RAYWOOD & GELSTON

[2020] FCCA 2200

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAYWOOD & GELSTON [2020] FCCA 2200

Catchwords:
FAMILY LAW – Parenting – mother seeking sole parental responsibility and father opposing – 5 year Intervention Order breached by the father or multiple occasions  – mother proposing limited time with the father – father threatening to “walk away” if orders not to his satisfaction – presumption of equal shared parental responsibility clearly rebutted  – orders made as sought by the mother.

Legislation:

Family Law Act 1975 (Cth), ss.61DA, 60CC

Cases cited:

Goode & Goode [2006] FamCA 1346

Applicant: MR RAYWOOD

Respondent: MR GELSTON

File Number: DGC 1926 of 2016

Judgment of: Judge Burchardt

Hearing dates: 13 & 14 July 2020

Date of Last Submission: 14 July 2020

Delivered at: Dandenong

Delivered on: 14 August 2020

REPRESENTATION

Counsel for the Applicant: Self-Represented

Solicitors for the Applicant: Self-Represented

Counsel for the Respondent: Mr Turner

Solicitors for the Respondent:	Bayside Solicitors
Counsel for the Independent Children's Lawyer:	Ms Elleray
Solicitors 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 children X born in 2008 and Y born in 2013 (“the children”).

3. The mother give the father one month’s written notice of any parental responsibility decisions intended to be made.

4. The children live with the Mother.

5. The Father spend time and communicate with the children as follows;

   (a)9:00am Saturday to 4:00pm Sunday each alternate week during school terms;

   (b)In the school term holidays the time is extended to each alternate weekend to be from Friday at 9:00am unless a school day when time will be from 4:00pm;

   (c)11:00am to 4:00pm Father’s Day;

   (d)3:00pm Christmas Day to 3:00pm Boxing Day commencing 2020 and each alternate year;

   (e)3:00pm Christmas Eve to 3:00pm Christmas Day commencing 2021 and each alternate year;

   (f)By telephone, Skype, FaceTime, Zoom or other like method once a week for at least 30 minutes at a time agreed and in default of agreement at 6:00pm Wednesday or early if agreed by text message;

   (g)By telephone on the children’s and father’s Birthday at a time to be agreed in writing or in default of agreement from 5:00pm to 5:30pm;

   (h)To attend school event including school concerts, sports days and others functions normally attended by parents; and

   (i)At other time as agreed in writing.

6. Changeover be at the B service station at Town C or otherwise agreed in writing.

7. The father’s time with the children be suspended from 10:00am until 4:00pm Mother’s Day, on Christmas Day other than as provided in 5(d), and for a period of two weekends in the long summer holidays as nominated by the mother with one month’s notice in writing.

8. The father’s time with the children be suspended during any time he is unable to care for the children due to a change in his mental health.

9. The father continue to follow the directions and recommendations for treatment of his medical practitioner’s in relation to his mental health and the mother is at liberty to suspend time until he does so.

10. The father authorises his medical and like practitioners in relation to his mental health to speak with the mother and provide information to her.

11. The father is to provide the mother with details of all his medical and like practitioners in relation to his mental health.

12. That the mother authorises the school attended by the children to provide the father with school reports, photographs and circulars at his expense, and further authorises the school to communicate with him about the children.

13. The father is not to consume illicit drugs or alcohol 24 hours before or during the time the children are with him

14. The parents are to keep the other advised of any treatment of the children by a medical or like practitioner

15. The parents are not to say bad things about the other parent in the hearing of the children.

16. The order appointing the Independent Children’s Lawyer be discharged.

17. All extant applications are otherwise dismissed and removed from the active pending cases list.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1926 of 2016

MR RAYWOOD

Applicant

And

MS GELSTON

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a parenting dispute about the best interests of two children, X, born in 2008, and Y, born in 2013. The children live in the predominant care of their mother. 

2. The applicant father seeks that the children live with the mother and spend time with him each alternate week from Friday to Sunday, although he also said that if the children wish to, they could live with him.  The mother’s position is that there should be one night per fortnight and with no extra time in holidays.  The father, by way of contrast, pointed to the fact that the children had spent from Thursday to Sunday with him on the last Christmas period and sought the same for school holidays.

3. The Independent Children’s Lawyer’s position supports that of the mother as regards holidays, but seeks time from Fridays to Sundays otherwise.

4. For the reasons that follow, I propose to make orders for the children to spend one night each alternate weekend in term times and for two nights during school holidays.

Agreed or Uncontested Relevant Matters

1. The father was born in 1978.  The mother was born in 1981.  The parties appear to have commenced a relationship in 2005 and the father has proposed without material challenge that they married in 2007.  They both agree that separation took place on 28 August 2015.  The father has deposed that the separation came as a complete surprise, but following an Interim Intervention Order taken out very shortly after separation a Final Intervention Order was taken against the father by the police on 22 October 2015.

