear that she wished to remain in her father’s care and that as time healed the current relationship she anticipated a situation whereby she would visit her mother regularly. Y hoped there would not be specific requirements for that time and that she could have some say around when and how often she attended.
The interview then turned to Z. Z did not like the present arrangements, and hoped they would change, but the report noted, at paragraphs 56 - 58:
Z’s explanation for why X and Y lived with their father was that they had disobeyed their mother’s rules. Z commented that she just did what she was asked and followed her mother’s rules. She said, “if I get told to vacuum, I do it.” Z was very positive about her mother, and was particularly happy that her mother had recently bought her a puppy. Z commented that she didn’t want to spend too much time at her father’s because she wanted to be with (omitted) (the puppy).
When discussing her father, Z gave conflicted views. She had already been observed greeting him enthusiastically, running past her siblings to get to him, but at interview said that she did not want to spend time with him. When asked why, she said that he had grabbed her arm and was angry at her; she also said that he and Mel (Ms M) were arguing too much. Z then said that if she spent time with her father it would make her mother sad “which makes me not want to go”, she further said “I want to care about mum” and then later “it’s my job to care about mum.” Z said she worried about her mother because she didn’t get to see X and Y, and she said that makes her mother cry a lot, and then she starts yelling. Z described covering her ears when her mother was yelling, as “it’s really loud.”
Z also said that now that X and Y were gone, she was lonely. She said she liked having people to talk to, and now she didn’t. She said she tried to facetime her friends so she would have some company. It is also apparent that as Ms Kyte works many evenings, Z spends significant time with her grandparents.
Having noted some ambiguity in Z’s answers about where she might wish to live, and Z becoming unsettled when in the presence of her brother and sister, the report went on to say, at paragraph 61:
It was very important for Z, that her wish to live with her mother was conveyed unambiguously. She said if she lived with her father she was worried she would not be allowed to see her mother. She repeated, “I just want to live with mum.”
The report went on to note the unfortunate sibling split, noting that each of the children misses the others, and further noting that while all three children wish to live together, none of them viewed this as possible.
The report then noted the observations of interactions between the parents and the children. The interrelationship between the children and the father is only remarkable to the extent that Z immediately went to the father and hugged him when she saw him. She was entirely comfortable in his care. Indeed, she was resistant to the time ending.
The contact between the mother and the children was plainly somewhat more awkward, and not, it would appear, helped by some slightly inappropriate initiatives on the part of the mother, which might be interpreted as endeavours to have X return to live with her, and to compel Y to accept a box of letters from her.
Under the heading Evaluation, the report went on to note the strong statements made by the children about where they wished to live, and the incapacity of the parents to make any arrangements cooperatively for the benefit of the children. The report noted, at paragraph 70:
It would appear the children are largely pawns in a game where each seeks to outmanoeuvre the other and achieve having the children in their care. It is likely that Ms Kyte engages with this strategy more than Mr Kenward and has a past history of withholding the children and influencing them to report in accordance with her wishes. This has had a significant impact on the children and is potentially rebounding on Ms Kyte as the children are now providing this information about their experience in the past, and making their own decisions.
At paragraphs 72 and following, the report continued:
Even during the observation session, Ms Kyte did not miss the opportunity to attempt to influence both X and Y to spend time with her. It is possible that when she is in this mode she is difficult to withstand and it is possible that X and Y’s decision to leave operates in this dynamic whereby they are unable to voice their opinions or have their needs met when they don’t accord with the mother’s. This style of parenting is more likely to have success when children are young and susceptible to parental influence but less likely to work in adolescence, when young people are forging their own identities separate from their parents’ influence.
Furthermore, Ms Kyte has shown limited capacity to take on professional advice or opinion. She was rejecting of any message that did not accord with her own and was dismissive of the Parenting Orders Program believing she was already well versed in the content. Given that material is specifically targeted to high-conflict families, it is unfortunate that she did not gain insight into her behaviour or how she contributes to the current situation. There is little doubt that Ms Kyte’s primary identity is as a mother, and her comment that she would no longer be one if the children were in their father’s primary care was telling. Given X and Y’s behaviour upon reaching adolescence, it is also possible that Z would follow this trajectory as well if she remained in her mother’s care.
Having traversed X and Y’s lack of preparedness to spend time with their mother, and the mother’s misguided endeavours to involve Y’s friends in her efforts to have her return, the report noted that there was a significant issue remaining, namely, Z. She could either live with her father and spend time with her mother or the reverse. At paragraph 77, the report noted that if she lived with her father she would have the benefit of living with her siblings and that it was more likely that Mr Kenward would facilitate a relationship with the mother than the reverse. If Z remains with the mother, then she would most likely remain separated from her siblings and might not be able to withstand her mother’s pressure and might reject her father and potentially her siblings.
