MALDON & GABARD

[2018] FCCA 472

FEDERAL CIRCUIT COURT OF AUSTRALIA

MALDON & GABARD [2018] FCCA 472

Catchwords:
FAMILY LAW – Parenting and property dispute – young child initially thought to be that of the parties – applicant discovering, and informing mother, that
he was not the biological father – mother forthwith suspending applicant’s time with the child – court ordering supervised time to re-establish relationship
– whether applicant should be permitted to take on ‘dad’ role despite not being biological parent – mother adamantly opposing application – orders made
to enable applicant to continue role as friend of the child.

Legislation:

Family Law Act 1975, s.60CC

Goode v Goode [2006] FamCA 1346
Holman & Bailie and Anor [2012] FamCA 827

Applicant: MR MALDON

Respondent: MS GABARD

File Number: DGC 1588 of 2016

Judgment of: Judge Burchardt

Hearing dates: 5, 6 & 7 February 2018

Date of Last Submission: 7 February 2018

Delivered at: Dandenong

Delivered on: 8 March 2018

REPRESENTATION

Counsel for the Applicant: Mr Roberts

Solicitors for the Applicant: Bayside Solicitors

Counsel for the Respondent: Mr Taghdir

Solicitors for the Respondent: Waters Lawyers

Counsel for the Independent Children’s Lawyer: Mr Moisidis

Solicitors for the Independent Children’s Lawyer: McCormack & Co

DRAFTS ORDERS

Parenting

1. The mother have sole parental responsibility for the child [X] born … 2014.

2. The child live with the mother.

3. The child spend time with and communicate with the father from 10:00 am to 2:00 pm every six weeks on a Saturday.

4. Mr Maldon continue to be prohibited by injunction from calling himself Dad or permitting the child to address him as Dad.

Property

1. The matrimonial home situate at Property A be sold and the proceeds be applied:

   (a)to discharge any mortgage over the property;

   (b)to pay the costs of sale;

   (c)as to the remaining funds:

   (i)40 per centum thereof to the Husband; and

   (ii)60 per centum thereof to the Wife.

2. Pending the payment or completion of sale:

   (a)The Husband have the sole right to occupy the real property and during such right of occupation the Husband pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due;

   (b)The parties hold their respective interests in the real property upon trust pursuant to these orders; and

   (c)Neither party encumber the real property without the consent in writing of the other party.

3. That unless otherwise specified in these orders and save for the purpose of enforcing any monies due under these or any subsequent orders:

   (a)Each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the property being deemed to be in the possession of the Husband/Wife.

   (b)Monies standing to the credit of the parties in any joint bank account are to become the property of the Husband/Wife.

   (c)Insurance policies remain the sole property of the owner/beneficiary named thereon/in. 

   (d)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders. 

   (e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

4. The superannuation of the parties be adjusted in accordance with the judgment in this case.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1588 of 2016

MR MALDON

Applicant

And

MS GABARD

Respondent

REASONS FOR JUDGMENT

Introductory

1. All parenting disputes are necessarily regrettable, but this one is particularly and outstandingly sad.  We are concerned with the best interests of a child, [X], born on … 2014.  His name at birth was [X].  The change is an exemplar of the quite tragic set of circumstances that have brought the matter before the Court.

2. The applicant, Mr Maldon, who is not the biological father, seeks that he be permitted to assume the role of a dad for [X], with a significant spend time regime between him and the child.  The mother adamantly opposes the applicant having any role in the child’s life whatever.  The Independent Children’s Lawyer seeks that the applicant be permitted to see the child, for a short period of time, every six weeks, to maintain the extant relationship with [X], namely, where [X] sees the applicant as a friend.

3. Although there is considerable doubt that Mr Maldon will take advantage of it, for reasons to which I shall come, I propose to make the orders sought by the Independent Children’s Lawyer.

Agreed and/or Uncontested Facts

1. Much of the narrative in this case is not, in fact, controversial.  The applicant was born on … 1965 and works as a professional from home.  He earns approximately $100,000 a year.

2. The mother was born on … 1975.  She does not work. 

3. The parties met in around about 2000, at which time the mother was married, but separated from her then husband.  Cohabitation commenced in 2004 and the parties married on … 2009.  Separation under one roof, according to the father, occurred on 15 April 2015.

4. The parties underwent three IVF cycles, following which they were blessed with a child, [Y], who was born on … 2010 and tragically died on … 2010.  Thereafter, the parties underwent a further series of five IVF cycles, until … 2012.

5. [X] was conceived in … 2013.  Both the parties were elated by the news of this apparently miracle baby.  Most unfortunately, however, the baby was not a miracle.  Ms Gabard conceived [X] with another man, Mr B, with whom she was having an extramarital affair.

6. The parties had bought the former matrimonial home in … 2007 and the mother contributed $14,500, which was used towards the deposit on the home.

7. The mother moved out of the matrimonial home in April 2015 and it is clear that the relationship was at an end at that time.

8. From May until September 2015, the applicant spent regular and reasonably frequent amounts of time with [X].  Whether this equates to 43 percent of the total time involved, as the applicant asserts is not perhaps material.  Then, in September 2015, the applicant undertook a home DNA test.  This showed that he was not the father of the child.  When he informed the mother of this, she ceased all time and no time took place from October 2015 until the Court ordered supervise time on 26 October 2016.  In the interim, a further test, described by the applicant as a “legal DNA test”, had conclusively established that [X] was not his son.

9. By this point, the mother had changed the name of the child and the child had to be reintroduced through the supervised time process.

10. The supervised time went well, although the child was initially distressed at the first two visits.  It should be noted that the reports of the supervised time show a good relationship between Mr Maldon and the child, who refers to him as a friend, “Mr Maldon”.  The applicant has been enjoined, by Court order, from referring to himself as “Dad” or permitting the child to do so.

