JANAS & JANAS

[2019] FCCA 3479

FEDERAL CIRCUIT COURT OF AUSTRALIA

JANAS & JANAS [2019] FCCA 3479

Catchwords:
FAMILY LAW – Parenting – time spent with each parent – whether there should be equal shared parental responsibility of the child – serious allegations of domestic violence against the husband – husband admits domestic violence – husband has made attempts to reform behaviour – equal shared parental responsibility granted.

Legislation:

Family Law Act 1975 (Cth), s.65

Applicant: MR JANAS

Respondent: MS JANAS

File Number: MLC 7663 of 2017

Judgment of: Judge Kirton QC

Hearing dates: 27, 28 November 2018

Date of Last Submission: 28 November 2018

Delivered at: Melbourne

Delivered on: 5 December 2019

REPRESENTATION

Counsel for the Applicant: Mr Carne

Solicitors for the Applicant: Joliman Lawyers Pty Ltd

Counsel for the Respondent: Ms Bonney

Solicitors for the Respondent: Lampe Family Lawyers

ORDERS

1. The father and the mother have equal shared parental responsibility for decisions concerning the major long-term issues for the child X born … 2014.

2. X live with his mother.

3. X spend time with his father as follows:

   (a)Commencing Friday 13 December 2019 until 26 January 2020 each alternate week from after day care or 3:00pm Friday until 5:00pm Sunday;

   (b)Commencing 27 January 2020 and thereafter:

   (i)During the gazetted school terms, each alternate week from after school Friday until before school Monday;

   (ii)In the event that either the Friday or the Monday on which X is to transition into the care of the father or mother, respectively, occurs on a non-school day, then the time shall be from after school or 3:00 pm on the Thursday immediately prior or before school the Tuesday immediately after, whichever the case may be;

   (c)During X’s school holidays:

   (i)During even numbered years, for the first half of each school holiday period from after school on the last day of school term until 5:00 pm on the Saturday which falls in the middle of the school holiday period; and

   (ii)During odd numbered years, for the second half of each school holiday period from 5:00 pm on the Saturday which falls in the middle of the school holiday period until before school on the first day of the next school term.

   (d)Notwithstanding any other order, X shall spend time with the father on the Father’s Day weekend as agreed between the parties, but failing agreement from after school on the Friday immediately prior to Father’s Day until before school on the Monday immediately following Father’s Day.

   (e)Notwithstanding any other order, X shall spend time with the mother on the Mother’s Day weekend as agreed between the parties, but failing agreement from after school on the Friday immediately prior to Mother’s Day until before school on the Monday immediately following Mother’s Day.

   (f)Notwithstanding any other order, X shall spend time with his father:

   (i)From 3.00 pm Christmas Eve until 3.00 pm Christmas Day in each even numbered year; and

   (ii)From 3.00 pm Christmas Day until 3.00 pm Boxing Day in each odd numbered year.

   (g)Otherwise as may be agreed between the parties.

4. When changeover cannot occur before or after school at the child’s school, it shall take place at a public library half way between the parties’ respective places of residence or at such other place as the parties might from time to time agree in writing.

5. X shall communicate with the father at all times as might be agreed between the parties but failing agreement by Skype, FaceTime or any other visual or audio format each Wednesday between 5:00 pm and 6:00 pm.

6. Each party shall:

   (a)Keep the other party advised at all times of their current residential address and telephone number and notify the other party within seven (7) days of any change;

   (b)Advise the other party immediately in the event that the child suffers any serious illness or injury and where the child is being treated; and

   (c)Authorise any medical practitioner or health professional upon which the child may attend from time to time, to communicate with the other party in respect to the child’s medical condition and/or requirements.

7. The father and the mother be at liberty to provide a copy of these orders to any one or more of the following:

   (a)The principal or delegate of the principal of the school attended from time to time by the child; and

   (b)Any medical practitioner and/or allied health professional attending upon the child.

8. Each party shall do all things necessary to authorise and/or facilitate all schools/kindergartens reports, notices and reports in relation to the child:

   (a)Provide the other party at the expense of the party copies of all school/kindergarten reports, notice and photographs in relation to the child; and

   (b)Communicate with the other party either by telephone, in writing or by personal attendance, in respect to the child's progress.

9. The father be at liberty to attend all school or kindergarten functions that is normal for parents to attend including but not limited to sports days, working bees, parent teacher interviews and Father’s Day functions.

10. Each of the parties by themselves and/or their agents be and are hereby restrained by injunction from:

    (a)Harassing or assaulting the other party;

    (b)Denigrating, rebuking or belittling the other party to or in the presence or the hearing of the child and from allowing the child to remain in the presence of any other party who may be so doing;

    (c)Discussing family law or parenting issues, to, with or in the presence or hearing of the said child and from permitting any other person to do so;

    (d)Exposing the child to conflict or disagreements between the mother and the father or between any other person in the household, or any other family violence;

    (e)Telephoning the other party save for an emergency concerning the child or to discuss parenting arrangements;

    (f)Using the child as a messenger between the parents; and

    (g)Involving the child in the adult conflict;

11. The parties will attempt to resolve any future parental dispute by attending Family Dispute Resolution with costs to be borne equally between the parties.

IT IS NOTED that publication of this judgment under the pseudonym Janas & Janas is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7663 of 2017

MR JANAS

Applicant

and

MS JANAS

Respondent

REASONS FOR JUDGMENT

1. X (X) was born … 2014.  He is now 5 years of age.  Presently he lives with his mother and spends time with his father each Saturday for eight hours.  His parents are unable to agree about the parenting arrangements for X as he gets older.  Although both agree that X should continue to spend time with his father they are in dispute as to how X’s time with his father should progress.  They are also in dispute about who should retain parental responsibility for decisions concerning the major long-term issues for X.

2. Mr Janas seeks orders that provide for X to live with him each alternative weekend from 3.00 pm on Friday until, ultimately, 5.00 pm on Sunday each alternate weekend.  He seeks specific orders about Christmas, school holidays and other special times.  The specific orders he seeks are set out in his case outline filed on 7 September 2018.  He seeks an order for equal shared parental responsibility.

3. Ms Janas seeks orders that she have sole parental responsibility for X and that she live with him.  She seeks orders that would see progression of time that ultimately concludes in arrangements for time between X and his father each alternative weekend from the conclusion of school on Friday until the commencement of school on Monday.  She also seeks particular arrangements about school holidays and the like.  The details of her arrangements are set out in her amended outline of case filed on 7 September, 2013.

4. Analysed in terms of the matters raised for consideration by s.60CC of the Family Law Act1975 (Cth) (Act), and having regard to the evidence and the submissions of each of the parties, the following issues are apparent:

   a)The nature and extent of the risk to X from Mr Janas which is represented by Mr Janas’ past behaviour towards Ms Janas’ other child, B;

   b)The effect of each of the parties’ proposals upon X’s relationship with each of them.

5. Ms Janas asserts and Mr Janas accepts that his past behaviour towards her other son B represents a risk to X.  Ms Janas case is that the risk is very real and is such that the progression of time that X spends with his father ought to happen slowly so that the interactions between X and B and Mr Janas can be properly monitored and assessed.

6. Mr Janas case is that whilst he accepts that his behaviour towards B in the past was entirely inappropriate and represents a risk to X if that behaviour is to be repeated towards him, the likelihood of that behaviour being repeated towards X is very low if not entirely ameliorated. In those circumstances, a faster progression of time between he and X is appropriate.

Background

1. The parties commenced cohabitation in late 2006.  At the time Ms Janas was 26 years of age.  She is presently 40 years of age.  At the time of cohabitation Mr Janas was 35 years of age.  He is presently 48 years of age. 

2. The parties married in … 2007 in England.  Ms Janas had a child from another relationship, B, who was at the time of the parties’ marriage about seven years of age.

3. The parties immigrated to Australia in … 2007.  They lived for a time in Perth and then in Town C in Victoria.  X was born on … 2014. 

4. They separated under the one roof on 30 May 2017.  X was about 2 ½ at that time.  Later, on 23 June 2017 Ms Janas moved to separate accommodation with X.

5. Ms Janas applied for and obtained an interim intervention order against Mr Janas soon after she left the parties’ former home.  In early August 2017 Mr Janas consented to an intervention order being made without admission and at about the same time, he commenced these proceedings for parenting orders in respect of X. 

6. At the first return date of these proceedings a report pursuant to s.11F of the Act was ordered. Orders were made for X to live with his mother and for him to spend time with his father for two hours each alternative Saturday commencing on 2 September 2017. X’s time with his father was ordered to be supervised at the father’s expense.

