JANSON & CHARWOOD

Case •

[2013] FCCA 1716

•

7 November 2013

FEDERAL CIRCUIT COURT OF AUSTRALIA

JANSON & CHARWOOD [2013] FCCA 1716
Catchwords:
FAMILY LAW – Entrenched parenting dispute – both parties self-represented – history of serious domestic violence – father’s volatile and aggressive personality – father asserting that 3 year old child more closely attached to him – father asserting 3 year old “knows what he wants” – father’s lack of insight into child’s distress at changeover and more generally – Independent Children’s Lawyer suggesting child live with mother and spend substantial and significant time with father – orders made as proposed by the Independent Children’s Lawyer.

Legislation:

Family Law Act 1975 (Cth), ss.60CC(2), 60CC(3)
Goode & Goode [2006] FamCA 1346
Applicant: MS JANSON
Respondent: MR CHARWOOD
File Number: MLC 2039 of 2012
Judgment of: Judge Burchardt
Hearing dates: 19, 20 and 21 August 2013
Date of Last Submission: 21 August 2013
Delivered at: Melbourne
Delivered on: 7 November 2013

REPRESENTATION

The Applicant: In person
The Respondent: In person
Counsel for the Independent Children’s Lawyer: Ms Stavrakakis
Solicitor for the Independent Children’s Lawyer: Victoria Legal Aid

ORDERS

  1. All previous Orders be discharged.

  2. The mother have sole parental responsibility for the child X born (omitted) 2010.

  3. The child live with the mother.

  4. The child spend time with and communicate with the father as follows:

    (a)Alternate weekends:

    (i)Until the child commences primary school, each alternate weekend from 10:00am Friday until 9:00am Monday commencing 23 August 2013;

    (ii)Once the child commences primary school, each alternate weekend from the conclusion of school Friday until the commencement of school Monday;

    (b)Mid-week time:

    (i)Until the child commences primary school, each alternate week from 10:00am Thursday until 5:00pm Friday, commencing 1 February 2014;

    (ii)Once the child commences primary school, each alternate week from the conclusion of school Thursday until the commencement of school Friday;

    (c)School term holidays:

    (i)In odd years and until the child commences primary school, from 10:00am on the second Monday of the holidays until 10:00am on the following Saturday;

    (ii)In odd years and once the child commences primary school, from 10:00am on the first Saturday of the holidays until 10:00am on the following Saturday;

    (iii)In even years and until the child commences primary school, from 10:00am on the first Monday of the holidays until 10:00am on the following Saturday;

    (iv)In even years and once the child commences primary school, from the conclusion of school on the last day of term until 10:00am on the middle Saturday of the holidays;

    (d)Long summer holidays:

    (i)In odd years and until the child commences primary school, on a week-about basis commencing at 10:00am on the second Saturday of the holidays;

    (ii)In even years and until the child commences primary school, on a week-about basis commencing at 10:00am on the first Saturday of the holidays;

    (iii)In odd years and once the child commences primary school, from 2:30pm on Christmas Day until 10:00am on 15 January;

    (iv)In even years and once the child commences primary school, from 2:30pm on Boxing Day until 10:00am on 15 January;

    (e)Christmas:

    (i)In odd years, from 2:30pm Christmas Day until 2:30pm Boxing Day;

    (ii)In even years, from 2:30pm Christmas Eve until 2:30pm Christmas Day;

    (f)Easter:

    (i)In odd years, from 2:30pm Easter Saturday until 2:30pm Easter Sunday;

    (ii)In even years, from 2:30pm Easter Sunday until 2:30pm Easter Monday;

    (g)New Year:

    (i)In odd years, from 2:30pm New Year’s Eve until 2:30pm New Year’s Day;

    (ii)In even years, from 2:30pm New Year’s Day until 2:30pm 2 January;

    (h)From 5:00pm on the Saturday preceding Father’s Day until 5:00pm Father’s Day;

    (i)At such other times as agreed between the parties in writing, including by email and/or SMS text message;

  5. The child’s time with the father be suspended as follows:

    (a)From 5:00pm on the Saturday preceding Mother’s Day;

    (b)In odd years:

    (i)From 2:30pm Christmas Eve until 2:30pm Christmas Day;

    (ii)From 2:30pm Easter Sunday until 2:30pm Easter Monday;

    (iii)From 2:30pm New Year’s Day until 2:30pm 2 January;

    (c)In even years:

    (i)From 2:30pm Christmas Day until 2:30pm Boxing Day;

    (ii)From 2:30pm Easter Saturday until 2:30pm Easter Sunday;

    (iii)From 2:30pm New Year’s Eve until 2:30pm New Year’s Day;

    (d)During all school holidays, to resume on the first weekend of each new school term.

  6. The child shall have telephone communication with the parent with whom they are not living or spending time with each Wednesday between 5:00pm and 5:30pm, with the parent with whom the child is with to initiate the call.

  7. Changeovers:

    (a)Until the child commences primary school, changeovers take place at the (omitted) Supermarket;

    (b)Once the child commences primary school, changeovers take place at school or, if a non-school day, at the (omitted) Supermarket.

  8. The mother and the father shall keep each other informed as to their current address and contact telephone number.

  9. The mother and the father, their servants and agents be and are hereby restrained by injunction from:

    (a)Denigrating, rebuking, belittling or otherwise abusing the other parent;

    (b)Discussing these or any other Court proceedings

    in the presence or hearing of the child or allowing any other person to do so.

  10. Authorities:

    (a)Each of the mother and the father shall do all such things and sign all such documents as may be required to:

    (i)Authorise the child’s day-care, child-care, pre-school, kindergarten or school to provide to the other parent, at their expense, copies of all notices, newsletters, photographs and other materials ordinarily provided to parents;

    (ii)Authorise the child’s day-care, child-care, pre-school, kindergarten or school to ensure both parents may communicate with staff and attend upon the child’s learning institution at events to which parents are ordinarily invited;

    (iii)Authorise the child’s treating health care professionals to provide reports and information to the other parent;

    (iv)Authorise the child’s treating health care professionals to ensure both parents may communicate with the treating health professional and attend upon their office, rooms or practice at times suitable to that treating health practitioner.

  11. Medical treatment:

    (a)The child shall attend a single medical clinic for his day-to-day medical needs AND, failing agreement in writing otherwise, that clinic shall be the (omitted) Medical Centre;

    (b)Neither parent shall take the child to a specialist treating health practitioner without:

    (i)A referral from a doctor at the medical clinic specified in paragraph (11)(a) herein; AND

    (ii)Except in the case of an emergency, consent in writing from the other parent.

  12. The parties shall maintain a communication book solely for the purposes of communicating between them matters relating to the child and the communication book shall accompany the child at changeover.

  13. The father attend upon Mr T, clinical psychotherapist, as directed by Mr T, and follow all reasonable and lawful directions of Mr T.

  14. The Independent Children’s Lawyer be at liberty to provide to Mr T a copy of:

    (a)the Family Report prepared by Ms D and dated 30 November 2012;

    (b)the psychiatric assessment of the father prepared by Mr D and dated 25 March 2013.

  15. The mother shall continue to attend upon her counsellor and general practitioner and follow all reasonable and lawful directions of that counsellor and general practitioner, including with respect to any and all medications prescribed by any treating health professional and the Independent Children’s Lawyer provide the Family Report and psychiatric report of the mother to the said counsellor.