The Parties Affidavit Material

1. The parties have filed relatively substantial amounts of affidavit material and I have, of course, both read it and have regard to it.  Nonetheless, in the light of the way the case has played out, it is more appropriate to concentrate on what the parties actually said at court.  Much of what the parties did say in their affidavits is recorded in the agreed matters above.

The Family Report of Ms C

1. Ms C’s report, dated 6 March 2017, played a relatively prominent role in the proceeding.

2. For present purposes, it is appropriate to record that the report was strongly critical of the mother.  Ms C noted that the mother became extremely distressed during the interview, when questioned about her motives or explanations for behaviour or proposals.  The mother confirmed that the primary reason she seeks that [X] spends no time with Mr Maldon is because he is not the biological father.  She raised no safety issues (at that time) as to [X] in Mr Maldon’s care.  This was subsequently expanded (paragraph 83) to include the fact that Mr Maldon’s different parenting styles would expose [X] to their ongoing conflict.

3. It is fair to say that Ms C formed a very negative view of Ms Gabard as a mother, insofar as she was unable to contemplate any relationship with Mr Maldon.  Ms C opined that if Ms Gabard did not get what she wanted, she might abscond with [X], change his identity and attempt to withhold him from Mr Maldon and the authorities.  Ms Gabard went so far as to opine that if financial issues were dealt with concurrently with parenting issues that Ms Gabard would, indeed, abscond with the child.

4. The report concluded that if Ms Gabard was unable to make progress with the identified problems then consideration might need to be given for a change of residence.

The Evidence and Submissions Given in Court – Mr Maldon

1. What follows is not a transcript, but is taken from my notes.  It records the matters that struck me as being of significance.

2. Mr Maldon has adopted his affidavits and Financial Statement as true and correct.

Cross-examination by Counsel for the Independent Children’s Lawyer

1. Mr Maldon confirmed his date of birth and that cohabitation started in late 2004/early 2005.  The parties bought the former matrimonial home in … 2007 and married on … 2009.  [Y] was born in … 2010, but died shortly thereafter.  [X] was born under the surname Maldon on … 2014.  Separation took place in April 2015, under the same roof, when [X] was 13 months old and in mid-May the mother moved out of the matrimonial home.

2. Thereafter, Mr Maldon was unable to agree a scheduled agreement as to time.  The parties scheduled weekends as their lifestyles permitted.  Both were, and still are, involved in hobby.  A parenting plan was signed, following mediation in September 2015, but there was no spend time in the parenting plan.  This was because they could not agree the schedule.

3. The applicant undertook the home DNA test on 14 September 2015.  The respondent did not know about this.  He presented the results to her on 17 September 2015.  He returned [X] to his mother following a visit on 28 September 2015 and the next visit was supposed to be on 1 October 2015.  When he went to collect [X], the respondent refused.  The applicant had not paid any Child Support since January 2016.  There was then a legal DNA test in about March 2016.  The proceeding in this Court started in May 2016 and the Court made orders for supervised time on 26 October 2016.

4. This progressed in April 2017 to unsupervised time.

5. Mr Maldon conceded that the mother had made offers for him to spend time after 2015, but he had refused.  The time was so small it would be distressing to him and [X].

6. Mr Maldon readily conceded that the mother had done a great job in raising [X].  He said that, nonetheless, [X] would benefit from a relationship with him.  The fatherly role will benefit [X].  The mother is 42 now and he conceded she may re-partner.  A new bond may occur.  It would be that of a stepfather.  There is a complication already, namely, that [X] has a biological father who is not him.  Mr Maldon said he was not likely to re-partner in light of what his experiences had been.  He did not know what [X] knows about his biological father.  He will need to know in the future, if only for medical reasons.  Mr B has no interest in being a father to [X].  Mr Maldon’s other children wish to know [X].

7. Mr Maldon said that he loved [X] and sees him as his son.  [X] calls him “Mr Maldon” and occasionally his dad, but corrects himself if he does say it.  [X] does not call his time with Mr Maldon “playdates”.  [X] introduces him as “my friend, Mr Maldon” or “my best friend, Mr Maldon”.

8. When it was put to him that the mother had facilitated time between him and [X], Mr Maldon disagreed.  He said the child had built a relationship with him because time was allowed.  The mother was not present.  Her influence was limited to what she does before and afterwards.  [X] did not know who he was when time started and in the initial supervised contact [X] was distressed for five minutes.  On the second contact visit, the distress was one minute and after that there was no distress.  He did not know what [X] thinks of the word “daddy”.  He has no way to find out what [X] thinks of him.  The mother makes all the decisions about [X] since October 2015 and has allowed the applicant no input.

9. At age two, [X] is forming memories.  Mr Maldon would prefer no time to restricted time, as this was not in [X]’s best interests.  He needs substantial and significant time as his Dad.  Mr Maldon said, “It is for me to be his dad”.

10. Mr Maldon was adamant he had memories from when he was four years old.

11. Mr Maldon confirmed that the Child Support ceased in January 2016.  He had given the mother $1,000 towards a bond on a rental property.  Whether he wishes it back depends upon settlement.  It was given as a loan and Mr Maldon said that, so far as he is concerned, the loan still exists.  He denied that he only wanted to pay for [X] while in his care.  He then retracted that statement and confirmed that this is, indeed, what he desires.  Mr Maldon conceded that [X]’s biological father has been paying Child Support since April 2017.  Mr Maldon was paying for [X]’s health care and that of the mother and is still paying his ambulance subscription.  The mother ceased the health care cover.

