Gibbs and Starling

[2014] FCCA 2389

FEDERAL CIRCUIT COURT OF AUSTRALIA

GIBBS & STARLING [2014] FCCA 2389

Catchwords:
FAMILY LAW – Parenting Orders – parental responsibility – where the father has been estranged from the parties’ 10 year old son and has been reintroduced to him through the proceedings – when overnight time should begin.

Legislation:

Family Law Act 1975, ss.60CC,61DA, 65DAA

Mazorski v Albright (2008) 37 FLR 518
Tait & Dinsmore (2007) FamCA 1383
Godfrey & Sanders (2007) Fam CA 102

Applicant: MR GIBBS

Respondent: MS STARLING

File Number: MLC 4229 of 2012

Judgment of: Judge Small

Hearing dates: 12, 13 & 19 June 2014

Date of Last Submission: 19 June 2014

Delivered at: Melbourne

Delivered on: 20 October 2014

REPRESENTATION

Counsel for the Applicant: Ms M. Baczynski

Solicitors for the Applicant: Cash & Stavroulakis Lawyers

Counsel for the Respondent: Ms H. Dellidis

Solicitors for the Respondent: Altavilla Vessali

Counsel for the Independent Children's Lawyer: Ms A. Glaister

Solicitors for the Independent Children's Lawyer: Septimus, Jones & Lee

ORDERS

1. All previous parenting orders in relation to the child X born (omitted) 2004 (“the child”) are hereby discharged.

2. The mother shall have sole parental responsibility for the child.

3. Notwithstanding the provisions of paragraph 2 hereof, the mother shall inform the father in writing (including by text message or email) at least 21 days before making decisions about the following matters:

   (a)Any change in the child’s school;

   (b)Any religious instruction the child receives, whether at school or otherwise;

   (c)Any non-emergency surgery or serious medical treatment the child is to undergo;

   (d)Any proposed change in the child’s name;

   (e)Any proposed relocation of more than 20 kilometres from her present residence.

   and the father shall respond to all such information, providing his views (if any) in writing within ten days of receipt.

4. The child shall live with the mother.

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

   (a)For the remainder of 2014:

   (i)From 6:00 pm on Saturday to 10:00 am on Sunday on the weekends of 25 October and 8 November 2014;

   (ii)From 6:00 pm on Saturday to 6:00 pm on Sunday on the weekends of 22 November, 6 December  and 20 December 2014;

   (iii)From 12 noon on 24 December to 10:00 am on 25 December 2014.

   (b)In January 2015 for two days and one night on two occasions by agreement between the parties and failing agreement:

   (i)     from 10:00 am on 2 January to 6:00 pm on 3 January;

   (ii)    from 10:00 am on 16 January to 6:00 pm on 17 January.

   (c)Thereafter during school terms:

   (i)in Terms 1 and 2 in 2015 from 10:00 am on Saturday until 6:00 pm on Sunday in each alternate week beginning on Saturday 8 February 2015;

   (ii)In Terms 3 and 4 in 2015 from after school on Friday until 6:00 pm on Sunday in each alternate week;

   (iii)Commencing in 2016 from after school on Friday until the commencement of school on Monday in each alternate week beginning on the first Friday of the school year;

   (d)In school term holidays:

   (i)for three days by agreement in the Term 1 holidays in 2015 and failing agreement from 6:00 pm on the Friday at the end of the first week of the holidays to 6:00 pm on the Monday at the beginning of the second week;

   (ii)for four days by agreement in the Term 2 holidays in 2015 and failing agreement from 6:00 pm on the Friday at the end of the first week until 6:00pm on the Tuesday of the second week;

   (iii)for five days by agreement in the Term 3 holidays in 2015 and failing agreement from 6:00 pm on the Friday at the end of the first week until 6:00pm on the Wednesday of the second week;

   (iv)thereafter, from the commencement of the 2016 school year, for one week in each of the school term holidays by agreement, and failing agreement from 6:00 pm on the last day of school to 6:00 pm on the following Friday in even-numbered years and from 6:00 pm on the Friday at the end of the first week to 6:00 pm on the following Friday in odd-numbered years.

   (e)In the Long Summer Holidays:

   (i)For eight consecutive days in the long summer holidays in 2015-2016 by agreement and failing agreement from 6:00 pm on New Year’s Eve to 6:00 pm on 8 January;

   (ii)For two consecutive weeks in the long summer holidays in 2016-2017 by agreement and failing agreement from 6:00 pm on 6 January to 6:00 pm on 20 January;

   (iii)Thereafter for half of the long summer holidays each year by agreement and failing agreement from 6:00pm on the first Saturday to 6:00 pm on the day calculated to be the mid-point in 2017-2018 and in each alternate year thereafter, and from 6:00 pm on the day calculated to be the mid-point to 6:00 pm on the last Saturday in 2018-2019 and each alternate year thereafter;

   (f)On Christmas Day each year by agreement and failing agreement from 11:00 am on  25 December to 11:00 am on 26 December in 2015 and in each alternate year thereafter and from 11:00 am on 24 December until 11:00 am on 25 December in 2016 and in each alternate year thereafter;

   (g)From after school (or 11:00 am should it not fall on a school day) on (religion omitted) Good Friday to 6:00 pm on (religion omitted) Easter Sunday each year should (religion omitted) Easter fall on a weekend when the child is not otherwise spending time with the father pursuant to these Orders, and the father’s time shall suspend each year from 11:00 am on Good Friday to 6:00 pm on Easter Sunday on the (religion omitted) Easter weekend should it fall on a weekend when the child would usually be spending time with the father pursuant to these Orders;

   OR IN THE ALTERNATIVE

   (h)If (religion omitted) Easter and (religion omitted) Easter fall on the same weekend, then the child shall spend time with the father from 11:00 am on Good Friday to 6:00 pm on Easter Saturday in odd-numbered years and from 6:00 pm on Easter Saturday to 11:00 am on Easter Monday in even-numbered years;

   (i)     For the child’s birthday:

   a.    From after school to 7:00 pm on (omitted) in even numbered years and from after school to 7:00 pm on (omitted) in odd numbered years should either of those dates fall on a school day when the child is not otherwise spending time with the father pursuant to these Orders;

   b.    From 2:00 pm to 6:00 pm on (omitted) in odd numbered years if it falls on a Saturday when the child is not otherwise spending time with the father pursuant to these Orders;

   c.    from 10:00 am to 2:00 pm in even-numbered years and from 2:00 pm to 6:00 pm in odd-numbered years on (omitted) should it fall on a weekend when the child is not usually spending time with the father; and

   (i)For the birthdays of the father and the child Y born (omitted) 2014, from after school to 7:00 pm should either of them fall on a school day when the child would not usually be spending time with the father pursuant to these Orders, and from 10:00 am to 6:00 pm should either of them fall on a weekend day when the child would not usually be spending time with the father pursuant to these Orders;

   (j)From 6:00 pm on Saturday to 6:00 pm on Sunday on the weekend of Fathers’ Day each year should it fall on a weekend when X is not usually spending time with his father pursuant to these orders;

   (k)By telephone each Wednesday between 5:00 pm and 5:30 pm with the father to provide the child with a mobile phone and the mother to ensure that the phone is charged, switched on, in the child’s possession and that the child answers the call at that time;

   (l)At other times as may be agreed between the parties from time to time.

