Oxbourne & Ewans
[2015] FCCA 2127
•7 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| OXBOURNE & EWANS & ANOR | [2015] FCCA 2127 |
| Catchwords: FAMILY LAW – Parenting – child aged 9 years – child has lived primarily with his two mothers since birth – applicant donor seeks time – child spent time with donor until 2013 – no time since then – mothers’ inability/unwillingness to support child’s relationship with donor – limited time reinstated along lines recommended by Part 15 expert. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC, 60H, 65C, 117 |
| Burton & Churchin & Anor [2013] FamCAFC 180 H v W (1995) FLC 92-598 Kitsannis & Netpoulis & Anor [2010] FamCAFC 214 Malcolm & Monroe (2011) FLC 93-460 Mulvany & Lane (2009) FLC 93-404 R and R: Children’s Wishes (2000) FLC 93-000 Slater & Light [2011] FamCAFC 1 Valentine & Lacerra & Anor [2013] FamCAFC 53 |
| Applicant: | MR OXBOURNE |
| First Respondent : | MS EWANS |
| Second Respondent : | MS ROSE |
| File Number: | SYC 1820 of 2014 |
| Judgment of: | Judge Sexton |
| Hearing dates: | 1, 2 and 3 June 2015 |
| Date of Last Submission: | 3 June 2015 |
| Delivered at: | Sydney |
| Delivered on: | 7 August 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Lloyd SC |
| Solicitors for the Applicant: | Newnhams Solicitors |
| Solicitors for the Respondent: | Mark MacDiarmid |
| Advocate for the Independent Children’s Lawyer: | Ms E Karagiannis |
| Independent Children’s Lawyer: | Legal Aid NSW |
ON 1 JUNE 2015, BY CONSENT, THE COURT ORDERED THAT:
Pursuant to section 60H(1)(c) of the Family Law Act 1975, the Child X born (omitted) 2006 be declared the Child of the Respondents.
The Registrar of the NSW Department of Births Deaths and Marriages is hereby ordered to amend the Register as it relates to the Child X born (omitted) 2006 by noting Ms Ewans and Ms Rose as X’s parents on an amended birth certificate in lieu of the previous form of registration pursuant to the provisions of section 19(2) of the Births, Deaths and Marriages Act 1995 (NSW).
The First and Second Respondents share equally parental responsibility for the Child X born (omitted) 2006.
X live with the First and Second Respondents.
AND COURT FURTHER ORDERS THAT:
X spend time with the Applicant as follows:
(a)Each two calendar months on a Sunday morning for a period of 2 hours being 11.00a.m until 1.00p.m (unless an alternative time is agreed) commencing on Father’s Day 2015, such time to take place at X’s home for a period of 6 months being 6 September 2015, 8 November 2015, 3 January 2016, with Ms L or another adult nominated by the Respondents to be present.
(b)Thereafter, every two calendar months for a period of 4 hours from 11.00a.m until 3.00p.m. on Sundays for a period of 6 months being 6 March, 8 May, 10 July 2016, unless an alternative time is agreed, such time to take place in the vicinity of (omitted), the first occasion in the presence of Ms L or another adult nominated by the Respondents, changeover to occur at (omitted) Railway station unless another venue in the (omitted) area is agreed and the Applicant provide a $50 contribution to petrol expenses at the commencement of the time.
(c)Thereafter, every 2 calendar months for a period of 7 hours, from 10.00 a.m. until 5.00p.m. on a Sunday, commencing on Father’s Day 2016 unless an alternative time is agreed when time will be spent alternately between the vicinity of (omitted) and Sydney with changeover to occur at the (omitted) Railway station when time occurs in (omitted) and, when time occurs in Sydney, the Applicant to collect X from (omitted) Railway station at the commencement of the time, and the Respondents to be responsible for collecting X from (omitted) Railway station at the conclusion of the time unless other changeover venues are agreed, when the Applicant will provide to the Respondents $50 contribution to petrol expenses at the commencement of the time.
(d)At additional or alternative times in the (omitted) or in Sydney, including any overnight time, by agreement between the parties when the Applicant will provide the Respondents $50 contribution to petrol expenses at the commencement of the time.
The Respondents initiate and facilitate X speaking to the Applicant by telephone or skype on Father’s Day, on X’s birthday, on Easter Day, on the Applicant’s birthday and on Christmas Day, unless contact occasions.