12. Mr Maldon denied family violence.  He admitted swearing at the mother on one occasion.  He admitted that he had told the mother he wanted her sleeping in the marital bed, but denied that he was angry at the time.  The mother has said she was separating, but did end up in the master bedroom for further discussion.  The mother was not happy to continue those discussions, which lasted for one to two hours.  She had been sleeping in the spare room for months before this.

13. Mr Maldon said he did not know what his status was with [X].  He did not know if he was a parent or stepparent.  The mother had deceived him, but he was not overly angry about it.  The mother has damaged [X] because she has taken away his father.

14. Mr Maldon conceded he might have told Ms C that he believed the mother might have Asperger’s.  This assumption was based on his observations of the mother.

15. Mr Maldon was cross-examined about Ms C’s possible recommendation for a change of residence.  He said that he did not propose that [X] should not live with the mother.  Mr Maldon would be distressed if [X] was taken away from her.

16. When it was put to him that he was too obese to be able to run after the child he said he could.  [X] is active, like any four year old.

17. Mr Maldon was then cross-examined about financial matters.  He said he was serious in desiring to retain the matrimonial home.  Nonetheless, he believed it was likely the house would be sold.  He confirmed that he had had $300,000 in superannuation at the commencement of the relationship.  His salary was always at least double that of the mother’s.  He works from home and would have ample time for [X].  He would contemplate retiring at age 67.  He did not accept that the mother could not work while [X] was in her care.

Mr Maldon under Cross-Examination by Counsel for the Mother

1. Mr Maldon confirmed that he was seeking a six/eight regime.  He wanted substantial time, if not shared care.  He wants to be a father.  As far as he was concerned, he is [X]’s dad.  He recognises that he is not his biological father.  He confirmed the spend time regime already set out earlier.  He also confirmed that the child had been distressed for the first two supervised visits.  Initially, it was two hours per fortnight, but is now four hours per week, pursuant to Orders made in April 2017.  He has heard [X] say, “I love you, Mr Maldon”.

2. When taken to the supervisor’s reports, Mr Maldon confirmed that [X] recognises him.  [X] is more than comfortable with him and calls him Mr Maldon.  There is unsupervised time for four hours per week since April 2017, usually on a Tuesday.  Time is limited and he wishes it to be much longer.  The bond would be stronger if he had more time.  Mr Maldon says he is his dad, but he is prohibited from displaying this.  He had declined earlier offers of time because they were too short and this involved emotional distress for him.  Four hours is not enough time to build a proper relationship between them as father and son.  He cannot build a relationship, as a father, with [X] because he is prohibited from the father part of it.  [X] sees him as a friendly man who plays with him.  Mr Maldon wanted to go to six nights, in a graduated plan, as in the family report.  It would start with four hours two times per week.

3. Mr Maldon confirmed that he is a professional and works from home.  His office is two minutes down the road.  It is a desk job and he has to answer the phone.  Mr Maldon says it would take six to 12 months to get to his full-time regime and he said he had checked school websites.

4. I should interpolate and say that Mr Maldon was, in my view, vague as to his evidence as to how he would be able to work and look after [X] at the same time.

5. Mr Maldon said he could reduce his work to part-time.  His current gross earnings are $100,000.  The mother is not employed.  Mr Maldon did not deny being angry with the mother.  He has raised the wife’s deceitfulness with the Court.  Nonetheless, he has no desire for revenge against her.  Mr Maldon said he is [X]’s dad.  He will have a male role model in his life.  A father figure.  He has the maternal grandfather.  But Mr Maldon can provide for [X], as he has a significant income.  He said, “I love him.  He is my son”.  He said he had tried to offer the mother money, but she refused.  He did not know what the biological father pays in Child Support, but believes it might be about $1,300 per month.  Mr Maldon said he had offered to pay medical expenses, but the mother refused.  The child had several operations, but he did not pay for them.  He has problems sharing with the mother.  Mr Maldon made it clear that he had not paid for [X]’s care because he was not spending time with him.

6. Mr Maldon says he cannot tell the child he is his dad.  He finds this difficult.  It makes everything more difficult.  His only relationship with [X] is as his dad.  The biological father would be “dad 2”.  Eventually, he would have to tell [X] about the biological father, at an appropriate age.  He does not know when this will be.  He will meet Mr B at racetracks, on many occasions, and would introduce him as “Mr B”.  He would promote [X] meeting Mr B’s children, who are almost adults.  [X] has met them.  He wants [X] to know his family, as he had already met them.  He doubted he would remember them.  He did not consent to a change of surname for [X], who now has the same name as his mother.  He would prefer [X] to have his name.

7. Mr Maldon said he had lived with the child until he was one and a-half years old.  He then stopped, on 28 September 2015.  He has unsupervised time for the last 10 months, four hours per week.  He has no communications with the mother, although there is some SMS and telephone and some brief exchanges at changeover.  He had read the mother’s affidavits.  She does not want him anywhere near [X] and has tried to raise him.  He has already agreed schooling and religion, but the mother does not wish to discuss these matters with him.  There will be difficulties with the relationship with the mother, but he was open to discussions.  They typically end in what she wants.

8. When questioned about parental responsibility, Mr Maldon said that parenting is a joint process.  He would expect both parties to cooperate in the child’s best interest.  He would provide full-time care for [X], if necessary.  The mother has done a very good job so far.  [X] is tightly bound to the mother and anything that would affect her would affect [X].

1. In re-examination, the Mr Maldon confirmed that his only interest was time with [X], which is denied by the mother.  He is not concerned about a financial settlement.  His only concern is to be [X]’s dad, as he was before.