6. The child’s time with the father shall suspend:

   (a)from 10:00 am to 6:00 pm on the mother’s birthday each year should it fall on a day when the child would usually be spending time with the father pursuant to these orders;

   (b)From 6:00 pm on Saturday on the weekend of Mothers’ Day each year should it fall on a weekend when X would usually be spending time with the father pursuant to these orders;

   (c)from 2:00 pm to 6:00 pm in even-numbered years and from 10:00 am to 2:00 pm in odd-numbered years on (omitted) each year should it fall on a weekend when the child would usually spending time with the father pursuant to these orders;

7. Changeover shall take place at the child’s school when time is specified to commence “after school” or conclude “before school”, and otherwise at (omitted) Supermarket at the entrance closest to the cashier, or at such other venue as the parties might agree in writing (including by text message or email) from time to time.

8. The time the child spends with the father pursuant to paragraph 5(c) of these orders shall suspend during school term holidays and shall recommence after each school term holiday period as if the holidays had not intervened.

9. The mother shall notify the father of any sporting, social or other extra-curricular activities the child is scheduled to attend or participate in during the father’s time with the child and the father shall ensure that the child attends or participates in such events.

10. Neither party shall in future enrol the child in any extra-curricular activity to take place during the child’s time with the other parent without first having obtained the consent of the other parent in writing.

11. The parties, their servants and agents are hereby restrained by injunction from:

    (a)abusing, insulting, belittling, rebuking or otherwise denigrating the other, or members of the other’s family and

    (b)discussing these proceedings

    in the presence or hearing of the child and from permitting any other person to do so.

12. For twenty-four (24) hours immediately prior to the commencement of any time spent with the child (including any period during which the child lives with them), and during all such time spent, the father and the mother are hereby restrained by injunction from ingesting, consuming or using any legal or illegal drug or substance, or being under the influence of alcohol (that is, having a blood alcohol level of .05% or greater) save and except for:

    (a)any legal medication prescribed for the relevant party by a registered medical practitioner, and taken or used by the relevant party strictly in accordance with such prescription; and

    (b)any over-the-counter medication or pharmaceutical substance ordinarily sold in major supermarkets (which does not contain codeine), and taken or used by the relevant party strictly in accordance with the directions appearing on such medication or pharmaceutical substance.

13. The parties shall forthwith commence and maintain a communication book with respect to the child, which book shall travel with the child between the parties’ respective places of residence, and they shall write in it any information about the child which they believe is necessary for the other parent to know, such as any medications he needs to take, or any social or sporting events which he is to attend/participate in during the other parent’s time with the child, and neither shall use the communication book for any other purpose.

14. Each of the parties shall notify the other as soon as practicable in the event that the child suffers a serious illness or injury while he is in their respective care, and shall authorise any medical practitioner who is treating the child to consult with the other party, although the mother shall have final responsibility for making decisions about his treatment.

15. If the child is hospitalised for any reason, the mother shall immediately inform the father and the father shall be permitted to visit the child every second day of his hospitalisation by agreement and failing agreement for a period of no more than 2 hours, at times to be notified to the mother by text message the night before such visits.

16. The mother shall immediately authorise any school in which the child is enrolled to provide to the father at his expense all school reports, photographs, newsletters, notices and the like that are usually provided to parents.

17. From the commencement of the 2016 school year, the father, his wife, their child/ren and the paternal grandparents shall be at liberty to attend any school functions, extra-curricular activities or events to which parents and/or family are usually invited.

18. Each party shall keep the other informed of their residential address and contact details and shall notify the other of any change of address (including email address) and/or contact telephone number within 24 hours of such change.

19. The mother shall advise the father of any medication prescribed for the child, including the dosage prescribed, and ensure that such medication travels with the child, and the father shall ensure that the child takes such medication according to its prescription.

20. The father, by himself his servants or agents, is hereby restrained by injunction from baptising, confirming or otherwise arranging for the child to be formally made a member of the (religion omitted) Church or any other religious institution without the consent of the mother first obtained in writing.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 4229 of 2012

MR GIBBS

Applicant

And

MS STARLING

Respondent

REASONS FOR JUDGMENT

Introduction

1. Mr Gibbs (“Mr Gibbs” or “the father”) wants to spend more time with his son X (“X” or “the child”) who was born on (omitted) 2004 and is now ten years old.

2. X’s mother, Ms Starling (“Ms Starling” or “the mother”), wants to regulate the progression of the time X spends with his father and does not want him to spend more than one night at a time away from her.

3. The issues in this case are:

   ·    whether the parents ought to maintain equal shared parental responsibility for X or whether that responsibility should rest with the mother alone

   and

   ·    when and how X’s time with the father should progress from its current regime.

Background

1. The parties met in 2003 and began living together when Ms Starling moved into Mr Gibbs’ home in (omitted).

2. Their son X was born on (omitted) 2004.

3. The parties separated when Ms Starling left the family home with X after an argument with Mr Gibbs in October 2004. Ms Starling alleges that the relationship was characterised by abuse, violence and criminal behaviour on the part of Mr Gibbs. Mr Gibbs denies that characterisation but acknowledges that he punched a hole in the wall during the argument that led to the separation.

4. Mr Gibbs commenced proceedings for time with X in the Family Court of Australia in mid-2005. Those proceedings ended on 15 December 2006 with orders being made by consent, those orders providing for X, who was then two years old, to live with Ms Starling and spend time, including  overnight time, with Mr Gibbs.

5. That time proceeded, not without some further conflict, until April 2007, and what happened then is a matter of significant dispute.

6. Ms Starling’s experience was that Mr Gibbs simply stopped spending time with his son and that he essentially abandoned X at that time. She is extremely angry with Mr Gibbs in that regard and does not feel able to understand his behaviour or forgive him in any way. Her contempt for him as a result of that experience was palpable and explicit in almost everything she said at trial.

7. Mr Gibbs says that he lost the mother’s contact details after his workplace was raided by police who were looking for one of his co-workers and the police took his mobile phone. He says that when the phone was returned all its data had been deleted and that while he continued to attend the agreed changeover venue for several contact periods, the mother did not. He says that he attempted to find her, including through her family, but was unable to do so. He says that she changed her name several times which made this task even more difficult. He says that eventually he gave up until 2011. It was his evidence that he had spent tens of thousands of dollars on the previous proceedings and that he could not afford to re-open the litigation until 2011/12.

8. In 2011 Mr Gibbs approached Relationships Australia, who, he says, tried to locate Ms Starling for about a year without success. He then issued these proceedings on 15 May 2012.

9. All this meant that X did not see his father or have any contact with him or his family from April 2007 until November 2012, when limited time was recommenced pursuant to orders made during these proceedings. That is, X did not see his father at all between the ages of two-and-a-half and eight.

10. Between November 2012 and January 2014 X spent time with Mr Gibbs at Family Life Children’s Contact Centre pursuant to orders made 17 September 2012.

11. Pursuant to the orders made by consent on 28 January 2014, from February 2014, Mr Gibbs and X spent time together under the supervision of Angelico Family Services, a private children’s contact supervision service.

12. Pursuant to those orders, Mr Gibbs believed that X should have begun to spend overnight time with him on the weekend before trial, but Ms Starling did not make him available for reasons discussed later.

13. Mr Gibbs married in late 2013 and he and his wife Ms D have a daughter, Y, who was born on (omitted) 2014.

14. He works as a (occupation omitted) in the (omitted) industry and is studying to be a (studies omitted).

15. Ms Starling has not repartnered and is employed as an (occupation omitted).

Procedural History

1. On 15 December 2006, after proceedings initiated in the Family Court by Mr Gibbs on 14 October 2004, the parties entered into Consent Orders in relation to X before Guest J. Those orders provided for X to live with his mother and spend time with his father, including overnight time, and also included a Watch List order.

2. As I have stated, the orders in relation to the time X spent with the father were followed for approximately four months until April 2007, when all contact between father and child ceased.

3. On 15 May 2012 the father filed an Initiating Application seeking parenting orders in relation to X. He sought orders that the child live with the mother and spend time with him.

4. The proceedings first came before Federal Magistrate O’Dwyer (as he then was) on 19 June 2012.  At that hearing procedural orders were made and a Commonwealth Information Order was issued to Centrelink for the location of the mother.

5. On 29 August 2012 Federal Magistrate O’Dwyer ordered the appointment of an Independent Children’s Lawyer and that the parties attend a s.11F Child Dispute Conference to endeavour to reach agreement. 

6. The matter returned for mention before His Honour on 15 November 2012 with an appointed Independent Children’s Lawyer. The parties consented to interim orders, with the child to have supervised time at a contact centre with the father.  The father also consented to supervised drug screen testing with the results to be provided to the Independent Children’s Lawyer. The proceedings were adjourned for further hearing in May 2013.

7. The proceedings in fact did not return to the Court until 17 September 2013 before me when the matter was set down for trial on 12 June 2014. At that hearing Orders were made for X to spend time with his father at a Children’s Contact Centre and the parties and the child were sent once more to a s.11F conference with a Family Consultant to attempt to resolve the issues in dispute.

8. On 28 January 2014 at a Mention Hearing following the parties’ second conference with the Family Consultant, Interim Orders were made by consent for X to spend time with his father supervised by Angelico Family Services and an order was made for a full family report.

1. The Family Report of Mr P was released on 5 May 2014.

2. The trial took place as listed on 12 June 2014 and ran for two days, with final submissions being made on 19 June 2014. The witnesses who gave oral evidence and were cross-examined were the father, the mother and Mr P.

Issues and Evidence

B.Parental Responsibility

1. The first issue for consideration is whether the parents should have equal shared parental responsibility for X or whether Ms Starling should have sole parental responsibility. Mr Gibbs wants the former, Ms Starling the latter.

2. It was Mr Gibbs’ evidence that he feels that X has not had a father figure to teach him values, to give him a religious education and to steer him in the right direction in general. He wants to be that figure for X and says he is committed to working on that relationship.

3. He wants X to know about his (country omitted) cultural and religious heritage and for him to be part of his paternal family.  He wants to be fully involved in X’s schooling and recreational activities and to be informed about any health issues he might encounter and have the opportunity to consult with his treating practitioners.

4. Mr Gibbs presents as an uncomplicated and straightforward man. He accepts that there have been times in the past when he has not behaved as well as he might have, but apart from punching a hole in the wall in frustration at the time of separation from Ms Starling, he denies any family violence and says he just wants the chance to develop a good relationship with his son.

5. He was having overnight time with X in 2007 and just wants to go back to that regime as soon as possible.  He also wants X to be a part of his new family and to have a relationship with Y.

6. His attitude towards Ms Starling is at once suspicious and conciliatory. He made several allegations about her character (accusing her at one point of having engaged in prostitution, which she vociferously denies), and at the same time stated that he believed it would be possible for him and Ms Starling to have a relationship which would promote X’s best interests.

7. Mr Gibbs accepts that the relationship between him and Ms Starling is very poor indeed, and that they do not communicate well, although he said at trial that he is prepared to attend mediation with Ms Starling in an attempt to improve their communication about X’s welfare.

8. Ms Starling is not prepared to attend mediation. When asked about that and about how she felt about the prospect of co-parenting with Mr Gibbs, she said the following:

   I feel absolutely disgusted. I can’t believe at this – you know, at the eleventh hour, that he’s slinging mud and making these constant lies, and I don’t want to be in the same room as him. He doesn’t respect me, he doesn’t respect me as a mother, and he doesn’t respect any of the decisions I make, and I don’t feel we will ever be able to communicate and make decisions with co-parenting together, and obviously I have been solely responsible so to speak for numerous years now on my own, raising X by myself in Mr Gibbs’ very long absence.

9. And later, under cross-examination:

   I don’t believe Mr Gibbs and I will ever communicate. He has no respect for me.

10. When asked if she had any respect for Mr Gibbs, Ms Starling first said: “He abandoned X…” before saying: “I guess I would have to say no”.

11. Indeed, throughout the trial Ms Starling expressed such animus towards Mr Gibbs that upon reading the transcript, I could not find any positive comment she made about him or his parenting capacity save that, in answer to the specific question: “What can you say that’s positive?” she said:

    That X enjoys kicking a ball with him, he enjoys some of his company, but he has a lot to learn about parenting.

12. She complained about Mr Gibbs’ behaviour at every possible opportunity, saying multiple times that he had abandoned X in 2007, that he had disregarded the rules of the child contact centre where he was spending time with X while she herself had followed the rules, that he had lied about whether he was engaged or married, that he was prepared to lie to X about his marital status, that he had not sent X a present or a card for his birthday, that he had not told X he had a baby sister, that he was lying about her having been deported from the (country omitted) for engaging in prostitution and many, many other examples.

13. Her demeanour was defensive and at times sarcastic and quite nasty, and her answers were often evasive and non-responsive to the questions asked.

14. She conceded under cross-examination from Mr Gibbs’ counsel that she had done “absolutely nothing” to inform X’s father about his education, or to send any Christmas card or other communication from X to Mr Gibbs or his paternal family. When asked about that, her response was that Mr Gibbs “has never asked for anything”.

15. When asked about her knowledge that Mr Gibbs was trying to find her in 2010, Ms Starling said she had not contacted him because she had obtained legal advice to the effect that “it’s not my responsibility to be chasing him”.

16. Nevertheless, Ms Starling did say that she believed that X and his father should have “a big role in each other’s lives”. Given her attitude to Mr Gibbs, it is difficult to believe that she was sincere in that statement.

17. Her evidence was that her wish for a sole parenting responsibility order was based on her mistrust of Mr Gibbs and the fact that she had been solely responsible for X for much of his life and saw no reason to change that situation.

18. Under cross-examination by counsel for the Independent Children’s Lawyer, Ms Starling conceded that she had failed to provide X for time with his father on the weekend previous to trial, and gave as her reason for withholding X a concern about Mr Gibbs’ drug screen results because he had provided some samples outside the 24 hour period required. I note that those samples (which were clear of illicit substances) were provided within 36 or 48 hours of requests from the Independent Children’s Lawyer.

19. However, Ms Starling conceded that she had heard counsel for the Independent Children’s Lawyer tell the Court that the Independent Children’s Lawyer was satisfied that the drug screen results indicated that the father had been drug free over a substantial period. To the suggestion that it was “nit-picking in the extreme, and it is not at all helpful to say to Her Honour ‘I did not allow that contact because I was worried about the drug screens’ ”, Ms Starling answered “Yes”.

20. Ms Starling conceded that she did see it as appropriate that X should have a life in his father’s household over which she would have no control, although she was adamant that she would not consent to him being baptised into the (religion omitted) Church.

21. It was as though for every concession she made about the appropriateness and benefit to X of a good relationship developing between him and his father, Ms Starling felt she had to raise multiple examples of where Mr Gibbs had failed as a father or issues about which she was in fervent disagreement with him.

22. Her intractability was extreme and it is difficult to believe her protestations that she is supportive of any real relationship developing between X and Mr Gibbs.

23. When parents cannot communicate, or, as in this case, where one of them is either unable or unwilling to do so, it is almost impossible to envision a process by which they can co-parent a child in any real sense.

24. Major decisions about children’s progress need to be made at salient points in their lives and if parents cannot communicate, the court can have no confidence that they will be able to negotiate and agree about those decisions.

    The Law about parenting responsibility

25. Section 61DA (1) of the Family Law Act 1975 (Cth) (“the Act”) states that when making a parenting order, the court must apply a presumption that it is in the child’s best interests for the child’s parents to have equal shared parental responsibility for that child.

26. Pursuant to s.61DA(2) that presumption does not apply if the court has reasonable grounds to believe that a parent has engaged in abuse of the child or in family violence.

27. There is no suggestion here that either parent has abused X, and the family violence alleged against both parties is historical. That family violence was not examined in any great detail at all at this trial.

28. That is not to say that it is not a relevant factor now. Ms Starling claims a fear of Mr Gibbs which, while originating during their relationship, appears not to have diminished over time despite a lack of contact between the parties for some years.

29. Mr Gibbs admits to at least one act of family violence in that he punched a hole in the wall of his home at the date of separation and alleges that Ms Starling verbally abused him at changeover when he was seeing X pursuant to court orders in 2006 and 2007. There was no evidence adduced at trial to rebut that allegation.

30. That being the case, I have reason to believe that both parents have engaged in family violence, albeit of different kinds and at some time in the past.

31. There is no mention in the statute about when family violence is to have taken place for the presumption not to apply.

32. In those circumstances I must find that the presumption that it is in X’s best interests for his parents to have equal shared parental responsibility for him does not apply in this case.

33. Having so found, I am not obliged to consider whether the presumption is rebutted under s.61DA(4), which states that the presumption is rebuttable if there is evidence that satisfies the court that it would not be in a child’s best interests if his/her parents were to have equal shared parental responsibility for him/her.

34. Nevertheless, I will undertake that exercise lest there be any doubt as to whether the court considers that it is in X’s best interests for his parents to share parental responsibility for him.

35. The question of how a court considers what is in a child’s best interests is answered in detail in paragraphs 90 to 169 of these reasons and I will not set out those considerations here to avoid duplication. However, I have taken all those matters into account in this exercise.

36. In this case there is ample evidence that while Mr Gibbs is willing to try to repair his fractured communication with Ms Starling, Ms Starling does not reciprocate that willingness.  She is adamant that she cannot or will not communicate with Mr Gibbs and it appears that nothing will change her mind.

37. Of course, communication is a two-way street. Two people cannot communicate when one refuses to do so and I find that Ms Starling’s evidence indicates such a refusal rather than an inability.

38. If Ms Starling will not communicate with Mr Gibbs, it would be extremely difficult, if not impossible, for her and Mr Gibbs to decide together about X’s general welfare, his education, his religion, his health and other matters which can be said to make up “parental responsibility”. 

39. An order for equal shared parental responsibility would raise the spectre of stalemates being reached in discussions about his future. That would place X in an impossible position.  

40. In those circumstances, and considering that Ms Starling is X’s primary care giver and that there is no suggestion that it be otherwise, I will make an order for Ms Starling to have sole parental responsibility for X. I do so not because I necessarily consider her the better parent, but because decisions have to be made about major issues in a child’s life and it would be impracticable and therefore not in X’s best interests for there to be equal shared parental responsibility in this case.

41. Of course, that does not mean that it is not in X’s best interests for his father to be significantly involved in his life - far from it - and I will make orders that allow for that involvement to be considerable, while leaving the final decisions about major life events and progressions to his mother.

C.When and how should X’s time with his father progress from its current regime?

1. Prior to trial, X was spending time with his father pursuant to orders made by consent on 28 January 2014.

2. Those orders provided for X to spend time with his father as follows:

   13.

   i. Each alternate Saturday for three hours commencing 8 February 2014, such time to be supervised by ANGELICO FAMILY SERVICES at the father’s expense and each party shall forthwith do all acts and things to facilitate a referral being made, including attending for assessment or interview and comply with all rules and reasonable requests of said agency.

   ii. Upon the provision by the father of four consecutive urine screens in compliance with paragraph 6 of the Orders made 15 November 2012, the father’s time pursuant to paragraph 2(a) herein be varied to provide from 1:00 pm to 5:00 pm unsupervised but subject to his ongoing compliance with paragraph 6 of the Orders made 15 November 2012.

   iii. At such other times as may be agreed between the parties.

3. Further orders were made in the following terms:

   14. Changeover shall take place:

   a.  whilst the father’s time is supervised, at a venue nominated by Angelico Family Services

   b.  upon the father’s time becoming unsupervised, at Berry Street Richmond for supervised changeovers only at the father’s expense and the parties do all acts and things to obtain a place for this purpose.

   15.    The father shall within 7 days provide to the mother’s solicitor details of his residential address and his contact telephone number.

   16.    The mother and father shall forthwith facilitate the child X’s participation in the “Supporting Children After Separation Program” at the father’s expense.

4. The father provided urine samples for drug screens on each occasion that he was asked to do so by the Independent Children’s Lawyer, although, as previously stated, a few of those samples were provided late.

5. As far as he was concerned, pursuant to the orders of 28 January 2014, X ought to have been spending unsupervised time with him from the weekend immediately before trial.

6. As has already been discussed, Ms Starling did not provide X for that time, for what I consider to be less than adequate reasons.

7. At the conclusion of the trial, with all parties and the bench being aware that this judgment was unlikely to be delivered within two months of hearing, interim orders were made by consent to carry the parties over until final orders were made.

8. Those orders were in the following terms:

   THE COURT ORDERS BY CONSENT THAT UNTIL FURTHER ORDER:

   1. The child X born (omitted) 2004 (“the child”) spend time and communicate with the father:

   a. on 15 June 2014 and 29 June 2014 from 12:30 PM until 4:30 PM;

   b. on 5 July 2014 and 6 July 2014 from 12:30 PM until 4:30 p.m.

   c. on each alternate Sunday for a total of six occasions from 10 AM until 5 PM to commence 20 June 2014 until 28 September 2014 inclusive; and

   d. for the child’s birthday on (omitted) 2014 from 4 PM until 8 PM.

   2. For the purposes of Order 1 hereof, changeover at the commencement of time shall occur at the (omitted) Supermarket at the entrance closest to the cashier and at the conclusion of time, changeover shall occur at (omitted) Supermarket at the entrance closest to the cashier or at such other venue as the parties shall agree in writing.

9. Those Orders were amended by further order of the court on 19 September 2014 to extend the alternate weekend time set out in paragraph (c) “until further order”. That is, X’s time with his father would increase gradually, stopping just short of the point at which time would move to overnight, and that situation would pertain until delivery of this judgment and its attendant orders.

   The law about a child spending time and communicating with a parent

10. Section 60B of the Act sets out the objects of this Part and the principles underlying it and I will set out the relevant sections of those objects and principles for the benefit of the parties:

    Section 60B(1): The objects of this part are to ensure that the best interests of children are met by:

    (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

    (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse and neglect or family violence; and

    (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

    (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

    Section 60B(2): the principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

    (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

    (b) children have a right to spend time on a regular basis with and communicating the bank regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

    (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

    (d) parents should agree about the future parenting of their children; and

    (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

11. Section 65DAA of the Act states that if a parenting order provides that a child’s parents are to have equal shared parental responsibility for a child, the court must consider whether spending equal time with each parent, or substantial and significant time with each parent, would be in the best interests of the child and whether it would be reasonably practicable for the child to do so.

12. In this case I have found that it is not in X’s best interests for his parents to have equal shared parental responsibility for him. I am therefore not bound at law to consider whether it would be in his best interests for him to spend equal or substantial and significant time with each parent.

13. That does not mean that I am unable to use my discretion to make an order that X spend equal or substantial and significant time with his parents and I intend to exercise that discretion in this case.

14. There is no application before the court for X to spend equal time with each of his parents. Therefore my consideration is only in relation to whether the time he spends with his father should be substantial and significant.

15. Section 65 DAA(3) states as follows in defining the meaning of “substantial and significant time”:

    For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

    (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 or holidays; and

    (b)the time the child spends with a 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 have special certificate to the parent.

16. Section 65DAA(2) also requires me to consider whether it is reasonably practicable to make an order for substantial and significant time to be spent between father and child.

17. The overarching principle, set out in s.60CA of the Act, is that whenever a court makes a parenting order, the best interests of the child must be its paramount consideration.

18. This means that in considering whether to make an order for X to spend substantial and significant time with his father I must first consider whether it is in his best interests that I do so and then consider whether it is reasonably practicable for such an order to be made.

19. The factors that the court must take into consideration when deciding whether it is in a child’s best interest to make any particular parenting order are set out in s.60CC of the Act and I will address each of these factors in turn.

1. Section 60CC(2) sets out the primary considerations to be taken into account. They are:

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. The question of what constitutes a “meaningful relationship” in this context was considered by Brown J in Mazorski v Albright (2008) 37 FLR 518, where Her Honour said at paragraph 26:

3. In that case, Her Honour said, at paragraph 26:

   a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.

4. In Tait & Dinsmore (2007) FamCA 1383, Cronin J considered the distinction made by Kay J in Godfrey & Sanders (2007) Fam CA 102 between an optimal relationship and a meaningful relationship, and said, at paragraph 170:

   Kay J distinguished between the optimal relationship and the meaningful relationship. … The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.

5. That is, in the context of this case, if the relationship between X and his father can be said to be (or at least have the potential to be) important, significant, valuable, healthy, worthwhile and advantageous to X, and Mr Gibbs is able to “lead by example” in that relationship, then the benefit to X in developing that relationship must be a primary consideration of the court in considering what is in his best interests.

6. The father says that his relationship with X fulfils all the above criteria, and that X enjoys his company, and his evidence indicates that he certainly wants to be the kind of parent described by Cronin J in Tait & Dinsmore.

7. The father’s proposal is that X should spend gradually increasing time with him such that overnight time would begin on 24 October 2014 and X would spend Friday after school until 6.00 pm on Sunday in his care. Mr Gibbs also proposes that X spend half of all school holidays with him. He makes detailed proposals for special days such as Christmas, Easter, Fathers’ Day and birthdays.

8. While Ms Starling made several statements at trial indicating that she thought that it was important for X to have a relationship with his father, much of her other evidence involved scathing criticism of Mr Gibbs and his parenting ability, and I have already said that is difficult to believe that she genuinely believes that the father-son relationship is important to X.

9. Her proposal for X at trial was, as a regular routine, for a graduated increase in his time with Mr Gibbs so that eventually he would spend 12.00 noon on Saturday until 5.00 pm on Sunday on alternate weekends. Ms Starling makes no proposal in relation to school holiday time or for time on X’s birthday. She does, however, propose that X spend overnight time with his father at Christmas and day time on Fathers’ Day and the father’s birthday.

10. The reports from the children’s contact centre where X and his father spent their initial time together say that over time father and son developed a comfortable and easy relationship although understandably, it was awkward and difficult at the beginning. That is not to say that there were no problems in the relationship over that time, but that overall X’s reintroduction to Mr Gibbs had led to the beginnings of a genuine father-son relationship, with Mr Gibbs initiating physical games with X and X joining in those games while giggling.

11. It was during the time that X spent with Mr Gibbs at the children’s contact centre that Mr Gibbs was able to introduce X to his (now) wife Ms D. The report from the children’s contact centre states that Mr Gibbs spoke to X in an age appropriate manner and that X was frequently smiling and at times laughing out loud as he played with his father.

12. The family report[1] says that the relationship observed between Mr Gibbs and X was somewhat awkward, that their conversation was “stilted”, and that “after about twenty minutes it was clear that both X and Mr Gibbs had nothing more to say to each other.”

    [1]The Family Report of Mr P, Family Consultant, dated 30 April 2014.

13. I note that X had not spent unsupervised time with his father at the time of the family report interviews, and that there were still some issues about his level of comfort with the fact that his father had remarried and very recently had another child. 

14. In addition, his mother’s adamant belief that Mr Gibbs had abandoned him in 2007 cannot help but have been conveyed to X over the years, and it is not surprising that in the artificial circumstance of the family report interviews, X (and Mr Gibbs for that matter) might not have been entirely comfortable.

15. By the time of trial, some two months later, he had spent more supervised and some little unsupervised time with his father, although for reasons already stated there had been no overnight time. X had visited his father’s home, although he had not yet met Y who was with Mr Gibbs’ parents at their home over the road at that time.

16. It was Mr Gibbs’ evidence at trial that on the last occasion he had spent time with X, on 25 May 2014, the time was spent at his home, in going to the park and for a walk to the beach with the family dog, and that X had not wanted to leave. He had been comfortable to go to the beach alone with Mr Gibbs who thought that X would have been happy to spend considerably more time with him.

17. He said he had suggested that he and X might go across the road to his parents’ home so that X could meet Y but that X had said: “No, maybe next time. Next time”. Mr Gibbs said that he had not pushed X on that issue but had thought that it constituted a positive sign that X was feeling comfortable with him.

18. The reintroduction of this child to his father after what was essentially a five-and-a-half year hiatus in the relationship, and in circumstances where the child’s mother was vehemently opposed to the child reconnecting with his father, was always going to be a difficult journey.

19. That the relationship had progressed at the time of trial to the position where X was happy to spend time in his father’s company alone indicates that despite all the barriers and difficulties that had to be overcome, and indeed are yet to be overcome, the relationship had become, at least potentially, “important, significant, valuable, healthy, worthwhile and advantageous” to X.

20. I am therefore satisfied that there is the kernel of a meaningful relationship being developed between X and his father and that that relationship is of benefit to him.

21. When considering the need to protect X from harm as set out in section s.60CC(2)(b), I note that it is Ms Starling’s case that Mr Gibbs perpetrated family violence against her during the relationship and that indeed that was the reason for the breakdown of the relationship. Ms Starling deposes to having seen firearms in Mr Gibbs’s home and to him being involved in criminal activities.

22. Mr Gibbs flatly denies those allegations, save that he admits to punching a hole in the wall at the time of separation, and there is no evidence before the court that he has ever been charged with a criminal offence.

23. Nevertheless, it is his own evidence that the police raided his workplace in 2007 looking for a friend of his, and that they had confiscated several items including Mr Gibbs’ mobile phone. That incident alone raises some concerns about the people Mr Gibbs was associating with at that time.

24. However, Mr Gibbs is now in full-time employment and studying for his (studies omitted) licence, he has provided multiple clean drug screens, and he has married and has a baby daughter. In short, even if he was not keeping particularly appropriate company earlier in his life, it might be said that there is evidence that he has now settled down.

25. In those circumstances, where there are no allegations that he has hurt or neglected X in the time that he has spent with him during these proceedings, and there are no current allegations of violence or abuse against him, I am not satisfied that X is at risk of physical or psychological harm in his care.

26. Section 60CC(2A) states that in applying these two primary considerations the court must give greater weight to the considerations set out in paragraph 2(b).

27. Had there been evidence of any current abuse or family violence perpetrated by Mr Gibbs the court would certainly have given that evidence greater weight than the evidence of the developing relationship between X and his father being of benefit to X.

28. The Act then sets out, in s.60CC(3) fourteen “additional considerations” that I must take into account when deciding what orders would be in X’s best interests, and I will address each of those in turn.

29. The additional considerations of s.60CC(3) are:

    (a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.

    (b)  the nature of the relationship of the child with:

    (i)  each of the child's parents; and

    (ii)  other persons (including any grandparent or other relative of the child);

    (c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

    (i) to participate in making decisions about major  long-term issues in relation to the child; and

    (ii) to spend time with the child; and

    (iii) to communicate with the child.

    (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

    (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

    (i)  either of his or her parents; or

    (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

    (e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

    (f)  the capacity of:

    (i)  each of the child's parents; and

    (ii)  any other person (including any grandparent or other relative of the child);

    to provide for the needs of the child, including emotional and intellectual needs;

    (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

    (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

    (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

    (ii)  the likely impact any proposed parenting order under this Part will have on that right;

    (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

    (j)  any family violence involving the child or a member of the child's family;

    (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

    (i)  the nature of the order;

    (ii)  the circumstances in which the order was made;

    (iii)  any evidence admitted in proceedings for the order;

    (iv)  any findings made by the court in, or in proceedings for, the order;

    (v)  any other relevant matter;

    (l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

    (m)  any other fact or circumstance that the court thinks is relevant.

30. Section 60CC3(a): the family report says the following in relation to X’s views:

    28. When X first saw his father in June 2013 he admitted he was a bit nervous as he didn’t know what to expect. Despite describing that first meeting as ‘sort of okay’, X stated the quality of his time with his father has ‘got worse over time’. He complained that they can’t agree on what activities to play and he ends up having to do the ones his father wants to do

    29. X stated that he met his father’s wife once and stated ‘it was a bit boring – she just sat there’. He calls his father ‘Mr Gibbs’ and stated ‘Mr Gibbs has tried to sneak her in other times’. X has met his father’s mother once and stated ‘she came rushing at me, squeezed me and gave me a kiss – it was really annoying’.