  16. The mother and father each forthwith enrol in and complete a post-separation parenting program.

  17. The Independent Children’s Lawyer is otherwise discharged.

  18. Neither parent expose the child to:

    (a)Family violence;

    (b)Illicit drug use;

    (c)Excess alcohol consumption.

  19. The father be restrained by injunction from using any recording device before, during or after changeovers, to record the said child.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 2039 of 2012

MS JANSON

Applicant

And

MR CHARWOOD

Respondent

REASONS FOR JUDGMENT

Introductory

  1. This is a parenting dispute about the best interests of X, born (omitted) 2010.  The applicant mother seeks that X continue to live with her and spend time with his father, consistent with extant orders of the Court, which provide for alternate weekend time in one week and overnight time in the other alternating week.

  2. The mother is not necessarily opposed to an order for joint parental responsibility, but says the communication between her and X’s father does not work.

  3. The father wants X to live with him and spend time with the mother.  Although he had little to say about the matter, I think he also supports an order for joint parental responsibility.

  4. The Independent Children’s Lawyer proposes that the mother have sole parental responsibility and that the child spends time with his father each alternate week, from Friday until Monday, and with time from Thursday to Friday in the other week.

  5. For the reasons that follow, I am going to make the orders sought by the Independent Children’s Lawyer.

Agreed Facts

  1. There is an enormous amount of disagreed and disputed material in this case, but some things are common cause.  The mother was born on (omitted) 1971, and the father on (omitted) 1972.  The parties met in (omitted) 2009 and started to cohabit very shortly thereafter.

  2. The mother has two other children, Y, described as 13 years of age in the mother’s first affidavit filed on 7 March 2012, and Z, described as six years of age in the same affidavit.  Y lives with his father and spends regular time in the evenings with his mother, and Z has a fifty-fifty arrangement.

  3. The father has a daughter, W, described as nine years old in the father’s affidavit filed 26 March 2012, who lives with him.

  4. The parties lived at a number of places, but predominantly at a place called (omitted) during their relationship.  The relationship appears to have come to an end on 27 February 2012 when the father left the former matrimonial home with X.  X was returned to his mother’s care following a recovery order application.

  5. An Independent Children’s Lawyer has been appointed and a family report prepared by Ms D, dated 30 November 2012. 

The Affidavit Materials

  1. I had originally intended to traverse the parties’ affidavit materials in some detail.  I have, however, on reconsideration decided not to.  It is sufficient to record the general tenor of the matters contained in this material, together with one or two of the salient aspects of it.  The parties, who were both self-represented, had so much to say in their evidence and submissions before the Court that that will give a clearer picture of what they were really saying.

  2. The mother’s material deposed to the history of the relationship and the children, which I have already set out in large part in the uncontroversial material above.

  3. It was the mother’s position, as put in her affidavits, that the father was throughout the relationship violent and abusive.  She deposed to an Intervention Order taken out against the father on 22 February 2011 and to the father having an extensive criminal history (see affidavit filed 7 March 2012).

  4. The father filed a Notice of Abuse on 26 March 2012, in which he asserted relevantly that the mother threw X across a room in 2011 and had slapped X on his face.

  5. The father’s first affidavit, filed 26 March 2012, refuted all the mother’s assertions, deposed to the circumstances of his daughter, W, and referred to several instances of alleged violence on the part of the mother.

  6. The pattern of mutual (and, in the main, denied) allegations of violence and poor behaviour essentially subsisted throughout the remainder of the affidavit material that the parties filed.  I note that in an e-filed affidavit, sworn 18 December 2012, the mother described the father’s behaviour at changeover as being “excessively emotional toward X” (paragraph 43).  She also described alleged breaches of the Family Violence Intervention Order made on 28 March 2012, said to have taken place in August 2012 (paragraph 46).

  7. I further note that the mother has undertaken a five-day residential parenting program and a post-separation parenting course (paragraphs 59 and 60 of the affidavit).

  8. Both parties filed affidavits from supporting witnesses.  I will deal with these affidavits when I canvas the evidence that those witnesses actually gave in Court.

  9. Put shortly, and despite the ample nature of the materials filed, it is sufficient to say that each parent tended to either deny or minimise anti-social behaviour (including violence) on their part and to attribute such conduct primarily, if not wholly, to the other.

The Report of Mr D

  1. Both parties were psychiatrically examined by consultant psychiatrist Mr D.  Mr D’s conclusions in relation to the mother are set out at paragraphs 86 and 87 of his report dated 25 March 2013 as follows:

    “86.  In my opinion, based on the history obtained, findings at mental state examination and a review of the supplied documentation, there is no mental illness or psychiatric condition interfering with the mother’s current parental ability and long term parental capacity.

    87.    In my opinion, based on the history obtained, findings at mental state examination and a review of the supplied documentation, in my opinion there is no risk of violence to the father or the child in this family law matter.”

  2. In respect of the father, Mr D noted a report dated 28 August 2012 from the father’s treating clinical psychotherapist, Mr T, which suggested that the father had developed a good insight into his problems inherent in his past relationships (paragraph 67).

  3. I note that the father admitted regular smoking of cannabis to Mr D (paragraph 73).

  4. At paragraph 74, Mr D observed:

    “The father has failed in relationships.  His relationship pattern appears to be that the relationship commences with intensity and disintegrates into denigration.  The father commenced a relationship with the mother that soured after the birth of their child.  There have been a number of separations in their relationship.  The father was at pains to stress to me that the mother was aggressive, abusive, depressed and dismissive through the final year of the relationship.  The relationship remains tense still.”

  5. At paragraphs 77 to 80, Mr D said:

    “77.  The father does not have a major mental disorder.  The father does not have schizophrenia, bipolar disorder or a major depressive disorder.  In my opinion, based on the history obtained, the findings at mental state examination and a review of the supplied documentation, the father does not have a major mental disorder and in my opinion there is no evidence to suggest that the father has a substance misuse disorder.

    88.    The father has significant personality vulnerabilities which are evident in his personal relationships.  The father has more than the usual amount of jealousy, a strong sense of being a victim, and of being poorly understood and misunderstood.  There are difficulties in his relationship with society, as evidenced by his extensive criminal history and traffic offences.  In my opinion, the father’s personality vulnerabilities are not of sufficient severity to warrant a diagnosis of a personality disorder.  The father, however, does have difficulties in relationships and in his relationship with society.  He has transgressed appropriate boundaries on many occasions and it appears he will face Court over an alleged assault shortly.  In my opinion the father can be threatening and emotionally volatile.

    79.    Based on the history obtained, findings at mental state examination and a review of the supplied documentation, I do not believe that there is a mental illness, or psychiatric condition interfering with the father’s current parental ability or long-term parental capacity.  That is, the father’s personality vulnerabilities do not interfere with his ability to be an appropriate, nurturing and protective parent to the child.  The personality difficulties will play themselves out in his adult relationships.

    80.    Based on the evidence before me, I do not believe that the father represents an imminent or foreseeable risk of violence to the mother or to the child in this family law matter.”