7. The matter came back before the court in November 2017.  Orders were made by consent that provided for X to spend time with his father each Saturday for two hours from 2.00 pm until 4.00 pm and for that time to extend on 3 February 2018 from 2.00 pm to 5.00 pm (provided the father had completed a men’s behavioural change program).  From 7 April, 2018 X’s time with the father was to increase so that it was between 12.30 pm to 4:30 pm.

8. The application came back before the Court again on 8 February 2018.  An order for the parties to attend mediation was made.

9. Ms A is a registered psychologist. On 27 March 2018, she prepared a report pursuant to s.62G of the Act for use in these proceedings. The report was released to the parties and following that, they attended another mediation. They were unable to resolve the matter and the application was set down for trial.

10. In the meantime in May 2018 X’s time with his father extended to 6 hours each Saturday and on 30 June 2018 X’s time with his father extended to 8 hours each Saturday.

The legislative framework

1. Part VII of the Act provides the relevant statutory framework within which the Court must determine what parenting orders to make. The Court must have regard to the best interests of the children as the paramount consideration in determining what parenting orders ought to be made: s.60CA of the Act.

2. The best interests principle informs each of the orders that a Court might be called upon to make concerning parenting, including orders concerning the incidence of parental responsibility, where children should live and with whom they should spend their time and communicate. 

3. As to the incidence of parental responsibility, s.61DA of the Act provides that when making a parenting order, a court must apply a presumption that it is in the best interests of the child or children concerned for their parents to have equal shared parental responsibility for them. That presumption will not apply if there are reasonable grounds to believe that a parent of the child or children concerned either has engaged in abuse of a child who, at the time, was a member of the parent’s family or has engaged in family violence. However, even if the presumption for equal shared parental responsibility does not apply, it may still be in the best interests of the children to make an order for equal shared parental responsibility.

4. The presumption of equal shared parental responsibility does not apply here because on the case of both parties, Mr Janas has engaged in family violence as that phrase is defined in the Act, towards Ms Janas and B. Nonetheless, Mr Janas asked the Court to make an order for equal shared parental responsibility in respect of X and the Court may do so if it is otherwise satisfied that it is in the best interests of X for such an order to be made.

5. The phrase equal shared parental responsibility is not defined, in terms, in the Act. It is defined by its consequences. There are consequences for the Court and there are consequences for the parents. If the Court is to make an order for equal shared parental responsibility, it must consider:

   a)Whether it would be in the best interests of the child or children concerned to spend equal time with each parent; and

   b)Whether spending equal time would be reasonably practicable.  If it is, then the Court must consider making an order for equal time. 

6. If the Court does not make an order for equal time then it must consider whether it is in the best interests of the children to spend substantial and significant time with each parent and whether spending substantial and significant time would be reasonably practicable.  If it is, then the Court must consider making an order for substantial and significant time.  The phrases substantial and significant time and reasonably practicable are defined in s.65DAA(3) and 65DAA(5) of the Act respectively.

7. Here, neither party proposes an order for equal time with X.  Given the circumstances of this case such an order would be, at this point at least, inappropriate in any event even if I make an order for equal shared parental responsibility. 

8. The consequences for parents if the court makes an order for equal shared parental responsibility are found in s.65DAC of the Act. The effect of that section is that if two or more persons are to share parental responsibility for a child and the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child, then the people who share parental responsibility must, for every major long-term issue:

   a)Consult the other person in relation to the decision to be made about that issue;

   b)Make a genuine effort to come to a joint decision about that issue; and

   c)Make the decision jointly.

9. In determining what orders are in the best interests of children the Court must have regard to the primary and additional considerations as set out in s.60CC of the Act. The primary considerations are:

   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.

10. The additional considerations are those matters set out in s.60CC(3) of the Act that are relevant to the matter at hand. The Court must give greater weight to the primary considerations than to the additional considerations. Of the two primary considerations, the Court must give greater weight to that set out in s.60CC(2)(b): s.60CC(2A).

Consideration

1. Both parties seem to accept that X will derive a significant benefit from having a meaningful relationship with each of his parents.  That must be so given the orders sought by each of the parents in these proceedings.  Ms A’s evidence makes good the assumption that underlies the parenting orders sought by each of the parents.

2. The core of Ms Janas’ case is the proposition that Mr Janas past behaviour towards her and her son B is an indicator that it is likely that X will be at a risk of physical and emotional harm in his care and so any orders must be fashioned to ensure that X is not so exposed.  To examine the veracity of that argument, it is necessary, of course, to identify the behaviour about which she complains.  In large measure, however, that is not difficult to do because Mr Janas accepts that he has behaved poorly in the past towards both Ms Janas and her son B. 

3. Ms Janas catalogues the behaviour about which she is concerned in her trial affidavit filed on 7 August 2018.  Some of the incidents about which she gives evidence are verbal abuse and what she describes as “shaming”.  There are also some incidents of physical abuse by Mr Janas of B.  Some of her allegations are denied and others are admitted.  The allegations of physical abuse are, by and large, admitted. 

4. The first incident of concern for her was an occasion when she saw “the husband smack B across the head” after B had dropped some food on the floor.  He was about eight years of age at the time.[1]  There is other behaviour about which Ms Janas complains does not consist of physical abuse by the husband towards B but rather the father acting in an angry and difficult manner towards him.  She describes some of Mr Janas’ behaviour as humiliating B.  There was an episode in which Mr Janas tied B into a chair because he was not sitting up straight enough for Mr Janas’ liking.

   [1] Affidavit of Ms Janas, affirmed on 6.8.2018, at [12].

5. The violence Ms Janas alleges Mr Janas perpetrated towards her was violence of a verbal nature. Her evidence sets out a number of occasions in which she said she was verbally accosted by Mr Janas when he was angry and upset.  She found his behaviour controlling, intimidating and frightening.  She does not allege that he perpetrated any physical abuse upon her.

6. Whilst Mr Janas denies a number of the incidents alleged against him by Ms Janas, he also admits quite a number of them.  His written evidence is replete with him accepting responsibility for his past actions towards both B and Ms Janas.  He accepts responsibility for what might be described as the more significant episodes of violence between he and B that occurred whilst the parties were together.  He accepted in cross examination that there were many times that his behaviour was inappropriate towards B.  He accepted that he would “yell and scream” at B on a weekly basis.[2]

   [2] Transcript: T 16:30.

7. One episode which attracted attention in the course of the trial was an incident that occurred in Christmas 2015 when Mr Janas, while holding X in his arms, kicked B “on the backside”.  Ms Janas says that she took X from the husband’s arms and as she did so the husband screamed at B to get outside the house.  Ms Janas did not follow B and Mr Janas outside of the house but she could hear from outside B screaming “get off me, get off me!”  Mr Janas and B then came inside and she heard B say “I can’t believe you just tried to strangle me”.  She says that Mr Janas said “the reason I tried strangle you is because I’m sick of your laziness” or words to that effect.[3]

   [3] Transcript: T 22:12-14.

8. Mr Janas’ description of that episode was even more graphic.  He described getting B in a “headlock” after he had “kicked him in the backside” and pulling him outside the front door of the parties’ house.  At that point he told B to “back off or I was going to kill him”.[4]

   [4] Transcript: T:19-35.

1. Ms Janas was so concerned about the incident that she organised for the parties to attend counselling a couple of days later with Relationships Australia.  Ms Janas told the counsellor why the parties were attending counselling.  She told the counsellor about Mr Janas’ assault on B.  The counsellor told Ms Janas to report the matter to the police which she then did.  Mr Janas was subsequently charged with assault.  He pleaded guilty to 2 counts of assault and a final intervention order was made against him to protect B.  Mr Janas also received a 12 month good behaviour bond.

2. As part of Mr Janas’ rehabilitation he undertook a program described in the evidence as the Heavy METAL (Men’s Education Towards Anger and Life) program.  He undertook that program voluntarily and he commenced before the charges before him were dealt with.  He gave evidence that he made investigations into the courses that might be available to assist him (and that he was likely to be ordered to complete as part of his sentence) and he made a decision to undertake the Heavy METAL course.  He thought it might be far more beneficial than what he might otherwise be forced to undertake through the court process.  Mr Janas described the course as “quite an expensive and very intensive course”.[5] It had a duration of 40 weeks. In my view, that he would choose such a course in such a deliberate manner underscores his determination to address the issues that were then confronting him.

   [5] Transcript: T 24:4.

3. I mentioned earlier in these reasons that the parties had participated in a s.11F process. B was interviewed for the purposes of that process. According to B, Mr Janas calmed considerably after he commenced the Heavy METAL course.[6]  B and Mr Janas had found one activity they could enjoy together namely attending movies.  B told the report writer that he would like to have occasional future contact with Mr Janas. 

   [6] Child Inclusive Conference Memorandum to Court, dated 27 October 2017, at [6].

4. This matter is significant because on this point, it was put to Mr Janas in cross-examination that B no longer wished to have a relationship or any contact with him and was frightened of him.  It was suggested that there was support for that in the subsequent family report prepared by Ms A.  However, in my view, there is no support for that proposition in the family report.  At best the report records that B was reluctant to participate in the report process but it says nothing about B’s desire to have any contact with Mr Janas.  The report writer noted that B was cautious “not wanting to upset his mother at present and while the matter is before the court”.  He told her that he had not ruled out future contact with Mr Janas.

5. There was indeed some occasional contact between B and Mr Janas via Facebook and other media, but that led to Mr Janas being charged with breaching the intervention order that existed between he and B.  The breach was made out by a comment made by Mr Janas to B about his debutante photo.  Ms Janas was responsible for reporting the breach, not B.  There is no evidence at all to suggest that or the other communication between B and Mr Janas post-separation was unwelcomed by B.

6. Mr Janas’ evidence is that he has now come to understand the inappropriateness of his conduct and the deleterious effect it was likely to have on Ms Janas, B and X if he repeats that behaviour.  Mr Janas gave evidence of having undertaken a number of measures to address his behaviour and having done so, he contends that he no longer represents a risk of harm to X.

7. Ms Janas evidence is that whilst there was some improvement in Mr Janas behaviour after he undertook the Heavy METAL program, he soon slid back into his old ways. I do not, however, accept her evidence about that at face value. It is inconsistent with what B told the s.11F report writer. While there is no doubt Mr Janas continued to struggle with his emotions from time to time, I am satisfied that he was committed and continues to be committed to ensuring that his behaviour is more appropriate than it has been in the past.

8. Ms A considered what Mr Janas claimed he had done to address his behaviour.  Her assessment was:[7]

   47.    Mr Janas has attempted to make changes through the various men’s courses he has attended.  Demonstrated an appreciation of his frustrations and violence and an understanding of their origin and his own very abusive childhood at the hands of his stepfather.  He can also understand other men’s violence and had good language skills to convey his new knowledge.  Lacking from much of this was a demonstrated capacity to understand how his violence affected the victim and how either his wife or B would be feeling about his violence towards them.  He identified with B in not having a father but did not indicate an appreciation of the child’s emotional reaction to his violence against him.

   [7] Affidavit of Ms A, filed 21.6.2018, at [47].

9. I found Mr Janas’ written evidence and his evidence in cross examination insightful.  He was cross-examined about Ms A’s opinion expressed in the paragraph set out above.  He gave the following evidence:[8]

   [8] Transcript: T 25-27.

   Now, Ms A – I will take you to it. Paragraph 47, page 12 is her conclusion:

   Mr Janas has attempted to make changes through the various men’s courses he has attended. He demonstrated an appreciation of his frustrations and violence, and an understanding of their origin in his own very abusive childhood at the hands of his stepfather.

   And you would agree with that, wouldn’t you? --- I would agree with that.

   Continuing:

   He can also understand other men’s violence, and has good language skills to convey his new knowledge.

   Would you agree with that, that those two things are correct about you? --- It’s ongoing.

   Sorry? --- It’s an ongoing progress for me, yes. Yes.

   Continuing:

   Lacking for much of this was a demonstrated capacity to understand how his violence affected the victim, and how either his wife or B would be feeling about his violence towards them. He identified with B in not having a father, but did not indicate an appreciation of the child’s emotional reaction to his violence against him.

   Do you remember reading that? --- I do remember reading that, your Honour.

   And the mother’s evidence will be that Ms A is correct, that you’ve learnt the language but your appreciation of the effect of violence upon her and her child, B, is not – you don’t have it? --- Clearly, your Honour, I was unable to express myself in the way Ms A was expecting. And I was at that interview to show how I could parent X as regards to reflecting on my past actions which I have acknowledged were inappropriate.

   So do you say now that you have an understanding of the effect of your violence against B? --- I do understand how my effect was - - -

   How? --- I have outlined in my affidavit - - -

   No, just tell us. Forget about your affidavit? --- I – I have expressed in my affidavit that my approach would have been very authoritarian. B would have been – felt very picked on.

   HER HONOUR: Felt very, sorry? --- He would have felt being – felt very picked on.  I would have been very critical of B.

   MS BONNEY: Very critical? --- I would have been very critical of B.

   And how would that affect him now? --- It would have affected his self-confidence, his willingness to express. B would have been reluctant to come to me with problems. It would have been very difficult for him to approach. And we had differences, different interests, which made it hard. (emphasis added)

   Sorry, a bit difficult for him to approach you? --- That’s correct, your Honour.

   And then you said something about different interests.  You and B had different interests? --- That’s correct, and we struggled to find a common ground which, after I was doing, my courses, the one thing we did find common ground which we enjoyed doing together was going to the movies. We went from a· stage where we could not stand to be in the same house together to spending several hours together at least once a month going out, going to the movies, possibly stopping and getting shopping on the way home, going for lunch, depending what the time allowed.

   When do you say this was? --- These were in the months leading up to our separation.

   So the beginning of 2017? --- They went for – I would have to check bank statements, your Honour, but I can prove that we purchased movie tickets on a regular basis. I would have to check the actual timeframe.

   If you think you broke up in June 2017, was it long before that or a little bit before that? --- We would have certainly been attending the movies prior to them coming back from the UK. And I actually had movie tickets booked for the weekend that they moved out.

   So you had just come back from the UK? --- Ms Janas came back from the UK in January.

   So from January to June, how many times do you think you went to the movies with B? --- That was at least once a month.

   So six times? --- Mmm.

   The mother’s evidence is that B is scared of you. You haven’t mentioned that he might be scared of you? --- I will just – all I can ask, your Honour, is that you reflect back to the conversations and text messages that B has sent me since separation, and refer to the section 11F report where B’s versions of events align with my version of events.

10. In addition to the Heavy METAL program completed by Mr Janas, he also engaged in the Anglicare Men’s Behavioural Change course, he has completed a post-separation parenting course and a Tuning into Kids program.

11. I do not share Ms A’s or Ms Janas’ lack of confidence that Mr Janas does not fully appreciate the impacts of his behaviour upon Ms Janas or B.  I am satisfied that Mr Janas has not only recognised the need for change in his behaviour but has undertaken positive steps to ensure that his behaviour is not repeated towards X.  I found his evidence about those matters genuine and compelling.  I am satisfied that he has both the skill and capacity to implement changes in his behaviour and has been doing so.

12. Ms A recorded that X was very pleased to see Mr Janas and immediately related to him without looking back asking for his mother.  She made other observations that showed happy interaction between X and his father. She assessed him as a secure little boy who was generally happy and able to relate well to others.  There was nothing in X’s interaction with Mr Janas that caused Ms A any concern.  According to Ms A her observations were consistent with X having a secure primary attachment to his mother and a comfortable relationship with his father.

13. There is no suggestion that Mr Janas has not fulfilled all of his parental responsibilities to the extent that he has been able to do so towards X.  He has continued to engage and to attempt to be part of X’s life and that is so despite being provided with very little evidence by Ms Janas about X’s development and well-being.  Mr Janas was meeting his child support obligations.

14. The evidence demonstrates that Mr Janas is attuned to X’s needs and has the capacity to make child focused decisions for X.  The evidence showed that Mr Janas had communicated with Ms Janas through a particular Internet-based service and also through the supervisor who was supervising X’s contact with his father early in these proceedings.  The communications were about X feeling unwell and how Mr Janas had managed that.  Although Ms Janas attempted to put a negative complexion on these matters, in my view they demonstrated capacity on Mr Janas’ part to put X’s interests first.  The communications were entirely appropriate. 

Conclusion

1. Whilst there is a risk that Mr Janas will repeat the behaviour he has exhibited in the past towards B when X was spending time with him, I think the risk of that occurring is very low.  I am satisfied that whilst Mr Janas has behaved appallingly towards B and Ms Janas in the past, he has come to understand the significance of his actions upon them and the effect that those actions are likely to have had upon B.  I am satisfied by Mr Janas’ evidence that he has taken constructive and genuine steps to address those issues.  I find that Mr Janas does not represent an unacceptable risk of harm to X by reason of the behaviours that he has exhibited towards B and Ms Janas in the past.

2. In my view, having regard to that finding, and to the length of time that has elapsed since this trial was heard, it is appropriate for X’s time to move forward with Mr Janas at a pace which is a little faster than that contended for by Ms Janas.  Ultimately the arrangements are not in dispute, it is the progression of the arrangements which require attention.  The progression which I have set out in the orders on the commencement of these reasons in my view meets X’s needs to have a relationship with his father which is established at a meaningful level as soon as possible.  I am not satisfied that the timetable for the establishment of regular and frequent alternative times needs to happen as slowly as Ms Janas suggests.

3. The parties are in dispute about parental responsibility.  Ms Janas’ case is that having regard to her experiences with Mr Janas, she and Mr Janas would not be able to make long-term decisions together about X.  She expresses the belief that since Mr Janas’ time with X had become unsupervised and since the parties have been communicating via the Internet, she thinks that Mr Janas has sought to “intimidate her”.  She suggests that Mr Janas has used his contact with X to still try and dominate their lives and have a negative impact on them.  However, there is in my view no basis in the evidence for her beliefs.  I was taken to no evidence that suggests that Mr Janas has used his communication through MyMob to intimidate Ms Janas.  The communications in evidence are direct and businesslike.  There is no evidence that since the commencement of unsupervised time Mr Janas has tried to “dominate” Ms Janas’ life.

4. Ms Janas’ trial affidavit makes many very broad generalised allegations.  There is very little specificity in terms of the interactions between her and Mr Janas and about which she characterises as intimidating or controlling, as set out in her affidavit.[9]

   [9] Affidavit of Ms Janas, affirmed on 6.8.2018, at [85].

5. It is a significant matter to deprive a child with the benefit of having the input of both of his or her parents into decisions concerning the major long-term issues in the life of that child.  Ms Janas offers to keep Mr Janas informed of all of the major long-term decisions that she makes for X but does not accept that X was entitled to have input from his father in relation to those decisions.

6. Having regard to the orders that each of the parties seek it is highly likely that X will have and will continue to maintain a meaningful relationship with his father throughout his childhood.  It is appropriate for him to know that his father is just as interested and involved in his welfare as is his mother.  Moreover, given the orders that each party seeks, these parties will have to communicate with each other about various matters that will arise in the course of X’s childhood even if they are as mundane as making changes to arrangements to suit X’s interests.

7. I am satisfied on the evidence that notwithstanding Ms Janas’ protestations to the contrary, that it is in X’s best interests for Ms Janas and Mr Janas to have equal shared parental responsibility for decisions concerning the major long-term issues for X.  I will make an order accordingly.

8. I will make an order that the parties keep the other informed of their residential addresses.  Ms Janas opposes such an order because she says that Mr Janas has been stalking and harassing her and she gives some evidence of him having been observed driving past her residence.  I am unconvinced, however, by her evidence that Mr Janas has been behaving in the way in which Ms Janas claims.  There is no objective independent evidence about that.  To the extent that she relies upon Mr Janas having contact with B at B’s place of work in Town C, I accept Mr Janas’ evidence that his meeting with B on that occasion was a matter of coincidence.  He was visiting friends in the area and called in to pick up pizza that had been ordered and found B working there.  In my view, there is nothing sinister about those matters.

9. X is entitled to know that both of his parents know where he is. That will be especially important given that I also intend to make orders restraining the parties from harassing each other or otherwise behaving in a way which is adverse to X’s best interests.  It will be necessary for Mr Janas to know where Ms Janas lives for the purposes of at least some of those orders.

10. Both parties seek orders about overseas travel, but in my view it is premature to make such orders.  It is likely, I think, that the parties will be able to reach agreement about X travelling overseas given that both of these parties are from the United Kingdom.  In the unlikely event that they are unable to reach agreement about that, the orders provide for them to attend mediation.  If they are still unable to reach agreement about a particular travel proposal, it may be necessary for one or other of them to apply to the Court.  But at this stage, given X’s age and the stage at which his relationship with his father has reached, in my view it would be premature to permit either parent to remove X from Australia for an extended period of time for the purposes of overseas travel.

11. For the reasons set out above, I make the orders set out at the commencement hereof.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Kirton QC

Date: 5 December 2019