Paragraphs 78 - 82, the report continued.
Ms Kyte has demonstrated limited capacity to support the relationship between the children and their father and in the face of her losing X and Y is likely to cling even tighter to Z. Ms Kyte has demonstrated limited understanding of the importance of the children’s relationship with their father, and is unlikely to be supportive of Z having that.
Z presented as a child deeply conflicted. Ms Kyte had believed Z was afraid of her father and was only interested in seeing her siblings at assessment. Z expressed wide-ranging emotions throughout the assessment from unambiguous joy at seeing her father, through to expressing despair and crying heavily at the idea of living with him. Her spoken words and observed behaviours were incongruent and it is possible that as X and Y predicted, she has been influenced by her mother to support her views. The impact of this sort of behaviour is concerning and places an undue pressure upon her. It is likely that Z is prioritising her mother’s wishes above her own.
If Z were to live with her father it would go against her expressed wish, however, could be beneficial to her in the long term. In her father’s care she has her siblings and she clearly has a close relationship with her father despite her verbal rejection of him. It is anticipated that Z would struggle to be away from her mother, but it is unknown whether that would be more about her sense of responsibility to her mother or due to her close relationship with her. Z’s level of responsibility for her mother’s wellbeing is concerning and a potential burden to her. It is probable that X and Y have also experienced this burden in the past and unfortunately had few avenues to address and ultimately removed themselves completely from it. If Z remains with her mother, it is possible that she too will make the same decisions her siblings have made during her adolescence.
If Z remains with her mother, she is likely to continue to feel a level of responsibility for her which most likely will be heightened due to her being the only remaining child in her mother’s care. It is also probable that Z will continue to reject her father in order to appease her mother, and in doing so will inevitably lose the relationship she has with X and Y. It is possible that Z’s current rejection of her father is a direct response to pressure from her mother to do so. It is possible that Z’s interests would best be served by living with her siblings in her father’s care.
If this were to occur, it would be important that Z had regular time with her mother. However, if Z were to refuse to spend time with her father and report further rejection of him, consideration should be given to limiting the time between Z and her mother further. It is possible that Z would experience considerable influence from her mother given that she potentially could be the only child spending substantial time. It will be incumbent on Ms Kyte to ensure this arrangement works so that Z can enjoy relationships with both of her parents and her siblings.
The report went on to note that if all three children lived with the father, this would be very difficult for the mother and noted she would benefit from third-party assistance from a counsellor to assist her. The report recommended that the children live with the father, that the elder two children spend time with the mother according to their wishes and that Z spend each alternate weekend with her mother from conclusion of school Friday until return of school Monday. It was recommended that the elder children attend this time as well and be encouraged to do so by the father. The report concluded by recommending that the extant counselling being received by all the children be continued.
The evidence given at court
What follows is taken from my notes and does not, of course, purport to be a transcript. It endeavours to record those aspects of the evidence that struck me as being of significance.
The evidence of the mother
In evidence-in-chief the mother adopted her trial affidavit as true and correct and also affirmed the contents of her affidavits filed on 28 April and 21 November 2016 and 25 May 2017.
Under cross-examination by counsel for the father, the mother initially asserted that she did want orders for Y to spend time with her. Nonetheless, when it was pointed out to her that her Case Outline suggested time as agreed, she said she would love to spend time with the children. When pressed as to why she had resiled from her position in her Case Outline and taken to paragraph 54 of Ms E’s report (where Y expressed the view that she wished to spend time according to her wishes), the mother conceded that she believed her daughter should have a say and that it was ultimately up to the daughter as to the time to be spent.
The mother confirmed that she wanted Z to live with her. She confirmed that orders had been made in September 2016 for Z to spend time with her father. X had departed to live with his father in about Easter 2006, and Y had gone in May 2017. She last saw those two children at the family report interviews in August 2017. X had come to her for about three months, but he stopped in May 2017, at the same time as Y stopped. She said X seemed fine at her home. She said Z saw her father once after the June 2017 orders but did not wish to go thereafter.