The Family Report

  1. The report of Ms D, dated 30 November 2012, followed interviews with the parties and with the father’s new fiancée, Ms M, together with observation of X in the company of each of his parents.  Ms D also spoke to Mr Charwood’s former wife Ms L, Mr T, and to the solicitors for the parties.

  2. At page 4 of her report, Ms D identified the issues that had arisen during assessment as:

    ·    “The high level of hostility between the parties

    ·    Mr Charwood strongly denies that he assaulted Ms Janson’s friend, stating that he admits to a heated exchange of words with him.  Ms Janson has to date failed to provide evidence of this assault although she states that a report was made to the police and the friend in question had to seek medical treatment

    ·    Ms Janson’s alleged disposition to incidents of family violence

    ·    Mr Charwood’s alleged volatility

    ·    Mr Charwood’s and Ms Janson’s inability to regulate the heated emotional level of their relationship and put X’s wellbeing ahead of their own interests”

    ·    (A reference to psychologists reports which is not now relevant).

  3. In my view, those matters identified by Ms D are all very much relevant to the issues as they were propounded before the Court.

  4. Ms Janson asserted to Ms D that on the day of the interview (7 November 2012) Mr Charwood had breached the Intervention Order by calling out to X.  I note that Ms Janson did not wholly blame Mr Charwood for the breakdown of the relationship and admitted to a number of physical struggles between them (paragraph 9, page 5).  I note that at paragraph 10 Ms D recorded:

    “Ms Janson said that “changeovers” at (omitted) police station were a nightmare in that Mr Charwood, maybe unintentionally or just thoughtlessly, winds X up by telling him how he will miss him, that there are only so many sleeps before he will see him again and giving him several hugs.  This results in the changeover being a drawn out, traumatic and emotional event for X.”

  5. Ms Janson gave details of the incident on 22 August 2012 when Mr Charwood was alleged to have assaulted Mr G and driven his car at him and having hit him.  Mr Charwood denied that he drove his car at Mr G or that he hit him (paragraph 12).

  6. Ms Janson raised several other matters of alleged breach of Court orders by Mr Charwood.

  7. Mr Charwood’s position was recorded at paragraph 21 of the report as:

    “Mr Charwood is seeking that X live with him as he believes that he is X’s primary attachment.”

  8. At paragraph 27, Ms D recorded:

    “Mr Charwood said that both he and Ms Janson are guilty of incidents of family violence.  He said that their volatile relationship had been witnessed by neighbours.  Mr Charwood played a recording on his phone which was recorded during an argument between the couple.  In the recording Ms Janson is hysterical, saying she is sorry and begging Mr Charwood not to go.”

  1. Ms D also spoke with Mr Charwood’s fiancée, Ms M, and with his former wife, Ms L.  Those interviews do not take the matter much further, although both spoke well of Mr Charwood.

  2. Ms D also spoke to Mr T, who has seen Mr Charwood quite regularly for counselling.  Mr T, it appears from the materials, is perhaps slightly, albeit unwittingly, partisan, but I note that, inter alia, Mr T said, as recorded at paragraphs 37 and 38 of the report:

    “37.  …Mr Charwood, he believes, is remiss in that he has not maintained boundaries between his eldest child and the adults in his life.  Mr T said that he believes that parents cannot be their childrens’ best friend in their earlier years and he thinks that Mr Charwood’s daughter W may have too much authority in the household and this would not sit comfortably with Ms Janson or any other adult who is in a relationship with Mr Charwood.

    38.    Mr T said that he is concerned that Mr Charwood is feeling persecuted and viewing Ms Janson’s actions as a deliberate attempt to limit his contact with X.  He cautions that Mr Charwood should seek a less emotive approach and try and achieve a fair and sensible co-parenting arrangement with Ms Janson.”

  3. X was observed with both parents and obviously enjoyed being with them.  I note that at paragraph 43, (where first appearing), Ms D recorded:

    “When X was told it was time to go back to his mother, he said goodbye to his father and came along willingly.  When his mother was not where he expected her to be, he very quickly became distressed and started crying and calling for her.  Subsequently, X allowed his mother to comfort him and then left with her quite recovered from his distress.”

  4. I note that the evaluation made by Ms D made a number of assumptions.  At paragraph 43 (where second appearing), Ms D dealt with the incident when Mr G was assaulted.  Ms D’s report is heavily qualified, but it should be noted that, contrary to the way in which she then put the matter, Mr Charwood has been convicted of assault arising out of that incident.

  5. The finding at paragraph 44 of Ms D’s report, which referred to the three people who knew Mr Charwood well denying his violence, needs to be reconsidered in light of the August events, including subsequent conviction.

  6. It is clear that Ms D formed the view that the mother was X’s primary carer (paragraph 47), and I note that at paragraph 49 she went on to write:

    “Whilst X became upset when his mother was not outside to greet him it is noted that he has experienced the loss of his father’s presence for three months and it is therefore not so surprising that he should have demonstrated that emotional response.  A child’s attachment to the primary caregiver builds an internal working model of expectations and assumptions that may have a dramatic effect on their day to day life and influence subsequent relationships.  Attachment is essentially about how people relate to one another and how those relationships are influenced by an overall need for a sense of security important for a child of X’s young age.”

  7. At paragraph 52, Ms D noted:

    “An issue which is important to address is Mr Charwood’s comment that his children are everything to him much more important than his adult relationships.  This comment shows limited insight into the fact that a home environment which is supportive, caring and stress free is the optimal environment for a child.  It seems Mr Charwood is prone to allow his daughter W an excessive level of authority in his household which may sit uncomfortably with the adult relationships in his life.”

  8. Ms D did not support sole parental responsibility for the mother (paragraph 53) because of the strong bond between X and Mr Charwood.  Likewise, she did not support Mr Charwood’s application that X live with him, as Ms Janson was X’s primary attachment figure (paragraph 54).

  9. Ms D went on to recommend that X live primarily with his mother and spend time at an appropriate developmental rate with his father.

The Evidence given in Court

  1. It should be noted that what follows is taken from my notes and does not purport for an instant to be a transcript.  Because both parties were self-represented however, and because so much of what they said and did bears directly upon the ultimate outcome, I will set out perhaps more extensively than I otherwise would, those aspects of the evidence given that struck me as being of significance.

The Mother

  1. In her opening, Ms Janson said she was happy with the Family Report and would be reluctant to allow time greater than that indicated in it.  She stated her concerns about the father’s aggression and volatility and the violence he had perpetrated on her friend, Mr G.  She referred to the communication book and the fact that the father was unable to communicate in it constructively, his comments being full of accusations and threats.

  2. Having been sworn and adopted her affidavits, the applicant was cross-examined at considerable length by Mr Charwood.

  3. The mother candidly admitted that she had been violent to Mr Charwood, but denied ever hurting X.  In particular, she denied ever throwing X across the room.  She said she had never pushed or thrown X.  This series of questions needs to be seen in the context of an approximately 12-minute tape-recording played in Court by the father.  He clearly recorded it surreptitiously during the course of a violent domestic dispute.  It is not clear to me, even now, exactly when this is said to have taken place, but appears to have been in early 2011, before X turned one year of age.

  4. The contents of the tape were harrowing to hear.  Ms D’s description of the tape of showing the mother as hysterical (assuming this was the tape to which she referred in her report) is clearly correct.  It shows the mother saying over and over again, “I’m sorry,” and pleading with Mr Charwood not to leave her.

