Launay and Kitanovski (No 2)

[2019] FamCA 1021

FAMILY COURT OF AUSTRALIA

LAUNAY & KITANOVSKI (NO. 2) [2019] FamCA 1021

FAMILY LAW – CHILDREN – where the Court found at a discrete hearing the father is not an unacceptable risk of harm to the child by reason of sexual abuse – interim orders made for the child to spend graduated increased time with the father.

Family Law Act 1975 (Cth) s 61DA

Launay & Kitanovski [2019] FamCA 814

APPLICANT: Mr Launay

RESPONDENT: Ms Kitanovski

FILE NUMBER: BRC 4634 of 2017

DATE DELIVERED: 27 November 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 22 November 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Alex Mandry Legal Group

SOLICITOR FOR THE RESPONDENT: Keyworth Harris & Lowe Family Lawyers

INDEPENDENT CHILDREN’S LAWYER: Ms T-L Geysen
TLG Law

Orders

1. That Orders 3, 4 and 5 made 27 June 2017 by the Federal Circuit Court of Australia be discharged.

2. That the child, X born … 2012 (“the child”) spend time with the father at all times agreed in writing between the parents, but failing agreement as follows:

   (a)From after school Friday, 6 December 2019 to before school Monday, 9 December 2019;

   (b)From 9.00am Saturday, 14 December 2019 to 4.00pm Wednesday, 18 December 2019;

   (c)From 9.00am Monday, 23 December 2019 to 3.00pm Wednesday, 25 December 2019;

   (d)From 9.00am Saturday, 28 December 2019 to 4.00pm Wednesday, 1 January 2020;

   (e)From 3.00pm Tuesday, 7 January 2020 to 9.00am Saturday, 11 January 2010;

   (f)From 9.00am Saturday, 18 January 2020 to 4.00pm Thursday, 23 January 2020;

   (g)From after school Friday, 31 January 2020 to before school Monday, 3 February 2020;

   (h)From after school Friday, 14 February 2020 to before school Tuesday, 18 February 2020 and each alternate weekend during the first school term of 2020, save for the weekend commencing Friday, 27 March 2020;

   (i)From after school Friday, 27 March 2020 until 9.00am Sunday, 29 March 2020 (the child’s birthday weekend);

   (j)From 9.00am Saturday, 11 April 2020 to 9.00am Saturday, 18 April 2020 (second half of end of term one (1) school holidays); and

   (k)From after school Friday, 1 May 2020 to before school Wednesday, 6 May 2020 and each alternate weekend thereafter.

3. That changeovers not at the child’s school shall occur at McDonalds, Suburb L.

4. That the parents be substantially present during the periods of time the child is in their respective care.

Telephone communication

1. That the child shall communicate with the parents on the telephone at such times as the child reasonably requests but otherwise between 6.00pm and 6.30pm each Tuesday and Saturday, and in relation to such communication:

   (a)the parent who does not have care of the child shall initiate the telephone call;

   (b)each parent shall ensure that the child is available to receive the telephone call;

   (c)the parent who does not have care of the child will facilitate the child telephoning the other parent at all reasonable times the child requests; and

   (d)each parent shall ensure that the child has privacy during the conversation.

Restraints

1. That the mother is restrained and an injunction granted restraining the mother from reporting any allegation of abuse by the father in respect of the child to any person or organisation save and except the Queensland Police Service and Department of Child Safety, Youth and Women, with the mother required to inform the Independent Children’s Lawyer immediately upon making any report to the Queensland Police or Department of Child Safety, Youth and Women.

2. That the mother and father be restrained and an injunction hereby issues restraining both parents from:

   (a)discussing these proceedings or any issues or allegations raised in these proceedings with or in the presence of the child or from allowing any other person to do so, including but not limited to the mother’s children Z and Y;

   (b)discussing these proceedings or any issues or allegations raised in these proceedings with any other person or entity, including but not limited to the child’s school, staff or any care provider to the chid, extra-curricular coordinators or teacher;

   (c)questioning the child about the other parent or the other’s parent’s household; and

   (d)allowing or permitting the child to attend upon any psychologist, counsellor or any other mental health practitioner or social worker,

without the prior consent of the other parent and the Independent Children’s Lawyer.