2. The father has been charged on multiple occasions for breaches of the Intervention Orders and I note that on 18 July 2017 the extant Intervention Order was extended for three years.

3. The father has had a long history of mental health difficulties arising out of attention deficit hyperactivity disorder and other matters.  There has been a very lengthy process in this matter from the father’s initiating application filed on 28 June 2016 until trial.  This has been because of long periods of time when the father, for one reason or another, has not spent time with the children, most commonly associated with supervision difficulties.  It should be noted that in late 2017 the father had a significant mental health episode and was significantly suicidal in his ideation, which led to a further long period of time where he did not see the children.

4. The father has been assisted from time to time by the woman he was in a relationship with after the mother, namely, Ms D, who came to Court and gave evidence on his behalf on 21 June 2018, offering to supervise. This is noteworthy because Ms D has now also taken out an Intervention Order against the father.

5. It appears that an Interim Intervention Order has also been taken out by the police recently in respect of the father’s most recent partner, and as part of that process the father was arrested and spent a night in jail.  He has, however, informed the Court that he is going to plead not guilty to all the charges brought against him and I have indicated that I do not propose to give this last set of proceedings any great significance accordingly.

The Parties’ Affidavits and Family Reports

1. I have read the parties’ affidavits in detail.  They essentially either detail the matters in the agreed section above, or go to explain the lengthy history of delays and stops and starts that this proceeding has involved.   While of course I have regard to that affidavit material, I do not propose to paraphrase it in any detail.  It should be noted that the mother has at all times deposed to a lengthy and significant history of family violence perpetrated upon her during the relationship, which the father has generally sought to either deny or present as being significantly less than that alleged by the mother. 

2. Given the way this proceeding has progressed, it is more helpful to concentrate on what the parties actually said at Court.  Before coming to that, however, it is appropriate to refer to the family reports that have been produced from time to time.  An earlier section 11F report is now sufficiently historical to be of no great assistance.  The first family report in 2018 suffered from the fact that the father was not able to attend interviews because he was incarcerated at the time.  That first report does, however, record in detail the mother’s history of events including the alleged family violence.  It is more appropriate to concentrate on the second report of Ms E, dated 17 June 2019.

3. I have of course regard to the entirety of this report, but the following matters are probably the most pertinent for present purposes.  The report noted at paragraph 25 the detailed allegations of family violence from Ms Gelston referred to in the previous report and the Final Intervention Order on 18 July 2017 for three years.  In paragraph 26 it was noted that the father denied being physically abusive, but acknowledged verbal arguments between the parties.  In paragraph 31 the report noted that:

   Dr F’s report dated 31 May 2018 noted that Mr Raywood presented with personality difficulties, and also has enduring problems with ADHD which is being addressed by his psychiatrist.  He was suicidal and was admitted to G Hospital for two days in 2015.

4. The report noted the mother’s concern about unsupervised time and the father’s meltdown and suicidal thoughts in December 2017 when he obtained unsupervised time (paragraph 38.)  The report noted that the father had been reviewed by Dr H, his treating psychiatrist, and a report was awaited (and a report from Dr H has indeed been filed and it speaks very positively of the father’s mental health).

5. In paragraph 50 the report observed:

   He acknowledged that X was riding a motorbike without protective gear and had two accidents.  He reported that he obtained protective gear for X after Ms Gelston spoke to him about this.  He also admitted that he wanted to get the children a bow and arrow each last Christmas, but decided against it after speaking to Ms Gelston.

6. In paragraph 53 the report noted:

   He said if it all gets too hard he would have to walk away from his children and they can contact him and re-establish their relationship with him when they are older.  He stated that he would find it difficult to maintain phone communication with them if he cannot see them because it affects him too much.

7. I note that the mother was reasonably cooperative in respect of arranging changeover (paragraph 56).

8. I further note that Y was absolutely delighted to see her father and that her love for her father was palpable (paragraph 58).  I further note that (paragraph 68) X was feeling very happy about seeing her father during the report appointment and wishes to see him (paragraph 69).

9. The children plainly had a very well settled relationship with their mother (paragraph 71), but also had a strong bond with their father of whom they had no apprehension (paragraph 73).

10. The report went on to suggest that if the father was clear of drugs and his psychiatric report confirmed his mental health was stable Ms E supported one night each fortnight with daytime unsupervised and overnight time supervised for at least four visits.

11. In view of the Intervention Order Ms E did not recommend equal shared responsibility (paragraph 90).

12. It should be noted that I have not traversed the report of Dr F and not because I have failed to have regard to it, because I have paid careful attention to its terms, but because in my opinion Ms E’s summary is in fact an accurate and sufficient one.  Likewise, I have not traversed the report of Dr H because, likewise, it is already appropriately summarised above.