  5. The father put it to Ms Janson very strongly that this was the incident when, as he put it, X was thrown across the room into his chest and was injured.  The mother’s position, to the contrary, was that she had simply placed X far too firmly into the father’s lap, causing X to hurt his cheek and be upset.

  6. The difficulty, it should be noted at this stage, with the father’s assertion that this proves his case, is that the tape-recording appears to start after the alleged incident of the child being thrown.  I will return to this aspect of the matter in due course.

  7. The fact that the father feels it appropriate to reveal the mother’s abject self-abasement (this being no exaggeration as a description of her conduct at times during this tape-recording) speaks for itself.

  8. The mother, under further cross-examination, indicated that, although the father had made various reports to the Department of Human Services, these had always been closed at intake.  She denied an allegation that she had pushed X over on another occasion.  I should make it clear that I accept that X slipped on some mail and hit his head on the window.  The mother’s answers were given with conviction.

  9. The mother was also cross-examined about her various journeys to (omitted).  She conceded that she was “in a bad place” at this time, but did assert that she was taking her antidepressant medication throughout.

  10. The mother was cross-examined about alleged language used by Mr Charwood to Ms U, who had accompanied Ms Janson to the family report interview on 7 November 2012.  I will return to this when I deal with Ms U’s evidence.

  11. I note that Ms Janson was adamant that she had seen Mr Charwood take a steel pipe from the back of his car and hit someone on the head with it, and was not moved from this assertion by cross-examination.

  12. The mother was quite extensively cross-examined about driving unlicensed cars, but it is sufficient to record that Ms Janson candidly admitted that for various reasons she had, on some occasions, done so.  I should say it is quite clear, in passing, that any misconduct in relation to cars generally, in terms of infractions of the law, has been far greater on the father’s part than that of the mother.

The Mother under Cross-Examination by the Independent Children’s Lawyer

  1. The mother confirmed that she finds it all but impossible to communicate directly with “X’s father.”  She indicated that she was happy to undertake any course that would benefit X, even though she has completed a post-separation parenting course in the last two years.

  2. She confirmed that she has enrolled X in school, but did not discuss this with the father beforehand because she was not confident of a productive outcome. 

  3. She says that she always speaks positively to X about his father and encourages him to enjoy himself when a changeover takes place.

  4. Ms Janson confirms that she will always be intimidated by X’s father and is attending counselling with Ms J to assist her.  She confirmed that X was not even walking when the distressing tape-recording was made and was not even one year of age at that time.

  5. Ms Janson confirmed that X needs a good relationship with his father, loves his father and loves going to see him.  She said X should not be punished for “our events”.

  6. She confirmed that she suspended the father’s time in August 2012 as a result of the Mr G incident.  She also referred to a tailgating incident on 28 August 2012, which has also been reported to the police.

  7. Ms Janson confirmed that there was no police or DHS involvement after the incident that was recorded on the tape and that she had not known she was being recorded at that time.  She said that they started off having a conversation about work, in the light of the fact that the father had quit his job before X was born, and that they had significant money problems thereafter.  She confirmed putting X too firmly into the father’s lap, hitting the father’s collarbone.  She said, and I would interpolate and say I accept, that the tape started thereafter. 

  8. She confirmed that the father does not provide boundaries for W, and W is always involved in adult matters.  She said the father wanted W to be present at X’s birth.

  9. The mother confirmed she would like changeover to be at (omitted) Supermarket in (omitted), and that she tries to avoid interaction with the father when changeover takes place.

  10. The mother confirmed that, despite her difficulties, she can cope with X and all her children.  Her evidence that if she is anxious she uses techniques to calm down and her evidence about the way she was able to look after her children was given with confidence and, in my view, compelling sincerity.

  11. The mother confirmed the arrangements for her other two children, as I have already indicated earlier, and confirmed that X has a good relationship with Y and Z, and, indeed, loves all his siblings, including W.

  12. Ms Janson confirmed that the father loves his children and would do anything for them, but tellingly pointed out that she was not sure if this was positive.  She confirmed that Mr Charwood pays no child support.

  13. Finally, she confirmed that there is an extant Intervention Order to which X is not subject, which will last until 28 March 2014.  She confirmed that the father withdrew an Intervention Order application he had taken out against her.

Mr G

  1. Mr G’s affidavit, sworn 17 December 2012, relevantly asserts that in June 2012 he saw Mr Charwood with X and that Mr Charwood “was saying repeatedly to X “you have to go back to your mother’s tonight.  I am sorry I do not want you to go back.  I want you to stay with me.”  Mr Charwood was saying this repeatedly and it was clearly working X into an emotional state.  In so doing Mr Charwood was also getting himself very worked up.  Mr Charwood was crying and this was making X cry too and become very distressed” (paragraph 9).

  2. Mr G deposed that he had started dating Ms Janson in approximately July 2012.  He deposed to the incident on 22 August 2012.  He deposed that Mr Charwood drove his (vehicle omitted) towards him and hit him whilst he was standing on the footpath.  He deposed that, while he was on the bonnet of the car, Mr Charwood got out and came and punched him and told him “you stay away from my two year old son, you stay away from my two year old son, I’ll kill you next time I see you” (paragraph 18).

  3. Mr G was cross-examined by Mr Charwood, but stuck strongly to his version of events.  Mr Charwood denied driving his car at Mr G or hitting him, and said he only yelled at him, but Mr G stuck to his story.

  4. Mr G confirmed, under cross-examination by the Independent Children’s Lawyer’s counsel, that W had been in the front seat of the (vehicle omitted) at the time he was assaulted.  He asserted that he was on the footpath and he saw Mr Charwood turn the wheels of the vehicle and drive at him.  He had bruising down his right-hand side.  He confirmed that the children of the father’s new girlfriend were in the backseat at the time.

  5. Under further cross-examination by Mr Charwood (by leave) he denied that Mr Charwood had said, “If you hurt my child I’ll break every bone in your body.”

  6. Mr G confirmed that he had lost his licence from drink-driving, but had got it back.

Ms U

  1. Ms U was called and adopted her affidavit, sworn 11 December 2012.

  2. In that affidavit, Ms U said that she had met Ms Janson as a neighbour and become good friends with her.  She deposed to having gone to the Family Report interview on 7 November 2012.  She and Ms Janson were parked beside each other.  She deposed relevantly to the arrival of a car (and there is no question in the circumstances that it is that of Mr Charwood) in the car park, and that:

    “11.  …I paid it no particular attention as it proceeded slowly in our direction.  As it passed between my car and the building we were about to enter I saw that the driver of the dark car was staring at me intently with his face screwed up in anger and was shaking his finger/fist at me violently.  The car window was up so I could not hear what was being said.

    12.    I was shocked and a bit frightened as I had never seen either the driver or the car before and could not imagine what I had done to cause him to become so angry with me.

    13.    At about the same time Ms Janson said something like Oh My God - that’s Mr Charwood - its Mr Charwood’s car…”

  3. She went on to depose:

    “15.  …a minute or perhaps a bit less later Mr Charwood re-entered the car park from (omitted).  I was surprised as I didn’t think he would have had enough time to drive around the block. 