Z reported that the father had grabbed her arm. She said the child had wished to come home to mother. The mother said she received a phone call on Friday at work, but this was too late. Z had spoken to the mother on Saturday on the speaker and said she loved her. The father was sitting next to her at the time. Z was upset when she got home. Accordingly, the mother organised a mental health plan for Z through her GP, Dr R, for five sessions. She is hoping to get another five sessions. She is fearful the incident will happen again. Z loves her father. The mother said she had encouraged Z to spend time with her father, but Z is not ready. Z has not seen her brother and sister for three months, and this is not acceptable. Z will not hop in the car. The mother tells Z that she needs to see her brother and sister and that she loves her father. It is important Z spend time with the father.
Y went to her father on the Thursday. The mother rang the father, who did not answer. The mother went to the police to see if they could help her to get Y back. She thought Y might have been abducted by anyone. Finally, she spoke to the father, who said Y was with him. She told the father she wanted her returned. She wrote a statement to the police because the father was breaching a court order. She was upset, but not angry at the time. She did not prevent Z spending time with the father in revenge. The time for Z to spend with her father was from Friday school to Monday. Z did not go to school that Friday, as she was stressed and upset.
The mother was cross-examined about the occasion she visited the school on 5 May 2017. She said she went to Y’s school with Z and wanted to speak with her. She asked if she could have Y’s phone and iPad. She said she had purchased these to be used at school. She was not punishing Y for going to her father’s.
When asked whether Y needed her phone, the mother did not directly respond. She said she had purchased the phone. She was asked this question three times, but her answers were entirely evasive and unresponsive, as they were throughout the entirety of questions about this incident.
Exhibit R1, tendered without objection, was put to the mother. This shows that the mother had requested that a meeting take place at school between her uncle and Y, but that the meeting remain a surprise for Y. The school refused. The mother said that her motivation in seeking to arrange this meeting was that Y would not see her and Y has a very close bond with the uncle. She said it was just for them to sit and talk.
The mother went on to concede that all three children were close. She felt that if Z did not live with her, then she should live with her siblings. All three children are close, but she was not confident the father would make Z available. She denied that X had spent time with her against his wishes in 2016 to 2017. The mother conceded the father is a good father and is not violent to the children. A is the half-sibling. Z likes A and misses X and Y.
Z did not want to attend the family report interviews. There are no chores for the children when they are at the father’s, and they can do what they like when they like.
The mother admitted that the family report had been difficult for her. She was unable to answer where the children should live if they were to be together. She wanted Z to live with her. She had read the family report and it was critical of both parents. She accepted that there was criticism of her and that the matters concerned had not impacted well on the children. These concessions did her credit. She confirmed that there had been conflict with the father for nine years and she was not proud of it. They had different parenting styles. She denied yelling a lot and denied hitting the children. X’s moving to live with his father was a complete surprise to her. He was a shy boy who did not have a lot of friends. Y was more outgoing. She had not unduly questioned X when he was with her. He was constantly texting on his phone to his father.
She noted that the consent of both parents was necessary for counselling and said that she was left out of everything. She said the father could have counselling with Z. The relations between the father and Z were not irrevocably damaged. She was not scared that Z would express the views she wished to live with the father.
If Z did, however, live with the father she said she would be cut out. She would not consent to Z living with the father. She denied speaking negatively of the father. She did not refer to X as a “Little Shit”. The mother asserted that this was made up by X as he had been brainwashed by the father. She confirmed that she had sent the letter to Y referred to at paragraph 51 of the family respondent. She told Y she had two boxes of letters at home. She writes letters to the children. They can read them if they come home.
The mother said her parenting style has changed. She asserted that the father was a habitual drug user. This was so despite 20 drug tests all of which had been clear. She said the last one had a high reading.
The mother did believe that the father was using ice and that you can flush things out of your system. She did not accept the results of the drug test.
The mother was questioned about her response to Y’s move to live with her father. She denied asking for Y’s locker combination at school. She said she did not ask Y’s friends to try and get Y to come home to her. It emerged, nonetheless, that she had spoken to a friend called Ms T and also to Ms T’s mother who was a friend of hers. She said that Ms T’s mother agreed with everything she (the mother) had said. She then confirmed that Y’s friends had indeed told her to go home. She had told Y’s boyfriend’s mother about difficulties at home. Y’s relationship with her boyfriend is now finished. Y holds her responsible for this. The mother denied being angry and said she saw herself as a mother first and foremost. She had backed off on her own accord.
The mother confirmed she had recently purchased a puppy. This could have been in about June or after Court in June. Z sees it as her dog. The father has now bought a puppy for his dwelling. The mother does not discuss Court stuff with Z. The mother cries a lot, however, because she does not see X and Y. She denied yelling. The mother denied working excessive numbers of evenings. Z may be lonely. She does not have her brother and sister around.