The Applicant be restrained from communicating with X by letter, telephone or email except on X’s birthday and at Christmas and at Easter, when the Applicant is at liberty to forward cards/gifts and the Respondents will ensure X receives them.
The Mothers keep the Applicant advised of any significant medical issue affecting X.
The Applicant is authorised by these Orders to obtain duplicate copies of X’s school reports and school photograph order forms at his expense.
The Mothers provide a sealed copy of these Orders to X’s school Principal.
Each party keep the other advised of any change in his/their residential address and/or telephone contact details.
Each party be restrained from making any critical or denigrating remark about the other in the presence or hearing of X.
Within 28 days, the Respondents pay the sum of $1,650 to the Legal Aid Commission of NSW by way of contribution towards the costs of the Independent Children’s Lawyer.
Pursuant to section 65DA(2) of the Family Law Act 1975 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 Oxbourne & Ewans & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 1820 of 2014
| MR OXBOURNE |
Applicant
And
| MS EWANS |
First Respondent
MS ROSE
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant seeks orders for his biological child, X, aged 8 years (known and referred to as “X”) to spend time with him. X’s parents are his Mothers, the First Respondent, Ms Ewans and the Second Respondent, Ms Rose, who have lived in a same sex relationship for 27 years.
The Mothers wanted a known, rather than an anonymous donor for their child and in 2005 the Applicant, Mr Oxbourne, (known as “Mr Oxbourne”), then a friend of the Mothers, agreed to donate his sperm to Ms Ewans. In accordance with the Mothers’ wishes, X knew the Applicant as “dad” and spent time with him from the time of his birth until (omitted) 2013, when the Mothers stopped X spending time. X did not see the Applicant again until he was interviewed by the expert in March 2015 and has not seen him since. Despite engaging in mediation, the parties have been unable to resolve the issues between them. Dr P, child, adolescent and family psychiatrist, prepared an expert report for the Court dated May 2015.[1] I agree with Dr P as to the crux of the dispute[2]:
The parties disagree as to the intended and actual role and significance of Mr Oxbourne to the child.
[1] Exhibit 1
[2] At paragraph 99 of Exhibit 1
The Mothers no longer support the Applicant being referred to as “dad”. They say that X wants to call the Applicant “Mr Oxbourne” and should be able to decide for himself whether/when to see him. They agree to X receiving cards/letters from the Applicant two to three times a year, but oppose any face to face time.
Dr P said that by the time the Mothers’ relationships with the Applicant broke down in mid-2013, X was picking up on the big gap between how the Mothers saw the Applicant’s role, (not as a psychological father or a third parent), and how the Applicant saw his role (as central and important to X’s development). X now wants to protect the family himself and his Mothers from “stress or danger”[3] posed by the Applicant so says he will not see him. At the conclusion of his report, Dr P says[4]:
I feel that the child would benefit greatly if Mr Oxbourne were willing to step back from the demands and definitions of himself and the Mr Oxbourne/child relationship that are posing a threat to the Mothers’ sense of self as parents and family.
I feel also that the child would benefit greatly if the mothers were willing, in the context of security, to give the child a signal of “true permission” [my words] to re-engage positively with Mr Oxbourne, but to a new better-defined end-point which is not parent or family, but is a positive sometimes person of unique significance, and if the mothers were willing to facilitate such a process.
[3] Ibid at paragraph 370
[4] Ibid at paragraphs 372 and 373
The Applicant was represented by counsel, Mr Lloyd SC, the Mothers by Mr McDiarmid, solicitor, and the Independent Children’s Lawyer by solicitor-advocate, Ms Karagiannis.