The Evidence of the Mother – Ms Gabard

1. The mother adopted her affidavits as true and correct and her Financial Statement.

2. Under cross-examination by counsel for Mr Maldon, the mother confirmed that [X] was born on … 2014, at the Hospital.  Mr Maldon was there and had, in part, cut the umbilical cord.  He had been to antenatal classes with the mother.  He was supportive during her pregnancy to an extent.  [Y] had been with them for a few days.  He was in medical care throughout.  [Y]’s death had affected her.  The arrival of [X] was not a subject easily open for discussion, as Mr Maldon was aloof.  He had used [Y]’s death to justify this.  He was concerned that they might lose a second child.  The mother had had sex with Mr Maldon at the time [X] was conceived and believed he was the father.  She had a question, nonetheless, as to [X]’s parentage.  She had had three IVF cycles before [Y] and then five more.  She did not know who the father was until the DNA results were provided.  Mr B has no interaction with the child and is not interested in being involved in these proceedings.  Mr Maldon is the only father the child has known.  She only sees Mr Maldon at changeovers.  He is a gentle man.  Mr Maldon does not show caring in the same ways that she does.

3. Private health cover is part of Mr Maldon’s salary package.  She removed herself and [X] from this, because she felt it was being used against her.  Mr Maldon was saying he was providing it when it was part of his salary.

4. I would interpolate again and say that the fact that the mother chose to deny [X], and of course herself, the benefits of private health cover for no better reason than she felt it might affect her forensic chances in this case is a keen indicator of the extent of the mother’s malice and lack of insight where Mr Maldon is concerned.

5. Once she got the DNA results the mother sought legal advice.  She was advised it was a significant change of circumstance and she accordingly stopped the relationship between Mr Maldon and [X].  She has sought the services of a child psychologist to help pinpoint any developmental issues.  She was unable to say why [X] has wanted to sleep with her.  [X] frequently asks to see friends, both children and adults, but does not ask to see Mr Maldon.

6. When it was put to her that her distress during the interview with Ms C came from how she was questioned, the mother said it was the way she was questioned.  She was not allowed time to answer.  She was extremely nervous about the process and had been advised by a friend that presentation to the family reporter was very important as the Court would take on board findings of the report and give weight to it.  Ms C confirmed this at the start of the interview.

7. The mother said she had made multiple offers for Mr Maldon to spend time with [X].  [X] is now comfortable with Mr Maldon to the best of her knowledge.  When asked why it was in [X]’s best interests to spend no time with Mr Maldon, the mother said she sought that there be no orders in place about time.  She would seek that [X] continues to see Mr Maldon as a friend.  If Mr Maldon would speak to her and seek time she would be more open to doing so.  Each time they had discussed anything he would walk away.

8. Notwithstanding this equivocation the mother then confirmed in clear terms that her position was that Mr Maldon spend no time with the child.

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

1. The mother confirmed that [X] is doing very well.  He was starting four-year-old kinder this week.  He is in the 97^th percentile of height and weight and meets all his motor skills and other developmental milestones.  He has been to see a speech pathologist once since his tongue was untied but it is very unlikely he will require further visits.  He has a very good vocabulary and can describe his feelings.  Childcare reports say he is on par with his age status.

2. The mother is a full-time carer.  She suffers from mild depression treated by her GP and takes 50 mls Pristiq per day.  Her distress is less significant in some ways than it was.  She has the support of her parents.  The maternal grandfather sees [X] regularly.  He sees him at least two times per week for some four to eight hours.

3. The mother was adamant that Mr Maldon was too fat to look after an active child like [X] whom he would not be able to catch.  He cannot get out of a chair with [X] in his arms.  Her own father can do these things.  She lives in a gated community which still has some difficulties.  It is not an ideal environment to raise a child.  [X] is concerned if he is away from her.  She has to tell him times of return when he is with Mr Maldon.  [X] has a friendly and amicable relationship with Mr Maldon and tells her he loves Mr Maldon.  He enjoys his time with Mr Maldon.  [X] has a relationship with Mr Maldon.  It is in [X]’s nature to say he loves people because he is very affectionate.

4. The time spent between Mr Maldon and [X] is very focused on [X] and they play.  Mr Maldon asks for hugs at changeover and [X] does it.  She does not oppose it.  He knows that [Y] is his brother and knows he is dead.  [X] has asked “Who is my daddy?”.  The mother replied, “Your daddy’s name is Mr B but he can’t be here right now”.  She will give [X] age-appropriate answers and believes that [X] has confused Mr Maldon with Daddy.  She communicates with Mr Maldon by texts.  She believes Mr Maldon has an interest in [X] but is distressed by the extent of the involvement that Mr Maldon seeks.  She is distressed that Mr Maldon wants to be involved in [X]’s life and does not want him to be so.  The mother said she did not believe Mr Maldon is able to negotiate.  Part of it is that he is not [X]’s father.  It was his choice to seek a DNA test without discussion and this has distressed her.  For her distress is her heart racing, clammy hands and feeling teary.  She feels that she would be just ignored in any discussions with Mr Maldon.  [X] has seen this distress and asks if she wants a cuddle.  She would be devastated and scared if Mr Maldon got a 6 out of 14 regime.  She does not wish to relocate any great distance from where she presently lives.

5. When asked about communication with Mr B the mother said [X] was taken to hospital with croup so she had to ask if there was a family history.  Mr B’s children have met [X] numerous times but do not call themselves siblings.  [X] does not know they are related.  They last saw [X] in September 2017.  Mr Maldon does have a bond with [X] but it is not in [X]’s best interests to force a relationship between them.  Mr Maldon is not [X]’s father.  She would prefer no time.  It will add confusion in the long term for [X].  She would prefer time by agreement.  She finds it difficult because Mr Maldon says he has no respect for her as a mother.  She would like [X] and Mr Maldon to spend time together as a friend but has no set idea as to how much.  She prefers not overnight.

6. I should interpolate and say that the mother’s evidence as to this aspect of the possible time between Mr Maldon and [X] was extremely equivocal and seemed to change from moment to moment.