In re-examination the mother was taken to paragraph 23 of the family report. She said that Mr Kenward had already shown a bad track record at the time the report was prepared. He had kept X from her for six months and Y for four months. She would be cut out as a mother. Every kid needs their mum and she is already cut off from the older two. The mother was adamant that the children did not like her house rules. She said it was as simple as that. She said she could be more flexible in the future and might cut out some of the housework. She might get time off work so she could have Z’s friends over. She said she needed to be stronger. She said she had always been Z’s primary carer. She tendered exhibit R2 being the drug test to which reference has been made. It should be noted that exhibit R2 shows no drugs detected and is otherwise, as far as I can see, unremarkable. Certainly no submission to the contrary was made by either party.
The evidence of the father
The father is employed as a casual (occupation omitted). He said he works very rarely. He has not worked for the last two weeks. His work is very sporadic. Otherwise, he adopted his trial affidavit and other affidavits as true and correct in evidence-in-chief.
Under cross-examination the father confirmed that the relationship with the mother commenced in about 2000. X was born in 2001, Y in 2003 and Z in 2008. Separation took place in the first half of 2009 when Z was then less than one year old. The mother had always been the primary carer. The father thought that he had spent time with the children but there was a period of 18 months where he was not able to see them. After orders made by the Court in 2014 his time with the children was regular. He saw Z every second weekend. He could not remember what school she attended. He gave answers to the effect that Z was equally attached to both parents until 2014. He, nonetheless, confirmed that he was working when Z was born and the mother was the primary carer. There was then an 18 month period where he did not see the children but, notwithstanding this, he still thought the children’s attachment to each parent was equal. He had commenced a relationship with Ms M in about 2012 to 2013. She had been in Queensland and relocated with him to (omitted). Ms M’s daughter, A, is about eight years old. The mother became aware of his relationship with Ms M, but the relationship with Ms M commenced after the 18 month gap in time with the children already referred to. The father said Ms M (Ms M) was fine with his children. There is conflict between the mother and Ms M. He never speaks to the mother about Ms M. He said maybe he should have but he did not think it was necessary. He said communication between them was hard any way. She doesn’t like the children having a stepmother. There is a lack of communication on both sides. Even though they are separated it is necessary to have a relationship for the sake of the children. The father said maybe he could try harder in relation to communication although he tried before. He said the mother will always be the mother. Ms M would not replace her. There had been previous orders for joint parental responsibility which covers schooling, medical and counselling. He did not think about counselling at the start. The mother had the right to be involved. This goes both ways.
The father was cross-examined about X coming to live with him in Easter 2016. The father said that X had spoken to him for a couple of months before this actually occurred. He knew there were orders that X should live with the mother. He did not contact the mother about X’s views. Communications are no good and she would not listen so he did not communicate with her. There has been nothing but grief in the past. He told X about Court orders but X was adamant he was not going back. He tried to get X to abide by Court orders but X refused. He did not think X had gone to school on the Easter Tuesday. The father had tried to solve the problem with his solicitor. He contacted the school but could not recall what day. X did not have a uniform. The mother would not supply the uniform to him. The father’s evidence on this point was given in a style that one would properly describe as extremely accusatory of the mother.
He denied that X had taken two weeks off school. He had spoken to the school principal and told him that X was living with him. He was concerned that the mother would attend school. He thought X would have told her what was going on. He made arrangements for X to see a counsellor. X did not see the school counsellor. X was first taken to the doctor on 15 April 2016, and it emerged that Ms M attended as well. When asked why Ms M had been taken as well he replied, “She is my fiancée.” Nonetheless, he denied putting Ms M in the role of X’s mother.
The father confirmed that both X and Y attend Headspace. Y went on her own for the first three to four times.
The father has undertaken a post-separation parenting course. He had learned from this that it is about the children. The parents should try and communicate better and try harder. Children are stuck in the middle. He went on to say, however, that nothing had changed and he can only try so much.
Y has been with him since May 2017. The father said you cannot force teenagers. He said he had tried many times. It was pretty sad the children had not seen their mother but you cannot force them to go. There are reasons why they do not want to go.
The father was cross-examined about the incident on 5 May 2017 with Z referred to at paragraph 39 of the family report. He said Z had tried to ring her mother on Friday. He said this was impracticable because the mother was at work. Accordingly, Z was not able to speak to her mother. The father’s evidence on this point was evasive and unpersuasive.
The father confirmed that he did not want Z to spend school holidays with the mother because of the mother’s influence over her. He did not accept that Z wants to live with the mother. A nine year old is easily moulded. He said that he had been told that Z did not want to see him but that was not true.
He confirmed that the children undertake chores while living with him.