Exchange of information

1. That other than in an emergency, the parents shall communicate by SMS text message or email.

2. That the mother and father shall:

   (a)keep the other parent informed at all times of their residential address and a mobile and landline contact telephone number and inform the other parent within twenty four (24) hours of the change to such details occurring;

   (b)keep the other parent informed forthwith of the names and addresses of any treating medical or other health practitioners or specialists who treat the child and authorise those practitioners/specialists to provide the other parent with information that they are lawfully able to provide about the child;

   (c)inform the other parent of any upcoming medical appointments for the child with a reasonable period of notice prior to such appointments; and

   (d)inform the other parent as soon as reasonably practicable of any significant medical condition, health issue or illness suffered by the child and in any event within twenty four (24) hours of such medical condition, health issue or illness suffered by the child.  If the child is taken to hospital the other parent is to be notified as soon as practicably possible but in any event within one (1) hour of becoming aware of that hospitalisation, with details of the illness or injury, the name, address and phone number of the relevant hospital and/or medical practitioner and inform the other parent of the outcome of the treatment.  If either parent comes into the possession of any medical reports, handouts or information related to the injury or illness regarding the child within three (3) days of receipt the receiving parent shall forward copies to the other parent.

3. That the parents authorise, by this Order, the schools and/or after school care centres attended by the child, to give each parent information about the child’s educational progress and other school-related activities and supply them with copies of school reports, newsletters, letters and general notices, photographs, certificates and awards obtained by the child (at that parent’s cost).

4. That each parent will be able to attend all school functions, school and extra-curricular performances and special occasions in which parental involvement is usually encouraged, including sports, parent-teacher interviews and presentations.

5. That each party file and serve by no later than 4.00pm on 18 March 2020:

   (a)one (1) Affidavit setting out how, from their perspective, these interim Orders have progressed; and

   (b)a minute of the orders they contend be made on a final basis.

6. That these proceedings be adjourned for Case Management Hearing at 9.30am on 25 March 2020 in the Family Court of Australia at Brisbane.

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

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4634 of 2017

Mr Launay

Applicant

And

Ms Kitanovski

Respondent

REASONS FOR JUDGMENT

(settled from the oral reasons delivered)

Introduction

1. For reasons published earlier in these proceedings to the parties (see Launay & Kitanovski [2019] FamCA 814), the Court found that the father, Mr Launay, is not a unacceptable risk of sexual harm to the child X born in 2012. The mother, Ms Kitanovski, had urged for such a finding, based on the disclosures which are referred to in the Court’s earlier Reasons. As a result of those findings, the matter was listed for further interim determination so that the Court could consider what changes there ought to be to parenting arrangements which had been shaped by an interim order, said to be by consent, made by Judge Coates of the Federal Circuit Court of Australia on 27 June 2017.

2. The effect of that Order – and, it seems, other arrangements which took place – are clear to the parties and have generally been applied with little variation.  It is not disputed that X is now of school age and that the current interim orders made by the Federal Circuit Court of Australia do not, for example, provide for any block holiday time.  As identified in my earlier Reasons, the inability to make a finding on the significant risk issue asserted shaped those Orders.

3. At the Court’s invitation, the parties, having considered the Reasons delivered on 11 November 2019, provided competing proposals for the Court’s consideration and oral submissions were taken in respect of those proposals on 22 November 2019.  The competing proposals, in short, were, by the Independent Children’s Lawyer, Ms Geysen (“ICL”), and the father, that essentially we move to an equal-time arrangement after some initial graduation in and, in particular, that equal time would occur during the school holiday period and into the 2020 school year.