    30. X stated ‘when I see him he doesn’t ask me what I want to do – he does what he thinks should happen and we do nothing.’ He further stated ‘he thinks is the best Dad in the world and he thinks he’s the best at soccer and footy – but I don’t think he puts me first and I don’t feel comfortable seeing him.’ When it was put to X that his father might think he is repeating what his mother thinks he stated ‘that’s what I think – I’m in there and I know what’s happening.’

    31. X doesn’t think his father really cares about him and stated ‘Mr Gibbs isn’t a Dad to me’. He doesn’t think his father is trying very well to get to know him and stated ‘if he was trying, we would be a little closer to actually knowing each other’. X does not think his father can hide behind the excuse that he doesn’t know how to talk to children. He thinks his father should be excited about getting to know him.

31. At first blush the passage quoted above appears to indicate that X does not wish to spend time with his father and that he feels undervalued by him. It is obvious that at the time of the interview for the family report X was at very least ambivalent about his relationship with Mr Gibbs.

32. As already stated, those interviews took place on 28 April 2014, before X had spent any time unsupervised with Mr Gibbs. As the family report writer notes, supervised time can be an artificial environment which limits opportunities for children and parents who have been estranged to get to know each other.

33. In addition, while X insisted that his views were his own, he was only 9½ at the time of the interview and it is likely that he was influenced somewhat by his mother’s implacable views at that time.

34. In paragraph 35 of the family report the family consultant says the following:

    I believe X is aware of his mother’s anxiety about him developing relationship with his father, as he has concerns about him that he cannot explain other than they are the absorption of his mother’s feelings. He is not receiving the emotional approval of his primary care giver to get to know his father.

35. And further at paragraph 37:

    X appears to be an emotionally and socially immature boy of almost 10 years of age who takes a long time to get to know and trust people. He takes time to process what he wants to say and lacks spontaneity in his dealings with people. His personality combined with his absorption of his mother’s fear means that his time with his father has to progress slowly.

36. In those circumstances, while I note X’s views, he is still young and somewhat immature, and those views do not have great weight in my view, especially in the context of his living and having grown up with his mother’s extreme animosity towards his father.

37. Section 60CC3(b): X has been cared for by his mother for his whole life, and there is no evidence that that relationship is other than supportive, caring and loving, although the court has some concerns about the level of influence the mother’s animosity towards the father might have on her son.

38. As has already been discussed, the relationship between X and his father is in its initial stages, with X not yet having spent any overnight time at his father’s home. X made statements to the family consultant that indicate that he does not feel as though he and his father know each other very well at this time. That relationship is still developing it would seem and should be given every chance to fulfil its potential.

39. Section 60CC3(c): There is no doubt that the mother in this case has taken every opportunity to make the major decisions in relation to X’s life and indeed she feels as though she has been forced into that position by the absence of the father for so much of X’s life.

40. She has essentially been X’s sole carer for the whole of his life, having left the relationship with his father when he was only weeks old. She has fed, clothed, entertained, educated and provided shelter, both physical and emotional, for X with little or no assistance other than some child support from the father.

41. As far as the father’s efforts are concerned, he apparently made no effort to contact the mother after he “gave up” in 2007 until he sought assistance from Relationships Australia in 2010. His reasons for that have already been stated in this judgment.

42. Since at least 2007 he has had no opportunity to be involved in major decisions about X’s life and it is Ms Starling’s case that he should be prevented from having that opportunity in the future.

43. From 2011 on, however, he has taken every opportunity to seek to spend time and communicate with X, and indeed has persisted through what has been a slow and difficult process over several years now.

44. Section 60CC3(ca): it was the father’s evidence that he had paid child support to the child support agency on a monthly basis essentially from the date of separation.

45. The mother disputes that statement and while the issue of child support was not canvassed in any great detail at trial it appears that as at 23 May 2014 Mr Gibbs was in arrears in the sum of $1582. It was his evidence that he had entered into an arrangement with the Child Support Agency to pay those arrears off by instalments.

46. His Child Support Assessment at the time of trial was for the sum of $471 per month. There is no evidence before the court that Mr Gibbs has been historically unwilling to pay child support or that he has avoided paying for X’s support, even throughout the five-and-a-half years when he was not spending time with X.

47. Ms Starling has fulfilled her obligation to maintain X for his whole life. As mentioned previously she has paid for his food, his clothing, his education, his shelter and all his other needs from the time of separation.

48. Section 60CC3(d): Mr Gibbs seeks orders that would of necessity separate X from his mother for increasing periods over the rest of his childhood and adolescence. Ms Starling seeks orders that would separate him from his father almost entirely for the rest of his minority.

49. The separation of X from his mother so that he is able to have a meaningful relationship with his father will have to be handled with great sensitivity and will need to progress gradually. However, it is of course not at all unusual for children to spend their time between separated parents with little discernible impact on their emotional well-being.

50. Section 60CC3(e): X’s parents live relatively close to each other and there appears to be no issue of either practicality or expense that would prevent X’s relationship with his father developing over time.

51. Section 60CC3(f): As is often the case in matters before this court this factor is very important for X.

52. There is no suggestion that either party is incapable of meeting X’s material needs, nor indeed his intellectual needs. It is in the realm of X’s emotional needs that concerns arise about capacity in relation to both parents.

53. The reports from the child contact centre and from the family consultant indicate that Mr Gibbs still has some way to travel on his journey towards understanding his son’s emotional needs. There have been times on that journey when Mr Gibbs has shown a certain lack of insight both into X’s needs and into the feelings of Ms Starling.

1. His lack of insight is borne out in his lack of attention to the child contact centre’s policies in relation to bringing X presents, and in his scepticism about X’s need to see a psychologist in order to deal with his anxiety. For instance, Mr Gibbs stated that X appeared to be a normal little boy to him and he could not see the necessity for him to see a counsellor.

2. None of that is any surprise given that X has grown up in his absence and that he is not used to fulfilling the role of father to a ten-year-old boy.

3. That said, and despite his enthusiasm to become an integral part of X’s life as quickly as possible, Mr Gibbs has been willing to progress the relationship at X’s pace on the advice of professionals during the course of these proceedings. It is to be hoped that he will continue to do so, so that the foundation for his relationship with X can be firmly constructed and built on into the future.

4. The report of the child contact centre says that Mr Gibbs’s wife Ms D showed conspicuous sensitivity to X’s feelings on the occasion when she accompanied Mr Gibbs for his time with X. Her support of Mr Gibbs during the development of his relationship with X will be vital.

5. Ms Starling’s ability to put X’s emotional needs ahead of her own has also come into question during these proceedings although there is absolutely no doubt that she adores X and wants only what is best for him.

6. She carries what is clearly a genuine fear as a result of her relationship with Mr Gibbs, a fear which is undiluted after almost 10 years of separation. She is apparently unable to contemplate that the Mr Gibbs of 2004 may not now be the man who seeks to build a relationship with his son in 2014.

7. But that fear, rational or not, together with her undisguised contempt for Mr Gibbs, cannot help but have been conveyed to her son, possibly affecting his ability to see his father as he is now. It is to be hoped that with some professional assistance perhaps, Ms Starling will be able to deal with her own feelings and be able to separate her past experience as an unhappy partner from her ongoing role as a parent.

8. Section 60CC3(g): X’s maturity has already been discussed above but in considering this factor I do take into account what Mr P says about his personality and his absorption of his mother’s fear meaning that his time with Mr Gibbs must progress slowly.

9. I also take into consideration under this sub-section X's (country omitted) heritage and note that Mr Gibbs is particularly keen to introduce him to his paternal family and to the practices of the (religion omitted) Church.

10. It cannot be ignored that X has an extended paternal family who have a different cultural tradition than that of his mother’s family, and he has the right, pursuant to s.60B(2)(e) of the Act, to “enjoy (his) culture (including the right to enjoy that culture with other people who share that culture)”.

11. However, I also note that Ms Starling is adamant that she does not want X baptised into the (religion omitted) Church, and as X is to live with his mother for the vast majority of his time, I will make an order that Mr Gibbs not undertake any action to make X a formal member of the church. That does not mean that he cannot be introduced to its traditions and beliefs or that he cannot attend its celebrations, but only that he is not to be baptised or confirmed into the church while he is a minor.

12. Again, it is to be hoped that Mr Gibbs will understand that his (country omitted) heritage is at this time foreign to X, and that he will need to be introduced to it slowly and sensitively.

13. Section 60CC3(h): Not relevant.

14. Section 60CC3(i): I cannot make any finding as to the reason why the relationship between X and his father broke down in 2007 as both parties were convincing in their evidence about that period and I cannot find that either is telling untruths about the events of that year. It may have been, as counsel for the father suggested in her final submissions at trial, that the breakdown in their connection was all a misunderstanding and mistake of almost tragic proportions. 

15. In any event, I cannot draw inferences from the parties’ evidence about those events in relation to their respective attitudes to X or to their responsibilities as parents.

16. In relation to other evidence, I have already discussed Ms Starling’s commitment to X’s care and to her role as his mother over his whole life and she is to be commended for that commitment.

17. In addition, I do not take her inability to immediately accommodate an extension of X’s time with his father to what might be called a “usual” regime as an indication of her attitude to parenthood or to X.  It is an indication of her intractability in relation to Mr Gibbs himself arising from her experience of being in a relationship with him, and I have no doubt that her feelings about him are honestly held.

18. Mr Gibbs for his part, while being essentially inactive as a parent between 2007 and 2010, has been diligent in his attempts to create, develop and maintain a relationship with his son since he contacted Relationships Australia in 2011. He has persisted with those attempts in the face of vehement opposition from Ms Starling and has now spent more than 15 months of visits with X without progressing to overnight time. He is certainly to be commended for his commitment to that process and to his ability, while sometimes flawed, to take the progress of that relationship at X’s pace.

19. In addition, Mr Gibbs now has a second child, and his view and experience of parenthood will no doubt be coloured by that fact.

20. Section 60CC3(j): I have already discussed the issue of family violence in dealing with the presumption of shared parental responsibility earlier in these reasons, and as it was not examined as a current issue in this trial, I do not propose to repeat that discussion here.

21. I will say, however, that Ms Starling’s experience of her relationship with Mr Gibbs as having been violent and dangerous for both herself and X has coloured the whole history of this case from the time of separation. If Mr Gibbs did perpetrate family violence against Ms Starling to the extent that she alleges, it is small wonder that it has been such a damaging feature of her emotional development and that she is still affected by it ten years later.

22. Section 60CC3(k): As far as the court is aware, there is no current Family Violence Intervention Order in place between these two parties.

23. Section 60CC3(l):  It is conceded by Ms Starling that the progression to overnight time is inevitable and her proposal at trial was that it should begin with one night per fortnight on 9 October 2014, with a progression to two nights a year later.

24. In circumstances where the court can only assume that X’s time with his father has been progressing pursuant to Orders made in June and September 2014, I propose to make orders that extend X’s time to overnight immediately upon the making of orders. There will then be a gradual progression, although not perhaps as gradual as the mother proposes, over the next few years so that by the time X enters adolescence, his relationship with his father will be as normalised as is possible under the circumstances.

25. If Ms Starling can separate her feelings as Mr Gibbs’ ex-partner from her role as X’s parent, especially in circumstances where she will be solely responsible for decisions about the major issues in X’s life, there should be no necessity for further proceedings between these parties.

26. Section 60CC3(m): There is no other matter the court considers relevant in this case.

27. Having dealt with what I consider to be X’s best interests, I must now consider whether the orders I propose to make are practicable in all the circumstances.

28. Section 65DAA(5) sets out the factors I must take into account in that consideration. They are:

    (a)how far apart the parents and from each other; and

    (b)the parent’s current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

    (c)the parent’s current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and the

    (d)the impact that an arrangement of that kind would have on the child; and

    (e)such other matters as the court considers relevant.

29. Having considered all those matters, I will make orders that provide for Ms Starling to have sole parental responsibility for X, but which allow X to develop a strong and meaningful relationship with his father. 

30. The parties do not live a long distance from each other, and they have been able (not without some difficulty it must be acknowledged) to implement current orders which allow for X to spend time with his father.

31. The sole parental responsibility order I will make provides certainty for X and to a considerable extent, obviates the necessity for his parents to communicate directly with each other, a situation both parties say they want.

32. Because that situation is one X has lived with for the past 15 months or so, it is unlikely to have a great impact on him in the practical sense.

Conclusion

1. This has been a very sad case and X has missed out on much in his ten years.

2. It is to be hoped that his experience of the rest of his childhood and adolescence will not be one of such loss and that his relationships with both his parents can continue to develop in his best interests.

I certify that the preceding one hundred and seventy-five (175) paragraphs are a true copy of the reasons for judgment of Judge Small

Associate: 

Date: 20 October 2014