The father was not prepared to accept that the two older children, as they approached adolescence, would want to spend less time with Z. He had never withheld Z from the mother. He did not, however, think it important that Z spend time each week with her mother. He was afraid that the mother would influence Z to spend no time with him.
The father confirmed that X has a mobile phone but Y has lost hers at school. The children had chosen not to give the mother their telephone numbers. He encouraged them to phone her. Z has never asked to ring her mother except that one time. He confirmed that he would have no problems with there being a definite time ordered for telephone time with the mother. He was afraid that Z would not be returned if she spent school holiday time with the mother.
The evidence of Ms S
Ms S was interposed without objection at this point given that the two primary witnesses had been already heard. The family report was tendered as exhibit S2.
Under cross-examination for counsel by the father Ms S said that the mother was not positive about the father. There was distrust and ill-feeling between the parties and not much likelihood that their communications would improve. The conflict was entrenched. The parenting orders program had not been productive. Ms S was concerned with what X told her about having been coached by the mother in relation to earlier family reports, something also asserted by Y. Both of these children said the father’s house did not have this quality. X and Y said they did not want to be questioned by the mother and prevented from returning to the father. It was necessary for the mother to accept this but this would likely take time. Court orders had not been complied with in the past.
Z wants resolution. It would be very challenging for Z to move to the father in the short-term. The present arrangements represent almost a level of responsibility being applied to her. It was likely that the father could care for Z’s needs although it would be a difficult transition. Z was very happy to see her father. The father did not expect it. Z was unambiguous in her joy of seeing her father.
Z is exposed to the mother’s grief at the loss of the two older children and also gets the mother’s undivided attention. She knows it would make the mother very unhappy is she moved. If this move takes place Z would need good quality time with the mother. Z has been raised in an environment of perpetual conflict. It has been difficult for the older children to deal with the conflict between their parents. X was more confirmed but Y seemed to have some openness to a relationship with her mother. The mother’s parenting style has made it difficult for the children. Z might be the same as the older children but possibly not. It would be concerning if Z rejected the father.
The mother told Ms S that she had not learned anything from the parenting program and had said words to the effect, “there’s nothing new they could teach me.” Ms S described the mother’s response as flippant. Counselling might assist Z if change of residence took place.
Ms S had interviewed Ms M briefly. Ms M presented well. She was a source of support to the father and an active parent.
The mother has said that Z and A did not get on but Z said she got on okay with A.
Under cross-examination by counsel for the mother, Ms S indicated she was aware that the relationship lasted from 2000 to 2009. Z was very young at the time of separation. Ms S was not aware that there had been an 18 month hiatus in the father’s time at some point between 2009 to 2012. Z’s primary attachment was with her mother. This was probably more relevant when she was younger but still notable nonetheless. Z wanted to live with the mother. Ms S was concerned that the mother might seek to influence Z. X and Y are effectively independent and would have activities that would not involve Z. They still missed her. X and Y had some reaction to the chores they were required to undertake in their mother’s care. They feel more security with the father. It would be simplistic to suggest that this was to do with the strictness of routine in the mother’s house. It was possible the mother was concerned about the role of the stepmother but not particularly so.
When it was put to Ms S that Z should spend time in the off week with her mother, should she live with her father, Ms S said the main feature was a sense of stable base in one house and capacity to return to it. When questioned about time in the school holidays Ms S was of the view that if Z was returned without concerns this would be a good thing. If Z was being influenced in her mother’s house then time should be shorter. This might be addressed by staggered holiday arrangements. It was difficult to know specific phone time should be ordered because of the problems with parental cooperation.
The evidence of Ms M
Ms M adopted her affidavit as true and correct.
Under cross-examination Ms M confirmed that X had come to the father’s house on 25 March 2016. She confirmed that the children had been to them before this. She said it was not her role to be a parent to the children and she did not discipline them. She did tell them to do things. The relationship between X and the mother was broken. She had been with the father to the school as she was his partner. She said she still cared about the children even though they were not hers. She went to the doctor with the father and X. There was a decision to have counselling. She went to Headspace with X, as X said he wanted her and the father in the room.
Some brief observations about the credit of the witnesses
It is not possible to give judgment in this matter without making comment about the quality of the evidence given, particularly by the two primary players. Neither covered themselves in any great glory in the witness box. The mother was, at times, extraordinarily evasive and unresponsive. This was particularly the case in relation to whether the children should live together. It is clear that while she could see the benefits of the children being together, she simply cannot herself face Z going to live with the father. Her answers on the question of seeking to repossess Y’s iPad and telephone were extremely unimpressive. As earlier indicated, she had to be asked the question three times and still failed, in effect, to answer the question. While I have recorded she made some concessions, her lack of insight was really truly striking. Her endeavours to try and make Y return to her, which appeared to have played an active role in the cessation of Y’s relationship with her boyfriend and with one or more other friends, are truly extraordinary. Her concerns in this case are very much self-centred. Both she and the father struck me as being self-centred and selfish.
