Caratha and Laykin

[2019] FamCA 1026

FAMILY COURT OF AUSTRALIA

CARATHA & LAYKIN [2019] FamCA 1026

FAMILY LAW – CHILDREN – Part-heard final hearing – further trial date adjourned for further evidence to be filed and subpoena to be issued – further interim orders made for unsupervised time

Family Law Act 1975 (Cth)

APPLICANT: Mr Caratha

RESPONDENT: Ms Laykin

FILE NUMBER: BRC 2314 of 2015

DATE DELIVERED: 28 November 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 28 November 2019

REPRESENTATION

THE APPLICANT: Self-represented

COUNSEL FOR THE RESPONDENT: Ms M Cullen

SOLICITOR FOR THE RESPONDENT: Focus Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms R Horsley

INDEPENDENT CHILDREN’S LAWYER: Ms S Bolton
CNG Law

Orders

1. That Order 2 of the Orders made 29 October 2018 be discharged.

2. That until further order the child, X born … 2012 (“the child”) spend time with the father:

   (a)during school term:

   (i)in week one (1) and each alternate week thereafter, from after school Thursday until before school Monday (or 3.00pm Monday in the event that Monday is a public holiday or pupil free day); and

   (ii)in week two (2) and each alternate week thereafter, from after school Thursday until before school Friday;

   (b)during school holidays, continuing in the alternating week structure of school terms:

   (i)in week one (1) and each alternate weekend thereafter, from 3.00pm Thursday until 3.00pm Monday; and

   (ii)in week two (2) and each alternate week thereafter, from 3.00pm Thursday until 3.00pm Friday.

3. That irrespective of any other Orders:

   (a)the child shall spend time with the father from 12.00pm on Christmas Eve 24 December 2019 until 3.00pm Christmas Day 25 December 2019; and

   (b)the child shall spend time with the mother from 3.00pm Christmas Day 25 December 2019 until 12.00pm Boxing Day 26 December 2019.

4. That the Independent Children’s Lawyer have leave to issue subpoenae to the Queensland Police Service and the B Hospital seeking records in relation to Mr C born …1961.

5. That unless in the event of an emergency, the parents shall communicate by way of SMS text message only and only in relation to the child.

6. That the parties advise the Independent Children’s Lawyer by no later than 12.00pm on 20 December 2019 whether they require Ms D and/or Dr E to be available for cross-examination.

7. That each party have leave to file and must serve by no later than 4.00pm on 24 January 2020 one (1) Affidavit of any further evidence in chief they wish to rely upon.

8. That the mother shall file and serve by no later than 4.00pm 24 January 2020 an Affidavit by Mr C in respect of the incident that took place at the mother’s home and the nature of his relationship with the mother.

9. That these proceedings be set down for Final Hearing for not more than two (2) days commencing at 10.00am on 3 February 2020 in the Family Court of Australia at Brisbane.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Caratha & Laykin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2314 of 2015

Mr Caratha

Applicant

And

Ms Laykin

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(settled from oral reasons delivered)

Introduction

1. The child X has been the subject of a significant conflict between parents who separated in May 2014, where the litigation has, despite final consent orders having been made in January 2016 for week-about time, which broke down fairly quickly, been engaged in litigation in, now, the Family Court of Australia, that was, to a large degree, on its face, fuelled by the father asserting the child, X, was at an unacceptable risk of harm of both a sexual and physical nature in the mother’s care.  The way the father, and it seemed to the Federal Circuit Court of Australia, expressed those views, caused Judge Spelleken in December 2016 to order that the father’s time with the child be supervised, and so it remains despite many events and attempts at trials listed and not heard and whatever, until the matter came before this Court, after being transferred in October 2018.  The father’s supervised time had begun in January 2017.

2. After, as I recall, approximately three days of evidence, and in circumstances where the father’s then solicitors and retained Counsel, Mr F, opened the father’s case with a position that the father no longer asserts that X was at any unacceptable risk in the mother’s care (and that was in respect of both the actions of Ms H or for any other reason) reframed the father’s case and the trial proceeded.

3. The father, at the first question of cross-examination by then Counsel for the mother (according to my notes), indicated that he no longer held the view that the child was at risk in the mother’s care.  There had been no recent disclosures and that he, in some ways, attributed this position to getting better legal advice from solicitors who only came on the record a matter of some six weeks before the trial was to begin.

4. Evidence had been taken during the trial from the father, Dr J (who was interposed and who had not seen the child since 6 September 2016), the parental grandfather Mr K Caratha and the paternal grandmother Ms L Caratha.  In respect of Ms L Caratha, she gave evidence that she still held the view that the child was at risk - not a view her son was then, under oath, expressing.  Further evidence from Mr M, the father’s counsellor and evidence from and cross-examination by Dr E the Court Expert independent Psychiatrist was received.  Dr E gave evidence that the father, in his assessment, suffered the psychiatric syndrome of “pathological child focused anxiety”, but said that, ultimately, the test would be a normalisation of his mind when he has some unsupervised time characterising it by the words, the “proof is in the eating”.  Evidence from Ms N at the contact centre who had observed the very special relationship between the father and X; evidence from the mother; evidence from a Dr O who, fairly unsatisfactorily, and I think, in my assessment, sadly, did not have a full understanding of all the facts and who’s actions, by telling the father he should act protectively, were not well-founded when she delivered those words, was also heard.