    16.    Mr Charwood, as before, drove slowly towards us, this time with the window down. 

    17.    He came to a halt directly adjacent to the rear passenger door of Ms Janson’s car where she was busy with X and within an easy arm’s length of her before shouting something like “X its Daddy - Daddy is here - I love you - you are going to see me soon!”

  4. Ms U went on to depose:

    “18.  Ms Janson stood, shaking and saying nothing.  After about a minute Mr Charwood drove forward through the car spaces facing us and drove off slowly towards the (omitted) exit. 

    19.    As Mr Charwood passed my car he looked straight at me again. 

    20.    The window of his car was down and his face was contorted with rage.  He stared directly at me and shouted something like “You just wait, you just fucking wait, you don’t know what you are in for, her friend.””

  5. Ms U reported the matter to the police.

  6. Ms U was cross-examined by Mr Charwood.  It is sufficient to say that she stuck resolutely to her story.  She was not a person who had even met Mr Charwood before the incident that she described.  I would interpolate and say that she was an excellent witness.

Ms K

  1. Ms K adopted her affidavit sworn 17 December 2012 as truthful. 

  2. She was born on (omitted) 1991. 

  3. She dated Mr Charwood in early 2012 and lived with him for about a month prior to her 21st birthday on (omitted) 2012.  She deposed that she had been with Mr Charwood on numerous occasions when X was spending time with him.  She was highly critical of the way in which the father behaved towards children, and said this was one of the main reasons she separated from him.

  4. She further deposed that the father constantly denigrated Ms Janson, saying, “Mummy is a bad mum”. “Mummy is bad”. “You should stay with daddy” (paragraph 4).  She said that the father would have X repeat words like this to influence X.

  5. Leaving aside other matters raised, I note that she deposed that the father gave his daughter, W, cans of White Label Jim Beam to drink at Ms K’s 21st birthday party.

  6. Although Ms K is a young woman, she impressed me as being somewhat fragile, and she has had her difficulties (there was a somewhat offensive reference made in cross-examination by Mr Charwood to some possible charge of under-age sex on her part).  I should record that Ms K was not effectively moved from her affidavit evidence-in-chief.

Ms M

  1. Ms M, likewise, adopted her affidavit, sworn 17 December 2012.  She was a housemate of Ms K during the period that she was dating Mr Charwood.  Her evidence essentially confirmed the proposition that Mr Charwood was giving alcoholic drink to W at the 21st birthday party.  She also deposed that she had smoked cannabis many times with Mr Charwood, over the period she knew him, and that he had no qualms about smoking cannabis in the presence of his children.

  2. Once again, she was not moved by cross-examination from the remarks that she had made.

Ms D

  1. Ms D was first questioned by counsel for the Independent Children’s Lawyer.  She confirmed that she had spoken to the father’s psychotherapist who was supportive of him and confirmed that the father believes that he is persecuted.  She confirmed that she had no concerns about the mother.

  2. She described the environment, before separation of the parties in February 2012, as toxic and confirmed that she had read the DHS file.

  3. Ms D was taken to police records of the alleged assault on Mr G and said that it was important to establish who was telling the truth.  She said it was clear that the mother was.  She said that the father has trouble controlling his temper and that X should live with his mother, as she is his primary attachment.  She confirmed that she said the father needs boundaries and that he allows W to, in effect, be an adult.

  4. Ms D was taken to entries in the communication book which counsel suggested were inappropriate, and made it clear that it was up to the father to tell X that he needs to be able to speak to his mother.  She said that it was very unkind to X not to do so and that such conduct might have a disastrous long-term effect, as X would lose confidence in controlling his emotions and that would increase his anxiety.  She said this was bad parenting by the father who should encourage a good relationship between X and his mother.  She confirmed that she did not play the whole of the father’s tape-recording, but that he had played an extract of it while he was with her.

  5. She said it was naturally of great concern to her that W had been in the vehicle at the time Mr G was assaulted.  She recommended that the father undertake a parenting course, but that he needed more than that.  She noted that the father’s counsellor says that the father had insight, but she did not agree.  She said there was not much insight with W and that the father could not accept that making W an equal was not appropriate.

  6. Ms D recommended that the applicant undertake a six-week course on parenting to assist him with his insight difficulties with Relationships Australia, and she noted the good attachment between the mother and X.

  7. Ms D said that equal shared parental responsibility was not recommended because the parties simply could not properly communicate.  In response to questions as to whether it was appropriate for X to live predominantly with the father, Ms D pointed to the problems in his relationship with W.  She stuck to the proposition that the child should live with his mother, but spend significant time with his father, and it should build up slowly over the period, between his present age of three and five.  She said that the next two years were crucial. 

  8. In response to a question about equal time she said the problems of co-parenting between these two parents would make this impossible.

  1. Under cross-examination by Mr Charwood, Ms D said that she did not refuse to listen to his recording but told him to switch it off.  She confirmed that her observations about W had, in fact, come from Mr Charwood himself.

  2. Somewhat disturbingly, during cross-examination of Ms D, Mr Charwood said that he had letters which he was going to give to X when he is older, to prove various things.  I took it from the tenor of what he said that in some fashion this might be some endeavour, as it were, to clear the record, from Mr Charwood’s perspective.

  3. Although it was strongly put to Ms D by Mr Charwood that X became upset when he left him, Ms D firmly reiterated that X only became upset when his mother was not where he thought she would be.

  4. Ms D confirmed that X has a good attachment with both parents.

The Evidence of the Father

  1. Mr Charwood made an opening which was, in effect, a statement of evidence.  He said that he had a video from 25 July 2012 showing a changeover.  He said that, inter alia, X had had excessive amounts of ear wax on 27 December 2012, and incidentally, volunteered to provide to the Court, by way of an exhibit, the sticks upon which the ear wax had been removed.

  2. Mr Charwood went on to say he has lots of friends he visits regularly who have young children of an age to be friends with X.  He complained of a failure, on the part of the mother, to return clothing after changeover, and referred to the various activities he likes to undertake with X, such as tennis, boating, fishing and the like.  It should be noted that Mr Charwood’s address was given under some pressure of speech. 

  3. Under cross-examination by counsel for the Independent Children’s Lawyer, Mr Charwood confirmed that there was a lot of conflict between him and the mother.  He said that he communicates properly, but the mother does not.  He said it was a one-way street.  He said that the mother did not try to communicate with him.  He said he found it hard to trust her because she lied about him.  He did confirm that it was important that the child have a meaningful relationship with his mother.  He said that the child had not had a meaningful relationship with him of more recent times and that this was partially his fault.  He said if he had not confronted Mr G (Mr G) there would be no problems.

  4. Mr Charwood, who was taken through a number of DHS records, confirmed that he had actually gone so far as to contact the ABC when he did not get the help he felt he should have got from both the police and DHS.  He denied a 19 March 2012 DHS record, which suggested that the child was at risk in his care.

  5. Although the father tried to say positive things about the mother and admitted that she loves X, it is clear that the father is very much anchored in the past.  He said, “All I can see is the past.  She is just vindictive.  She made W cry.  She slapped X twice.”

  6. When taxed with the proposition that on 7 February 2011 he had described the mother to the DHS as “a nutter”, the father’s answers were in my view evasive and had the appearance of being made up on the run.  He confirmed that he does think that the mother is “a nutter”, in any event.

  7. He confirmed that he did not tell the mother that he was tape-recording the incident that he had played in Court, and said that she had thrown X six feet so that he could catch him.  Nonetheless, he confirmed that he had not been to the police or the DHS as a result, nor made any application to the Court.  Indeed, he confirmed, as the tape shows, that he left to go and pick up W to go to Show and Tell.

  8. When cross-examined about the Mr G incident, the father confirmed that he had pleaded guilty to assault, although he said he had not hit him and not with a fist.  He confirmed that W had been in the car and that he had done the wrong thing.

  9. He denied smoking cannabis in the last one and a half years and denied giving W drinks at Ms K’s 21st birthday.

  10. He was further cross-examined about a video of a changeover that he had played during his evidence-in-chief.  It is appropriate to say something about that video now.

  11. The video shows Mr Charwood driving his car towards the changeover point and shows him making a number of remarks to X who becomes increasingly upset as changeover approaches.  It is noteworthy that some of these remarks are those described elsewhere in this evidentiary account, including remarks like, “Don’t worry, it will only be a few sleeps,” and the like.

  12. While it is quite apparent that X does get very upset, it is equally clear from the video, in my view, that the father gets visibly tense and upset as changeover is approaching and it seems clear to me from the viewing of it in court that X is vividly affected by his father’s evident emotions.

  13. Under cross-examination it was put to the father that there are no words of encouragement and that, rather, the father was saying things like, “I’m sorry” and “I can’t help it.”  The father admitted that he could not bring himself to say to X that his mother is a great mum.

  14. I note that the father said he had been taping or recording on a mobile phone almost every changeover “from day one.”  He said he had not shown these to W or his ex-wife and would get rid of them after the court hearing.

  15. Mr Charwood said that he has a very loving relationship with X and a far better one than that enjoyed by X with his mother.  He says X wakes at night, calling for him.

  16. Mr Charwood said that he acknowledged that Ms D said that X’s primary attachment was to his mother, but pointed out that she had also said he has a good attachment to both parents.  He was quite unable to offer any suggestion as to why X becomes so upset at changeover.

  17. Mr Charwood says he has always been trying to prove his case.  He has lost faith in the system because no one would listen to him and that the system is wrong.  He said he was not a bad father, although he had made mistakes.

  18. He dismissed the proposition that X might suffer from separation anxiety and said that he did not accept everything in Ms D’s report.  He said he feels persecuted.  He said he felt hard done by, by Mr D.  He said he was not unusually jealous, although he agreed that he had a strong sense of being a victim and agreed that he felt misunderstood.  He disagreed that he had problems with society and said that his speeding fines were nothing to do with his personality and he was not threatening or emotionally volatile.

  19. Mr Charwood was forced to concede that he pleaded guilty to unlawful assault on 6 May 2013, and was taken to a number of other convictions contained in Exhibit ICL6, which he conceded.  He denied the alleged incident in November 2012 when he was said to have driven past the mother’s home twice and he denied threatening Ms U.

  20. In re-examination, Mr Charwood submitted Exhibit R1, being a newspaper extract, and Exhibit R2, being some photographs, including one of his cars.  Mr Charwood complained that the police had treated him like a hoon, but looking at the photograph of the car, it would be easy to see why.

  21. In error, I had not given Ms Janson an opportunity to cross-examine, and she thus then did so.  It is clear that the matter of tailgating is still before the courts.  He conceded an episode of criminal damage involving his ex-wife.

Mr F

  1. Mr F, who is presently the employer (part-time) of Mr Charwood, was called.  His affidavit sworn 3 March 2013 speaks well as to Mr Charwood’s character.  He was not cross-examined.

Ms L

  1. Ms L adopted her affidavit affirmed 1 March 2013 as true and correct.  Once again, it speaks well of Mr Charwood as a father and a person. 

  2. Although she was cross-examined by the counsel for the Independent Children’s Lawyer, Ms L’s evidence, in my view, does not take the matter much further, save to say that she suggested, believably enough, that W does not like Ms Janson.

Conclusions on the Evidence

  1. I have set out the above paraphrase of the parties’ evidence at some considerable length.  Self-evidently, it does not cover every matter raised, nor does it do so in terms of an exact transcript.  I am confident, however, that my notes would adequately reflect the spirit of what was said.

  2. It is clear, taking the materials as whole, that both these parents have had and continue to have their difficulties.

  3. The tape-recording played by Mr Charwood shows the mother in the most distressing circumstances.  Her comments involve hysterical self-abasement.  This self-abasement is entirely consistent with the domineering, bullying, controlling behaviour that Ms Janson asserts Mr Charwood brought to their relationship.

  4. Ms Janson gave her evidence in a compellingly measured way.  Her answers were direct and responsive.  This was so, even though at times Mr Charwood was aggressive in his demeanour when putting questions to her.  She was, by and large, and despite obvious frailties, a good witness.  I note that she is at times anxious and has to control her anxiety by breathing exercises, and that she continues to consult her counsellor at need.  She has a history of depression that appears to be under appropriate treatment, as and when necessary.

  5. Unfortunately Mr Charwood, in his demeanour, only tended to confirm what the materials generally say about him.  He is on any view volatile, he thinks he is being persecuted and, contrary to his assertions, he does not see the best in everyone.  He was very ready to make allegations against the mother’s witnesses, whom, in some instances, he had never really met.

  6. The independent witnesses called by Ms Janson were, particularly in the case of Ms U, impressive.  There is no doubt in my mind that Ms U’s version of events was correct.

  7. To concentrate perhaps on those aspects of the evidence that were at the forefront of what was put to the Court, I would make the following observations.

  8. First, the tape-recording does not prove that Ms Janson threw X six feet across the room and injured him thereby.  While I accept that X was, in all probability, thrown a short distance into his father’s lap and was injured as a result, and that as the tape shows, Ms Janson apologised abjectly for this, it does not show in one bound, as it were, as Mr Charwood asserts, that the mother is violent towards X and likely to hurt him.

  9. It might be thought, and indeed I conclude, whether wittingly or unwittingly, Mr Charwood goaded Ms Janson to a state where it suited him to record her in abject distress to his own interests.  If the assault had been as severe as he put it, it is astounding to imagine that he would not have gone either to the police or the DHS or court.  He did none of these things, but left to take W to Show and Tell.  This is not conduct consistent of a man who has just seen a tiny child seriously assaulted in the manner he describes.

  10. I have dealt with this incident at some length, because it was put very strongly by Mr Charwood that this was the thing that proved his case.  It does not.

  11. Mr Charwood’s history of criminal offences speaks for itself.  Contrary to his denials, I have no doubt whatever that he deliberately aimed his car to hit Mr G.  Mr G was not in many ways a particularly prepossessing individual, but his evidence was given with evident sincerity and I accept it.  Furthermore, Mr G’s account of events is consistent with the criminal outcome that has taken place in the courts.  I do not accept Mr Charwood’s suggestion that he merely pushed him and shouted at him.  Mr Charwood, even according to his own counsellor, wears his heart on his sleeve.  He is a volatile anger-filled person who is susceptible to the most extraordinarily emotional explosions.

  12. So much is clear from his extraordinary behaviour to Ms U for merely being in the company of Ms Janson at the Family Report interview.