I do not suggest that the mother was wilfully dishonest in her answers but I do say that I have to approach her evidence with considerable caution.
The father, while arguably partly more insightful, likewise presented as having significant deficiencies. His answers were, at all relevant times, strongly accusatory of the mother in their tenor, and he was evasive also on occasions. I formed the clear impression that he would like to have a measure of revenge on the mother for what he perceives as her conduct in seeking to alienate the children from him (a perception by no means wholly inaccurate given what the two older children told Ms S). His answers to questions about whether the two older children would, as they got older, want to spend as much time with Z were argumentative and aggressive. His evidence must, likewise, be approached with a considerable measure of caution.
Ms M impressed the family report writer as presenting well and being a source of support for the father and an active parent. It is sufficient to say that I formed exactly the same impression.
Ms S was a professional witness giving evidence within her sphere of expertise. Her answers were careful, considered and entirely fair. She was not shaken in cross-examination at all.
Findings about some of the disputed facts
These parties commenced a relationship in either 2000 or 2001 and it ended in 2009 or 2010. While the dates given closer to the events are probably more likely to be accurate, nothing turns upon these minor discrepancies. What is clear is that the parents separated shortly after Z’s birth and have been litigating intermittently, but energetically, ever since. Z has, in truth, known nothing else.
The mother defines herself as a mother. This is, at the same time, a strength and a weakness. She has clearly sought to alienate the children from the father in the past and I accept the disclosures made by X and Y to Ms S in this regard. Nonetheless, the father, no doubt embittered as I find he is by his past experiences, is nothing shy in returning the compliment. It is difficult to imagine anything positive being said about the mother in the father’s household. Given the father’s perception of past events, and given its partial accuracy, this is scarcely surprising.
Both of these parents, as Ms S pointed out, opportunistically seek to use the children as pawns in their pursuit of their dislike of one another. They seem to love their children but hate each other more. Both parents are actively conniving to have all three children live with them and to exclude the other. Having seen them and heard them give their evidence for reasonably lengthy periods of time I have no doubt that this is the truth of the matter. I accept Ms S’s observation that X and Y did not decamp to their father because of dissatisfaction with household chores in the mother’s household. I entirely agree that this is a grossly simplistic analysis of the situation.
X and Y left their mother’s and went to live with their father because they could no longer tolerate the mother’s constant questioning of them about the father and, as I find, her denigration of him. When X left he was then placed by the mother, so to speak, in the other camp and I accept that she referred to him as a “Little Shit” when he left.
I accept Ms S’s evidence that Z is now in a situation where she almost has a measure of responsibility for her mother as she expressed to Ms S. This is not a fair position for a child of her years to be in.
I accept that Ms M is not seeking, herself, to sunder the mother’s role in the children’s lives. I also accept that she is, nonetheless, concerned to assist the children as part of the household in a manner that I would describe generally as entirely proper. Her active inclusion in X’s health appointments suggest an occasional over-stepping of the mark. X’s health is a matter for his parents in the first instance.
Having made these findings I move now to the statutory pathway set out by the Full Court in Goode & Goode [2006] FamCA 1346 (“Goode v Goode”) at paragraph 65 which, notwithstanding subsequent amendment and authority, in my respectful view, remains an appropriate starting point.
The statutory pathway as set out in Goode v Goode at [65] is as follows:
“Summary
[65] In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.”
Parental responsibility
Both of these parents have shown marked deficiency in their conduct under this heading. Both have enrolled the children in counselling without any reference to the other, even though each appeared to understand in the witness box how inappropriate this was. Each of these parents seems to me almost to glory in the poor interpersonal dynamic between them. Each of them wholly blames the other for this state of affairs. In my view, they are as bad as each other and it is high time that the Court, now finally faced with the task of making findings, makes it clear that this is not a case in which either parent is properly in a position to make any criticisms much of the other given their own inadequacies. They are equally to blame for the deplorable current state of affairs.