The Evidence of Family Report Writer Ms C

1. Ms C was called and adopted her family report.

2. Under questioning by counsel for the Independent Children’s Lawyer Ms C confirmed the date of [X]’s birth and the date of separation.  She noted there was a period when Mr Maldon was having four nights per fortnight which started when [X] was 13 months old.  She did not know how much time [X] had spent with Mr Maldon before that.  There was no reason why there should be no overnight time if they were spending overnight time before separation.  She did not agree that it was inappropriate that there be overnight time before a child was two years of age.  Both parents told her that they were involved with care of [X] before separation.  Mr Maldon had wanted to bottle feed so he was probably involved.

3. At some point “Dad” had been involved in the care of [X] (this was clearly a reference to Mr Maldon).  She did not investigate the detail of parental care before separation.  After September 2015 there was no time for about 12 months.  The mother stopped the time and there was no bond after that.  Then there was a period of two hours per fortnight supervised time which was necessary to re-establish the relationship.  The time was playtime.  In March 2017 the child made a reference, “I love you” and started calling Mr Maldon “Dad”.  It was a very small amount of time with Mr Maldon.

4. When it was put to her that from April 2017 unsupervised time was four hours per week Ms C asked if it still had not progressed to that.  There was not enough time thus far to strengthen the relationship.  Ms C confirmed that Mr Maldon wants to continue the four nights per fortnight he had before.  When it was put to her that Mr Maldon was talking about his own needs Ms C responded that his commitment to [X] started before [X] was born.  He had been committed before the birth even happened.  When it was put to her that Mr Maldon had not had the opportunity to be a dad, Ms C replied that “That was why we were here”.  [X] calls him Dad and sees him as a friend.  [X] would see it as a playdate and would not think of him as Dad.

5. Ms C noted that even before birth it was a paternal relationship but this has since changed.  To maintain a relationship you need time.  Ms C noted that the mother did not consider Mr Maldon to be [X]’s dad.  [X] knows he spends time with a friend called Mr Maldon.

6. Ms C confirmed that she spent a lot of time with the mother talking about her grief.  The mother was concerned with herself.  She had said that Mr Maldon would not support her in her grief and could not see that it affected Mr Maldon also.  This made Ms C question whether the mother could empathise with other family members.  This led to concerns as to whether she would be able to see how [X] might see issues.  She had allowed [X] to spend four nights per fortnight and then severed the relationship on a whim because she wanted to.  Mr Maldon found it difficult not having time with [X] because of his own grief about [Y].  The mother wanted to sever the relationship between Mr Maldon and [X] and changed his name.

7. When questioned why it was that she referred consistently to the mother as Ms Maldon when she knew her name had been changed to Gabard, Ms C said the name of the file was called Maldon and she had continued with this.  When asked why the mother became so upset and as to whether this was the interview process or the thought of Mr Maldon being involved in [X]’s life Ms C said, “Probably both”.  The level of distress was incongruent.  The amount of family violence alleged was small from the mother’s perspective.  The mother said she found the whole process very stressful.  The mother said that Mr Maldon was harassing her by taking her to Court and found the prospect of Mr Maldon being involved in [X]’s life incomprehensible.  Ms C had asked the mother if [X] might miss Mr Maldon when his time ceased but the mother was unable to see this.  She constantly referred to “my baby, my child”.  She saw [X] as an extension of herself.

8. Ms C confirmed her observations at paragraph 48 of her report.  The mother had said that Mr Maldon was only doing this to harass her.  When asked about the poor communications between the parties Ms C said she would recommend a communications book.  If there was time with Mr Maldon then there should be communication about medical treatment and the like.  The mother must have mental health problems if she is still experiencing clammy hands and other symptoms of such distress.  If it continues the mother needs counselling.  It is not positive for [X] to see the mother’s distress.  When questioned about her observation at paragraph 84 of the report Ms C said that the Court works with all sorts of families.  When questioned about paragraph 85, Ms C said the mother was so rigid and was unable to explore alternatives.

9. When questioned about how [X] might be made aware of Mr Maldon’s role Ms C said that the earlier a child is provided with information about their identity the better.  There would be no risk so long as the child was explained who Mr Maldon was and that he was a stepfather, the sooner the better.  It could be put in a narrative form.  Ms C queried whether the mother would be able to do this and might need assistance.  When it was put to her that the Independent Children’s Lawyer was of the view that there was no significant bond but that the affectionate relationship should continue with daytime-only once each six weeks Ms C had no comment.  She likewise left the view of sole parental responsibility to the Court.  Ms C supported four nights per fortnight with Mr Maldon.  Shared care was contraindicated.

Ms C under Cross-Examination by Counsel for the Mother

1. I do not propose to traverse the cross-examination in great detail.  Counsel for the mother was, understandably, concerned to attack Ms C’s impartiality and her conclusions.  It did emerge clearly that Ms C had been less sensitive than she might have been by constantly referring to Ms Gabard as Ms Maldon.  Likewise, her repeated use of the word “dad” to describe Mr Maldon was probably unfortunate.

2. Ms C denied that she had said, “I have taken children from mothers before”.  She has a history in child protection and would simply never say such a thing.  She also denied saying, “It was up to me to decide what is best for the child”.  Ms C said, “It is not up to me”.  She has a standard spiel for families who come in but there were times when she used the word dad and the mother would correct her.  Ms C did not say, “I would fix the change of the child’s name”.  She did discuss the change and particularly while she was going through the Court proceedings.

