GILBERT and OWENS

[2017] FCWA 54

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: BUNBURY

CITATION: GILBERT and OWENS [2017] FCWA 54

CORAM: DUNCANSON J

HEARD: 2 MAY 2017

DELIVERED : 2 MAY 2017

FILE NO/S: PTW 1394 of 2015

BETWEEN: MS GILBERT

Applicant

AND

MR OWENS
Respondent

Catchwords:

CHILDREN - where father discontinued his response seeking parenting orders - where it is in the best interests of the child for the mother to have parental responsibility for him and for the child to live with her - child to spend time with the father as agreed between the parties

Legislation:

Family Law Act 1975 (Cth) s 60CA, s 60CC

Category: Reportable

Representation:

Counsel:

Applicant: Self-Represented Litigant

Respondent: No Appearance

Solicitors:

Applicant: Self-Represented Litigant

Respondent: Self-Represented Litigant

Case(s) referred to in judgment(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1These proceedings concern the child [A] who is 11 years of age. A lives with the mother [Ms Gilbert]. A's father [Mr Owens] lives in New South Wales (“NSW”).

2The mother commenced these parenting proceedings on 12 March 2015 when she filed her initiating application. The father filed a response on 26 June 2015.

3The parties and A attended a child inclusive conference with a Family Consultant on 24 May 2016.

4On 3 November 2016 Magistrate Osborn published her reasons for decision and made a number of parenting orders.

5Magistrate Osborn ordered that A live with the mother and spend time with the father during the Western Australia (“WA”) school holidays. It was ordered if the father chose to have A spend time with him in NSW, he was to meet the cost of flights.

6Magistrate Osborn made a number of other orders including orders for travel, electronic communication, provision of information and non-denigration orders.

7The proceedings were listed for a Readiness Hearing. Both parties filed their trial affidavits and the proceedings were subsequently listed for trial in the Bunbury circuit commencing 1 May 2017.

8On 4 April 2017, the father filed a Notice of Discontinuance. In his covering letter dated 3 April 2017 he stated he wished to withdraw his application to the court regarding this matter.

9The mother’s application remained on foot. The matter proceeded on an undefended basis.

10The mother gave oral evidence. She was forthright and sincere. I found her to be child focussed with A’s best interest as her priority.

THE PARENTING ORDERS SOUGHT

11The orders sought by the mother are contained in a document headed Proposed Orders handed up in court which became Exhibit 1.

12In summary the mother seeks an order that she have sole parental responsibility for A and that he live with her. She proposes that A spends time with the father as agreed between her and the father and that A has electronic communication with the father in accordance with his wishes.

13The mother proposes to keep the father informed of important matters concerning A’s welfare. She wants a passport to issue for him. She seeks an order that A’s surname to be changed from Owens to Gilbert.

BACKGROUND

14The parties began living together in NSW in February 2002. They were married [in] 2005. A was born [in] 2005.

15The parties separated on 20 December 2014. In March 2015 the mother relocated to WA with A.

16The background to this matter is conveniently set out by Magistrate Osborn in her judgment [2016] FCWAM 235 at paragraphs 2 to 19 and it is not necessary for me to repeat the background here.

17In January 2017 A spent time with the father and his family in NSW. That was the first time he had seen the father in two years. The mother said when A was in [NSW], he was sad, angry and unhappy and wanted to come home. In his sworn evidence the father described the visit differently. He said A thoroughly enjoyed his five night stay and loved spending time with the father’s step-children, his baby half‑sister and other family members.

18In his said letter to the court dated 3 April 2017, the father stated having read the mother’s trial affidavits it is evident that A does not find the visits enjoyable or beneficial and he feels it would be detrimental for A if he pursued access visits. The father went on to say it is extremely stressful for all involved and he feels A is torn between him and the mother and he does not wish to put A through that mental pressure anymore.

19The mother does not agree that A is “torn” between her and the father.

THE LAW

20These proceedings are determined under Part VII of the Family Law Act 1975 (Cth) (“the Act”). In reaching my decision I will be guided by the objects of that Part and the principles underlying those objects.

21The objects 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, 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.

22In deciding whether to make a particular parenting order, s 60CA directs me to regard the best interests of the child as the paramount consideration. Section 60CC sets out how I determine what is in a child’s best interests. I must consider the primary and additional considerations.

23Section 60CC(2) sets out the primary considerations which are the benefit to the child of having a meaningful relationship with both the child’s parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

24Section 60CC(2A) provides that in applying the above considerations, the court is to give greater weight to the need to protect the child from harm.

THE PRIMARY AND ADDITIONAL CONSIDERATIONS

25A has a meaningful relationship with the mother and it is to his benefit that it continues. It would be to A’s benefit to have a meaningful relationship with the father. The mother is concerned that in withdrawing from the proceedings, the father is “backing off” and she is worried A will be hurt by this.

26There is not a need to protect A from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. He is well cared for by the mother. Although the mother is critical of certain aspects of the father’s behaviour, A is not at risk of harm in the care of the father.

27A will be 12 years of age [this year]. The mother says A has not recently said much about the amount of time he wishes to spend with the father in the future. The mother said he was disappointed at not receiving a promised gift from the father when he travelled to NSW or a gift at Easter.

28A has a close and loving relationship with the mother. He has a close relationship with the mother’s husband, Mr Gilbert who he refers to as his step‑father and also his half-brother. He has a close relationship with Mr Gilbert’s parents who live locally. He has friends at school. A’s relationship with the father is not a close one, partly by reason of them spending very infrequent time together but also, the mother says, because the father shows a lack of interest in him.

29The mother has been solely responsible for A’s care since the parties separated and has made decisions about long-term issues. The father has not sought to do so.