The Submissions Made and Evidence Given at Court

1. What follows is taken from my notes.

2. Counsel for the Independent Children's Lawyer made some introductory remarks.   She informed the Court that over the weekend inquiries had been made with the Town J police which revealed that the father had been charged with stalking, using a carriage to menace, three counts of criminal damage and one further charge in respect of a recent partner Ms K, (whose name is not disclosed in the materials before the court – I have endeavoured to spell it from what I heard).  Various details of the alleged offences were given.  The father was arrested and remanded for one night and is presently bailed to a hearing due, in due course.  The charges are due to be heard at the Region L Magistrates’ Court on in 2021.

3. The father confirmed that he intends to plead not guilty.  The father went on to open his case.  He said he would like parenting by both parents.  His eldest daughter talks about school, but the mother will not reply.  He wants to see his daughters every second weekend, but the mother will not tell them to come.  If the children want to, they can live with her.

4. Counsel for the Independent Children's Lawyer indicated the mother’s position was that she accepted unsupervised time on weekends of one night per fortnight, but no additional time in holidays.

5. The father continued and said that in the last school holidays he had had more time.  There had not been many phone calls in the last six weeks.  He would rather have time from Friday to Sunday because he was seeking a full day with the children.

6. The father was called and was affirmed and confirmed his affidavit to be true and correct.  He said that he has had the children ask if they could spend an extra night.  He had extra time at Christmas and could not see why this should not occur during other holidays.  It was hard to tell the children they could not have the extra time.

7. Under cross-examination by counsel for the mother, the father said he did not agree with an order for sole parental responsibility.  He wants more time with the children.  He said he had read the family report, but half of what he received was, in fact, somebody else’s report.  There are two family reports (this is erroneous. There are simply a small number of errors in Ms E’s report).  When it was put to him that the most recent family report recommended sole parental responsibility the father said that that was only a recommendation and asked what was the reason for it.  When asked why he thought the relationship broke up the father said he had an Intervention Order on him.  There were arguments on both sides, but there was no family violence when he had the children.  The father conceded that the Intervention Order first made in September 2015 is still continuing.  When it was put to him that it had been extended until 31 October 2030 the father said this was in the process of getting tested.  He was at Court on Friday and it was getting contested.

8. I interpolate and presume that, in some fashion, related to the father’s recent arrest.  This has provoked an interim order to the effect described.

9. When it was put to the father that the mother’s affidavit of 6 July 2020 deposed to the detailed history of family violence during the relationship, the father said he would agree but she was exactly the same to him.  He was verbally violent to her as much as she was to him.  He never threatened to kill her or the kids.  He asserted it was the mother who had beaten a puppy with a stick.  He had not smashed toys in the presence of the children.  He had not engaged in controlling behaviour.  There was a basis for the Intervention Order, but I understood him to indicate he could have obtained an Intervention Order also. 

10. When it was put to him that the parents’ ability to communicate was compromised and that there was a family violence issue, the father said that it made sense what counsel was saying.  He had pleaded guilty on 2 December 2012 to a breach of Intervention Order.  He had also been convicted and ordered to pay $300 costs on 25 May 2016 and ordered to undertake counselling with Dr M.  He said he had to go to Dr M to get a report done.  The father confirmed that there were further charges which resulted in a finding of a breach of an Intervention Order and a $750 fine on 16 November 2017, these breaches relating to the mother.

11. The father said he did make a new relationship with Ms D.  He had done the Men’s Behaviour Change course and now had an insight into his behaviour.  He would not commit family violence.  He conceded that Ms D had taken out an Intervention Order against him.  The father said he understood the reason why he had undertaken the Men’s Behaviour Change course.  With Ms D he could not stand her knocking the way he had dealt with the children.  With the mother there were niggles and arguments between them.  It affected her, the same as him.  It was quite upsetting.  The father conceded that his relationship with Ms D ended in about November 2017 and this was when the Intervention Order was taken out.  The father admitted that he ended up in G Hospital, having attempted suicide.  Ms D continued to support him.  The Intervention Order was family violence.  It was one word against the other.  She wanted to move to Town N and obtained this by obtaining the Intervention Order.  Ms D supervised time.

12. The father was cross-examined about his relationship with Ms O.  That relationship broke down because she put the children’s manners down.  He could not handle it.  The father said he had a right to criticise the mother.  She can criticise him.  It is an ongoing dispute he is trying to resolve.  He conceded he has difficulty reading.

13. The father conceded that on 12 September 2017, two days after his attempted suicide, he pleaded guilty to charges breaching the Intervention Order.  This related to Ms D.  It related to him not seeing his children because of his mental illness also.  This was before he did the Men’s Change program.  He does not keep dates.  He went on to insult counsel by saying, “You don’t have to be a smart arse about it.”  I should interpolate and say he was angry and was shouting at this stage.  He then said he did not remember.

14. Counsel put it to the father that his conviction on 17 October 2018 for breach of the Intervention Order and a fine of $500 was after he had completed the Men’s Change program and the father said this was probably the case.  He proposed to plead not guilty to his current charges.  It was put that there was an Intervention Order taken out in respect of Ms O and he said he had agreed to that Intervention Order.  When it was put to him that, since separation from the mother, two women had taken out Intervention Orders and both had alleged family violence, the father said that was correct.  When it was put to him that the mother would say she did not answer his messages because they were threatening and argumentative, he said he does not believe it.  He said he was not the only one at fault.

15. When it was put that there was no communication between him and the mother, he said “yes” because he does not get any replies.

16. Counsel put it to the father that he had an amphetamine dependency in 2013.  The father agreed and said it was a long time ago.  He was not then addicted to cannabis.  He agreed that Dr F had diagnosed him with ADHD, but went on to say that plenty of fathers have mental health problems.  The children are asking for more time.  When he was questioned as to whether he had done everything he could to see the children, the father said, “Yes, I’m here today.”  He did not see the children for 13 months after separation because he did not believe he should see them at a contact centre.  He said, “You don’t see what I go through at work not seeing the children and paying child support.”

1. Counsel put it that there were two other times where there was a long time he was not with the children and the father said, “You don’t have to tell me.  I know.”  He went on to indicate that he understood it was mental health and drug issues.  The father confirmed that his concern about sole parental responsibility was that the mother might leave the area where she lives.  The children tell him that mum would like to move to Town P.  When it was put that the mother has no such intentions he said it was just what the kids say.  When it was put to him that the mother was being child focused staying where she was, the father said he agreed.  He agreed that the mother was always supportive of time, subject to a safe environment.  He understood that the mother wanted him to be a good father.

2. The father was cross-examined about the children riding motorbikes.  He said the children do ride motorbikes in his care.  The children have accidents on bikes anyway.  He then was questioned about photographs showing the children apparently on a boat without life jackets and went on to say that the children do not have to have life jackets when the boat is at anchor.  He has a boat licence.  He wants more time with the children.  He has one bedroom with a double bed.  He has another bedroom with two single beds.  He has allowed the children to sleep with their Dad in the past.  He said this was not the case all the time.  When questioned whether this was appropriate for an 11 and a half year old the father said that there was a six year old in the middle.  They were his children.  The girls asked if they can sleep with him, he said.   They are his kids and he has no problem with that.

3. Under cross-examination by counsel for the Independent Children's Lawyer the father indicated he would comply with an order that the children sleep in their own beds when with him.  When it was put that there might be an order that the mother not relocate for more than 20 to 30 kilometres from her current residence the father simply said he was not agreeing with sole parental responsibility.  When it was put to him that communications between the parents were not good, he was at first evasive, but then appeared to concede that this was so.  He said he shows he is a parent by paying child support, but when it was put that the arrears were almost $20,000 he said there were reasons for that.  It was put to him that Dr F talked to him about his impulsivity, but he did not recall this.  When it was put that he would hit out or have a knee-jerk response, he said a lot of parents do.  He repeated not being guilty of any recent injury or assault on Ms K (I repeat that I am not sure if I heard this name correctly. It is possible that these were references to Ms O).  He went on to say, if I correctly recorded the matter, “It’s not me who’s hurting the kids if I walk away from them.”

4. The father confirmed that his mother lives in Town Q.  The children have a loving relationship with his mother.  He is now seeking Friday to Sunday fortnightly.  The one night he was previously proposing was just until he was comfortable with them.  Now he is comfortable to go for more.  He has unlimited internet at home now.  Last Christmas he had had the children from Thursday to Sunday and he could not see why he could not have that back.  He will undertake the Family Court and criminal proceedings by himself.  Sole parental responsibility means that the mother can say where the children live.  He did not know what the three long-term issues were.  When it was put to him that there might be consultation in relation to matters of religion, education and health, the father said that if it went to that extent, why not go to the full extent.  He does not go to church and cannot see the children becoming religious.  He appeared to suggest that the children get their bad language from their mother. 

5. The children come to him upset about their school and did not understand why there should not be fully shared parental responsibility.  He inquired how the mother was ever going to be able to contact him if she cannot text him.  When it was put to him that accidents on the motorbike might lead the mother reasonably to be concerned, the father said he could understand, but what if he said the same about bikes. He said everyone has accidents. I would interpolate and say it is clear that the father has no intention of stopping the children from riding on motorbikes.  It emerged quite clearly in my view that the father is wholly unconcerned about the mother’s concerns and it was equally clear that the children had ridden on these motorised bikes without motorbike style helmets.  He went on to say that he had allowed the child to do this once and he would not do it again, but I repeat that I do not accept his evidence.