An order for sole parental responsibility would simply be an empowerment tool in favour of the parent to whom it is granted and against the person to whom it is not. Notwithstanding my lack of confidence that these two parents will be able to mend their ways and improve their communication, it is plainly in the children’s best interests that there be an order for equal-shared parental responsibility. I note that although there are historical allegations of family violence at the time of separation, the mother has told Ms S that she was never scared of the father including on that occasion. This tends to suggest that the mother’s account of the matter was, at the very least, floridly overblown. Any normal person would be scared of somebody who is holding a machete to their head, which is the mother’s allegation.
Both of these parents, at least in theory, seem to agree that the other parent should play a role in the children’s lives and I agree. It is in substance what all the children want although, of course, all the children want the fighting to stop. The presumption as to equal-shared parental responsibility is not displaced by the need to protect the children from abuse or family violence (section 65DA(2)). It should be noted that the father has sought an order for equal-shared parental responsibility (see Case Outline filed 27/09/2017) and the mother’s case outline and submissions did not, in terms, object.
Equal time
Nobody has suggested equal time for any of these children and it would plainly be totally inappropriate given the disputation between the parents.
Substantial and significant time
In the ultimate, albeit unwillingly, the mother accepts that X and Y should spend time with her in accordance with their wishes. She would dearly love to have both of them back with her, particularly Y, but accepts that this is not the case.
This brings us to Z’s best interests which are appropriately addressed by reference to the matters in section 60CC of the Act.
The primary considerations
Everyone agrees that it is a benefit to Z to have a meaningful relationship with each of her parents. As earlier indicated there is really no concern in any meaningful way about physical harm. The area which is more open to question is that of psychological harm, which is a matter best addressed following consideration of the matters in section 60CC(3), noting that pursuant to section 60CC(2A) that matter is required to be given greater weight.
Section 60CC(3)(a)
Z’s views could not be more clearly expressed. She wants to live with her mother and, indeed, even feels that it is her responsibility to look after her mother. This latter factor is a matter of major concern. It is not the job of a nine year old to be looking after an adult. Nonetheless, Z’s views are perfectly clear and are not to be ignored. They must be given considerable weight.
Section 60CC(3)(b)
Z has a close, but arguably slightly enmeshed, relationship with her mother, who has been her primary carer all her life. Her relationship with her father is a strong one as evinced by what happened when she saw him at the family report interview. She ran happily past her siblings and engaged with him affectionately. While she subsequently made remarks leading to an opposite conclusion, which plainly derived from her mother (even if she was not physically present at the time), it is clear that she has a warm and close relationship with her father. There is no reason to suppose that she does not have a satisfactory relationship with Ms M who impressed me, as I say again, as sensible and appropriately committed, but with an appreciation of the limits of her role, as a stepmother. Z also has a close relationship with her two siblings and gets on, at least sufficiently well, with A. Much was said about the nature of Z’s relationship with the two older siblings. The Court is asked to accept that as these children reach adolescence they will have less to do with their younger sister. On any view of the matter it is clear that Z misses them. From the observations of Ms S it is clear that the elder children love and have a good relationship with Z. While it is true that in the nature of things it is possible, if not likely, that this relationship may alter slightly as the two older siblings become more adult and increasingly undertake their own activities, this latter factor is to an extent speculative at the present time and cannot be given undue weight although, of course, I take note of the possibility.
Section 60CC(3)(c)
Both these parents seem to me to have taken proper steps to be involved with the children’s lives. The 18 month gap in time which took place, it would appear, somewhere between 2009 and 2012 (I accept the submissions of counsel for the father that both these witnesses are terrible historians and it is not possible to be more precise than that) undoubtedly took place. It is not clear whether this occurred because of the mother’s initiatives or a lack of proper concern on the part of the father. It is quite clear that certainly since 2014 at the very latest the father has been actively seeking to be involved with the children and, in my view, if there was any prior deficiency it has well and truly been overtaken by events. The fact that the two older children have gone to live with him of their own accord speaks volumes in this regard. The mother was, of course, the primary carer of the children until the two older ones decamped and still is of Z and still very much wishes to play the same role in relation to the other two children.
Section 60CC(3)(ca)
The question of child support, as so often, is scarcely satisfactory in this case but the evidence simply is not clear enough to suggest that the father either has or has not properly failed to fulfil his obligations to maintain the children. Plainly, the mother has done her best at all times.
Section 60CC(3)(d)
This, in the context of this case, is an important subsection. The evidence from Ms S, which I repeat I accept, is clear. At the very best taking Z from the mother’s household, where she has expressed a clear wish to remain would be traumatic for her. She might well need counselling to adapt to the change. It should be noted that even on the father’s version of events, on at least one occasion, Z has become deeply distressed during her time with him because of her mother’s absence (see paragraph 39 of the family report). It should be noted that the father’s response to that incident, while perhaps understandable at one level, shows a lack of child focus and a lack of parental skill in responding to the situation. Furthermore, given the uniformly negative views of the mother held by the father, the one likely effect of her going to live at this stage primarily with her father would be a diminution, if not in the ultimate sundering, of her relationship with her mother.