5. Ms D, a counsellor who had been retained under the Court Orders who, when she gave evidence, had not seen the child since October 2017, expressed concerns about the father’s fixation about events in the mother’s household, and finally, the Court heard evidence by the family report writer, Ms P, who had delivered two family reports and who expressed her main concerns still remain the father’s fixation about the past.  Ms P expressed surprise that the father’s beliefs had changed, but in the circumstances supported unsupervised time if the Court found, on the evidence, that it should accept the father’s sworn evidence that time could move, after what was then nearly two years, to an unsupervised regime.

6. I can recall at the end of submissions on 29 October 2018, and before the order was made at that time by consent, that I expressed to Counsel then engaged, Mr F, Ms Cullen and Mr G (as he then was), acting for the Independent Children’s Lawyer (“ICL”), that perhaps with this issue dealt with, these parents could seek to cooperatively parent into the future for young X.  Because what was absolutely clear to the Court is that she had a strong love, affection and bond with both her mother and father.  That does not seem to have waivered.

7. In the hope that the parties might reflect on a changed regime from the unsupervised time ordered on 29 October 2018, the matter was listed back in January 2019.  I was hopeful that the parties might have been able to narrow the dispute.  They were not able to.  The one issue that was not in dispute, and the father did not contend for, nor did the ICL at that time contend for, and the father had never contended for, the father’s time to return to a supervised regime.  There were disputes about the amount of time.  The father was still primarily seeking the child live with him or at the least, that there be an equal shared care arrangement.

8. The matter was adjourned until delivery of judgment.  I have already indicated that, sadly, that time for delivering judgment was longer than I would have hoped and more than, I think, the parties had reason to expect.  However, as it has turned out, perhaps, the delay in delivering judgment has allowed the Court to consider what both parties say is new evidence, and do so in a fairly timely way.  Whereas, had orders been made and the evidence which has now transpired come to light, inevitably one of the parties will have brought a fresh application to the Court under the principles of Rice & Asplund (1979) FLC 90-725 and they would have argued that a material change of circumstances had occurred.

9. Ms Bolton, who has been the very dedicated, hardworking ICL in this case for some time, after response to an email from Ms D received on 20 September 2019, and shaped by a consultation with the child on 19 September 2019, the notes now being part of Exhibit 1 today, raised some very real concerns about the child’s mental health and wellbeing.  I agree with Ms Horsley, the newly retained Counsel for the ICL, that the email from Ms D and the notes as at 19 September 2019 could be characterised as a concern from the comments made by the child that she was, either overtly or not, feeling the pressure of supporting her father who was, the child said, indicating that her father was sad; had no one in his life, whereas the mother did, and, generally, could be seen to have been putting pressure on the child.

10. What is apparent however is that the events of September 2019 were preceded by other events, some of which I have very limited evidence.  For example, it now appears that in April 2019, there was an event at the home of the mother of which the child became aware.  I am not able to say whether she had witnessed it or whether she had witnessed the sequela of it, but the father says he was told some, now perhaps, two months later on the mother’s case as asserted through her Counsel today, that when she was going to the B Hospital to see the paternal grandfather, with whom X has also a close relationship, she indicated to the father that she had been at that hospital on an earlier occasion to see “Mr C” after he had been stabbed. There is nothing in the mother’s material filed for today that alludes to that event.  However, it seems to have been sufficiently serious for Mr C, who the mother says is not her partner but a friend who lives on the property, to be admitted to a hospital at least for a period, and for the child’s relationship with “Mr C” to be such that the mother thought it was in the best interests that the child should go and visit him in hospital after what must have been a very traumatic event.  It is not, in my view, unreasonable that the father could have expected to know more about that event if it was affecting his daughter.  His concerns about the lack of information has caused him to seek to file, and I now give leave for the ICL to do so, rather than the father, a subpoena to the Queensland Police Service and the B Hospital in relation to that event.

11. The unrepresented father sought to file subpoenae for today, but some non-compliance with Rules seemed to prevent them being filed.  However, the father, I think, is alleged to have also been guilty of material non-disclosure to the mother.  It seems that on or about 18 June 2019, the father suffered, variously described as, a “massive heart attack”.  The full extent of the incident is not currently in evidence before the Court, but the father says he will be able to provide that evidence when the matter returns to the Court on 3 February 2020.  It seems clear and not in dispute that 18 June 2019 was a Tuesday.

12. Under the orders that exist, the child was to come into the care of the father on the Wednesday night after school.  The suggestion is that the father did not inform the mother that he would not be able to collect the child from school, as is his general practice.  The father caused, either himself or through his parents, to advise the school that the father had suffered a heart attack, and that the grandparents would collect the child from school.  The notes from the school suggest that the school, no doubt aware of the high conflict between these parties by this stage, raised concerns about any liability they may suffer if the paternal grandfather and/or grandmother collected the child rather than the father, as the current Orders did not allow that to occur.

13. Now, whether the mother sought, unreasonably and unfairly, to take advantage of that difficulty in the Orders, is not clear however on Wednesday, 19 June 2019 she collected the child, is a matter which I will spend a short period of time on, on the next occasion.  It may well be that the mother says that she was concerned as to who would care for the child if the father was ill, or how long he would be ill for, or if the child was going to be exposed to her father in some sort of medical distress.  However, whatever occurred, it was certainly a manifestation of their poor, ineffective communication that an event not only occurred on 19 June 2019, but that the school was required to, in some way, referee the event.  It was very unfair to the school, and very unfair to the child who, it seems, was distressed, not that the mother collected her, but because she would have expected the father to collect her.  The matter could have been dealt with, no doubt, much better.  Exhibit 2 are notes from the school which include some summary of the school’s perception of the events of 19 June 2019, but more importantly, perhaps, as Ms Cullen draws to my attention, approximately a week later there was discussions between the school and/or the school counsellor.  The gravamen of the concern is that it is asserted that the father may have indicated to the school that he had evidence that the child, X, had been molested by her older sister.  In respect of that alleged disclosure – and the father has not put on evidence about that yet – on 26 June 2019, it is asserted that the father, accompanied by his mother, L, again indicated, without apparently a reference other than a couple of years ago, that X had told him and the grandmother, L, that her older sister was hurting her, and that he thought it appropriate that he present a report from a psychologist, it is inferred, Dr J, which X had attended.

14. It is, of course, a concern that if the father was believed as to the evidence he gave under oath in the case he ran on October 2018, that he would see the need to dredge up an event that he no longer accepted, on his evidence, that occurred over three years earlier.  Again, that event is one which Ms Cullen, on behalf of the mother, says is sufficient, along with other events, which I will refer to briefly now, to cause the unsupervised time the child has now been enjoying with the father in one form or another to cease.

15. Ms Cullen, who of course represented the mother at the trial and has a clear understanding of the evidence in this case, asserts to the Court now that we should move to a supervised environment again, because of the risks which the Court should, on an interim basis, and on the evidence earlier received, find the father presents of psychological harm to the child.  She relies upon the father’s school presentations and comments.  She relies upon arguments advanced by the father to the ICL when the child was not in his care, as she should have been under the Orders, but where the mother had – the father would say, again - withheld the child.  That issue that was not corrected until my Orders of 9 October 2019.  It is not hard to accept, with the history of this matter, that on 8 October 2019, before the event before me on 9 October 2019, the father’s emotional state would have been extremely heightened.  He did not have, it seems, the benefit of independent legal advice to filter or guide him, his lawyers on the record having withdrawn from the case about one week before then.

16. I can understand the mother’s concerns and, of course, as I have indicated to the father, if he is unable to move on in this case and continues to hold strongly negative views about the mother’s care of the child, then that could be a serious hurdle to either increasing unsupervised time, as he seeks, including change of residence, or even averting a return to supervised time or something worse, namely, less time with the child than he could get from the supervised environment.  But I have formed no concluded view sufficient to allow me to be satisfied that in the best interests of X at this stage her relationship to the father should be again affected by moving into a supervised environment.  I certainly see nothing in the evidence at this stage that gives me any confidence that the required reasonable practicability that needs to be demonstrated for an equal time order – even a substantial and significant time order – is present in this case, noting that the mother continues to hold the benefit of a sole parental responsibility order.

17. I, for the reasons given, and in my exchanges with Ms Cullen – whilst I retain some concerns about the conduct of both of the parents, as I have indicated, on balance, believe it is in the best interests of the child for the child to continue to have unsupervised time with the father, most of which over the next six to eight weeks will be during a school holiday environment.

18. For these reasons, I accept, as now does the father when it was indicated the Court would not be prepared to order an equal time regime, the order proposed by the ICL, save that the changeover on Christmas Day shall be at 3.00pm, and not 12 noon.  I make that order on an interim basis.

19. Although the mother had indicated in her proposed orders for this interim hearing a range of orders, Ms Cullen properly accepts that most of those orders have already been made, and do not need to be made again.  I am prepared, as the ICL indicated, to incorporate in the orders I now make, in a vain hope perhaps that it may make a difference, but in the hope that there is no emergency, the mother’s proposed order 11 about communication.

20. It is not necessary to consider order 12 because I am not ordering supervised time.  I will now, as not part of these Reasons, discuss with the parties what steps need to be taken to ensure that when this matter returns to the Court on 3 February 2020 we can truly complete the case, which has had a long and unfortunate history.

21. I will direct that the parties to advise the ICL by 12 noon on 20 December 2019 whether they require Ms D and/or Dr E to be available for cross-examination.

22. Each party shall have leave to file and must serve by 24 January 2020 one affidavit of any further evidence in chief they wish to rely upon.  Just one affidavit, but I will say the mother shall file and serve by 24 January 2020 an affidavit by Mr C in respect of the incident that took place at the mother’s home, and the nature of his relationship with the mother.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 28 November 2019.

Associate:

Date:  28 January 2020