Caratha & Laykin
[2020] FamCA 1093
•22 December 2020
FAMILY COURT OF AUSTRALIA
Caratha & Laykin [2020] FamCA 1093
File number(s): BRC 2314 of 2015 Judgment of: BAUMANN J Date of judgment: 22 December 2020 Catchwords: FAMILY LAW – CHILDREN – Contested residence – Orders made for the child to live with the mother and spend time with the father Legislation: Family Law Act 1975 Cases cited: Caratha & Laykin [2019] FamCA 1026
Rice & Asplund (1979) FLC 90-725
Vallans & Vallans (2019) 60 Fam LR 193
Number of paragraphs: 73 Date of hearing: 10, 11, 12 & 29 October 2018; 25 January 2019; 28 November 2019 and 3 & 4 February 2020 Place: Brisbane Counsel for the Applicant: Mr J Bunning (10, 11, 12 & 29 October 2018; 25 January 2019)
Self-represented (28 November 2019; 3 & 4 February 2020)Counsel for the Respondent: Ms M Cullen Counsel for the Independent Children’s Lawyer: Mr G Andrew (10, 11, 12 & 29 October 2018; 25 January 2019)
Ms R Horsley (28 November 2019; 3 & 4 February 2020)ORDERS
BRC 2314 of 2015 BETWEEN: MR CARATHA
Applicant
AND: MS LAYKIN
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
22 DECEMBER 2020
THE COURT ORDERS:
Parental responsibility
1.That the mother have sole parental responsibility for the child, X born … 2012 (“the child”).
2.That for the purpose of Order 1, the mother shall:
(a)Firstly, notify the father of any decision which is to be made and seek his input in relation to that decision;
(b)The father shall reply to the mother as soon as is reasonably practicable and within seven (7) days; and
(c)The mother shall inform the father of the outcome of the decision made.
Living arrangements
3.That the child live with the mother.
4.That the child spend time with the father as agreed between the parents in writing, but failing agreement as follows:
(a)During all school terms, each alternate week from after school Wednesday (or 3.00pm if a non-school day) until before school Monday (or 3.00pm if a nonschool day);
(b)During Easter, June/July and September gazetted school holidays:
(i)In 2021 and each alternate year thereafter for the second half of the Easter, June/July and September school holidays; and
(ii)For the purpose of calculating one half of the school holidays the total number of nights from the last day of the school term until the last night prior to the recommencement of school are added together and divided in half. In the event that there is an odd number of nights for the purpose of this calculation the child shall spend the additional night with the father.
5.That during the December/January gazetted school holidays the child spend time with the mother and father as agreed between the parents in writing, but failing agreement as follows:
(a)In 2020 and each alternate year thereafter for the first two weeks of the holidays with the mother, commencing 3.00pm on the last day of school, the following two weeks with the father, the week thereafter with the mother, and the final week with the father with the father to take the child to the first day of school for term one (1);
(b)In 2021 and each alternate year thereafter for the first two (2) weeks of the holidays with the father commencing 3.00pm on the last day of school, the following two (2) weeks with the mother, the week thereafter with the father, and the final week with the mother, with the mother to take the child to the first day of school for term one (1).
Special occasions
6.That unless the child is already residing with the mother, she shall spend from after school Friday (or 3.00pm if a non-school day) until before school Monday (or 3.00pm if a non-school day) on Mother’s Day weekend with the mother each year.
7.That unless the child is already residing with the father, she shall spend from after school Friday (or 3.00pm if a non-school day) until before school Monday (or 3.00pm if a non-school day) on Father’s Day weekend with the father each year.
8.That the parent with whom the child is not residing with on her birthday shall contact the child by telephone at 5.00pm, and the other parent shall ensure that the telephone call is facilitated.
9.That in 2020 and each alternate year thereafter the child shall live with the father from 12 noon Christmas Eve until 9.00am Boxing Day, and with the mother from 9.00am Boxing Day until 12 noon on 27 December.
10.In 2021 and each alternate year thereafter the child shall live with the mother from 12 noon Boxing Day until 9.00am Boxing Day, and with the father from 9.00am Boxing Day until 12 noon on 27 December.
Changeovers
11.That whilst the mother does not own a motor vehicle, changeovers shall occur as follows:
(a)If the changeover day is a school day the parent commencing time shall collect the child from school at the time provided for in these Orders;
(b)If the changeover day is a non-school day, changeover shall take place outside the Q Town Library, located at R Street, Q Town; and
(c)Only the mother and father are to attend at changeover, or a person nominated by either parent.
12.That should the mother obtain a motor vehicle she is to forthwith notify the father of same and changeovers shall occur as follows:
(a)If the changeover day is a school day the parent commencing time shall collect the child from school at the time provided for in these Orders;
(b)If the changeover day is a non-school day, changeover shall take place outside of S Park in the car park; and
(c)Only the mother and father are to attend at changeover, or a person nominated by either parent.
Ms D
13.That the child is to attend with Ms D as directed by Ms D, or with any other such counsellor as recommended by Ms D.
14.That the mother and father shall attend to payment of one half of the associated cost of the child attending with Ms D.
15.That the child is to attend all scheduled appointments with Ms D unless she is unwell.
16.That should the child make any comment, complaint or disclosure to either parent in relation to her genital area hurting, difficulty toileting, her genital area being harmed, or allegations that she is being abused, physically, sexually or emotionally in either parent’s home, the parent to whom the disclosure was made is to notify the other parent within twenty four (24) hours and send an email to Ms D (or the counsellor with whom the child is attending with at that time) within twenty four (24) hours and schedule an appointment with Ms D for the earliest available opportunity.
17.That should the child make any complaint in relation to any medical issue concerning her genital area (that is not an emergency) that causes the father concern that the child ought to attend with a medical practitioner, the father is to notify the mother by way of text message and the mother shall schedule the necessary appointment for the child with her treating General Practitioner as soon as is reasonably practicable.
Restraints
18.That the father is restrained by injunction as follows:
(a)From inspecting or photographing the child’s genital area at any time, or permitting any other person from inspecting or photographing the child’s genital area at any time;
(b)From facilitating, or permitting any other person from facilitating, the child attending with any medical practitioner in relation to any concern he holds that the child may have been sexually abused or abused; and
(c)From recording any interactions with the child or any changeovers with the mother.
19.That the mother and father are restrained from relocating the child to reside any further than thirty (30) minutes travel from the school at which she attends, unless otherwise agreed by the parents in writing.
Schooling
20.That the child is to attend Q Town State School during the remainder of her primary schooling years unless otherwise agreed by the parents in writing.
21.That the child shall attend Q Town State High school for her secondary education years, unless otherwise agreed by the parents in writing.
22.That the child is to attend school at all times as is required.
General
23.This Order acts as authority for the father to obtain the following information, and for the purpose of same the mother shall sign any necessary authority required within forty eight (48) hours of such request being made by the father to enable him to obtain such information:
(a)Any information in relation to any medical treatment obtained for the child, except as is prohibited by any relevant privacy laws from time to time;
(b)Any information in relation to the child’s schooling, including newsletters, report cards, school photographs; and
(c)Any information in relation to any extracurricular activity that the child is engaged in.
24.That neither parent is to enrol the child in any extra-curricular activity which shall occur during the time the child is living with the other parent, without obtaining the other parent’s express written consent.
25.That both parents are permitted to attend at any school or extra-curricular activity events such as sports carnivals, performances, parent/teacher interviews that may occur whilst the child is living with the other parent, with the exception of training or practices.
26.That the parents shall have leave to provide to their chosen counsellor a copy of these Orders and the Reasons for Judgment delivered 22 December 2020.
27.That the Independent Children's Lawyer be discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
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).
REASONS FOR JUDGMENT
BAUMANN J:
INTRODUCTION
These parenting proceeds relate to a child, X born in 2012, and involve the Applicant father, Mr Caratha and the Respondent mother, Ms Laykin. The proceedings have been on foot in various ways and in various courts since the father commenced proceedings in the Federal Circuit Court of Australia in March 2015. These Reasons set out a relevant procedural chronology, although in my Reasons delivered ex tempore on 28 November 2019, some of the history to that time was also set out (see Caratha & Laykin [2019] FamCA 1026).
Relevantly, however, during the course of the first trial listed to commence and which did commence on 10 October 2018, and after cross-examination of the father; Dr J (a Psychologist who counselled the child); the paternal grandfather Mr K Caratha; the paternal grandmother Ms K Caratha; the father’s personal counsellor Mr M and the Court expert Psychiatrist Dr E, the father’s case had been completed by 12 October 2018. The mother’s case commenced with her cross-examination on 12 October 2018. I should record for this first part of the trial that Mr Bunning of Counsel appeared for the father, Ms Cullen of Counsel appeared for the mother and Mr Andrew of Counsel (as he then was) appeared for the Independent Children’s Lawyer (“ICL”).
The mother’s case and the ICL’s case was not concluded by 12 October 2018 so the matter was adjourned part-heard to 29 October 2018, when the wife’s case resumed with cross-examination of Dr O (the child’s general practitioner); the child’s therapeutic counsellor Ms D and of the family report writer Ms P. On 29 October 2018, after hearing submissions, I was persuaded to make, as the preferred approach, interim Orders. This was in circumstances where the father had indicated at the commencement of the trial on 10 October 2018 that he did not seek a finding that mother (or her household, including the older sibling, H - a child born in 2004) presented as an “unacceptable risk” to X and where the mother supported X’s time with the father moving to unsupervised time.
For Reasons delivered orally on 29 October 2018, interim orders were made in the hope that by the next date of 25 January 2019 (when further oral submissions were to be taken) the prospects for final consent orders was not fanciful. The orders made on 29 October 2018 were as follows:
1.That the child, X born … 2012 (“the child”) live with the mother.
2.That the child spend time with the father as agreed between the mother and father and failing agreement as follows:
a. For November 2018:
i.Saturday, 3 November 2018 from 9.00am to 5.00pm;
ii.Wednesday, 7, 14, 21 and 28 November 2018 from after school until 6.30pm;
iii.Saturday, 17 November 2018 from 9.00am to 5.00pm;
iv.Sunday, 18 November 2018 from 9.00am to 5.00pm.
b. For December 2018:
i.Commencing Saturday, 1 December 2018, each alternate weekend from 9.00am Saturday until 5.00pm Sunday;
ii.From 1.00pm Christmas Day until 5.00pm Boxing Day, with changeover on Christmas Day to occur at the Q Town library unless otherwise agreed;
iii.Each Wednesday overnight from afterschool Wednesday until before school Thursday during the school term; and
iv.Upon conclusion of the school term and during the December/January school holidays from 3.00pm Wednesday until 3.00pm Thursday.
c. For January 2019 and until final orders issue:
i.Commencing Saturday, 12 January 2019, and each alternate weekend thereafter from 3.00pm (or after school during school term) Friday, until 9.00am (or before school) Monday;
ii.Each Wednesday overnight from afterschool Wednesday until before school Thursday during the school term; and
iii.Upon conclusion of the school term and during the December/January school holidays from 3.00pm Wednesday until 3.00pm Thursday.
3.That the child shall live with the mother for an additional two (2) week period during January 2019, and for the purpose of same the following shall apply:
a. Within twenty one (21) days of the date of these Orders the mother shall notify the father of the proposed dates she wishes to travel to City T;
b. The child shall live with the father for three (3) nights prior to and three (3) nights following the child’s travel, with those three (3) nights not to include the night immediately prior to travel and the night of the child’s return to Q Town;
c. The mother shall provide makeup time for any time that the child would otherwise have spent with the father in accordance with Orders 2(c)(i) to (iii) inclusive herein, as agreed and failing agreement as nominated by the Independent Children’s Lawyer;
d. The make-up time is to be agreed within a further twenty one (21) days following Order 3(a) herein; and
e. During this time the mother shall facilitate the child communicating with the father by telephone each Tuesday and Thursday between 5.00pm and 5.30pm, with the father to initiate the call.
Telephone time
4.That the mother shall facilitate the child communicating with the father by telephone each non-contact Sunday between 5.00pm and 5.30pm, with the father to initiate the call.
5.That the mother shall ensure that the phone the child is to communicate with the father with is within range and charged.
Ms D
6.That the mother and father shall facilitate the child re-engaging with Ms D, with the first appointment to occur within seven (7) days of 3 November 2018, or the earliest available appointment after 3 November 2018.
7.That the mother and father shall facilitate the child re-engaging with Ms D as directed by Ms D and/or the Independent Children’s Lawyer.
8.That the mother and father shall attend to payment of one half of the associated cost of the child attending with Ms D.
9.That the child is to attend all scheduled appointments with Ms D unless she is unwell, and should the child be unwell a medical certificate is to be obtained and provided to the other parent and Ms D within twenty four (24) hours.
10.That should the child make any comment, complaint or disclosure to either parent in relation to her genital area hurting, difficulty toileting, her genital area being harmed, or allegations that she is being abused, physically, sexually or emotionally in either parents’ home, the parent to whom the disclosure was made is to notify the other parent within twenty four (24) hours and send an email to Ms D (or the counsellor with whom the child is attending with at that time) within twenty four (24) hours and schedule an appointment with Ms D for the earliest available opportunity.
11.That should the child make any complaint in relation to any medical issue concerning her genital area (that is not an emergency) that causes the father concern that the child ought to attend with a medical practitioner, the father is to notify the mother by way of text message and the mother shall schedule the necessary appointment for the child with her treating general practitioner as soon as is reasonably practicable.
12.That the Independent Children’s Lawyer is granted leave to provide a copy of these Orders to Ms D.
Restraints
13.The father is restrained by injunction:
a. from inspecting or photographing the child’s genital area at any time, or permitting any other person from inspecting or photographing the child’s genital area at any time;
b. from facilitating, or permitting any other person from facilitating, the child attending with any medical practitioner in relation to any concern he holds that the child may have been sexually abused or abused; and
c. from recording any interactions with the child or any changeovers with the mother.
14.That these proceedings be adjourned for oral submissions at 9.30am on 25 January 2019 in the Family Court of Australia at Brisbane.
15.That the Independent Children’s Lawyer be at liberty to apply.
As can be seen from those Orders, X’s time with the father progressed from what had been supervised time for some time to, ultimately, alternate Friday to Monday and every Wednesday overnight. Sadly, although the issues narrowed in some ways, the Court has been required to now determine what final orders are in the best interest of X, who is now eight and a half years of age.
Although the threads of the case over many months have proved a challenge to pull together, the Court expresses its regret that Reasons have not been delivered more quickly. The background history follows – particularly in relation to events after the interim Orders of 29 October 2018 were made (although some brief recording of earlier relevant information for context is included).
CONTEXTUAL CHRONOLOGY
The mother was born in 1975 and is now 45 years of age. The father was born in 1977 and is now 43 years of age. The mother gave birth to her daughter H in 2004 from an earlier relationship. She is now 16 years of age. The parties began cohabitation in or about 2010/2011 and X was born in 2012.
Unfortunately, in October 2012 the father suffered a serious back injury which has still resulted in him today having a partial disability benefit as his major source of income.
The parties separated in May 2014. As can be seen, the child was but two years of age at separation. As is clear, the parents have been in conflict nearly all of the time since separation, commencing with the father’s first application being made in the Federal Circuit Court of Australia on 16 March 2015.
With the benefit of two family reports, by 19 January 2016 essentially week about time was ordered with the consent of both parties (although the week about was interrupted by a Wednesday overnight in the care of the other parent).
One must wonder how genuine the parties’ consent to those Orders were because very quickly thereafter on 19 September 2016 the father filed a new application in the Federal Circuit Court of Australia.
To a large degree his application was based on child abuse allegations of both a sexual and other nature levied against the child’s sibling H who would have been approximately 12 years of age at the time, some of which was said to have been recorded by the child’s general practitioner Dr O and counsellor, Dr J.
Confronted with these difficult untested issues, a Judge of the Federal Circuit Court of Australia on 25 November 2016 made interim Orders that provided for the child to live with the father; for the child to spend day time only with the mother and there was an order that the child not come in contact with her sibling H. One can only imagine how difficult this was to achieve in the household of the mother.
Fortunately, however, an early family report was procured from Ms P as a result of interviews on 9 December 2016, resulting in a report dated 16 December 2016, which came before the same Federal Circuit Court of Australia Judge on 20 December 2016. The Orders made by the Judge on that occasion were significantly different, effectively suspending the earlier final Orders made on 19 January 2016 and totally reversing the care arrangement prescribed by the interim Orders made just over three weeks earlier, such that the child lived with the mother and the child was to spend supervised time only with the father.
The arrangements were to be supported by a therapeutic relationship being developed with social worker Ms D. The child’s supervised time with the father commenced in January 2017 and continued, effectively, until October 2018.
Whilst the matter had been listed in the Federal Circuit Court of Australia for a trial in May 2018, as a result of changes in case management practices in that Court, at some form of callover on 7 March 2018, the matter was transferred to the Family Court of Australia.
Shortly after that time Ms P conducted further interviews on 3 April 2018 resulting in an updated family report dated 22 April 2018, which was before this Court when the matter was listed for trial to commence, as earlier indicated, on 10 October 2018.
As indicated in the introduction, the trial could not be completed but when reserved, the interim Orders of 29 October 2018 were made. However, after the matter was reserved in January 2019, further allegations were made and further difficulties in the ongoing care of the child under the interim parenting arrangements were apparent.
On 25 September 2019 the ICL filed an application seeking that proceedings be re-opened and that the child’s unsupervised time with the father be suspended. Shortly after, the father became unrepresented and from that point on has been, including at the further hearing of the matter in February 2020, unrepresented.
For Reasons delivered on 9 October 2019, the Court ordered a limited re-opening and also, after considering the evidence then available (although untested) the Court ordered the child’s time with the father was to resume as per the Orders made 29 October 2018.
The further hearing of evidence took place on 3 and 4 February 2020 when, again, Judgment was reserved.
FURTHER HEARING ON 3 AND 4 FEBRUARY 2020
Although the Court might refer to some of the evidence given in October 2018, because the cases articulated by the parties had moved on (and new issues were raised), it is, in my view, important to set out the additional “evidence” relied upon by the parties when the hearing for two days on 3 and 4 February 2020 took place, namely:
(a)The father (who as I say was then unrepresented) relied upon his affidavits filed 12 November 2019; 20 November 2019; 31 January 2020; the text messages marked Exhibit 5 as well as affidavits from the paternal grandmother and paternal grandfather both filed 12 November 2019;
(b)The mother (still represented by Ms Cullen of Counsel) relied upon her affidavits filed 29 October 2019 and 24 January 2020. The mother had been directed by the Court to file an affidavit by Mr C (against whom the father had made some serious allegations) and although the mother facilitated an affidavit by Mr C to be filed 24 January 2020, he was not available for cross-examination; and
(c)The ICL (then represented by Horsley of Counsel) relied upon an updated report by Dr E filed 25 November 2019 and an updated affidavit by Ms D filed 22 October 2019.
The witnesses who were cross-examined in February 2020 were:
(a)The father;
(b)Dr E;
(c)The paternal grandfather Mr K Caratha;
(d)The paternal grandmother Ms L Caratha;
(e)The mother and; and
(f)Ms D.
COMPETING PROPOSALS
The Applicant father, at Exhibit 9 (which is marked Appendix One to these Reasons) articulated his preferred position, which was that X live with him and have supervised time with the mother. The father’s case was founded on his belief that the mother was unable to provide a safe, stable and healthy household for the child.
The father made numerous complaints about the mother’s care of the child. The father in particular was concerned about the presence of Mr C in the mother’s home. His alternate proposal (but much less preferred) was to reverse the five/nine nights a fortnight arrangement that was in place on an interim basis so that he had the majority of care. In any event, if the Court did not grant him sole parental responsibility, he sought an order for equal shared parental responsibility.
The mother’s initial proposal was genuinely articulated in Exhibit 8 and expressed as follows:
Mother’s proposed orders if child lives with her:-
Interim orders become final
Thursdays (alt weeks)
Thursday – Mondays (alt weeks)
½ school holidays
2/2/1 1 weeks at Christmas
Mother’s proposed orders if child lives with the father:-
•Flip the above is mother’s alternate proposal.
Regardless:-
Sole parental responsibility for the mother
Child attend school at Q Town
(As per original)
It has to be noted that this was a somewhat vague and imprecise document. In final submissions, the more considered and fulsome minute proposed by the ICL at Exhibit 12 (now marked Appendix Two to these Reasons) found broad acceptance by the mother (but not by the father). It is clear that the father presented his case in February 2020 on the foundation that the mother’s relationship with Mr C exposed X to unacceptable risks in mother’s care. The mother’s position, whilst denying such risk and now that her relationship with Mr C has ended, was not accepted by the father.
The mother, in effect, relied upon the concerns about the father’s “fixation” about past events in her household and his hypervigilance. I deal discretely with these issues next.
RISKS IN THE MOTHER’S HOUSEHOLD
Although the father continues to hold a belief that the mother’s older child from an earlier relationship, H (now aged 16 years) did, in or about mid to late 2016, inappropriately interact with the child X, his Counsel Mr Bunning in October 2018, apparently on direct instructions, submitted that was not the father’s position any longer. The impact on the mother’s household when the father, he says supported by the evidence of X’s general practitioner Dr O and a Psychiatrist Dr J (who last saw X on 6 September 2016), made the allegations was significant.
When interim Orders were made by a Judge on 25 November 2016 altering the week about arrangement so that the child live with the father; reduced the child’s time with the mother to day time only and imposed a condition that X could not have contact with her sibling H, the impact in the mother’s household must have been significant. The mother, I accept, found it difficult to adjust to these changes and the insinuation that she had in some way permitted X to be abused by the sister (who as I say was only 12 years of age at the time). Significant emotional pain was caused to H and her distress was a matter that the mother also had to deal with and found difficult.
This situation was immediately corrected (no doubt strenuously opposed by the father) after Ms P conducted interviews for the family report on 9 December 2016 and provided a report on 16 December 2016 in which Ms P raised concerns about the father. Dr E’s independent psychiatric report of 8 March 2017 also raised serious concerns about the father’s fixation about X having been abused by H and his inability to disguise his feelings. Dr E, when originally cross-examined in October 2018, held to his diagnosis that the father suffered the psychiatric syndrome he described of “pathological child-focused anxiety”, which consumed the father’s thinking and actions.
The father has continually challenged that “diagnosis” and asserts it is actually an invention of Dr E. Nonetheless, Dr E indicated in October 2018 that the ultimate test for the father would be whether a normalisation in the father’s mind can occur when he has some unsupervised time. In effect the “proof” would be in the eating. As my oral Reasons at the time indicated, without putting the child at unreasonable risk, it was appropriate to test whether the father’s “normalisation”, as Dr E described it, could be achieved. The Court was not persuaded on the evidence that any unacceptable risk presented in the mother’s household in October 2018, and with the father saying he also accepted that position, a move to unsupervised time was, as earlier noted, no change of primary care was then contemplated. There is no point now in seeking to indicate why the Court formed that view on all the events that had occurred prior to October 2018. They are well known to the parties and were the subject of detailed submissions at the time.
It seems to me, however, that the father, perhaps not unreasonably, was triggered into action when X informed him in 2019 that she had visited the mother’s then partner, Mr C (so alleged) in hospital after a “stabbing” incident. All the father’s worst fears resurfaced about the mother’s capacity to protect the child. The allegations and the mother’s failure to make proper disclosure initially were part of the reason for the re-opening sought by the ICL. The mother should have been more frank with the father about the events that led to the child’s disclosure to the father. Ultimately, although Mr C did swear an affidavit, his evidence could not be tested. The mother was cross-examined by the father about the events and her evidence that the relationship with Mr C has ended is accepted by the Court.
The mother agrees with restraints proposed by the ICL. I am not satisfied that the child was exposed to any “stabbing” or witnessed any “stabbing” of Mr C.
In my view, on all the evidence, I am not satisfied on the evidence that X is at any unacceptable risk in the full-time care of the mother. I do acknowledge that the father raises a number of other issues which, in my view, are more akin to parenting style. His view that his parenting style is so superior to that of the mother and that the mother has defects in her parental capacity are not accepted by the Court. Ms P formed the same view as her reports opine.
RISKS IN THE FATHER’S HOUSEHOLD
The father, as noted, is on a partial disability pension as a result of the painful back injury in 2012, which has meant, as an unrepresented litigant, he has had plenty of time to think about this case and prepare for it.
As I will examine shortly, there is no doubt that the father is devoted to X. She is his almost complete focus. He expresses both in his evidence, oral testimony and submissions his devotion and commitment to her in terms which raises concerns about whether he so spoils and suffocates the child with his focused affection that her development could be affected.
These concerns were raised by the report writer Ms P in her report and evidence given in October 2018. An updated report was not offered to the Court thereafter (and no criticism to the ICL is intended) as matters had, to some degree, moved on.
The father’s statements to the school in June 2019 when he chose to share the opinions of Dr J from 2016 (which the Court after her cross-examination found of little weight, assistance or reliability) reflected poorly on the father. They were old events which, at least in October 2018, were no longer relevant.
The mother is entitled to raise, as she did, whether the father genuinely had accepted that H was not a risk to X (as she is not, on the evidence, in my view) by his actions in June 2019. The father’s actions and the way in which he presented his case caused the ICL to obtain a further report from Dr E who was cross-examined on his updated report.
In that report, Dr E had reference to extensive emails between the father and the ICL, as well as to other parties, including the children’s counsellor Ms D between 20 September 2019 and 18 October 2019 – of which there are many.
They compromised part of the annexures to the father’s affidavit of 25 November 2019 and other material tendered. They speak for themselves and are troubling if they are said to represent the rational thought processes of the father. I take into account the father was unrepresented and at times highly suspicious and anxious:
Dr E opined that his concerns about the father, initially expressed in his first report but now based on the new material that he identified in his report, remain unchanged from his report of 8 March 2017. The evidence he gave on 11 October 2018 said as much. Whilst he remained of the view that the father would benefit from psychiatric treatment, he reiterated his opinion was that:
The father’s function in life was a struggle following a back injury in 2012 and he presented a state of intense concern for his daughter’s wellbeing at an interview on 8 February 2017.
It follows that the concerns raised by Ms D as outlined in the affidavit dated 22 October 2019 are likely to stress Mr Caratha and have a negative prognostic influence.
The life issues outlined in the collateral information provided in this updated brief raised a concern about how Mr Caratha is:-
…coping with these issues, and psychiatric treatment would hopefully be available to monitor any mental health concerns he might be experiencing and support him in response to them.
The father, I accept, is supported emotionally by his parents, and with unsupervised time they have developed further their relationship with X. They love her dearly. Their evidence, however, over the two opportunities they were cross-examined reveal they accept the concerns the father has about the mother’s parenting and the fact that he was, from their perception, unfairly treated from being restricted to supervised time for so long. The father clearly also saw himself, in my view, as a victim of the system.
I find the father still demonstrates an inability to separate his deep-seated misgivings about the mother and her parenting style from a more objective assessment of the child’s best interests. The effective pressure this places on this little girl is best demonstrated by the recent evidence given by Ms D, which I deal with next.
ASSESSMENT IN EVIDENCE OF CHILD COUNSELLOR MS D
Ms D had engaged over 30 appointments with X in three distinct periods:
(a)1 September 2017 to 8 November 2018;
(b)12 December 2018 to 15 July 2019; and
(c)Since 15 July 2019, additionally on 19 September 2019 and 14 October 2019.
This meant that her report annexed to her most recent affidavit was “fresh” at the time of the further hearing of evidence in February 2020.
The ICL arranged for reports from Ms D to be provided and she was a critical witness. I summarise her evidence and my findings arising from her reports, her cross-examination on two occasions and her tendered notes as follows:
(a)when giving evidence in October 2018, Ms D confirmed she had provided two reports at that stage to the Court (dated September 2017 and April 2018) but had not seen X for over 12 months;
(b)she indicated that whilst X was “well aware” that the father was worried about her and that the parents were in conflict, the child expressed feelings of sadness, anger and was anxious and so the therapist helped X utilise some strategies to deal with these feelings when they arose;
(c)Ms D conceded that if the father had, as a result of his concerns about abuse occurring in the mother’s home (a “fixation” about abuse) and had received some confirmation from health professionals such as his general practitioner Dr O and the Psychologist Dr J, this could contribute to his actions and concerns;
(d)On 20 September 2019, Ms D sent an email to the ICL Ms Bolton, which is before me, and which was initiated because of “serious concerns about X’s current situation, presentation, and well-being especially given her report to me yesterday”. During that session, he child “literally flooded out various present struggles”, including:
(i)she was most stressed about her dad because “he tells me all the time that he misses me”;
(ii)she sometimes tells her father she wants to live with him merely “to make him feel better, but I’m not telling him the truth because I actually want to live with Mum”;
(iii)she said her father does not reassure her he is okay, saying “he is not okay without her with him”. The father expresses concerns to her about the mother’s new partner Mr C; and
(iv)expressing concerns about having to learn to “share her mother with her mother’s new partner (who she likes)”.
(e)By her second time in cross-examination in February 2020, two further reports were before me dated 12 April 20187 and 27 October 2019. Ms D confirmed she had also spoken to the school Guidance Officer Ms U. She indicated there had been a gap in counselling between 1 September 2017 and 8 November 2018 and then between 12 December 2018 and 15 July 2019, and as either parent knew they could bring X back for counselling during these periods, she assumed the child was doing fine;
(f)X was aware of some of the issues which her older sibling H confronted during mid-2018, including being expelled from school; criminal charges; the physical altercation between H and the mother and the increasingly obvious relationship H had formed with her boyfriend who “shared her bed”. The conflict between the mother and H contributed to H leaving the home and “sleeping rough” for a short time;
(g)X also expressed concerns about her father’s health and his heart attack, and by 25 June 2019 X had experienced five changes of home. By the session on 26 November 2019, X asked her mother to leave the session and Ms D conducted a “reassessment”, during which the child expressed:
(i)she feels safe and happy in both homes;
(ii)she worries about her mother and the conflicts the mother has with H and also Mr C;
(iii)at her father’s home, she gets all of the attention from him; and
(iv)would like to spend more time with the father.
(h)By the next session on 9 December 2019, she was expressing the view that she “wanted to live with Dad but not just to make him happy”. She says she sometimes hides at her father’s home because she does not like him to see her “sad”.
Ms D, under cross-examination, gave the following further opinions:
(a)When observed with both the mother and the father, she appears well groomed and healthy;
(b)Her general life has “been distracting” and she is aware of the father’s proposal to change her school, which she described as “confusing” but Ms D feels she would probably adjust over time to a change of school;
(c)Caution should be taken with what X says as Ms D holds concerns she is able to be influenced by her parents and feels pressured at times to please;
(d)She has always felt that she was X’s counsellor and was not engaging in “family therapy” and she would be happy to continue supporting X into the future; and
(e)“Flipping” the arrangements are unlikely, in her view, to alleviate the pressure on X and that it is likely X will continue to “worry” about her father and “yearn” for more time with him.
I find the evidence of Ms D helpful and reliable. She is aware the father has expressed, quite bluntly at times, his concerns about Ms D’s counselling but I am confident the counsellor has kept a firm focus on the child’s well-being and not been distracted by the father’s conduct or emails.
I do not share the father’s expressed concerns about Ms D.
PRIMARY CONSIDERATIONS
I am satisfied that the child would benefit from having a meaningful relationship with each of her parents. On my assessment, such a relationship currently exists and is not necessarily a by-product of the amount of time she gets to spend with each of them.
The Family Law Act 1975 (“the Act”) requires, pursuant to section 60CC(2)(a), that greater weight must be applied to the factor prescribed at section 60CC(2)(b) – then than the benefit to the child of having a meaningful relationship. Section 60CC(2)(b) requires that one of the primary considerations is:
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I rely upon earlier findings made about, in my view, the emotional risk to the child from the father’s attitude to the mother; his inability at times on the evidence to disguise his views and feelings of the mother and the pressure that he places on the child in that regard. I have already made the finding that I do not regard the mother as doing likewise, notwithstanding the father’s concerns.
I was concerned, as I have already indicated about the father’s focus, on somewhat small issues as a way to attack the mother. I also as indicated have some concerns about how genuinely the father has accepted that H is not a risk to X. Certainly both parents must take some responsibility for the toxic relationship which currently exists between them, where ineffective communication and lack of mutual respect and trust exists. This is an extremely difficult and negative environment for young X to navigate.
I accept that with the parents separating when the child was so young, and generally having very little chance to observe the other parent parent, that the relationship has been negatively impacted by at least:
(a)the conflict between the father and the maternal grandfather post-separation, which resulted in an incident where the maternal grandfather was charged;
(b)the allegations by the father about H’s alleged conduct; and
(c)the imposition for a period of over 20 months of the father having supervised time with the child after he had previously had week-about time and then, for a short period, exclusive care.
I accept he found this very difficult to cope with and the delays of the Court system did not assist. Indeed, the new allegations referred to about Mr C and to a lesser extent some of the smaller issues that relate to dental work and the like, have triggered the father’s underlying attitude to the mother and her care of X.
ADDITIONAL CONSIDERATIONS
I make findings in respect of these matters in a narrative form as well. The clearest example of the child’s wishes for the purposes of these Reasons for Judgment are those expressed as set out earlier. However, as Ms D indicated, from her perspective and in her opinion, which I accept, some caution must be applied to the weight given to the child’s express feelings and wishes, considering her age and the context in which those wishes have been expressed. I do so.
I am satisfied that the child has a good relationship with each of the parents and with the extended family, including her sibling H.
Generally to the extent available under the Court Orders, the parents have fulfilled their obligations to be involved in decision-making, spending time and communicating with the child and to make decisions about the child. I deal with section 60CC(3)(d) when considering the final form of orders, as clearly on the father’s proposal, there would be a significant effect on the child to move from a position where she has been either in the primary care of the mother, with the father having supervised time and certainly majority care of the mother now and with her sibling, with whom she has a good relationship, since the Orders made in late 2016, which is a period of almost half of her life.
The father’s proposal for change of residence is not supported by all the evidence because of the very significant effect it would have upon the child, and could only be contemplated if there were the risk that the mother’s household proved to the extent the father asserts. They are not and this is consistent with the evidence of Ms P, which I also accept.
The parties live close enough to each other to manage the practical difficulties and expenses of the child moving from one household to the other, and generally changeovers have not been problematic.
These parents parent differently and have different parental emphasis. I rely upon earlier findings made as to the capacity of each of the parents to provide for the needs of the child, including emotional and intellectual needs. Both parents value education and I have no doubt support the child reaching her potential.
As to the attitude of the parents to the responsibilities of parenthood, I rely on earlier findings in this respect. It has to be said that conducting a co-parenting arrangement of any form under the continual spotlight of Court proceedings is far from easy.
Considering the conflict between the parents, it is perhaps a little unusual that there are no family violence orders, nor have there ever been, on the evidence. Under s 60CC(3)(l) of the Act, the Court is required to consider:
…whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
As already indicated, at an earlier stage, interim Orders that moved X’s time with the father from supervised to unsupervised were regarded as in the best interests of the child at that time. None of the proposals currently before the Court suggest that the father’s time with the child ought be supervised. For reasons already given, it is not appropriate or in the best interests of the child for the time the mother spends with the child, if the child lives with the father, to be supervised. It would be a brave statement of optimism to anticipate that with the history of conflict that these parents have been involved in now for nearly six years, that the Court could say any orders which are least likely to lead to further proceedings.
Clearly, whilst there are the impediments created by authorities such as Rice & Asplund (1979) FLC 90-725 to prevent further proceedings once final orders were made, without a material and substantial change of circumstances, I believe there is a prospect in this case of further proceedings into the future, because of the attitudes of the father in particular to the mother.
PARENTAL RESPONSIBILITY
The ICL proposes that an order be made for the mother to have sole parental responsibility for major long term decisions. Not surprisingly, perhaps, that position is accepted by the mother as appropriate, but rejected by the father. I accept there must be a principled basis on the evidence to not apply the presumption of equal shared parental responsibility (see Vallans & Vallans (2019) 60 Fam LR 193).
In circumstance where the father will, under my Orders, be spending significant and substantial time with X, ideally having both parents providing their views about major long-term issues would be appropriate. However, there needs to be a basis upon which a decision can be made without coming back to the Court. I have no confidence on the evidence, and from the history of this case, that it is likely these parents’ communication will improve. Low levels of mutual respect and trust are evidenced. Although I will impose an obligation on the mother to seek the father’s views, the only practical order that prevents major long term decisions being made, is for one parent to have sole parental responsibility.
As, under my Orders, X will live primarily with the mother, it is in X’s best interests that the mother have sole parental responsibility. I accept the father is likely to feel that so ordering reduces his desired role in decision-making and he might feel excluded. However, I do not accept that merely “hoping” that the parents will consult and reach an agreement – a foundation desirable for them to have equal shared parental responsibility – is a basis for ordering equal shared parental responsibility at this time.
FORM OF ORDERS
I believe the proposals of the ICL, in respect of final parenting orders, are in the best interests of the child X, with some slight amendments which flow from the following findings:
(a)It is in the best interests of X that she reside with the mother. If the child primarily lived with the father, his influence over the child, based on his continual hyper vigilance and entrenched concerns, would, over time, make it more difficult for X to maintain her relationship with the mother and H;
(b)On balance, the imposition of any supervision of the father’s time with X was not proposed by the ICL or the mother, and not considered appropriate by the Court, notwithstanding my expressed concerns about the father’s past conduct. In this regard, the father had undertaken some therapy with Mr M, who was more positive about the father’s functioning than was Ms P or Dr E. The father would benefit, as would the mother, from undertaking therapy after these Reasons are delivered to enable them to “do better” as co-parents of X into the future. However ordering them to do so, when after this amount of time (and in light of the consistent professional recommendations to do so offered to the Court), is not appropriate. The parties will have leave to provide a copy of these Reasons to their therapist, if they chose voluntarily to engage further but that must be their choice for the maximum benefit to be achieved;
(c)I agree with the ICL’s proposal, and so as to reduce changeovers and the necessary adjustments to two different households, that the child’s time with the father should be from after school Wednesday to before school Monday each alternate week. Holidays and special occasions are provided for as proposed by the ICL;
(d)The proposed restraints sought by the ICL at clause 18 are, on the previous conduct of the father, appropriate; and
(e)Clause 19, considering that the Court will order, as the mother proposed, that the child attend Q Town State School and also Q Town State High School, is appropriate, subject to the parents agreeing otherwise.
As a result of the matters set out in these Reasons, the Orders which appear at the commencement of these Reasons and pronounced today are in X’s best interests. I discharge the ICL with the thanks of the Court.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 22 December 2020APPENDIX ONE
1.That the father have sole parental responsibility for the child X (DOB … 2012).
2.For the purpose of Order 1 the father shall:
A.Notify the mother of any decision made and seek her input in relation to that decision:
B.The mother shall reply to the father as soon as practicable and within 7 days:
C.The father shall inform the mother of the outcome of that decision.
Time
3.That the child live with the father.
4.That the child spend time with the mother, H and the maternal grandparents in supervised visits at harmony house on a fortnightly basis. Supervised visits are to remain until the mother proves to the father that she has had counselling for herself and H to prove that they are getting the help they obviously need. X is to have no contact with Mr C what so ever. Once it is shown that Ms Laykin is willing to do this for herself and H then visitation can be increased to block times, as long as Mr C is not present. I will ensure that if X wants to speak to her mother over the phone, that I will facilitate this whenever X wishes to speak to her Mother (At least 2 times a week). Once block times commence, I would like Ms Laykin to be involved with X’s Schooling as much as wants. (Doing Reading classes etc). When block commences, that Ms Laykin will ensure that X will attend school.
If the court does not agree to the above.
That block times commences but a reversal of the current arrangements. That X live with me and spend 5 nights a fornight with Ms Laykin. But, that being said I have very strong concerns with Ms Laykin’s current living arrangements and lifestyle. The most recent subpoena’s strongly support this concern. It is also made more difficult due to the fact that it is very hard to believe anything that mother says.
As to my parenting I will ensure that X gets the best upbringing, Love and attention that she deserves. I will never consume alcohol, Drugs or engage in any behaviour that she has already been subjected to. I will make sure that her education is always made a top priority. She is such a bright child with a heart of gold and as always, I will put her needs before my own as that is what it means to be a parent. Nothing means more to me than my daughter. I can provide, and always have provide X with a happy stable home environment. None of these decisions come lightly, but I feel that there is now know other option.
If the Court does not grant me Full parental responsibility, considering that Ms Laykin has proven to be unable to provide X with a stable house hold, that the Court grant 50/50 parental responsibility.
(As per original)
APPENDIX TWO
Parental Responsibility
l.That the mother have sole parental responsibility for the child X (DOB -… 2012)
2.For the purpose of Order 1, the mother shall:-
a.Firstly, notify the father of any decision which is to be made and seek his input in relation to that decision;
b.The father shall reply to the mother as soon as is reasonably practicable and within seven (7) days;
c.The mother shall inform the father of the outcome of the decision made.
Time
3.That the child live with the mother.
4.That the child spend time with the father as agreed between the mother and father and failing agreement as follows:-
a.During all school terms
i. Each alternate week from after school Wednesday (or 3.00pm if a non-school day) until before school Monday (or 3.00pm if a nonschool day);
b.During Easter, June/July and September gazetted school holidays
i. In 2020 and each alternate year thereafter for the first half of the Easter, June/July and September school holidays;
ii. In 2021 and each alternate year thereafter for the second half of the Easter, June/July and September school holidays;
iii. For the purpose of calculating one half of the school holidays the total number of nights from the last day of the school term until the last night prior to the recommencement of school are added together and divided in half. In the event that there is an odd number of nights for the purpose of this calculation the child shall spend the additional night with the father.
5.That during the December/January gazetted school holidays the child spend time with the parents as agreed between the mother and father and failing agreement as follows:
a.In 2020 and each alternate year thereafter for the first two weeks of the holidays with the mother, commencing 3.00pm on the last day of school, the following two weeks with the father, the week thereafter with the mother, and the final week with the father with the father to take the child to the first day of school for Term 1;
b.In 2021 and each alternate year thereafter for the first two weeks of the holidays with the father commencing 3.00pm on the last day of school, the following two weeks with the mother, the week thereafter with the father, and the final week with the mother with the mother to take the child to the first day of school for Term 1.
Special Occasions
6.Unless the child is already residing with the mother, she shall spend from after school Friday (or 3.00pm if a non-school day) until before school Monday (or 3.00pm if a non-school day) on Mother’s Day weekend with the mother each year.
7.Unless the child is already residing with the father, she shall spend from after school Friday (or 3.00pm if a non-school day) until before school Monday (or 3.00pm if a non-school day) on Father’s Day weekend with the father each year.
8.The parent with whom the child is not residing with on her Birthday shall contact the child by telephone at 5.00pm, and the other parent shall ensure that the telephone call is facilitated.
9.In 2020 and each alternate year thereafter the child shall live with the father from 12 noon Christmas Eve until 9.00am Boxing Day, and with the mother from 9.00am Boxing Day until 12 noon 27th December.
10.In 2021 and each alternate year thereafter the child shall live with the mother from 12 noon Boxing Day until 9.00am Boxing Day, and with the father from 9.00am Boxing Day until 12 noon 27th December.
Changeovers
11.Whilst the mother does not own a motor vehicle, changeovers shall occur as follows:-
a.If the changeover day is a school day the parent commencing time shall collect the child from school at the time provided for in these Orders;
b.If the changeover day is a non-school day, changeover shall take place outside the Q Town Library, located at R Street, Q Town;
c.Only the mother and father are to attend at changeover, or a person nominated by either parent.
12.Should the mother obtain a motor vehicle she is to forthwith notify the father of same and changeovers shall occur as follows:-
a.If the changeover day is a school day the parent commencing time shall collect the child from school at the time provided for in these Orders;
b.If the changeover day is a non-school day, changeover shall take place outside of S Park in the car park;
c.Only the mother and father are to attend at changeover, or a person nominated by either parent.
Ms D
13.The child is to attend with Ms D as directed by Ms D, or with any other such counsellor as recommended by Ms D.
14.The mother and father shall attend to payment of one half of the associated cost of the child attending with Ms D.
15.The child is to attend all scheduled appointments with Ms D unless she is unwell.
16.Should the child make any comment, complaint or disclosure to either parent in relation to her genital area hurting, difficulty toileting, her genital area being harmed, or allegations that she is being abused, physically, sexually or emotionally in either parents' home, the parent to whom the disclosure was made is to notify the other parent within 24 hours and send an email to Ms D (or the counsellor with whom the child is attending with at that time) within 24 hours and schedule an appointment with Ms D for the earliest available opportunity.
17.Should the child make any complaint in relation to any medical issue concerning her genital area (that is not an emergency) that causes the father concern that the child ought to attend with a medical practitioner, the father is to notify the mother by way of text message and the mother shall schedule the necessary appointment for the child with her treating General Practitioner as soon as is reasonably practicable.
Restraints
18.The father is restrained by injunction as follows:-
a.From inspecting or photographing the child's genital area at any time, or permitting any other person from inspecting or photographing the child's genital area at any time;
b.From facilitating, or permitting any other person from facilitating, the child attending with any medical practitioner in relation to any concern he holds that the child may have been sexually abused or abused;
c.From recording any interactions with the child or any changeovers with the mother.
19.The mother and father are restrained from relocating the child to reside any further than 30 minutes from the school at which she attends.
Schooling
20.The child is to attend Q Town State School during the remainder of her primary schooling years unless otherwise agreed by the parents in writing.
21.The child shall attend Q Town State High school for her secondary education years, unless otherwise agreed by the parents in writing.
22.The child is to attend school at all times as is required.
General
23.This Order acts as authority for the father to obtain the following information, and for the purpose of same the mother shall sign any necessary authority required within 48 hours of such request being made by the father to enable him to obtain such information:-
a.Any information in relation to any medical treatment obtained for the child, except as is prohibited by any relevant Privacy Laws from time to time;
b.Any information in relation to the child's schooling, including newsletters, report cards, school photographs;
c.Any information in relation to any extracurricular activity that the child is engaged in.
24.Neither parent is to enroll the child in any extracurricular activity which shall occur during the time the child is living with the other parent, without obtaining the other parent's express written consent.
25.Both parents are permitted to attend at any school or extracurricular activity events such as sports carnivals, performances, parent/teacher interviews that may occur whilst the child is living with the other parent, with the exception of training or practices.
26.The Independent Children's Lawyer shall be discharged.
(As per original)
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Jurisdiction
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