30The father has sought to spend time and communicate with A and has explained his reason for not continuing with these proceedings. The mother maintains A and the father pays child support.

31A is happy and settled in the care of the mother, any change in this living arrangement such that he is separated from her, is likely to have a detrimental effect upon him. He is settled at school and at home. The father does not seek to change his living arrangements, merely to spend time with him.

32There is practical difficulty and expense associated with A spending time and communicating with the father. The father and his family live in NSW, whereas the mother lives in WA. The difficulty arises by reason of distance and expense.

33The mother has the capacity to provide for A’s needs on all levels.

34The father is critical of the mother’s ability to provide for A’s emotional needs. In June 2016 the Family Consultant reported that the mother’s dislike and mistrust of the father has significantly impacted on her ability to allow and encourage a relationship between A and his father. The mother denied this. She explained her attitude towards the father related to past events and in particular, the father’s behaviour towards her and A during their relationship. The mother said she no longer had any resentment about the father’s behaviour during the relationship. She said she has “moved on” and will facilitate and encourage A’s relationship with the father. I found the mother to be sincere in wanting the best for A.

35The father is able to provide for A’s needs. The mother is however critical of his ability to provide for his emotional needs. She refers to the father using heavy punishment, and his anger when the parties were together.

36Both parties allege denigration by the other in the presence of A. The mother expressed concern about the father questioning the child while he was visiting him and his negativity towards her. She said he discussed financial matters with him which she considered was inappropriate. The father expressed similar concerns about the mother’s attitude towards him.

37The mother impressed me as sincere when she said she would encourage A’s time with the father and she acknowledged it would be detrimental to him not to have his father in his life.

38Although the mother is sceptical about the father’s reasons for withdrawing his response, I consider the father has shown sensitivity for A’s emotional needs in his explanation for doing so.

39The mother says there was family violence in the parties’ relationship when they were together. A is not currently exposed to any family violence and no family violence order applies.

40It is desirable to make final orders in relation to A and it is in his best interests that these proceedings are concluded.

CONCLUSIONS

41Having considered the evidence in the context of the primary and additional considerations. I have come to the conclusions set out below.

PARENTAL RESPONSIBILITY

42There was family violence between the parties during their relationship. The presumption that it is in the best interests of A that his parents have equal shared parental responsibility does not apply.

43I intend to make an order that the mother have sole parental responsibility for A. She is well placed to make long-term decisions for him. There is no prospect of her consulting with the father and making joint decisions about long-term issues.

44It is in the best interests of A to live with the mother. She has been his primary carer since his birth and he is well cared for by her.

45If and when A wishes to spend some time with the father that should be encouraged and facilitated. I accept the mother’s evidence that she will do that. Having regard to A’s age, his views are important. The time A spends with the father should be as agreed between the parties.

46It is in the best interests of A to maintain communication with the father and accordingly electronic communication should take place at least once a month and otherwise in accordance with his wishes.

47I consider it would be unfortunate and not in A’s best interests if the father was not part of his life. In making orders that A spend time with the father and communicate with him it is intended to ensure that the father remains an important person in A’s life.

48It is important and in the best interests of A that the father does not “pull back” as the mother fears he will do so. She says if she visits NSW she will facilitate time between A and the father and similarly if he visits WA. The father should do as much as he can to maintain his relationship with A and both parties must comply with the non-denigration order I intend to make.

CHANGE OF NAME

49The mother seeks to change A’s surname from Owens to Gilbert. She says A wants to have the same name as everyone else in his family. A told her he thought if he has a different name, he was not part of the family. The mother explained to him that was not the case.

50A has started using the surname Gilbert at school. The mother described the difference in him as “astonishing”. She said that he was just very happy to use that name.

51The use of the name Gilbert has therefore had a positive effect upon A.

52There is the potential for some embarrassment for A having a different surname to his half-brother, his mother and step-father.

53No confusion of identity would arise if A’s name was to be changed. A clearly identifies with the father as his father and with Mr Gilbert as his step‑father.

54A change of surname is unlikely to have any effect on the relationship between A and either of his parents. I am satisfied upon the evidence that the mother will continue to facilitate A’s relationship with the father. Had she not been willing to do so, that would have been an important factor in my decision.

55There have not been frequent or random changes of name.

56An order providing for the change of A’s name is least likely to lead to the institution of further proceedings in relation to A. A strongly desires to change his name, and if the application to do so is refused, it is possible a further application would be made at a time in the future.

57When I consider and balance the foregoing matters together with my findings as to the primary and additional considerations, I am satisfied it is in the best interests of A that his surname should be changed. I consider it would be in A’s best interests that his surname be changed from Owens to Gilbert.

THE ORDERS

58I make the following orders:

1All previous parenting orders concerning the child [A] born [in] 2005 be discharged.

2The mother have sole parental responsibility for the child.

3The child live with the mother.

4The child spend time with the father as agreed between the parties.

5The child have electronic communication with the father not less than once a month and otherwise in accordance with the child’s wishes.

6The mother shall keep the father informed of important matters concerning the welfare of the child.

7Subject to any other requirements of the Department of Foreign Affairs and Trade a passport for the child issue to the mother and the necessity for the consent of the father to the issue of the passport be dispensed with.

8The parties shall not denigrate the other to, or in the presence of the child.

IT IS DECLARED THAT

The court having found that it is in the best interests of the child, [A] born [in] 2005, that his name be changed and that the said child henceforth be known as, [A GILBERT].

IT IS FURTHER ORDERED THAT

9The Registrar of Births, Deaths and Marriages, Western Australia do effect the required change to the said child’s birth registration pursuant to this order.

10The proceedings otherwise be dismissed.

I certify that the preceding [58] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate