Karras and Karras
[2008] FMCAfam 1370
•17 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KARRAS & KARRAS | [2008] FMCAfam 1370 |
| FAMILY LAW – Parenting – child aged 19 months – where parties separated when child 3 months old – where father has had only supervised time with the child to date – where father seeking extensive unsupervised time, leading to equal time when the child is four years of age – where mother proposing that supervised time continue – where mother assessed by a psychiatrist as having an anxious and avoidant personality – where mother claiming that her ability to parent will be affected if the father is permitted extensive unsupervised time with the child – whether final or interim orders should be made. |
| Family Law Act 1975 ss.60CC, 61DA, 65DAA |
| Applicant: | MR KARRAS |
| Respondent: | MS KARRAS |
| File number: | DNC 614 of 2007 |
| Judgment of: | Terry FM |
| Hearing dates: | 24, 25 & 26 September 2008 |
| Date of last submission: | 26 September 2008 |
| Delivered at: | Darwin |
| Delivered on: | 17 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Buckland |
| Solicitors for the Applicant: | Anthony Buckland |
| Counsel for the Respondent: | Mr Black |
| Solicitors for the Respondent: | Cecil Black Family Lawyers |
ORDERS
That the parents have equal shared responsibility for the child of the marriage [X] born in 2007.
UNTIL FURTHER ORDER:
That the child live with the mother.
That upon the father providing a written undertaking that the dog “[A]” has been destroyed, and unless otherwise agreed in writing between the parties the child spend time with the father:
(i)for the next four weeks from 2pm until 5pm each Saturday commencing 20 December 2008 and from 4pm until 6pm each Wednesday, commencing 31 December 2008;
(ii)from 2pm until 5pm on Christmas Day 2008;
(iii)for the six weeks commencing 17 January 2009 from 1pm until 5pm each Saturday and from 4pm until 6pm each Wednesday;
(iv)for the two months commencing 28 February 2009 from 9am until 5pm each Saturday and from 4pm until 6pm each Wednesday;
(v)For the three months commencing 25 April 2009 each weekend from 9am on Saturday until 9am on Sunday and from 4pm until 6pm each Wednesday;
(vi)From 4pm to 6pm on 30 April 2009;
(vii)For the four months commencing 25 July 2009 from 9am on Saturday until 5pm on Sunday each alternate week and from 4pm on Wednesday until 8am on Thursday each week;
(viii)From 2pm to 5pm on the father’s birthday and the father’s nameday with the child to spend from 2pm to 5pm with the mother on the mother’s birthday and the mother’s nameday if these fall on days when the child would otherwise be with the father.
(ix)From 9am on Saturday until 5pm on Sunday on the Father’s Day weekend if the child would not otherwise be with the father, provided that the child shall spend the Mother’s Day weekend with the mother and the father shall forego time with the child on that weekend.
That unless otherwise agreed between the parties changeover shall take place:
(i)At Centacare [location omitted] if Centacare is open and able to provide that service;
(ii)At the front entrance to [omitted] Shopping Centre if Centacare is not open or is not able to provide that service.
That each party shall keep the other advised of their residential address and landline and mobile telephone numbers and notify the other in writing (by text message or otherwise) of any change to those details.
That each party promptly notify the other of any serious illness or emergency involving the child.
That each party promptly enrol in and complete the post-separation parenting course “Putting Kids First” conducted by Resolve.
AND IT IS FURTHER ORDERED:
That no earlier than August 2009 pursuant to Section 11F of the Family Law Act the parties attend reportable family dispute resolution at the Federal Magistrates Court of Australia Level 1 TCG Centre 80 Mitchell Street, Darwin on a date and time to be advised to the parties with a family consultant, to discuss the care, welfare and development of the child [X] born in 2007 in an endeavour to resolve any differences between the parties in relation thereto.
That the matter be adjourned to 22 September 2009 at 9.30am for further consideration.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Federal Magistrate Terry delivered this day will for all publication and reporting purposes be referred to as Karras & Karras.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNC 614 of 2007
| MR KARRAS |
Applicant
And
| MS KARRAS |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Karras and Ms Karras married in March 2006. They separated sixteen months later, in July 2007.
[X], their only child, was three months old at separation and is now 19 months old.
[X] has lived with the mother since separation. Since December 2007, she has spent time with the father on one or two occasions each week supervised at a contact centre.
At the hearing, the father and mother were poles apart on the issue of the time [X] should spend with the father in the future.
The father rejected any notion that supervision should continue. He said that after two short introductory visits during the day, [X] should commence spending every weekend with him, from Friday evening until Sunday evening.
The father said that once [X] turned four, she should live week about with each of her parents.
The father proposed that he and the mother have equal shared parental responsibility.
The father said that the mother by her actions since separation had shown a single minded determination to prevent him and his family spending any meaningful time with [X]. He said that he could adequately and safely parent [X] and that the mother’s fears about his parenting capacity were groundless.
The mother’s initial proposal was that supervised time continue until [X]’s second birthday. She proposed that the court should reconsider the matter then.
In the alternative, if this was not accepted by the court, the mother proposed that the father commence spending short periods of time with [X] during the day away from Centacare. The mother’s preference was that this time still be supervised in some way, perhaps somewhat more loosely by a person in a private home.
The mother said that overnight time should not be considered until [X] was three or four years old. The mother opposed equal time commencing ever.
The mother said that whatever orders the court made, they should be interim orders only, and the matter should be reviewed in six or nine months and an assessment made of how [X] was coping.
The mother said that she should have sole parental responsibility.
The mother maintained that there were valid reasons to be concerned about the father’s capacity to care for [X]. She also said that even if her concerns were not entirely soundly based, nevertheless she genuinely held those concerns, and the court must take into account the effect on the mother of giving the father substantial unsupervised time.
Material relied on
The father relied on the following documents:
i)The Minutes of Orders in his Outline of case document filed on 24 September 2008;
ii)His Affidavits filed on 23 October 2007, 5 December 2007 and 22 September 2008.
The mother relied on the following documents:
i)The Minute of Orders in her case outline document;
ii)Her Affidavits filed on 30 November 2007 and 26 May 2008;
iii)The affidavit of her mother Ms G filed 27 May 2008;
iv)The affidavit of her sister Ms S filed 27 May 2008;
v)The affidavit of her father Mr G filed 27 May 2008;
vi)The affidavit of her brother-in-law Mr P filed 27 May 2008
A psychiatric report in respect of both parties was prepared by Dr F.
Mr Tony Vidot, a family consultant attached to the Darwin Registry of the Federal Magistrates Court, gave oral evidence concerning appropriate parenting orders. Mr Vidot was called as the court’s witness and was cross-examined by both counsel.
General History
The mother is 29 and the father 36. They are both of Greek heritage and were both born in Darwin. The mother grew up in Darwin. The father was taken to Greece by his parents as a young boy and did not return to Darwin until he had completed high school.
Each parent has extended family in Darwin, which includes their parents, siblings, nieces and nephews. Neither parent has any other children beside [X].
The marriage between the mother and father came about as a result of “matchmaking” by their families. The mother and father formally met only two weeks prior to the marriage, which took place in March 2006.
[X] was born in April 2007, and the parties separated in July 2007.
Since separation the mother and [X] have lived with the maternal grandparents.
The parties could not reach an agreement about the father seeing [X] after separation. They negotiated without success for several months. Eventually in October 2007 the father commenced court proceedings.Consent orders made in December 2007, which allowed the father to spend supervised time with [X] at Centacare for two hours once or twice a week. He has spent time with her in accordance with these orders.
The competing applications for parenting orders were originally listed for hearing in May 2008. The father changed solicitors just prior to the hearing and sought an adjournment. As a result the hearing could not take place until September 2008.
The current circumstances of the parties and the child.
The mother and [X] live with the maternal grandparents in the Northern Suburbs of Darwin. The mother is a full-time parent.
The father is a self employed [omitted]. His working hours are from 7.30pm until 4.30pm. He said that he sometimes worked seven days a week, but also said that as he was a sub-contractor and he had some flexibility with his work.
The father lives in the Northern Suburbs of Darwin, in a home he owns. At present his parents, Mrs and Mr K, live with him. The paternal grandmother is engaged in home duties, and the paternal grandfather is retired.
The evidence generally
The mother blames the father entirely for the failure of the marriage. In her affidavits she aired at length her complaints about his failures as a husband and a person and vented her displeasure toward him. She and her witnesses recounted numerous scurrilous rumours they said that they had heard about the father. The mother and her witnesses did not have a single good thing to say about the father.
Regrettably, the father then considered that he had to respond to the mother’s allegations. During the hearing it was difficult to divert the parties from concentrating on matters which were irrelevant to the issue of appropriate future parenting arrangements for [X].
I had reservations about the evidence of the mother on occasions. She was for example quick to draw adverse conclusion against the father based on scurrilous hearsay. She gave conflicting information to the court and Dr F about why she had not obtained a driver’s licence.
The mother’s family were not unexpectedly very partisan to the mother, and refused to consider that there was anything good about the father or his family. The paternal grandfather, while he can be admired for his frank admission that he threatened to kill the father and felt quite justified in the circumstances in doing so, presented in the witness box as a most aggressive and easily ruffled man.
Relevant factual matters
Before turning to the issue of [X]’s best interests, it is necessary to make findings about a number of specific matters, as follows:
a)What exactly happened during the “coke can incident” and did it involve the father committing an act of family violence;
b)The state of relations between the maternal and paternal extended families;
c)Whether there is an unacceptable level of conflict between the adults in the father’s home and whether the paternal grandfather drinks to excess;
d)Whether the father consumes excessive amounts of alcohol on occasions or uses drugs;
e)Whether the dog ‘[A]’ pose a risk to [X] if she spends unsupervised time with the father;
f)The state of the father’s and the mother’s mental health.
a)What exactly happened during the “coke can incident” and did it involve the father committing an act of family violence
The “coke can incident” loomed large in these proceedings. It was the mother’s case that on the day of separation the father threw a coke can which struck her in the chest and injured her. It was the mother’s case that in so doing the father committed an act of family violence.
On the morning of that day, the mother and father had been discussing their relationship. The paternal grandfather had been around to the house to talk to the parties, but had left.
The mother said that the father fetched a coke from the kitchen and opened it. She said that she and the father argued, and that the father threw the coke can at her. In her affidavit filed on 28 May 2008 she described the incident as follows:
“At the time he was standing 2m from me. I was sitting and rocking our daughter who was on the floor in front of me. The can struck me in the chest and fell to my left and landed between the cushions on the lounge on which I was sitting. I was not only startled but injured by being struck by the can of Coke.”[1]
[1] Mother’s affidavit filed 28 May 2008 paragraph 42
The father admitted throwing the coke can, but said that it was either empty or almost empty at the time. He said that he was 5-6 metres away from the mother and threw it on the floor in frustration, and that it did not strike the mother.
Shortly after the incident, the mother phoned her family and her parents, sister Ms S and brother-in-law Mr P arrived and took the mother and [X] away with them. None of these witnesses, save for the paternal grandfather, made any mention of the mother telling them that she had been struck by the coke can.
I do not accept the mother’s evidence that she was struck by the coke can.
In her earlier affidavit filed in November 2007, the mother described the “coke can incident” but made no reference to the can striking her. The mother said that :
“About 40 minutes after my father in law left, my husband threw the can of Coke towards me.”[2]
[2] Mother’s affidavit filed 30 November 2007 paragraph 44
Earlier in that affidavit the mother said about the incident as follows:
“He started a conversation implying that my clothing was indecent to which I replied ‘I will wear what I want and talk to whoever I want.’ I was fed up with the way my husband spoke to me and his criticism of me. Hearing this, he threw a can of Coke at me. Fortunately the can did not strike our baby but some of the drink splashed on her. The can could quite easily have struck her. I was very upset by this and said to my husband ‘don’t ever throw the things at me, particularly when our daughter is with me.’”[3]
[3] Mother’s affidavit filed 30 November 2007 paragraph 28(d)
The affidavit the mother filed on 30 November 2007 is very detailed and contained innumerable complaints about the father. The affidavit is typed in a small font and is 18 pages and 103 paragraphs long. Many of the 103 paragraphs are divided into numerous sub-paragraphs. I simply do not accept that if the mother had been struck by the coke can, she would have failed to mention the fact in that earlier affidavit.
The paternal grandfather said that the mother told him that morning that the coke can had hit her, and that when he spoke to the father the father admitted it. The paternal grandfather however is overtly hostile to the father and I cannot prefer his evidence about this issue to that of the father.
I am not satisfied on the balance of probabilities that the coke can struck the mother. I am not satisfied that by throwing the coke can the father committed an act of family violence.
There are no doubt circumstances where a person throwing a can of coke to the ground during an argument could cause a reasonable person to fear for their well-being and safety. If for example the can was thrown by a person of violent disposition, the other party to the argument might well reasonably fear that the throwing of the coke can was a precursor to more serious violence.
The father is not however a person of violent disposition and I am not satisfied that the coke can incident is evidence of the father committing an act of family violence.
b)The state of relations between the maternal and paternal extended families
At the present time relations between the two sides of [X]’s extended family could not be worse.
This regrettable state of affairs is a direct result of the mother having had [X] baptised on 21 August 2007 without informing the father or his family.
The father found out about the baptism a few days later.
Shortly thereafter, on 29 August 2007, the paternal grandmother confronted the mother and maternal grandmother at the Greek Orthodox Church over the baptism, calling them “donkeys.” The paternal grandmother slapped the maternal grandmother’s face. Upon seeing this, the maternal grandfather grabbed and pushed the maternal grandmother.
Following this incident, the father and paternal grandfather had a telephone conversation in which I am satisfied they each traded insults and threats.
The paternal grandfather gave evidence at the hearing. It was clear that he considered himself completely justified in the way he dealt with maternal grandmother and in threatening the father. He does not regret his actions.
Following the incident, a series of interim family violence orders were made.
I do not know whether there is any possibility of relations between the two sides of the family being restored. It would be highly regrettable if this hostility continued. It could have implications for the future of [X]’s time with her father.
c)Whether there is an unacceptable level of conflict between the adults in the father’s home and whether the paternal grandfather drinks to excess?
The father’s parents currently live with him. It was the mother’s case that one of the reasons she did not want [X] spending time in the father’s home was that the paternal grandfather sometimes got drunk, and that there were many arguments and volatile disagreements between the husband’s parents and other family members.
The mother was not an altogether reliable witness. On occasions she was at the very least inclined to exaggeration and imprecision and she was prone to draw conclusions from evidence which did not bear the weight of those conclusions. In addition, the mother does not consume alcohol herself and is inclined to view any alcohol consumption by others as excessive, where other members of the community may not
A difficulty however was that the father, in the knowledge of the mother’s allegations about his father’s alcohol consumption and conflict involving his parents, failed to call either of his parents to give evidence.
The father’s failure to call his parents does leave me with a feeling of unease about whether there might not be a problem of some kind which the father preferred not to draw to the attention of the court. On the other hand, the mother’s evidence about this issue was of a fairly general nature and the mother was not a wholly reliable witness.
I cannot be satisfied that there is some pervasive deleterious atmosphere in the father’s home when his parents are present, as opposed to some intermittent arguments which can happen in any family, but I am left with a slight feeling of unease about this issue.
d)Whether the father consumes excessive amounts of alcohol on occasions or uses drugs?
The mother said that the father had a drinking problem. She said that he drank “strong whisky” nearly every night, had driven on occasion when she considered him to be under the influence of alcohol and that he had drunk to excess at weddings and other family activities.
The husband said that he was a social drinker. He denied driving while drunk when the wife was in the car, venturing the opinion that the wife would not have got into the car if she had thought he was not fit to drive. On the totality of the evidence I incline to the same view.
The father was caught drink driving on New Years Eve 2007, with a reading of 0.054. He does not have any criminal convictions suggesting that this matter was dealt with by way of a fine.
The mother’s allegations about the father’s drinking were quite general and the father was not subjected to close particularised cross-examination about his drinking habits.
Dr F, while conceding the limitation of her enquiry, saw or heard nothing to suggest that the father was a problem drinker. The evidence does tend to a conclusion that the mother is overly sensitive about consumption of alcohol by others. I am not persuaded that the evidence demonstrates that the father has a tendency to consume excessive quantities of alcohol such as to impair his ability to care for [X].
The mother also alleged that the father “had a long involvement with drugs”. The father denied it, and the mother produced absolutely no evidence to lead any substance to this bald assertion. I do not accept that there is any reason to be concerned about the father’s using or having an involvement with drugs.
e)Does the dog ‘[A]’ pose a risk to [X] if she spends unsupervised time with the father?
The wife expressed concern about a dog owned by the paternal grandfather.
The dog is an 11 year old pit bull cross called ‘[A]’. It is a dangerous dog. On different occasions it has bitten a police officer, a person passing on the pavement, and the wife and the wife’s sister. The father was charged on one occasion because the dog bit someone, but was not convicted because he proved that he was not the dog’s owner.
The mother is right to be concerned about the dog. It is very difficult to understand why the dog has not been destroyed.
During the marriage, the dog lived at the unit occupied by the paternal grandparents. The paternal grandparents have now moved to the father’s house. When the father swore his affidavit on 30 November 2007 he said as follows:
“….the dog now lives at my house. I would undertake to ensure that the dog is restrained and behind fencing at all times if the child is with me. I would not be foolish enough to put my child at risk.”
In my view this was an inadequate response to the risk posed by this dog. I am satisfied that the mother, with complete justification, would not have a moments peace if her daughter, now a toddler, were to spend time with the father at his house while the dog was there.
In his affidavit filed on 22 September 2008, the father said that the dog had been moved to his brother’s unit and was kept behind a fence, and that if he had his way the dog would be put down.
At the conclusion of the hearing, the father undertook to have the dog put down.
There is no other adequate solution to the risk posed by the dog.
A promise by the father that the dog would live with some other family member would not be sufficient to deal with the genuine concerns about this dog, as the mother would rightly fear that the father and [X] would visit the father’s brother or other family members from time to time.
f)What is the state of the father’s and the mother’s mental health?
Dr F was appointed by the parties as a joint expert, to provide a psychiatric report about each party. The preparation of the psychiatric report was instigated by the mother, who pressed the view that the father may have some mental health issues.
Dr F is a psychiatrist practicing in Darwin. She qualified as a specialist psychiatrist in 1989, and is currently employed as a Senior Psychiatrist in the Northern Territory. Dr F also lectures at [Universities omitted]. She said that while she was an expert on adult psychiatry, she did not consider herself an expert in the area of assessing parenting skills.
Dr F’s conclusion about the father were as follows:
“Mr Karras did not appear to suffer from any mental illness in accordance with the DSM-IV. Specifically I was not able to find any evidence of a psychotic illness such as schizophrenia, an anxiety or mood disorder or a substance dependence disorder.
Emotionally he reports being under strain following the break down of his marriage and the separation from his daughter but he has continued to function at a high level in the workplace throughout this period. He demonstrated some capacity for mature adult function in terms of separation from family, running a business and his diverse interests.”
There was nothing in the father’s presentation at the hearing before me to raise any doubt about the above conclusions by Dr F. No evidence came out during the hearing which suggested that the above conclusion should be treated with caution. Dr F was an impressive witness during cross-examination, and I place weight on her conclusions about the father.
In respect of the mother, Dr F’s observed that she “specifically denied symptoms of anxiety but acknowledged that she was a very avoidant individual. For example Ms Karras could not drive, was very reluctant to fly and was anxious in public unless accompanied.”[4]
[4] Dr F’s report page 15
Dr F’s conclusions about the mother were as follows:
“Her emotional state was fragile. She was very anxious, often tearful, and relied extensively on another adult, the interpreter, for reassurance. There was no evidence of psychosis, cognitive impairment or suicidal ideation.
Using DSM-IV criteria I do not believe that Ms Karras suffers from a psychiatric illness.
However I note that she is a very anxious and avoidant individual who denies any emotional distress despite displaying considerable emotional fragility. I note Ms Karras has attained few adult milestones and related dependencies. She appears to require considerable reassurance from other adults and expends great effort to control her world in a very rigid manner. I note
Ms Karras appear to extend her efforts to control her husband and his family’s contact with his daughter.’[5][5] Dr F’s report page 17.
Dr F’s conclusions were consistent with the evidence given by the mother at the hearing. I place weight on Dr F’s evidence concerning the mother.
The evidence of the Family Consultant
No family report was prepared for these proceedings. However the court called as its witness Mr Tony Vidot, the Family Consultant employed by the Federal Magistrates Court in Darwin.
Mr Vidot is a very experienced psychologist. He has prepared many family reports. He did not meet the parties or [X]. He read some but not all of the material on the court file.
Mr Vidot’s opinion was that for a child of [X]’s age, and given the background that she had to date spent only short periods of supervised time with her father, an appropriate regime might be as follows:
·Some periods of the time during the day, commencing with short periods of two or three hours and becoming longer;
·The introduction of an overnight in the not too distant future, commencing with overnight evening until morning and gradually extending until it was from an evening until the following evening;
·In due course the introduction of two overnights.
Mr Vidot could see no value for the child in the father’s time with the child being supervised more loosely by a third party in a home environment. He also did not consider that supervision to reduce the mother’s anxiety was a valid response if other therapeutic intervention was available for the mother.
[X]’s best interests
In deciding whether to make particular parenting orders about [X],
I must regard her best interests as the paramount consideration.
Sections 60CC(2) and (3) of the Family Law Act set out the primary and additional considerations to which I must have regard in order to determine [X]’s best interests.
The primary considerations in s.60CC(2) are as follows:
“a) The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.”
[X] will benefit from having a meaningful relationship with each of her parents. She has the opportunity to develop a meaningful relationship with her mother. However if the mother’s proposals are accepted, [X]’s opportunity to develop the same meaningful relationship with her father will be delayed or even thwarted.
In Mazorski & Albright[6] Brown J discussed the term “meaningful relationship” and said as follows:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
[6] Mazorski & Albright (2008) 37FamLR 518
The father will not have the opportunity to develop a relationship with [X] which will ‘important, significant and valuable to the child while all he can do is spend supervised time with her, either at Centacare or in a home based environment. This does not give him an opportunity to interact with her in the more relaxed and natural atmosphere of his own home, to learn to be alert to her needs, and take part in everyday caring tasks such as mealtime and bed time routines.
[X] will not have the opportunity to experience her father in a variety of settings and in a variety of roles. For example, she will not have the opportunity to experience him both as a parent with whom she can play and a parent who goes to work and comes home from work. She will not have the opportunity to observe the father carrying out household or home maintenance tasks in his own home.
Dr F, who was a most impressive witness, commented in her report that:-
“There is clear evidence in the literature [which Dr F referenced] that females who grow up in solely single parent households in the absence of any relationship with a male have more problems in later life to do with their own relationship attachments and raising of families.”[7]
[7] Dr F’s report page 25
I do not consider that [X] is likely to be subject to abuse (as defined in the Family Law Act) neglect or family violence (as defined in the Family Law Act) in the separate care of either of her parents.
I now turn to the additional considerations in s.60CC(3).
[X] is too young to express a view about parenting arrangements.
I must consider the nature of [X]’s relationship with each of her parents and any other significant persons.
I accept that [X] has a good relationship with her mother, who is her primary carer and primary attachment figure. Dr F saw [X] with the mother on one occasion and observed an attachment between them.[8]
[8] Dr F’s report page 3
The father has spent time with [X] at Centacare. [X] is familiar with her father. The mother was willing to concede that [X] now had a good relationship with her father.
I accept that [X] has a good relationship with her maternal grandparents. [X] does not have a relationship with the paternal grandparents, who have not been able to spend any time with her for more than twelve months other than perhaps by accompanying the father to Centacare.
I must consider the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent.
In my view the mother is neither willing nor able at this time to facilitate and encourage a close relationship between [X] and the father.
Dr F said as follows:
“I am concerned about Ms Karras’s apparent disregard for her husband’s need to have a relationship with his daughter [X]. This is evidenced by Ms Karras baptizing her daughter without his consent and not abiding by legal agreements. This pattern is a possible indication that Ms Karras may attempt to disrupt this process in the future. Whilst some of Ms Karras’s anxiety about her daughter’s risk when in the company of her father is based on reality, for example, the presence of the dog which has already been shown to bite others, I am concerned that it is largely Ms Karras’ anxiety which drives her intense need to control others.
….At present Ms Karras believes that knowing what is right for her daughter through “being a mother” is sufficient reason to control almost every facet of her ex-husband’s access to his child. I do not support her contention.”[9]
[9] Dr F’s report, pages 20-21
Dr F in oral evidence agreed that the mother was able to “intellectually acknowledge” the importance of the role of a father with his daughter, although emotionally it was very distressing for her. There is therefore a possibility that if [X]’s time goes well and the mother obtains appropriate therapeutic support, then the mother may develop an ability to facilitate and encourage a close and continuing relationship between [X] and her father.
I am of the view that the father has the willingness and ability to facilitate and encourage [X] having a relationship with her mother The orders sought by the father envisage [X] spending time with each of her parents.
I must consider the likely effect of any change in the children’s circumstances, including the likely effect of separation of the child from:
a) either of her parents; or
b)any other child, or other person (including any grandparent or other relative of the child) with whom she has been living.
The mother did not propose any immediate change in the arrangement whereby [X] lived with the mother and spent supervised time with the father.
It was her case that any change in these circumstances would be detrimental to [X]. The mother was particularly concerned that a change to unsupervised time would place [X] at risk of harm from a savage dog, and would expose her to unsatisfactory parenting because of the father’s consumption of alcohol, his father’s consumption of alcohol and conflict between adults in the father’s home.
I do not accept however, absent the issue of the dog, that [X] would be at risk of harm if she spent unsupervised time in the father’s household.
In my view if the issue of the dog is resolved, a change in [X]’s circumstances so that she spends unsupervised time with the father is likely to be beneficial for her. It will permit the development of a meaningful relationship between [X] and the father, and between [X] and members of the father’s extended family. I am satisfied that it is important for [X]’s long term well being that she be given the opportunity to develop these relationships.
My only residual concern is that the failure by the father to call his parents deprived me of an opportunity to properly assess the mother’s concerns about the paternal grandparents. I will need to bear this in mind when considering how much time the child should spend in the father’s household.
Dr F said that [X] might experience some short term difficulty separating from her mother, and that the parents would need to expect this to occur and deal with it sensitively. Dr F said that similarly [X] might experience difficulty separating from her father when she was returned to the mother.
The father proposed that [X] almost immediately commence spending each weekend from Friday afternoon until Sunday afternoon with him. However I place weight on Mr Vidot’s opinion that because of [X]’s age and the absence of unsupervised time to date, change should be introduced gradually, starting with a few hours and moving to overnights in time.
The father proposed that when [X] turned four, a further change be introduced namely, that she commence living week about with each of her parents.
It is very difficult to predict how this change would affect [X]. At present the parents have no ability to co-operate and communicate, and their families are divided into two hostile camps. Mr Vidot’s view was that while a much older child might still cope with shared care in this scenario, because the much older child would be able to make their own wants and needs known, shared care for children of around four was not recommended in this situation.
At present the parties have strongly polarised views about what is best for [X], with the mother resisting even the commencement of any unsupervised time. It could be that if I order unsupervised time and it goes well, that relations between the parties might improve positively as the years go by. It might be however that relations never improve.
I am therefore not able to form a view about the likely effect on [X] of making an order for equal time to come into effect two and a half years from now.
I must consider the capacity of each of the parents to meet the needs of the child, including their emotional and intellectual needs.
[X] is a healthy child who is achieving the expected milestones. The mother is clearly meeting [X]’s physical needs and to an extent her emotional needs. Dr F observed that [X] was “beautifully groomed, well nourished, clean and behaved appropriately in quite a difficult setting for a nine-month old baby.”[10]
[10] Dr F’s report page 16
Dr F’s opinion (which I accept) was that the mother’s capacity to meet [X]’s needs in a broad sense was affected by the mother’s own anxious and avoidant personality. In my view the mother’s personality had already had an adverse affect for [X], in delaying what would have been the normal introduction of and extension of unsupervised time with her father.
A failure by the mother to fully accept that the father has a place in [X]’s life as important as her own could have adverse long term consequences for [X].
As [X] grows older, she will need to form bonds in the wider community and to have exposure to a variety of new experiences. The mother’s personality could affect her ability to give [X] this exposure. This makes it all the more important that [X] has regular and substantial time with the father, who does not suffer from the same difficulties as the mother.
It was the mother’s case that her capacity to parent [X] would be adversely affected by the distress and anxiety she would feel if there was a “sudden leap to unsupervised time”. It was the mother’s case that because she was so important to [X], the court should not make orders which would affect her parenting capacity.
Dr F was questioned about this, as follows:
Mr Black
“We have a situation where the child is being supervised and closely supervised at Centacare for two hours at a time twice a week. If there was a sudden leap from that to unsupervised, what would be the likely effect upon Ms Karras the primary carer?---
Dr F
I think that would be very distressing for Ms Karras because clearly she has a number of concerns about Mr Karras’s capacity to parent their child. When I view that issue in relation to her anxiety and her need to control the world, I imagine it would be a very, very difficult time for her. I think it will be compounded by the fact that if the child has not had a lot of contact with the father, that the child may well express distress on initially being left with the father which itself is not abnormal. But it is possible that Ms Karras could interpret the child’s distress as indicating that the child doesn’t want to go with the father whereas the child’s distress is a developmentally appropriate expression of distress on being separated from the primary care giver. So I think that there will be a number of stimuli arising from that handover that will distress, further distress Ms Karras.
Mr Black
How in your opinion is this likely to effect [X]?
Dr F
Some of that will depend on the manner in which the handover occurs and the support Ms Karras has at the time of the handover. But if the parents are able to converse in a way and - sorry, I’ll just take a step back. If there’s communication between the parents about the fact that the child may be distressed and it is acknowledged between both parties, as it can sometimes be done, then I suspect that that will allow Ms Karras to feel reassured because the child will also be distressed on parting from the father for the same reason.
Mr Black
I suppose that, and I imagine this is within the level of your expertise, if Ms Karras really felt badly about this, this would affect her capacity to parent [X]?
Dr F
My sense is that particularly if Ms Karras is supported say through a relationship with say a psychologist for example, that there’s a capacity for her to work through some of these issues. She was able to acknowledge to me the importance of a role for a father with his daughter, of her ex-husband with the child. Even though it clearly distresses her and she wants to put a lot of constraints and controls on that, my sense is that intellectually she could acknowledge the importance of the relationship even though emotionally it was very distressing for her.”
Both Dr F and Mr Vidot therefore considered that an appropriate solution if the mother was distressed was for the mother to seek counselling and support. Neither Dr F nor Mr Vidot considered that the appropriate solution was to maintain supervised time.
Turning to the father’s capacity, the father does have some blindspots and insensitivities. The father was not willing, until well into the proceedings, to accept that the pit bull dog which had already attacked others had to be put down.
I accept however that the father has the capacity to meet [X]’s day to day needs. What he does not know he can learn, as all first time parents must. If he does this by drawing on the assistance of his own mother, consistent with practices within his own culture, this is not a reason to criticise the father or be concerned about his capacity to parent his daughter.
I must consider the child’s maturity, sex, lifestyle and background (including lifestyle, culture, and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
Both parents are of Greek heritage and both speak Greek as their first language. [X] will experience her Greek culture and heritage through both parents.
[X]’s other relevant characteristics are that she is a very young female child, but I have taken these characteristics into account when considering other Section 60CC matters.
I must consider the attitude of each of the parent’s to the duties and responsibilities of parenthood.
Since separation the father has sought to spend time with his daughter and to fulfil his duties and responsibilities as a parent. The father has taken the opportunities offered to him to spend time with his daughter supervised at Centacare.
I am satisfied that thus far the father has shown a good attitude to the duties and responsibilities of parenthood. He has taken the opportunities available to him to spend time with his daughter, and he seeks to play an important role in her life.
The mother has been a devoted parent to her daughter since separation in terms of attending to her day to day care. However in some respects she has not shown a good attitude to the duties and responsibilities of parenthood.
The mother has not facilitated the father spending time with [X] except in a limited supervised way at Centacare. [X] has thus been deprived not only of meaningful time with her father but also with her paternal grandparents and her extended paternal family.
The mother deliberately excluded the father and his family from [X]’s christening. This was a destructive action which led directly to a most unpleasant incident between the two sides of the family.
While I accept that the mother has valid reason to be concerned about the dog ‘[A]’ the mother at no time proposed that the father have more extensive time subject to a satisfactory resolution of the issue concerning the dog.
I am required to consider any family violence involving the child or a member of the child’s family.
I am not satisfied that the father committed an act of family violence on the day of separation.
There was an incident of family violence between members of the child’s family, following the child’s christening. The maternal grandmother and the paternal grandfather committed acts of family violence and the father and the paternal grandfather traded threats and insults.
As a result of the incident at the church, a number of family violence orders were made: the paternal grandparents obtained an order against the maternal grandparents; the maternal grandmother obtained an order against the paternal grandmother; the paternal grandfather obtained an order against the father and the mother obtained an order against the paternal grandmother. All these orders were made by consent and without admission of liability and expired on 12 December 2008. The making of a family violence order by consent and without admission is of course not evidence that family violence occurred.
I must consider whether it is appropriate to make the order which is least likely to lead to further proceedings.
If I make the orders the father proposed, there is some likelihood of further proceedings. The mother may well commence proceedings again if she forms the view that [X] is not coping. The mother may also commence proceedings again if [X] approaches the age of four and the mother persists in the view that equal time is not in [X]’s best interests.
If I refuse to make the order equal time when [X] turns four, the father may well bring proceedings again in the future seeking equal time.
The mother proposed that interim orders only be made at this stage. It was her case that if this occurred, and the parties had a chance to review the matter some time next year, this order was least likely to lead to further proceedings because it created a mechanism for any wrinkles to be ironed out before final orders were made.
This may be the outcome which is least likely to lead to further proceedings in the next two or three years. It will not however solve the problem of the possibility of future proceedings over the issue of equal time when [X] is older.
I must consider any other fact or circumstance which the court considers relevant.
It was the mother’s case that the father did not really want to spend time with [X], but was simply seeking to enforce his rights as a father, perhaps to avoid losing face in the Greek community. Alternatively the mother said that the father was pursuing the case only so that [X] could spend time with the maternal grandmother.
In his first affidavit, the father did make reference to the fact that his family had lost face in the Greek community because they had been pushed to one side in respect of [X]. However I do not consider that the father’s only motivation for pursuing these proceedings is that issue. I am satisfied, as a result of reading the father’s affidavits, considering his conduct in attending regularly to see [X] at Centacare, seeing him in the witness box and considering Dr F’s report, that the father genuinely wishes to develop and maintain a relationship with his daughter.
The fact that the maternal grandmother will be involved in [X]’s care if the father spends time with [X] is a perfectly normal part of Greek family life. Both the mother and father agreed that it was part of Greek culture that the mother and the grandmothers were heavily involved in carrying out the day to day tasks in the home and in regard to the upbringing of children.
Parental responsibility
I am required by section 61DA to apply a presumption that it is in [X]’s best interests that her parents have equal shared parental responsibility for her, absent a finding that there are reasonable grounds to believe that one of the parents has engaged in abuse of the child or family violence.
Section 61DA(5) provides that the presumption is rebutted if the court finds that it would not be in the child’s best interests for the presumption to apply.
The mother submitted that the father had committed an act of family violence in throwing the coke can, and that therefore the presumption did not apply. If the court did not accept that, she submitted that it was not in [X]’s best interests for an order for equal shared parental responsibility to be made and the presumption should be rebutted.
I do not accept that the father committed an act of family violence during the coke can incident.
The only other potential act of family violence concerning the father was the threats and insults he traded with the paternal grandfather after the incident outside the Greek Church. I am not satisfied however that the paternal grandfather feared for his personal well being and safety as a result of anything the father may have said in the heat of the moment following this incident. I do not consider that the father committed an act of family violence on that occasion.
The mother said that she and the father had no present or future capacity to communicate with each other and that therefore an order for equal shared parental responsibility simply would not work and was not in [X]’s best interests. The mother said that as she was [X]’s primary carer and primary attachment figure, she should have sole parental responsibility.
I do not accept the mother’s submission. An order that the mother have sole parental responsibility, even if coupled with an order that the father spend regular unsupervised time with [X], is likely to entrench in the mother’s mind the belief that she is a much more important person in [X]’s life than the father.
I am satisfied that the father is keenly interested in his daughter and that he has a great deal to offer her. He has made greater strides than the mother in achieving adult milestones, and he does not suffer from the same anxious and avoidant personality traits as does the mother. It is important for [X] that the father’s views about major issues concerning her are given full weight before decisions are made.
Although the parents cannot presently communicate well, they should not be absolved from attempting to communicate about important issues for [X]. If they find it difficult to communicate, family dispute resolution services or even lawyers and the courts, are available to assist.
I am satisfied that it is in [X]’s best interests that her parents have equal shared parental responsibility for her.
Even if I am wrong about the coke can incident, and this incident does represent an act of family violence by the father, the evidence as a whole supports a finding that this was an isolated and out of character act which occurred in moment of frustration at the end of the marriage. It was an incident which was at the minor end of the scale in terms of family violence. There is absolutely no evidence that the father has a violent disposition.
It cannot in my view have been the intention of parliament when enacting the 2006 amendments to the Family Law Act, that a single act of this nature committed when a child was three months old, should deprive a parent who is otherwise committed to their child from having a say in major decisions concerning that child for the next seventeen years of the child’s life.
Even if the presumption does not apply, a court is able to make an order for equal shared parental responsibility if this is considered to be in the child’s best interests. I am satisfied that it is in [X]’s best interests that her parents have equal shared parental responsibility for her.
Conclusion
Pursuant to section 65DAA of the Family Law Act I am required, upon making an order for equal shared parental responsibility, to consider whether [X] spending equal time, or alternatively substantial and significant time with each of her parents is in her best interests and reasonably practicable.
Nobody suggested that orders should be made that [X] spend equal time with her parents in the immediate future. She is too young for that to be a suitable outcome.
The father proposed time in the immediate future which was reasonably substantial (2 days each week), if not significant within the definition in section 60CC(3). The mother went to the other end of the scale and proposed that supervised time (either at Centacare or at a private home with a paid supervisor) continue until [X]’s second birthday and that the matter then be reviewed.
In my view it is not in [X]’s best interests for unsupervised time with her father to be further delayed. [X] needs a relationship with her father, and a significant relationship can only develop if unsupervised time occurs. The father will only be able to develop his own parenting skills once unsupervised time commences.
Unsupervised time will also permit [X] to develop a meaningful relationship with her extended paternal family.
Absent the issue of the dog, I am satisfied that the father can satisfactorily care for [X].
I am not satisfied that I should restrict the father’s time or maintain supervision simply because of the mother’s anxieties. The appropriate course for the mother, if she struggles to accept the outcome, is that she obtain counselling and support from a psychologist.
In regard to the exact amount of time [X] should spend with the father, there are only two reasons to be cautious, namely her age, and a small residual concern I have arising out of the failure of the father to call his parents to give evidence.
Mr Vidot did not support such extensive time as the father proposed being introduced almost immediately. He recommended that the father’s time be slowly increased. I intend to make orders for the father’s time in the immediate future taking into account Mr Vidot’s evidence.
The issue I then need to consider is whether I should make final or interim orders. The mother proposed that interim orders be made, whereas the father proposed final orders. If I decide to make interim orders, then at this stage a consideration of the father’s proposal about arrangements for [X] when she is four, and a consideration of how to factor in holiday time and more extensive time for the father as [X] becomes older, can be deferred for the moment.
I am concerned that if I make interim orders, the mother may look for excuses to find fault with the father’s care of [X] and then hoard her concerns to herself, for use in future court proceedings, rather than draw them to the father’s attention as they arise and work constructively with the father to resolve these concerns.
I am concerned that if [X] displays any signs of being unsettled at changeover, which is almost inevitable according to Dr F, or the mother experiences anxieties while [X] is away from her then the mother, rather than seeking counselling and advice for herself, will simply view this as something she can use in future court proceedings, hoping for a different outcome at a later date.
I am concerned that the mother does not truly embrace the father’s involvement with [X], and that she may work against rather than with interim orders, hoping that they will fail.
On the other hand, [X] is very young and it is particularly difficult to make appropriate orders for a period into the future for such a young child. Because the mother insisted on supervision prior to the hearing, nothing else has been trialled. The parties were polarised in their positions at the hearing, and were not ready to consider alternatives for the future in between this polarised position. There were many issues neither party gave thought to such as whether either of them might want some block holiday time prior to [X] commencing school.
I also have a minor residual concern about the failure of the father to call his parents to give evidence. Although almost all the mother’s concerns were not well grounded, her concern about the dog was, and I cannot simply dismiss out of hand her concern about conflict in the father’s home if his parents live there, or about alcohol consumption by the paternal grandfather.
On balance I consider that the appropriate course is to make orders which will be in place for at least the next six months. At the end of that time, I intend to order that the parties attend reportable family dispute resolution with a Family Consultant. I will list the matter for mention before me after that has taken place.
The parties will thus have an opportunity to reach their own agreement about future arrangements, once the new arrangements are trialled. If they cannot, the court will on the next occasion make final orders.
I am troubled by the issue of how handover is to occur if Centacare is not available, for example on Christmas Day. The domestic violence orders between the various members of each extended family have just expired. However, the paternal grandfather presented most aggressively in the witness box, and resentment between the families does not seem to have gone away.
The father proposed in one of his affidavits that handover occur at [omitted] Shopping Centre with only he and the mother attend changeovers, but given that the mother does not drive this is simply impractical.
Not without some misgivings, I intend to make an order that handover occur at the [omitted] Shopping Centre if Centacare is unavailable unless the parties agree otherwise. The father, the mother and their families are to the best of my knowledge hardworking and respected members of the community who only want the best for their baby daughter and granddaughter. For her sake, they should be capable of putting aside their hostility so that handovers can occur on important special days such as Christmas Day.
The parents would each benefit from attending a parenting after separation course. I intend to order that in the interim period the parents enrol in and complete the course “Putting Kids First” which is conducted by Resolve.
For all the above reasons the orders of the court will be set out at the beginning of the judgment.
I certify that the preceding one hundred and eighty three (183) paragraphs are a true copy of the reasons for judgment of Terry FM
Associate: Rachel Hodgson
Date: 17 December 2008
0
0
1