6. When it was put to him that the Independent Children's Lawyer was going to recommend Friday to Sunday and school holidays he said he would rather have it from Thursday night and Friday fortnightly at Town C changeover should continue.  He was a bit concerned that the mother might obtain advice from his psychiatrist.  He sees Dr H every two months and never misses.  He was still on various drugs including Lexapro for his ADHD.  He has an Intervention Order against Ms D’s new boyfriend.  The father confirmed he had written a letter to the Court and was trying to move forward.  He conceded that Ms D had made an undertaking in his favour to supervise before taking out the Intervention Order against him.  When it was put that there could be a chance of conflict with Ms O, the father said she could come back when he does not have the children.  In re-examination the father said he could not see how it would all go one way on the Intervention Orders.

The Evidence of Ms R

1. The paternal grandmother was affirmed and adopted her affidavit as true and correct.  Mr Raywood, who had requested that his mother give evidence, did not elect to elicit any evidence from her and there was no cross-examination. 

The Opening Evidence of the Mother

1. Counsel indicated that she sought the orders in an Application in a Case filed 6 July 2020.  The mother seeks sole parental responsibility and that there be time from Saturday morning until Sunday.  There were issues with the safety of the children.  It depends on the father’s mental health, drug issues and family violence.  The father is probably compliant with his medicine, but there are problems with his new partners.  Communications are difficult and there was conflict in text messages.  The mother wished to continue the children’s relationship with the father, but was concerned that the father was now charged and on bail.  There was always conflict around the father.

2. The mother was affirmed and adopted her trial affidavit as true and correct.  She confirmed that she seeks the orders in her response.  When it was put to her that she had not taken a child to the doctor for COVID the mother said X was sick later on Sunday and she made an appointment for the Monday.  She kept the children home.  The doctor told her on the phone to keep the child at home and send Y to school.  The mother said that she had not seen any foul language in any material the children had watched.  She was happy for the children to ride their motorcycles.  Her concern was that they did not have the appropriate safety gear.   So far as telephone time is concerned, quite often the children do not speak.

3. Under cross-examination by counsel for the Independent Children's Lawyer, the mother confirmed that her complaint was that X was riding a motorbike with a pushbike helmet.  Y had a pushbike helmet.  She would prefer a motorbike helmet.  The machine bike is faster than a peddle bike.  The photographs were in the father’s front yard and he makes jumps for them.

4. When questioned about the child’s school and whether there had been any attempts to discuss this with the father, the mother said until recently there was no discussion.  She has recently discovered that the available schools were zoned and explained her choice accordingly.

5. So far as child support was concerned, she gets regular payments, but they fall short of the amount billed.  The Child Support Agency has made an assessment and he pays less.  She is now at a bit under $20,000.  She provides school photos to the father.  She authorises him to get reports.  She acknowledges the children love their father and wants to encourage the relationship.  She wants to balance this against the safety issues.

6. When asked why it should be one night and not two nights, the mother said her concern was that with the father’s mental health problems, longer periods of time would be more straining on his mental health.  When questioned about the period from Thursday to Sunday at Christmas, the mother said it was not last year but the year before.  The father has no ongoing relationship with Ms D, Ms O or Ms K (the name if I understand it of his most recent partner).  They are not ganging up on with the father.  When asked about an order for possible consultation with the father, the mother said that was in her proposed orders.  She did not know how this would go, given the communication problems.  She said she agreed that education seems to be the main issue.  It depends on how it comes across for Mr Raywood with the communication issues.  Anything can lead to conflict in communications with the father.  He can be unpredictable.  She had only had a limited contact with the paternal grandmother.

7. The father did not elect to put any questions to the mother and there was no re-examination. 

The Evidence of Ms E

1. Ms E’s report was tendered as exhibit “D1”. 

2. Under a question from counsel for the mother, Ms E confirmed she did not have the copy of the proposed orders from the Independent Children's Lawyer.  Counsel explained the difference in the number of nights proposed from that of the mother.  Counsel explained that the mother had concerns as to the father’s safety with boats, arrows and bikes, his mental health and family violence.  Ms E noted that she had seen further charges for breach of Intervention Orders.

3. Ms E said that extended time has many risks, given the father’s problems.  She had taken a gamble based on the father who presented well on the day.  The children were eager to see him.  She had concerns about the father’s repetitive behaviour with his ex-partners. 

4. Counsel for the Independent Children's Lawyer put a number of matters to Ms E including the extension of the Intervention Order on an interim basis.  Counsel put it this was the only reason for sole responsibility.  Ms E disagreed.  She said there was a lot in the report.  There was past family violence and a pattern of behaviour.  The mother does not have the power to negotiate with this man.  She is a really good Mum who makes good decisions.  Ms E had no problems with an order for sole parental responsibility.  When it was put that the father was now on bail with a curfew, and events were described in the mother’s trial affidavit, Ms E said there was a lot in the affidavit.  She queried whether the father notifies the mother if he is in trouble with the law.  Were this so, time should be suspended until the mother could form the view.  If the father failed to make such notification it was suggested it was a lack of child focus.