Section 60CC(3)(e)
There is no practical difficulty or expense such as to favour either sides’ proposal in this case.
Section 60CC(3)(f)
Each of these parents have their strengths insofar as they love their children but their deficiencies insofar as their mutual animosity impacts very negatively upon their capacity to provide for Z’s needs. The mother, in particular, identifies herself wholly as a mother and her concerns as to Z moving to live with her father has everything to do with the impact that this would have upon that self-perception. It is not even articulated by her as being primarily a matter of Z’s best interest. She concentrates upon the effects upon herself if Z were to be removed. Although not expressed in such stark terms, I formed a clear view that the father sought revenge against the mother while he was giving his evidence and this, likewise, impacts upon his capacity to provide for Z’s needs, which must include in either event the relationship with the non-primary custodial parent.
Section 60CC(3)(g)
Z is nine years old and is clearly already troubled by the discord that she has seen around her all her life. Her two older siblings have, because of the mother’s behaviour towards them, decamped to their father. Both of the father and mother are immature in the way they each blame each other for all the problems that have confronted them and, as earlier indicated, are self-centred and selfish in this regard. These are deficiencies that stand in the way of Z’s happiness and development. It is to be hoped that reading these stark criticisms may bring some moments of self-reflection to two adult people who have not behaved like adults in the past and enable them to move forward more productively in the future.
Section 60CC(3)(h)
This is not relevant.
Section 60CC(3)(i)
The mother, in particular, has a strongly proprietary view of her relationship with Z and indeed, notwithstanding their absence, with the other two children. The father echoes this although perhaps does not express it so loudly. Their attitude to the responsibilities of parenthood is clouded by their disputation.
Section 60CC(3)(j)
Although this is self-evidently an important matter, I have already dealt with it. There is no family violence that now operates in any meaningful way upon the Court’s deliberations.
Section 60CC(3)(k)
This does not appear to be relevant.
Section 60CC(3)(l)
Given the nature of the findings the Court has made, this case presents a very stark and difficult dilemma. There is a very real risk that if Z remains in the mother’s care, the mother will seek to suborn her away from the father in what Ms S described as a desperate attempt to cling even tighter to her because of her own needs. By the same token, the mother’s perception that she will be cut out if Z goes to live with her father is scarcely one that can be said to be wholly unreasonable or impossible of fruition were Z to live wholly with the father.
I have made particularly strong criticism of both of the parents at various points in this judgment because they have run their case in such a fashion that such findings are impossible to avoid. What I hope is that having finally had their day in court, and got their mutual dislike off their chest, they may, having read this decision, take it on board properly. In my opinion, this is a case in which interim orders should be made. In the event that, in the interim period until the matter is further brought back, the mother improves her behaviour and Z spends regular and happy time with her father then it would be appropriate for Z to continue to live with her. Conversely, if the father does what he says he is minded to do, namely, to encourage the older two children to spend time with their mother, something they are prepared to do provided she eases up on them, then that will, likewise, sound very much to his credit. In my view, the central dilemma of Z’s primary residence is so finely balanced because of the inadequacies of the parents that it is not in Z’s best interests to make final orders at this time but rather to make interim orders to be reviewed in nine months’ time.
Section 60CC(3)(m)
There are no other matters.
Conclusion
As indicated, I found this a distressing case to determine. The picture I get is of this lovely young child increasingly pulled in the all too obvious struggle between her parents, whose love for her is less than their desire to triumph over the other parent. The interim orders I am making are giving the parties an opportunity to show whether they really mean the things they say they want to do. They also give the parties a time to reflect upon their conduct. The father gained some superficial benefit from the post-separation parenting course he has undertaken. He mouths the correct phrases. The trouble is he has not yet applied them. This is his opportunity to do so. The mother gave a flippant, insightless answer when questioned about her parenting course. Contrary to her view, there is all too much she needs to learn about appropriate parenting. Unless she can get her mind around the failures that she has exhibited thus far, the likelihood is that residence will need to be reconsidered.
I do not understand there to be great dispute between the parties in the event that Z continues to live with her mother in the meantime. I have prepared orders to give effect to these conclusions and will hear from the parties in case there are any matters I have overlooked.
I certify that the preceding one-hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 8 November 2017
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