3. Ms C conceded it is likely that the mother felt she was hostile and felt bullied but she had no bias against the mother.  Much of it comes back to the mother’s ability to see things outside herself.  Ms C denied saying, “You will have to get used to it” in referring to dad.  Ms C said she had reworked questions but not aggressively.  She had thought she was supportive.  Ms C said that the mother obviously thought she was aggressive all the way through.  Ms C denied implying that she had some sort of relationship with Judge Burchardt.  She has no relationship with him.  When it was put to her that her observations at paragraph 94 meant that she was recommending a change of residence, Ms C said that was not what she meant.  She meant that if there were still problems in 10 years’ time.  She had not raised this with the parties.

4. When it was put to her that she had told the mother that Mr Maldon presented as a better parent and should be the carer for her son, Ms C denied this.  She was concerned that the mother would say this.

5. When she was cross-examined about paragraphs 90 - 91 of her report, which expressed concern that the mother might abscond Ms C said she was indeed so concerned.  The mother had told her she was planning to.  When she asked about school the mother said, “It would depend where we end up”.  She wanted to be away from Court.  She wanted to be away from Mr Maldon.  She felt harassed by the Court and Mr Maldon.

6. When it was put to her that she had fabricated the suggestion of the mother absconding after financial settlement, Ms C said this was not so.

7. When it was put to her that [X] had hugged Mr Maldon but had also hugged the supervisor when time was supervised, Ms C conceded this was probable.  He had spent time with each of them.

Ms C under Cross-Examination by Counsel for Mr Maldon

1. Ms C confirmed that as [X] turns four his world will become bigger.  He will go to school.  Relations would have improved with Mr Maldon if there had been more time.  Ms C conceded that she saw her language in this assessment was emotive but this was because the mother was so upset.  The mother was supportive of time until the DNA test was done then there was no time.  When asked what risk there would be if [X] spends no time with Mr Maldon, Ms C said that [X] now understands Mr Maldon is a friend.  [X] has already lost Mr Maldon once.  A loss now would not be as great.

The Credit of the Witnesses

1. Mr Maldon impressed me as a generally good witness.  I noticed that his speech tended to be somewhat loud.  He was plainly still angry with the mother, but one might say in the circumstances that this was perhaps unsurprising.  His answers were clearly generally truthful.  They were of course skewed by his perception of the events.

2. Much the same can be said of the mother.  Her answers were likewise generally direct.  Once again I think she was truthful but her answers were skewed by her perceptions.

3. Ms C was in the witness box for a long time.  I got the impression she had not been prepared for the measure of the onslaught that she faced.  I should make it clear that she was a good witness who was very readily prepared to make concessions.  She readily conceded for example that the mother might have formed the view that she was unsympathetic, although I entirely accept that Ms C was not biased against her.  Insofar as quite serious allegations of fabrication of evidence are made, I should make it clear that I reject them entirely.  While the mother undoubtedly believes the things that she says about Ms C they are simply not correct.  It is clear that Ms C formed a poor view of the mother.  Ms C’s explanations for her fear that the mother would abscond are in my view entirely reasonable in the context of the interview itself, even though looked at objectively they are plainly not correct.  I do not accept that Ms C represented herself as having a special relationship with the Judge in the case (myself).  Indeed I pointed out to the parties during the currency of the proceeding in the light of this evidence that I had known Ms C as a counsellor when she was employed by the Court and had met her at social events involved in the Court.  No submission was made arising out of these disclosures.

4. Likewise I do entirely accept Ms C’s denials that she said it was up to her to produce the result.  Ms C well understands as she said that this is not her role.  It is a measure of the mother’s lack of insight that she has attributed Ms C’s negative report on her to, in effect, dishonesty and bias on Ms C’s part.  It is part of her lack of insight.

Findings as to the facts

1. The findings as to the facts really repeat the uncontroversial matters set out at the beginning of this judgment.  The history of the relationship and the amount of time that Mr Maldon had spent with the child are all beyond question.  There is no doubt that the mother for reasons I for one cannot fully fathom, has an almost hysterical aversion to Mr Maldon being involved in her child’s life.  It is clear that she is very enmeshed with the child and I accept that she sees him very much as hers alone and wishes to maintain this situation.  Given the circumstances of his conception and the perhaps unfortunate but equally perhaps understandable refusal of the biological father to be involved, and given the tragic history of the family generally, the mother’s position is partly explained.  Still and all however the mother’s concern that in some fashion Mr Maldon would overbear her in any discussions goes nowhere near far enough to justify the extreme nature of her responses.  By way of illustration, the mother’s decision to remove herself from the benefits of private health cover for no better reason than she was concerned it might stand against her in this case, with Mr Maldon misrepresenting what was going on (something he did not in my view do) speaks volumes.  I do not know why she is as agitated about all this as she is but it is clear that that is the state of affairs.

1. There is no doubt that Mr Maldon would like to play a father’s role even though he accepts that he is not the biological father.  In a perfect world there would be much to said for it.  He bonded with the child before he was even born and I have no doubt that his desire to play the parental role does not in any way reflect a desire to harass the mother.  It is a genuine one born of genuine affection.  It is noteworthy that the mother thinks that the Court has harassed her simply because the Court has progressed the matter through to judgment.  That misconception once again speaks volumes.

2. As things now stand, Mr Maldon has a good relationship with [X] as a friend whom he sees for four hours per week.  Mr Maldon’s stated position is that unless his time is increased he will cease it because of the distress to him and to [X].  As I find it, it is the distress to himself that he cannot tolerate.

3. At this point it is appropriate to turn to the statutory pathway.

4. The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:

   “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.”

Equal shared parental responsibility

1. The presumption as to equal shared parental responsibility is not rebutted in this case by family violence.  The fact that Mr Maldon swore at the mother on one occasion, and spoke to her aggressively in such a fashion as to cause her to sleep in the marital bed for one night is nowhere near significant enough to constitute family violence in the sense with which we are here concerned.  This is so even though any family violence is regrettable.

2. Nonetheless it is clear as the Independent Children’s Lawyer submits that there should be an order for sole parental responsibility to the mother.

3. Counsel for the Independent Children’s Lawyer helpfully referred me to the case of Holman & Bailie and Anor [2012] FamCA 827, in which case Le Poer Trench J dealt with the question of parental responsibility where one parent is a natural parent and the other not. I refer to by reference the matters set out at [87] and [93]-[98]. It is not necessary to repeat them. The reason for this is that the reality is that the parties cannot communicate. On any view of the matter, it is inevitable that Ms Gabard will have the predominant care of [X], who has lived with her all his life and for whom she has always been the primary carer.

4. Because for reasons which will follow shortly, I am going to make the orders sought by the Independent Children’s Lawyer, there is no question of Mr Maldon having substantial time with the child, nor of taking on a paternal role with him, it is ultimately clear that this is the outcome in [X]’ best interests.  I appreciate that in one sense this puts the cart before the horse, but this is an unusual case on unusual facts.

Orders in the Child’s Best Interests – Section 60CC(2)

1. The difficulty here, of course, is that Mr Maldon is not [X]’s biological parent. Accordingly the benefit referred to in s.60CC(2) does not arise. Likewise, there is no suggestion that time with Mr Maldon would expose the child to abuse, neglect or family violence.

The Additional Considerations - Section 60CC(3)(a)

1. [X] has, of course, expressed no views about this matter because he only regards Mr Maldon as a friend.  He is, in any event, only four years old.

Section 60CC(3)(b)

1. The child has a warm and fully developed relationship with his mother.  Because of the mother’s obsessive personality, it might even be thought that he is at risk of being overly enmeshed with her, but the fact is she has always been his primary carer and remains his primary attachment.  Additionally, [X] has a good friendly relationship with Mr Maldon whom he regards as a friend.  There is no reason to doubt that he also has a good relationship with the maternal grandfather, who is on affidavit but was not required for cross-examination.  Likewise, he would doubtless have a good relationship with other members of the mother’s family.  He has no meaningful relationship with his biological father, Mr B, or Mr B’s children.

Section 60CC(3)(c)

1. Obviously the mother as the primary carer has fulfilled her obligations under this subsection.  In my view Mr Maldon has done the best that he could during the period that he was, so to speak, on the scene as a parent, to participate in decisions, although I note and accept his evidence that the mother would eventually prevail.  His attempts to spend time with the child have been perhaps somewhat chequered.  His rejection of the mother’s occasional offers of small amounts of time was, in my view, misguided.  It reflected, however, a very understandable pain on Mr Maldon’s part.  Mr Maldon’s relationship with [X] cannot be seen in isolation.  It is part of the continuum in his life in which the tragic death of [Y] forms a part.  While looked at objectively his decision not to take up offers of time was counterproductive, I can understand why the pain of being denied any kind of paternal role would have been so great as to cause him to do so.

Section 60CC(3)(ca)

1. Once again the mother clearly has fulfilled her obligations to maintain the child.  Mr Maldon’s refusal to continue paying anything into Child Support after the results of the first DNA test were known is understandable but misguided.  Although he has contributed marginally in respect of health care and ambulance cover, his true position is that he will really only pay for [X] when [X] is with him.  This does not help his case.

Section 60CC(3)(d)

1. Separation from his mother would clearly be traumatic for [X].  I accept the mother’s evidence that she has to reassure [X] when he goes to spend time with the Mr Maldon as to when he will come back.  This anxiety, no doubt, is influenced by the mother’s underlying and exaggerated fears of Mr Maldon’s involvement.  Nonetheless it cannot be ignored.

Section 60CC(3)(e)

1. There is no practical difficulty or expense in the child spending time with Mr Maldon.  Mr Maldon has plenty of money and has plenty of time.  The difficulties arise essentially out of the mother’s view of Mr Maldon’s involvement and the fact of his not being the biological father.

Section 60CC(3)(f)

1. The mother’s capacity to provide for [X]’ needs is, in my view, compromised by the exaggerated nature of her feelings for him.  Once again this is not a criticism.  It arises, no doubt, in her case also, as part of the continuum of the tragic loss of [Y] and the unexpected and very welcome arrival of [X].  Nonetheless she is his mother and will be providing at least adequately for [X]’s needs.

2. I formed the view that Mr Maldon would be likely to be an excellent dad if he was allowed to be so.  He obviously empathises greatly with [X], although once again this is partly a question of meeting his own needs in the light of the tragic family history.  I do not accept that Mr Maldon’s obesity would prevent him from discharging his parental responsibilities were they to be put in place.

Section 60CC(3)(g)

1. Both the parents struck me as being reasonably mature and having unremarkable lifestyles and backgrounds.  The child [X] obviously is young, but he has a secure relationship with his primary carer.

Section 60CC(3)(h)

1. This is irrelevant.

Section 60CC(3)(i)

1. The mother’s attitude to the child and the responsibilities of parenthood is, to an extent, concerning, as I have said more than once.  Nonetheless, for the reasons already expressed, it is not a matter to which great emphasis should be given.  So far as Mr Maldon is concerned, he has an understandable and, in my view, commendable attitude towards [X].  He regards him as his son even though he is not biologically the father.  This, of course, springs from his desire to have a paternal role more generally as evidenced by the eight IVF cycles that he and Ms Gabard endured.

Section 60CC(3)(j)

1. This is not, in my view, relevant.

Section 60CC(3)(k)

1. This is likewise irrelevant.

Section 60CC(3)(l)

1. It is plainly desirable to make final orders as all parties agree.

Section 60CC(3)(m)

1. In the curious and most unfortunate circumstances of this case, this is an important matter.  In the ultimate the dispute between Mr Maldon and the mother can be stated shortly.  Mr Maldon, who is not the biological father, wishes to play the role of father nonetheless.  He opines, correctly in my view, that [X] would benefit from such a role model.  The trouble, however, is that he is not the biological father.  The biological father wishes, at the present at least, to have no role.