5. Under questioning by the father, Ms E confirmed the children missed their father.  One has to prioritise their needs and safety.  You have to wonder what will happen when the children are present.  The father said words to the effect, “Do whatever orders you want.  If I can live with it, I will.  If I can’t, I can’t.”

Final Submissions by Counsel for the Independent Children's Lawyer

1. Counsel submitted that the mother should have sole parental responsibility.  It was suggested that the consultation provision be varied slightly.  Counsel submitted that the difference in times proposed by the mother and the Independent Children's Lawyer was neither here nor there.  Friday to Sunday was the minimum for school holidays.  Ms E balanced the benefit of the relationship with the father against the past difficulties.  The father may not have learned.  He is impulsive and impetuous and lacks judgment.  It is a balancing act.  The children want to see their father, but are quite young.  There is the current extended Intervention Order and the father’s ongoing relationship problems.  The father’s presentation in Court was a red flag.  He did not cross-examine the mother.  The father did not challenge yelling at the child S, his new partner’s child.  The father loves his children, but his needs are being put first.  The father puts ramps in the front yard.  He takes them fishing, but the children need protection.  The mother should have sole parental responsibility.  She is not empowered to negotiate with the father.  The father did not even bring the family report to Court, so it appears he is not looking to the best interests of the children.

Final Submissions for the Mother

1. Counsel submitted the presumption of equal shared parental responsibilities was rebutted and that all three sub-sections in section 61DA were applicable. The family violence was detailed in the trial affidavit at paragraphs 10 to 12. The father denies these and says the mother is a liar. In paragraph 17 of the trial affidavit the father was apologising to the mother in February 2019. The father does not take responsibility for his conduct and blames the mother. Post separation, there have been two breaches of Intervention Orders in 2016 and 2017. These are not isolated. Ms D who was very supportive of the father and supervised until February of 2018, after her own separation, had taken out an Intervention Order. The father says Ms D is a liar.

2. Counsel referred to the incident at the Town Q fete (which I have not traversed previously) and that the father had taken out an Intervention Order against Mr T.  The children were present on that occasion and the father was not protective.  The children were exposed to family violence.  The father is on bail in respect to Ms K and there is an Intervention Order against him following a night in jail.  The mother says any communications with the father lead to conflict and she is not empowered to negotiate with him.  Counsel pointed to the father’s tone and demeanour and his aggressive behaviour in the Court room.  The father makes accusations against the mother about the COVID emergency, but the mother has a sensible response. There are numerous and direct criticisms of the mother and she is criticised all the time.  The mother has done all she can to promote the relationship.  She wants the children to have the father they deserve.  The father has ongoing problems with partners and police involvement.  The mother is not moving to Town P and is child focused in doing so.  The mother should have sole parental responsibility.  So far as an extra day of time is concerned, the mother is concerned with the father’s ability to cope.  There are safety problems involving the bikes and the boat, and counsel has submitted that the sharing of his bed with the children was a matter of real difficulty.

3. Counsel for the Independent Children's Lawyer indicated that she would seek a further order that the father not have the children sleep in bed with him and that they sleep in their own beds overnight.

The Final Submissions of the Father

1. The father said “if it becomes too hard, it becomes too hard”.  He seeks joint parental responsibility.  He seeks that the children spend time with him from Friday until Sunday during term times and from Thursday till Sunday during school holidays.  He did not agree to taking instructions from the mother.  He went on to say that the children undertake horse riding which is more dangerous than what he does.

Findings About the Witnesses

1. The father was combative at all times in giving his evidence.  Accepting, as I do, that the process of being cross-examined is difficult for a self-represented litigant, he did not strike me as being in any way overawed and made a number of sarcastic and non-responsive answers to questions put to him.  He was observably aggressive in his demeanour virtually throughout the process of giving his evidence, and as I earlier indicated, at one stage he was actually shouting.  Some of his answers were clearly wrong. 

2. By way of illustration, his assertion that the children did not need life jackets when the boat was at anchor is inconsistent with the obvious danger of a child being on the edge of a boat over open water without protection.  He did not appear to have any idea that his behaviour, both in respect to the boat and the head gear worn by a child on at least one occasion being inappropriate, were a problem.  The father seemed to me to show a marked lack of insight, most particularly into the mother’s not unreasonable concerns about the children’s safety when with him.  He was at times labile and his remarks about walking away if he did not get what he wanted, were unself-controlled and lacking in any child-focus.