4. There were slight differences between the father’s proposal and the proposal of the ICL, but that was mostly in relation to how we get to the equal-time position.  The mother’s position was starkly different.  It provided that, for school terms, the child spend time with the father each alternate weekend from, effectively, after school Friday to 9.00am Sunday, which is not significantly different to what is occurring now.  I should note in passing that the Orders of the Federal Circuit Court of Australia were that the time, notwithstanding the concerns raised by the mother, that took place between the child and the father was not ordered to be supervised.

5. The mother’s proposal in respect of school holidays was that the time the father would spend with the child would be from 3.00pm Thursday to 8.00am Monday each alternate weekend – basically the same routine as is applying during the school term.  Although the mother’s very comprehensive proposal dealt with other events well into the future, including Easter and Father’s Day and also Mother’s Day, it is not, in my view, necessary to deal with many of those issues at this stage because, for reasons which I explain, this matter will return to my list at 9.30am on 26 March 2020 for further Case Management Hearing.

6. The principles that need to be applied in respect of interim parenting are slightly different in this case because the Court has made some findings in relation to at least the discrete issue of sexual abuse.  There are, however, a number of other matters which the Court could not make findings on, as the evidence has not been fully tested.  I have taken on board the careful submissions of both Ms Geysen, Ms Sinclair for the father and Ms Keyworth on behalf of the mother.  The orders I now pronounce are not an adoption of either of the parties’ proposals.

7. In my view, the orders take into account, however, in the best interests of the child, at least:

   a)the need for time to increase to give the child a greater opportunity to develop her relationship with the father, which has, in some sense, been stymied by over two years of limited weekend time and no opportunity for holiday time even when the child commenced school; and

   b)the recommendation of the family report writer, Ms K that:

   “82.    In the event that the allegations are unfounded, and the Court is satisfied that [Ms Kitanovski] can separate her personal worries from [X’s] ongoing childhood experiences, it is recommended that [X’s] time with [Mr Launay] increases.  This is identified as being consistent with the strength of their relationship as well as [X’s] opportunity to gain benefit from the substantial influence of both parents.  Subsequent to the initial assessment of December 2017 about the parties’ co-parenting, it is agreed between the parties that notwithstanding the seriousness of the allegations at hand, they have been able to come to agreements relevant to [X’s] best interests and that communication occurs in a good enough capacity which does not interfere in [X’s] life.  [X’s] accounts are also indicative of her having no negative impacts of the parties’ co-parenting interactions.

   83.      Consequently, the Court may now be satisfied that the parties have acquired the skills to engage in communication suffice to compliment an equal time arrangement.  [X’s] increasing age also allows for a decreasing necessity for detailed handover communication.  A week about arrangement is also a familiar parenting arrangement for [X] who has lived with siblings who spent their childhoods living in this arrangement.  [Ms Kitanovski] also states her support for an increase in [X’s] time with her father.  In this regard, it is assessed that [X] living equally between her parents is achievable and is within her developmental capabilities.”

8. It is to be noted, of course, that the opinion expressed by Ms K is just part of the evidence before the Court.  That opinion set out in her report dated 21 March 2019 arises from interviews that occurred on 12 February 2018.

Discussion

1. The father’s current application now seeks on a final basis a change of residence because he believes the mother will continue to assert he is a risk to the child notwithstanding any orders of the Court or findings made by the Court; that her views are fixed; that she is unable to support X’s relationship with him and that a combination of all these factors would compel a finding by the Court that the child is at a risk of psychological harm in the mother’s continued primary care.  The discrete hearing was not the opportunity for these issues or other issues the mother raises about the father to be fully and properly tested.  The reasons why the Court elected to deal with the allegation of sexual abuse on the discrete issue have already been indicated.

2. The view the Court has formed is that, as these allegations have shaped parenting arrangements for over two and a half years, a period of increased time with the father allows the mother a further period of adjustment to the findings made by the Court.  At this time on the evidence to date, including my observations of the parties under cross-examination about the discrete issue and taking on board the proposals about how they move forward and the nature and tenor of the submissions, I am not satisfied that the orders for equal time are reasonably practicable.