2. More importantly, the mother, who is the sole carer, is utterly and adamantly opposed to Mr Maldon playing any part in [X]’s life.  While this opposition rises to a level I find surprising and inexplicable, the fact is that that is her position.  Any endeavour to shoehorn Mr Maldon into [X]’s life as his dad at age 4 in the face of the mother’s adamantine opposition is doomed to fail.  The mother’s health will suffer.  It suffers even now with the limited time spent.

3. There can be no question of rewarding the mother’s own unreasonable conduct.  Nonetheless the fact of her likely response in the event that orders are made to facilitate what in the ultimate is after all an artificial state of affairs sought by Mr Maldon is the overwhelming factor in this case.  It is not in [X]’s best interests for Mr Maldon to seek to become his father, both because he is not his father, but more importantly because of the effects this would have on the mother and the immediate and obvious sequelae that would be visited upon [X].  It is a very sad outcome in many ways, but it is the only outcome that will reflect [X]’s best interests.

Conclusion on the Parental Issues

1. Having decided that Mr Maldon’s substantive application must fail, the question is whether [X] should continue to have the friendly relationship he does presently have with Mr Maldon.  So long as [X] continues to see Mr Maldon only as a friend, there is no confusion engendered in his mind by that relationship.  All the evidence is that [X] enjoys it.  In my opinion, if Mr Maldon were prepared to sustain it, it would be in [X]’s best interests, notwithstanding the mother’s concerns.  Those concerns would self-evidently be very significantly diminished, one would expect, if she knew that Mr Maldon would be having no long-term role in decision making about [X], nor would he ever be able to, as it were, take [X] from her.

2. It must be noted that Mr Maldon may well choose not to avail himself of this time because it would be distressing to him, but, in my opinion, it is still in [X]’s best interests to make the orders proposed by the Independent Children’s Lawyer which will sustain the friendly relationship if Mr Maldon is prepared to continue it.

Property Issues

1. Although Mr Maldon said he was not in any sense concerned about property matters, it is clearly important to deal with the inter partes dispute about property in an orthodox way.

2. Given that there was virtually no cross-examination, it is probably appropriate to paraphrase the submissions made by counsel.  Counsel for the wife submitted that this was a lengthy relationship and the court should take a global approach.  The parties’ contributions should be assessed as equal.  They bought their home together.  The mother has full-time care of the child and is on Centrelink benefits.  It is a small asset pool.  She sought an equalisation of the parties’ superannuation.  I note that counsel said that the spousal maintenance application was pressed, but since no questions were asked about it and no evidence put forward, it seems to me that this is an inappropriate matter to award at this stage.

3. Counsel for the husband said that he wishes to retain the matrimonial home but would sell it in the event that he does not get any time with [X].  He sought a 60/40 division of property.  Superannuation should be equalised, save that the $300,000 that the husband had at the commencement of the relationship should be excised.

4. Given that Mr Maldon was not cross-examined about that latter remark, I am prepared to accept that he did indeed bring $300,000 worth of superannuation to the commencement of the relationship.

5. It is clear that there should be a property adjustment between the parties.  Both of them wish it.

6. Where so little is put and the evidence is essentially unchallenged, the Court has to do the best it can on the available material.  The husband’s most recent Financial Statement puts the 50 per cent share of the matrimonial home at $284,000, thus a total value of $568,000.  He puts the value of his half share of the mortgage at just over $100,000, with a total value, therefore, of $200,000.  Mr Maldon’s superannuation is now some $616,715.  The wife’s most recent Financial Statement puts the value of her superannuation at $41,000.  Her value allotted to the matrimonial home is just over $500,000, although she agrees with the $100,000 on the mortgage.  The parties other chattels and the like are not the subject of valuations and, in my view, should be ignored.

7. The parties were in a relationship from about 2004 until 2015.  It was neither a very long nor a very short marriage.  Mr Maldon has always worked and provided the vast bulk of funds, but it should be noted that the IVF courses that the mother underwent over a protracted period of time must necessarily have occupied much of her energies.  The evidence suggests that the mother attended to the domestic duties in the ordinary way of such matters and she worked until 2012.  Although this is all painting with a very broad brush, I would assess the parties’ contributions as essentially equal, save as to superannuation.

8. The mother is substantially younger than Mr Maldon and does indeed have many more years available to her to earn an income than Mr Maldon does.  Nonetheless he is only in his early fifties and likewise has a reasonable period of time in employment ahead of him.  He will always earn substantially more than the mother.  The mother will have the effective full-time care and expense of the child on an ongoing basis.  Neither party’s health is a matter of such significant concern as to operate on the matter.

9. Noting that the vast bulk of the financial support throughout the relationship must have come from Mr Maldon, whose income was always twice that of the mother, and balancing up the other future issues, in my view the property pool, excluding superannuation, should be divided 60 per cent in favour of the mother and 40 per cent to Mr Maldon.  I will make orders to provide for the property to be sold, although I will give the parties an opportunity as to confer as to whether it is possible for Mr Maldon to buy the mother out should he wish to do so.

10. So far as superannuation is concerned, Mr Maldon’s position is, in my view, entirely appropriate.  There will be an equalisation of the parties’ superannuation on the footing that Mr Maldon should receive credit for the $300,000 he brought in at the beginning.  Accordingly I would equalise the $41,000 in the mother’s account with the $316,715 (residual total of Mr Maldon’s superannuation).

11. Once again I have drawn draft orders to reflect these conclusions but will give the parties an opportunity to consider them before making them final.

I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date: 8 March 2018