3. By way of contrast, the mother was remarkably composed.  She gave clear direct answers to the questions put to her and was plainly telling the truth. 

4. Having seen both these witnesses give their evidence and indeed observed them in Court, I have no hesitation in saying that when there is any material conflict in evidence I prefer that of the mother to that of the father.

Statutory Pathway

1. I turn now to the statutory pathway which is set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65]:

   “Summary

   [65]    In summary, the amendments to Pt 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 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 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” (s 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.”

Parental responsibility

1. The presumption of equal shared parental responsibility is plainly rebutted.  The father has committed family violence against the mother and I accept her allegations in their entirety, despite the father’s denials.  The long history of Intervention Orders and breach thereof by the father, in a sense, speaks for itself.

2. Not only is this the case, but the communications between the father and the mother are execrable.  The father’s entire approach to the mother is demeaning of her.  He accuses her of lying to get what she wants when she is not.  I entirely accept the observation of Ms E that the mother is simply not empowered to stand up to Mr Raywood who impressed me as an extremely forceful personality.  Furthermore, as Ms E rightly observed, the mother is a very good Mum who makes excellent decisions.  It is clearly in the children’s best interests that the mother has sole parental responsibility.

3. It is noteworthy that when pressed it appears that the father’s opposition to the mother having sole parental responsibility appeared, in part, to relate to the possibility of her relocating (something she has no intention of doing).  He also appeared to say that he would not take instructions from the mother.  He plainly sees this question of parental responsibility as being an issue of power and control and it is consistent with his domineering and controlling personality that he should seek to minimise any independence on the mother’s part.

Section 60CC(2) - The Primary Considerations

1. There is no question that everyone agrees that it is in the children’s best interests to have a meaningful relationship with each of their parents.  There is, however, a need to protect the children from psychological harm, from being subject to or exposed to abuse, neglect or family violence.  In this case there is of course no possible doubt that the father has never physically chastised the children.  They adore him and that speaks for itself.  There is, however, a need to craft orders that limit the father’s capacity to denigrate the mother and to seek to turn them against her. 

2. I note that the father indicated, albeit in a rather oblique way, that the children could come to live with him if they wanted to. The father has a very possessory attitude towards his children and, indeed, much of the general tenor of his material and, more particularly, his presentation in Court suggests that he sees the need for them in his life, at least in part, to meet his own emotional needs. I think Ms E was right to say that, while the father plainly loves his children, there is a real need to protect them against the possibility of mental health difficulties of the sort that he has experienced in the past. Calibrating these matters, it is plainly an issue that needs to be borne well in mind. It is not be noted that pursuant to section 60CC(2A) the need to protect the children is to be given greater weight than the need to the benefit of having a meaningful relationship with each of their parents.

Additional Considerations

Section 60CC(3)(a)

1. The children have expressed very clear views.  They both love their father, and as Ms E recorded, “Y’s love for her father was palpable.”  It should be noted, however, that they are still young and malleable and this brings into play again some of the underlying concerns about the father’s presentation and behaviour.  Nonetheless, there is no question that the children adore him.  Likewise, they have an extremely well settled and loving relationship with their mother who has always been their primary carer.

Section 60CC(3)(b)

1. I rather think that my conclusions about this matter are in the preceding paragraph.  The children adore their father and adore their mother also.  There is no significant evidence as to their relationships with any other family members.

Section 60CC(3)(c)

1. The mother has undoubtedly done all that is appropriate in relation to taking long-term decisions about the children.  As Ms E rightly says, she is an excellent Mum who makes excellent decisions.  It is not necessary to say more than that.  She has discharged her role as a mother in the most exemplary fashion and in circumstances that the father has, from time to time, made it extremely stressful for her.

2. The father’s endeavours to spend time and communicate with the children have been ongoing, but at times very misconceived.  He seems to treat Intervention Orders with a kind of breezy insouciance.  Although he has pressed his case to judgment, as I find the extent to which he wishes to participate in making decisions about the children,  seems to me to be at least as much about some notion of his own authority as against that of the mother.

Section 60CC(3)(ca)

1. The mother has plainly fulfilled her obligations to maintain the children.  The father is $20,000 in arrears in child support and that speaks for itself.  His answer that there were reasons for this was never expanded upon and stands vividly against him.

Section 60CC(3)(d)

The children have not spent extended periods time away from their mother.  It appears that the Thursday to Sunday Christmas episode upon which the father laid such emphasis was, in fact, now some 18 months ago.  It has not been repeated.  Ms E was clear that even the one night of overnight time she was offering was something of a gamble, in her view.  The Independent Children's Lawyer submitted that, in the ultimate, little turned on the matter, but I am not, I am afraid, able to agree.  The effect of longer periods of time will cause the mother very considerable disquiet and her disquiet is not without a historical foundation.  As it happened, when the father moved to unsupervised time in 2017 he became unwell.  He is a man facing, it would appear, multiple police interactions.  The possibility of the police attending, while the children are there, cannot be wholly discounted, although it would appear perhaps to be somewhat remote.  In my view, the fact that the father has not had extended periods of time and the mother’s understandable reservations about it, are matters to which weight should be given.