3. As is required by s 61DA of the Family Law Act 1975, I have considered an equal time regime, noting in particular that order 1 made 27 June 2017 (which has not been discharged) provides for equal shared parental responsibility and remains in full force and effect.

4. The carefully designed orders I pronounced today on an interim basis gradually increases time initially and through the upcoming Christmas school holidays between X and the father.  In this regard, the mother contended, contrary to the assertion by the father, that the father’s work situation restricts his ability to be present for the child’s holiday time with him.

5. I order that when the children are in the care of a parent (and that means both the mother and father) under the orders I now pronounce, the parent should be substantially present.

6. When the new school year begins in 2020, the father’s time again increases to a level:

   a)from 14 February 2020 to alternate weekends from after school Friday to before school Tuesday;

   b)for one week in the end of term one school holidays; and

   c)from the commencement of term two 2020 the child’s time during school terms then increases to after school Friday to before school Wednesday.

7. I do not require the ICL to obtain an updated family report until discussion as to its necessity is undertaken at the Case Management Hearing which I list before me to occur at 9.30am on 25 March 2020.  I make directions for the parents, with the benefit of seeing how the child copes with the changed routine, to articulate by 18 March 2020 the final order that they seek.  If the trial is necessary then a listing in June/July 2020 is currently likely.  If a trial is required then no doubt the ICL will consider, subject to Legal Aid funding, whether an updated family report would help the Court’s determination.

8. I incorporate proposed orders 3 and 4 of the father’s proposed interim order with some amendments.

9. I have changed the telephone contact order which I discharged from the earlier orders and now adopt the mother’s proposed order 8; the mother’s application for orders as to collection and delivery (order 9); notifications of delay and return of belongings (orders 10, 11 and 12); schooling including high school (orders 13 and 14); religion (orders 15 and 16); passports (orders 17 and 18); overseas travel (order 19) and registrar authority to execute (orders 20 and 21) may ultimately be pursued at any final hearing.

10. However, they are either not necessary to be made on an interim basis and/or an evidentiary foundation for the mother’s concerns necessitating such orders has not been established to my satisfaction at this stage.

11. I am now aware of the existence of a Protection Order made by the Magistrates Court under the Domestic and Family Violence Protection Act 2012 (Qld) on 12 September 2017 which remains in full force by its terms until 11 September 2022. In particular, orders made by consent by that Court without admission include that:

    d)the respondent (father) is prohibited from contacting or attempting to contact or asking someone else to contact the aggrieved (mother) by any means whatsoever including telephone, text or internet except when appearing personally before a Court or tribunal; except when attending an agreed conference, counselling or mediation; except for the purpose of having contact with children but only as set out in writing between the parties or in compliance with an order of a Court; and

    e)The respondent is prohibited from attending at or going to a school or other premises where a child of the aggrieved attends for the purposes of education or childcare except with the written consent of the aggrieved including by text message or otherwise as set out in writing between the parties or in compliance with an order of the Court.

12. To avoid the prospect of the father being accused of breaching an order in the current Protection Order whilst lawfully complying with these (or the earlier interim) parenting Orders, I do make orders allowing the father to attend school events and public events where the child is attending or participating in such events and also make orders for how the parties ought to communicate, namely, by text message or email – other than in an emergency.  The orders which I will pronounce I regard as orders in the best interests of the child on an interim basis at this time.

13. The first order that has to be understood is that X’s time with the father will occur from after school Friday, 6 December to before school Monday, 9 December; thereafter from 9.00am Saturday, 14 December – which I understand is the first week of the school holidays – until 4.00pm Wednesday, 18 December and then I have actually set out a number of days.  I take into account what seems to be some agreed position about Christmas.  I take into account the Country C Holiday which I think is agreed between the parties.

1. I provide for changeovers to occur at McDonald's Suburb L, if not at the child’s school.

2. I, as I say, have made provision for telephone communication and restraints and exchange of information and otherwise require the parties to appear before me at 9.30am on 25 March 2020.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 27 November 2019.

Associate: 

Date:  30 January 2020