  13. There is no doubt in my mind that Mr Charwood would have been violent during the relationship and that such violence took place in the presence of X.  I note that Ms Janson herself candidly admits that she has been violent to Mr Charwood, on occasions, but Mr Charwood is far bigger and stronger than she is.  In any serious fight between them there would only be one winner.

  14. Having seen the parties give their evidence over some considerable time and seeing their demeanour, there is no doubt that Mr Charwood’s evidence should not be accepted where it contradicts that of Ms Janson.

  15. I further accept the evidence of Ms D, whose evidence was given with confidence and fairness in her area of professional expertise.  I note she was prepared to concede that X has a good relationship with both of his parents.  However, it should be noted, as the counsel for the Independent Children’s Lawyer submitted, that it remained Ms D’s view that X’s primary attachment was to his mother.

  16. Even if Ms D was persuaded that over time a shared care arrangement was conceivable, and her answers at one point seemed to go in this direction, it is clear that X’s primary attachment is to his mother.

  17. The father does not, of course, agree with this.  He says that X cries for him in the night and he becomes hysterical when he is to be returned to his mother.  This may well be so and the video played would seem to suggest that this is the case.  Nonetheless, what the father does not understand is the extent to which his own volatile, over-emotionally charged behaviour contributes to this distress on his son’s part.

  18. I repeat, there is no doubt that X’s primary attachment is to his mother and not to his father.

The Submissions of the Parties

The Independent Children’s Lawyer

  1. Counsel submitted that there should be an order for sole parental responsibility in the mother’s favour.  The parties simply cannot communicate and the father indeed had said as much.  The mother said she finds communication very difficult, and counsel submitted, in my view correctly, that the conflict between them is palpable.  Counsel pointed to the observation at paragraph 45 of the Family Report that the behaviour of each of the parties, during and post the relationship, had been at times unhealthy and toxic.  The mother says she is threatened by the father and communication is effectively not an option between them.

  2. Counsel said it was clear that X would benefit from relationships with both parents and pointed to the fact that the mother was able to say why such a relationship was important.  The father, it was submitted, paid lip service to this, but his position was that if he could not say anything good, he would not say anything.

  3. Counsel submitted that the distress experienced by X at changeover was obvious, and, indeed shown in the video.  It was noted, however, that X has been exposed to domestic violence, as confirmed in the DHS file.  Counsel pointed to the fact that the recovery order made in March 2012 had the blessing of the Department of Human Services.  It was submitted that shared care could simply not work for X.

  4. It was submitted that the tape-recording showed both X and his mother hysterical, that the father was calmer because he knew he was being recorded.  It was submitted that the mother’s version of the events was more credible, and as indicated and for the reasons given, I have accepted that submission.

  5. The video changeover, it was submitted, showed the father lacks insight about the importance of the relationships with the mother.  The father was saying things like, “Sorry, mate, two more sleeps.”

  6. Counsel submitted the child sees the emotion and draws from it.

  7. The communication book, it was submitted, is damning of the father.  Extracts such as “You’re selfish, and X does not want to go”, as asserted by the father, are simply not appropriate, because it is not up to X.

  8. Counsel submitted that the father would not encourage any relationship on X’s part with his mother and cannot accept that he misses her.  He is not able to see that he makes changeovers stressful for X.

  9. Counsel submitted that it was a matter of considerable concern that W had been in the car when he had hit Mr G.

  10. Counsel further submitted that the father’s vulnerabilities, as assessed by Mr D, affect his insight into where X’s best interests lie.  Counsel submitted the father is adult-focused and has insufficient boundaries and simply does not see the need for relationships between X and his mother.

  11. Counsel noted that Ms D had raised equal time, but that she had still maintained the view that the primary attachment remained with his mother.  Good attachment to both parents does not change this.

  12. Counsel finally pointed to the fact that, while both parents have the capacity to care for the child, the father needs to work on his insight.  She noted that the aggrieved family member in all Intervention Orders taken out had been the mother.

Submissions of the Father

  1. Mr Charwood said he had completed an anger management course recently.  He said that the lady he had undertaken this course with had said there was no anger management problem and that he entirely agreed with that.  He said he knew he had done the wrong thing with Mr G, but he had complaints about X’s weight loss at that stage. 

  2. He pointed to the affidavit material from his ex-wife and others that have been positive about him and said the mother’s affidavit was different.  He said that anyone can lie to the DHS or court.  He said that none of the mother’s allegations against him were proven and pointed to the fact that he had primary care of his daughter for some four years.  He said a three year old still knows what he wants (a statement showing a remarkable lack of insight). 

  3. He stuck to his assertion that the mother had thrown X across the room, slapped him twice and thrown him into a window.  He denied that W was inappropriately empowered within his household and had said that she misses X.  He finished, saying that, “ninety nine per cent of the time I’m a great person, but one per cent of the time I make mistakes.”  He said, “X should not be punished for the one per cent.” 

  4. He confirmed in response to a question from the bench that he would not oppose order 19 sought by the Independent Children’s Lawyer, which will prohibit him from recording changeovers.

Submissions of the Mother

  1. Ms Janson repeated that she had been X’s primary carer since birth and it should remain like that.  She confirmed that X needs a relationship with both parents, but that co-parenting would not be possible because it cannot be a positive experience.  She pointed to the fact that there is never anything positive in the communication book.

  2. She said she is always positive about the father and X loves him.  She said he is three years old and needs to be protected from ill-feeling.  She was content to leave the issue of parental responsibility to the court, but pointed to the difficulties in communication.

The Exhibit Material

  1. I will only deal with those aspects of the material that is necessary to canvas.  I have already referred to Exhibit R2, being photographs of Mr Charwood and his family, and more particularly, his cars.

  2. I do not refer in any detail to the drug tests of the parties which are essentially clean.  I note, however, that the evidence given by Ms M as to the father smoking cannabis, when he denied it, is clearly made out.

  3. Exhibit ICL3 is a copy of the communication book.  It speaks for itself and it is damning of the father.  In response to repeated endeavours on the mother’s part to have a civilised discussion of X’s needs, the father’s answers all too often are accusatory, unpleasant, domineering and misconceived.  It is not necessary to say more than that.

  4. Exhibit ICL4 is a record of orders made at the Magistrates’ Court of Victoria at Sale, which shows that on 6 May 2013 the father pleaded guilty to a charge of unlawful assault on 22 August 2012, this being the date of the Mr G incident, and he also pleaded guilty to careless driving of a motor vehicle.  He was convicted and a Community Correction Order was made against him.

  5. Exhibit ICL5 is the Department of Human Services file.  I note, inter alia, that on 9 March 2012 X was deemed to be at immediate significant risk of harm whilst in the care of his father.  This, no doubt, informed the support of the DHS for the recovery order that was made.

  1. Exhibit ICL6 is the Victoria Police records in relation to the father which show a long history of offences.  They only go to reinforce Mr D’s findings about the difficulties the father has had in his relationship with society more generally.

The Statutory Pathway

  1. The statutory pathway is illuminated, notwithstanding some subsequent legislative amendment, by paragraph 65 of the decision of the Full Court in Goode & Goode [2006] FamCA 1346, as follows:

    “65. In summary, the amendments to Part VII have the following effect:

    1.Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child.  “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

    2.The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility.  That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and s 61DA(2)). 

    3.If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and s 61DA(3)).

    4.The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

    5.When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents.  If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)). 

    6.The Act provides guidance as to the meaning of “substantial and significant time” (ss 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).

    7.The concept of “substantial and significant” time is defined in s 65DAA to mean:

    a.the time the child spends with the parent includes both:

    i.    days that fall on weekends and holidays; and

    ii.     days that do not fall on weekends and holidays; and

    b.the time the child spends with the parent allows the parent to be involved in:

    i.    the child’s daily routine; and

    ii.     occasions and events that are of particular significance to the child; and

    c.the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent. 

    8.Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

    9.The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC. 

    10.When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents.  These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

    11.The child’s best interests remain the overriding consideration.”

Equal Shared Parental Responsibility

  1. Here, there is no question that each of the parents have been perpetrators of domestic violence.  The mother admits it and the father has certainly done far more of it than she has.  The child has witnessed some of it, as was the case in the tape-recorded incident.

  2. Although the initial position of the Independent Children’s Lawyer was for joint parental responsibility, in the ultimate this was not pressed.  Given the utter incapacity of the parents to cooperate, or, in the case of the father, even to communicate with ordinary courtesy, it is immediately apparent that in the particular circumstances of this case, it is in the child’s best interests that the mother have sole parental responsibility.

  3. The mother has been the primary carer of the child all his life and she finds it very difficult to communicate with the father because of his conduct.  Given the father’s extraordinary absence of self-control, as exhibited for example to Ms U and, indeed, by his offensive remarks in the communication book, the prospects of collaborative child-focused decision-making between these two people is nil.

  4. In these circumstances it is clear that the person who is X’s primary carer should have sole parental responsibility, and that is the mother.

  5. Although the Court in these circumstances is required, pursuant to clause 8 of paragraph 65 in Goode & Goode, to consider at large what orders are in X’s best interests, I will consider equal time and substantial and significant time.

  6. It should be noted that, although the father has hinted from time to time at equal time, his primary position is that the child should live predominantly with him.  Indeed, he made it clear that the orders he sought were the exact opposite of those sought by the Independent Children’s Lawyer.

  7. In circumstances where, as already indicated, communication between the parties and cooperation is so uniformly bad, there is no prospect of equal time being appropriate in X’s best interests.  No one has sought it and it is plainly inappropriate.  It is not only not in his best interests, but in the circumstances it would be completely impracticable because of the ill-feeling between the parents.

  8. Substantial and significant time will be ordered in any event, because all parties effectively propose it, although the regime proposed is different.

  9. Against these matters, I come to a more detailed consideration of s.60CC(2) and (3) of the Family Law Act 1975.

Section 60CC(2)

  1. Everyone agrees that it would be to X’s benefit to have a meaningful relationship with both of his parents.  However, it is also in the circumstances of this case necessary to protect X from physical or psychological harm from being subjected to or exposed to family violence.  I accept Mr D’s report and I accept that the child will not be the subject of abuse or neglect in either household.  The father has made criticism from time to time of the mother’s capacities as a parent, but having seen the evidence, I reject those criticisms.

Section 60CC(3)(a)

  1. The father would have it that X has expressed a strong desire to live with him and that even at three he knows what he wants.  I have already commented upon the misconceived nature of this view.  Furthermore, there is no doubt in my mind that X would prefer to live with his mother, because she is his primary attachment.  It is clear, given his immaturity, that any views he may have expressed should be given very little weight in any event.

Section 60CC(3)(b)

  1. X has an excellent relationship with each of his parents and I see no reason to doubt that he has an excellent relationship with the other children in his life.  There is no evidence of any moment as to how he gets along with the father’s new partner, but there is no reason to suppose it is anything other than satisfactory.  His primary relationship, however, remains with his mother.

Section 60CC(3)(c)

  1. This subsection adds little in the context of this case.  The mother, as the primary carer, has plainly done most of what has been done to help X’s development.  Both parents have placed the child in Kindergarten and the like from time to time and have generally done what ought to be done.  Both have sought to spend time with the child and to communicate with him.

Section 60CC(3)(ca)

  1. Both parents have in one sense fulfilled their obligations to maintain the child as they have been adequate carers when he is in their respective custody.  Both have failed in the sense that their toxic relationship, when the parties were together, was very much a failure in this regard.

Section 60CC(3)(d)

  1. Given the primary attachment that X has to his mother, it is immediately apparent that any endeavour to remove him from her primary care and place him into the primary care of his father would be extremely distressing to him.  Ms D’s report is quite clear and I accept it.

Section 60CC(3)(e)

  1. There is no difficulty in a practical sense with X spending time with each of his parents because they live close together.  The only practical difficulty that does obtain is the stress of changeover which arises from the tensions between the parents.  They will have to address these issues, and indeed the orders proposed by the Independent Children’s Lawyer will assist in this regard.

Section 60CC(3)(f)

  1. Subject to the reservations already indicated about the father’s lack of insight, I return again to the observations of Mr D.  It is clear that both of these parents will be able to provide for X’s needs while he is in their care.

Section 60CC(3)(g)

  1. The child is very young and at a stage of development that is crucial to him for the next several years.  Unfortunately, each of the parents has their fallibilities and weaknesses.  However, they are the parents of this child and what I am being asked to decide is the living arrangements as between them.

Section 60CC(3)(h)

  1. Subsection 60CC(3)(h) is irrelevant. 

Section 60CC(3)(i) and (j)

  1. Both of these sections have already, in effect, been dealt with.  Both parents have had their weaknesses as carers and parents.  The father’s weaknesses, in part, arise from a lack of insight as to the proper nature of the relationship between a parent and child, as evinced by his relationship with W.  Nonetheless, it is not suggested he spend no time with X.  There has been all too much family violence, but I have already dealt with that.

Section 60CC(3)(k)

  1. There is an Intervention Order valid until next year against the father, although X is not subject to it.  Its existence speaks for itself, especially bearing in mind the father’s denials of violence.

Section 60CC(3)(l)

  1. The orders I will make, which are the orders proposed by the Independent Children’s Lawyer, will be the least likely to lead to further proceedings.

Section 60CC(3)(m)

  1. There are no other relevant matters.

Conclusion

  1. Because of the way the parties conducted this case, both being self-represented, these reasons have perhaps not followed a normal template.  The statutory considerations have in a sense been tagged on at the end.  Nonetheless, once the decisive issues of parental responsibility and primary care are dealt with, the rest of this case falls, in my view, relatively readily into place.  Both parents sought mirror image outcomes and I have no doubt that the orders proposed by the Independent Children’s Lawyer, which provide for substantial and significant time for the child with his father, are orders in his best interests.

  2. I have not made it clear perhaps sufficiently throughout this judgment how readily I accept the father’s assertion that he adores his son.  He clearly does.  The fact that he is, in the ultimate (from his point of view), unsuccessful, arises not from a lack of affection on his part, but essentially a lack of insight.

I certify that the preceding one-hundred-and-ninety-one (191) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  7 November 2013

Key Legal Topics

Areas of Law

  • Family Law

Legal Concepts

  • Injunction

  • Procedural Fairness

  • Remedies

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Goode & Goode [2006] FamCA 1346