Section 60CC(3)(e)

1. The parties live a considerable distance apart, but that does not appear to be a significant inhibitor of one proposal for time or the other.  Likewise, although any cost involving such travel will be a burden upon the parties and most particularly upon the mother there has been no suggestion that it should be accorded any great weight.

Section 60CC(3)(f)

1. The mother plainly has a full capacity to provide for the needs of the children.  The father’s capacity to do so must be more questionable.  He has, after all, spent not that much time providing for the children’s needs, certainly since separation.  His presentation in Court, including repeated references to, in effect, walking away from the children if he did not get sufficient of what he wanted, suggests a marked and concerning lack of insight and child focus.  A man who is prepared to give his children up altogether on a whim of this sort must be taken to have a questionable capacity to deal with the children’s needs in an adult child focused and considered way.

Section 60CC(3)(g)

1. As I have already indicated perhaps more than once, the mother impressed me as being an extremely composed, mature and sensible person.  Her lifestyle is unremarkable and her preparedness to stay living in the region where she is, in order to foment the children’s relationship with their father, rather than moving to Town P which I understand would be preferable to her, shows a commendable degree of child focus. 

2. The father’s personality and circumstances are regrettably more compromised.  He has a history of drug use until relatively recently, although I accept that he is now clean.  He has had the misfortune, and of course it is a matter for sympathy and not criticism, to suffer from time to time very significant mental health difficulties.  He appears to regard his time with the children as being something that, in part, alleviates the possibility of these kinds of difficulties.  He is an aggressive and domineering personality, as was all too obvious from his behaviour in Court.  Although he complains that his ex-partners are ganging up on him, and even leaving aside the most recent developments, there is a concerning pattern of behaviour towards his ex-partners.  He suffers the further misfortune of being functionally illiterate with all the attended difficulties in coping with his affairs, as a result.

Section 60CC(3)(h)

1. This is not relevant.

Section 60CC(3)(i)

1. This is of course an important subsection, but in a sense it has already been traversed.  The mother’s attitude towards the children and the responsibility of parents is utterly unremarkable.  The father’s attitude is concerning at a number of levels.  As I have indicated, he has a very possessory attitude towards his children.  He seems to think he can do what he wishes when they are in his care.  He seemed to think the children could still be sleeping in the same bed as him, notwithstanding that they are 11 and 6 years old.  To an extent, in my view, his attitude towards the responsibilities of parenthood is compromised and self-focused.  Nonetheless, there is no question, and it is perhaps worth repeating this yet again, that he very much loves his children, and that is,  no doubt, why they love him.

Section 60CC(3)(j)

1. Contrary to the father’s denials, there has been significant family violence during the relationship.  It is greatly to the mother’s credit that she is prepared to contemplate time with the father, notwithstanding the father’s dreadful history.  The father’s denials are perhaps almost inevitable in the circumstances, but they are belied by his criminal record, let alone the fact that I have not accepted his evidence, in any event.

Section 60CC(3)(k)

1. While the current and, it would appear, greatly extended Intervention Order is still the subject of contest, there is no question that the father has been the subject of Intervention Orders from 2015 until July 2020.  Such an extended period speaks for itself.  Were that not enough, the father has actually breached the Intervention Order from time to time and been found guilty of doing so.  This is plainly relevant.

Section 60CC(3)(l)

1. In my view, it is appropriate to make final orders at this time.  The strain of these proceedings upon both of the parties and the inevitable flow-on effects to the children should come to an end.

Section 60CC(3)(m)

1. There are no other relevant matters.

Conclusion

1. In the end, as Ms E says, it is a matter of balancing up the children’s love for their father and his love for them with the all too prevalent risk factors that this case involves.  In my opinion, Ms E is right.  A time from Saturday to Sunday each alternate week during term time and from Friday till Sunday during school holidays is, in my view, in the children’s best interests.  The more limited time available will minimise the risks of the father’s emotions getting the better of him, because he is plainly a man who, from time to time, finds it very difficult to cope.  It is to be hoped that the father does not regard these orders as being so insufficient that he walks away.  I note that, in effect, he does not want telephone time because it is too emotionally distressing for him.

2. The mother must have sole parental responsibility for the reasons I have already given.  The orders I will make will, it is hoped, put in place an ongoing pattern which will enable the children to have the time they want with their father and give the father the opportunity to prove that he can be as the mother hopes he will be the father the children deserve.  I have drawn orders to reflect these conclusions.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date: 14 August 2020