Background facts
The Applicant first met the Respondents in 1996. In mid-2005, the Applicant agreed to donate his sperm to enable the Respondents to have a child. X was conceived by the artificial insemination of Ms Ewans and born on (omitted) 2006. Ms Rose was not registered as X's Mother on his birth certificate, as at the time of his birth it was not legally possible and when the law changed in 2009, Ms Rose says she had not considered it necessary stating that, “I didn’t feel under any threat.”[5]
[5] At page 211 of 3 June 2015 transcript of proceedings
The Applicant, aged 53 years, is a (occupation omitted) employed part time by the (employer omitted) with a (qualifications omitted) in (omitted). For the last 6 years, he has lived in (omitted) with his partner of 28 years, Mr M, aged 54 years, a (occupation omitted) at (employer omitted). The Applicant suffers from a chronic blood disorder which his haematologist is treating with low dose chemotherapy. He says his condition is stable but the side effect is fatigue. He was recently diagnosed with prostate cancer, but according to his treating urologist, has a positive long term prognosis.[6] In the past he was diagnosed with a ‘toxic nodule’ on his thyroid gland, which was treated with radioactive iodine. The Applicant tells Dr P he engages in yoga and gym classes and he and Mr M enjoy travelling. Until mid-2011, they owned a weekender in (omitted) where X used to spend time with them.
[6] Affidavit of Dr D sworn on 26 May 2015
The First Respondent, Ms Ewans, aged 50 years, is a director of a (business omitted) company. Her company produces (omitted) for (omitted) and (omitted). She works from home. She and her business partner work together in a family/friendly flexible way to enable Ms Ewans to collect and drop X to school when necessary and to engage in the parent Committee at X’s school. Ms Ewans is a former (hobby omitted) coach and is teaching X to play.
The Second Respondent, Ms Rose, aged 52 years, studied (omitted) at university and was an (occupation omitted) until she became a homemaker, when X was approximately 1 to 2 years of age.
X has always lived with his Mothers on acreage owned by them at (omitted), a town approximately 15 minutes’ drive from (omitted) in the (omitted). At the time of hearing, X was in Year 3 at (omitted) Primary School. One of the Mothers drops him to school in the morning and he usually catches the bus home. Until this year he was at (omitted) Public School. Ms Rose says that (omitted) was a small community school which suited X’s shy and sensitive nature very well when he started school. However, having gained confidence, the Mothers decided he was better off at (omitted) Public School, a much bigger school. She says that X has done well at his new school.
Current parenting arrangements
X lives with his parents. At the time of hearing, he had not spent any time with the Applicant since (omitted) 2013, apart from during the expert’s observations. There were no parenting orders in place until the first day of hearing, when final orders were made by consent for the Mothers to be declared X’s parents, to be recorded as his parents on his birth certificate, for the Mothers to have parental responsibility for X, and for X to live with them.
Orders sought by the Applicant
In his Application filed on 27 March 2014, the Applicant sought orders (inter alia) for X to spend time with him on the first weekend of each month, for block periods in school holidays, time on special days, for telephone communication each 3 days when not in the Applicant’s care and for the parties to share X’s transport. In his Amended Application filed in June 2014, the Applicant sought a declaration that he and the Respondent Mothers be declared X’s parents, and an order for him and the Mothers to have equal shared parental responsibility for X. He sought orders providing for X to spend two full days with him a fortnight apart, then from after school Friday until 5 p.m. Saturday on two occasions a fortnight apart, and thereafter from Friday after school until 5 p.m. Sunday once a month, as well as half the short school holidays (8 nights) and block periods in the Christmas school holidays. He sought time on the Father’s Day weekend, on the weekend before Easter and before Christmas Day, and regular telephone time. He sought an order that the Mothers be restrained from referring to him in the presence of X other than as “Dad” and that they provide X with all written correspondence from him.
On 30 October 2014, the Applicant’s solicitor advised the Court that the Applicant would no longer be seeking a declaration that he was one of X’s parents, acknowledging that the Applicant was not legally a parent.
On 5 May 2015, the Respondents’ solicitor emailed the Applicant’s solicitor to ask what orders sought by the Respondents were agreed. By letter dated 26 May 2015, 5 days before the hearing date, the Applicant’s solicitors advised that the Applicant agreed to two orders sought by the Respondents: firstly, the declaration that the Mothers were X’s parents; and secondly, that the Mothers’ names be recorded on X’s birth certificate as his parents. The Applicant’s solicitor did not advise the Respondents’ solicitor in that letter that the Applicant consented to an order for the Mothers to have parental responsibility for X.
In his Minute of Order provided at the hearing, the Applicant seeks the orders[7] agreed in the Applicant’s solicitor’s letter of 26 May 2015, further orders providing for the Mothers to share equally parental responsibility for X, and for X to spend time with the Applicant for 4 hours on 5 July 2015, on Father’s Day (both periods in (omitted)), and for two overnight periods in December/January. [The Applicant corrected an error in the dates in the document marked Exhibit 2]. From the end of January 2016, the Applicant seeks one weekend every month from Friday to Sunday, and from 1 January 2017, 8 nights in the June/July school holiday periods and 8 nights in the Christmas school holidays each year. The Applicant seeks orders for transport to be shared, for telephone time, for the Mothers to give X all written communications from him, for the parties to be restrained from referring to him in X’s presence as anything other than ‘dad’, for the Mothers to facilitate the Applicant’s name to be recorded at X’s school and forward school and medical reports to him, as well annual school photos, and updated photographs on X’s birthday and Christmas Day. The Applicant seeks restraints in relation to the parties making any derogatory comments about the other party, or discussing these proceedings with X. The Applicant seeks 50% of all fees and disbursements invoiced by Dr P.
[7] Exhibit 2
Orders sought by the Respondents
In their Minute of Order[8] relied on at hearing, the Respondents seek the declaration that was agreed and made on the first day of hearing, as well as the other orders agreed and made on that day. In addition, they seek a declaration that the Applicant is not a parent pursuant to section 60H(1)(d) of the Family Law Act 1975. They seek an order that X spend time with the Applicant as determined by the Respondents, or (as advised by the Respondents’ solicitor on the first day of hearing) in the alternative, no order as to time. In cross examination, both Mothers say they do not support X spending time with the Applicant “at the moment.”[9] Ms Ewans says that perhaps time will be possible in the future “if Mr Oxbourne is able to show a willingness to work with us and our child, then there may well be a possibility.”[10] However, both Respondents will agree to the Applicant sending cards at Christmas and on X’s birthday to keep communication open.
[8] Exhibit 3
[9] At page 120 of the 2 June 2015 transcript of proceedings
[10] Ibid
Orders sought by the Independent Children’s Lawyer
The solicitor advocate for the Independent Children’s Lawyer provided the Court with her proposed Minute of Order at the conclusion of the evidence.[11] The Independent Children’s Lawyer seeks final orders for X to spend time with the Applicant on a once a month basis: on Sunday for periods of 4 hours on the first two occasions, (in the presence of Ms L or Ms M in the (omitted) area); 7 hours on Sunday on the third occasion; 7 hours on the Saturday and 7 hours on the Sunday on the fourth occasion; thereafter from 10.00a.m. Saturday until 5.00p.m. Sunday on the first weekend of each month. In addition, from January 2017, for one week in school holidays and during Christmas school holidays. The Independent Children’s Lawyer proposes that changeovers occur at (omitted) Railway station, and the Applicant pay $50 towards transport expenses to the Mothers at the commencement of each period. In addition, the Applicant to ensure X has telephone contact with the Mothers on two occasions each day X is with him, morning and evening; the parties to refer to the Applicant as “Mr Oxbourne” in X’s presence; the parties be restrained from denigrating each other in the presence or hearing of X; the Mothers authorise X’s school to provide the Applicant with any application to purchase school photos; X engage with a therapist nominated by the Independent Children’s Lawyer for as long as recommended by the therapist and the parties facilitate X’s attendance upon the therapist as required by the therapist; the Independent Children’s Lawyer have leave to provide the therapist with a copy of Dr P’s report; the parties pay the costs of the Independent Children’s Lawyer, as to the Applicant the sum of $3,138.50; as to the Respondents the sum of $4,788.50.
[11] Exhibit 6
Expert recommendations
At the time of the report interviews, the Applicant (at least on paper) was still seeking a declaration that he is a parent with the Mothers and was still seeking an order for equal shared parental responsibility with the Mothers. Dr P recommended that the Mothers have sole parental responsibility, that the Mothers be recognised as X’s co-parents and that X live with the Mothers. As already noted, those orders were made by consent on the first day of hearing.
In Dr P’s opinion, as already noted, there was a fundamental vulnerability in the relationship between the Mothers and the Applicant in that there was a growing gap between how the Mothers saw the boundaries of “dad” and how the Applicant saw those boundaries. Although the breakdown occurred in mid 2013, “something was going to happen somewhere along the line.”[12] In his view, “both Mothers were distressed and disorganised by a challenge to their parenting responsibility and…ultimate say…as parents.”[13] He said[14]:
If…the mothers had sought pre-conception the role of exclusive coparenting, and considered themselves to be exclusive coparents right up until (omitted) 2013, then their responses to Mr Oxbourne since his use of the word “equal” in (omitted) 2013, then in particular since his parenting application of June 2014, can be understood as proportionate defensive responses to a fundamental threat to their sense of selves as parents.
…in this latter context, the mothers would struggle to adapt to a court order that they now co-parent with Mr Oxbourne. The mothers would experience intense distress and grief at the loss of their intact family, and would experience insecurity and fear about their loss of role, and about this new “broken family” …paradigm. Their stance toward Mr Oxbourne would carry an intensity of aggrieved, affronted, betrayed emotion, such that I would not expect them to be capable of collaboration or shared decision-making with him.
…the mothers would endeavour to make some show of collaboration for the sake of the child, but the distress and mental disorganisation within each of them would be intense; disrupting their wellbeing, individual function and parenting capacity, and transmitting anxiety and apprehension to the child.
[12] At page 21 of 1 June 2015 transcript of proceedings
[13] Ibid
[14] At paragraphs 125 to 127 of Exhibit 1
In Dr P’s view, the main risk to X is if the primary issues of the security in role of his parent figures and the establishment of a workable and acceptable model of connection (or lack of connection) with the Applicant, are not resolved. He says if these issues are resolved within the adult system, X will be protected from harm, and will adapt with adult assistance to whatever has been agreed or ordered.[15]
[15] Ibid at paragraph 106
Dr P gave a number of reasons for recommending clearly specified limited time, including the disruption likely in X’s wellbeing if the Mothers continue to act in a partisan way and do not give X true permission to restore his relationship with the Applicant. In relation to how much time he would recommend, he said[16]:
If it’s too frequent, the child has to sort of enact this negativity in a way that builds such power that it can really disrupt the child’s wellbeing and the … restoration of the relationship with Mr Oxbourne. If it’s less frequent and the child gets to live an ordinary life with his Mothers but there’s a maintained connection with Mr Oxbourne that can sort of more quietly be maintained and I have an expectation that over time, as the child matures, it will integrate things and recognise the significance of that and is likely, either to just quietly keep that up and then expand it in adulthood or start speaking up about it in adolescence. …
…my concern is, if what is stimulated [sic] is too intense, then the disorganising effect of the shifting heads happening too frequently can actually build a weight of pressure that …creates harm for the child and risks the child acting in ways that knock over the process.
[16] At pages 55 and 56 of 1 June 2015 transcript of proceedings
Dr P was encouraged by X’s reaction to the Applicant telling him he was not trying to take him away from his Mothers. It demonstrated to Dr P an “available flexibility in his thinking” which he found encouraging.[17] Dr P was also impressed with the thoughtful way the Applicant managed that interaction, including the Applicant’s willingness to stress his respect for the Mothers’ role.
[17] Ibid at page 61
Dr P recommended immediate half days to give X and the Applicant time to settle down together and engage in activities as they used to. Then, if as he recommends, a therapist is involved, X would also see the Applicant in therapy where he and the Applicant could discuss such matters as how they will address each other and any worries X has about what the Applicant might have done or thought. In Dr P’s view, there is no need for an intensity of visits to grow the relationship.[18]
[18] Ibid at page 58
Dr P did not recommend a precise regime of time. In general terms, he recommended that the Applicant’s role be recognised by the court as “known donor” (at a minimum) to remain known to X as he grows up. He said an appropriate option may be for the Applicant to be referred to as “Mr Oxbourne” or “Mr Oxbourne” with X being aware that the Applicant is his “donor” and X being given the opportunity to experience an ongoing relationship with the Applicant as a committed, interested, and loving “known donor.” He recommended[19] a “baseline time” be re-instituted, with the option for greater time at the discretion of the Mothers, with any progression being in accordance with the child’s wishes as expressed to the Mothers, and progression not expected to go beyond the previous pattern of contact with the Applicant. Dr P said[20]:
If the mothers are willing to countenance such an approach, it would be ideal for the specifics of these arrangements as much as possible to be in line with their preferred process, as the process is most likely to work if they experience the maximum agency and minimum coercion.
[19] At paragraph 380 of Exhibit 1
[20] Ibid at paragraph 381
Dr P gave an example of what arrangement might be workable: half a day at the Mothers’ home/property or in a nearby park each 3 months. One visit might occur on or about Father’s Day, or there might be separate provision for a phone call or card on Father’s Day. Initially, the time might be in the general presence of an agreed other, (not the Mothers), such as Ms L. This would not be “supervision” but rather facilitation of reconnection for an anxious child.[21] No letter or telephone time be stipulated, but the same be allowed in accordance with the child’s wishes and maternal discretion. Apart from a card/letter on X’s birthday or at Christmas, any other communication including via social media initiated by the Applicant to X, be proportionate to and not greater than that initiated by X to the Applicant.[22] In Dr P’s view, X and the Mothers may be assisted in the process by a therapist with particular skills, not to mediate time, but to assist X, and each adult to assist X, to adapt to the orders and to consider a return to a positive but more “boundaried disposition” towards the Applicant.[23] The therapist might be given a copy of his report. He would not enforce such therapy if the Mothers and/or the Applicant opposed it. He recommended that each party be restrained from making critical or derogatory remarks about the other in the presence or hearing of X.
[21] Ibid at paragraph 382
[22] Ibid at paragraph 384
[23] Ibid at paragraph 385
Legal principles
Although the Applicant is not a “parent” under the Family Law Act 1975, he may apply for a parenting order pursuant to section 65C as a “person concerned with the care, welfare or development of the child.” These proceedings were commenced after 7 June 2012. Relevant amendments made to the Family Law Act 1975 pursuant to the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 therefore apply.
The principles governing this case are set out in Part VII of the Family Law Act 1975. Section 60CA provides that the Court must regard the best interests of the Child as the paramount consideration. To determine the Child’s best interests the Court must consider the primary considerations set out in section 60CC(2) and the additional considerations set out in section 60CC(3). Although the two primary considerations must assume greater importance than the additional considerations, when determining what orders are in the best interests of the child, the Court must consider all the factors before making a determination. A number of the factors in s.60CC(2) and (3) only apply to parents, and therefore not to the Applicant in this case. Some of these factors specifically refer to “parents” but the Full Court has stated that the Court would be expected to consider all the factors (to the extent they are relevant), whether under those provisions or under s.60CC (3)(m) when, as in this case, a non-parent is involved.[24] The Full Court states that the factors in s. 60CC are a “means to an end” [25] and are matters to be considered and applied in a manner “consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.”[26]
[24] Malcolm & Monroe (2011) FLC 93-460 approved by the Full Court in Valentine & Lacerra & Anor [2013] FamCAFC 53 at paragraph 52
[25] At paragraph 53 of Valentine & Lacerra & Anor [2013] FamCAFC 53
[26] Per May and Thackray JJ in Mulvany & Lane (2009) FLC 93-404 at paragraphs 76 and 77 – cited with approval at paragraph 53 of Valentine & Lacerra & Anor [2013] FamCAFC 53
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Section 60CC(2A) requires the Court, in applying the primary considerations, to give greater weight to the consideration set out in section 60CC(2)(b).
The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:
·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
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
although the first, third and fourth objects in section 60B(1) have no application to non-parents.[27]
[27] Kitsannis & Netpoulis & Anor [2010] FamCAFC 214
The Full Court has held [28] that “an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration.”
[28] At paragraph 43 of Valentine & Lacerra & Anor [2013] FamCAFC 53
Evidence relating to the Applicant’s role in X’s life
Ms Ewans says that she and Ms Rose did not want a co-parenting donor, nor did they want an anonymous donor. It was important to them that their child would know the donor “so that there was no mystery about his origins”[29] and the child could make sense of the relationship. She says she hoped for a donor who would see the child 4 or so times a year. They had approached a Mr Y in 2003, but because he wanted significant involvement with the child and shared parental responsibility, they did not proceed.[30]
[29] At paragraph 11 of affidavit of Ms Ewans sworn on 17 May 2015
[30] Ibid at annexure B
The Mothers first approached the Applicant about sperm donation in the first half of 2004, and he declined. They then proceeded with a friend who wished to remain anonymous, and Ms Ewans became pregnant in (omitted) 2004. However, the pregnancy failed in (omitted) 2005. In June 2005, the Applicant told the Mothers he had changed his mind and would donate. Ms Ewans said they were aware the Applicant’s partner, Mr M was against the donation, and they reassured the Applicant that they would never seek any financial support. There was never a formal agreement, neither side obtained legal advice or advice from an independent professional, and the parties did not set out in writing their expectations of the Applicant’s role in the life and upbringing of the child. Ms Ewans says it was the Mothers’ intention that the Applicant, as the “known donor” would be “a sometimes person”, not “an involved person”[31], with visits about 4 times a year. She says they clearly conveyed to the Applicant that it was not “an inclusive or collaborative arrangement”[32] and totally trusted him. Ms Ewans says[33]:
We never discussed Mr Oxbourne’s ‘official’ role in X’s life, simply because he was never going to have an official role as we are the parents and wanted total independence – we were extremely clear on this. Mr Oxbourne was to be a sometimes person, meaning he saw X occasionally never weekly or monthly. Mr Oxbourne was intended (by us) to be the ‘good time guy’ in X’s life, with the added connection of sharing genetics.
[31] At page 137 of 2 June 2015 transcript of proceedings
[32] Ibid at page 162
[33] At paragraph 13 of affidavit of Ms Ewans sworn on 17 May 2015
I agree with Dr P that from the very beginning, the Applicant had a perspective of his role and significance in X’s life that was “divergent from the perspective of the mothers.”[34] The Applicant says he would not have agreed to be a donor if the Mothers had not wanted him to be recognised as the child’s father and/or not supported him having a paternal relationship with the child. The Applicant wrote to his own father in early 2006 stating, “I’m going to become a father”.[35] I accept that the Applicant genuinely believed the Mothers wanted him to play a role as father to X. I also find that the Mothers behaved in a way which served to reinforce that belief, because while they denied a number of conversations deposed to by the Applicant, I find, in unchallenged evidence, examples of behaviours which may have been seen by the Applicant as encouraging of his role as father:
[34] At paragraph 4 of Exhibit 1
[35] At paragraph 5 of affidavit of Mr W sworn on 1 May 2015
a)Ms Ewans said[36]:
[36] At paragraph 6 of affidavit of Mr M sworn on 15 May 2015
Mr Oxbourne you could make what you wish of being a father. You can remain anonymous or you can be an involved dad as little or as much as you wish.
and one of the Mothers said:
If you do this Mr Oxbourne we would want you to be involved in the child’s life. You will be known as the father of the child from its conception.
and[37]
You would be the child’s father. Our child would grow up knowing you as “dad” …we know how strong and loving the bonds you have with your parents, sibling, nephew and nieces are. Our child would benefit from being part of your extended family.
[37] At paragraph 13 of Applicant’s affidavit sworn on 15 May 2015
b)Ms Rose called the Applicant on the day of X’s birth to say[38]:
[38] Ibid at paragraph 22
Congratulations, you’re a father. X was born today. …when do you want to come and see him?
c)Soon after X’s birth, the Mothers sent Mr Oxbourne (Snr) a photo and a card which read in part[39]:
[39] At paragraph 9 of affidavit of Mr W sworn on 1 May 2015
…Our family may be less than conventional in some ways but our aims are the same. We are very keen for X to get to know Mr Oxbourne’s family… so visits most welcome. Love Ms Rose, Ms Ewans and X. x
d)The Mothers gave X a second name “Mr Oxbourne”. Mr M deposes to Ms Ewans saying[40]:
[40] At paragraph 9 of affidavit of Mr M sworn on 15 May 2015
We gave X’s name as his middle name so the paternal connection between Mr Oxbourne and X is always there.
e)The Applicant immediately shared the news of X’s birth with Mr M, his family and close friends, and visited the hospital on the day after X’s birth.
f)The Applicant and Mr M visited X at the Mothers’ home on a weekend in (omitted) 2006, a few weeks after X’s birth, and the Applicant was invited to the Mothers’ home to celebrate Father’s Day with X on 1 September 2006.
g)The Mothers taught the Applicant how to hold the baby, bottle-feed him, change his nappies, how to settle him, and they set up regular meetings between X and the Applicant. (I accept there was an issue as to when this occurred given Ms Ewans breast fed X for 6 months).
h)In (omitted) 2006, at the Applicant’s family gathering, the Mothers referred to the Applicant as “X’s dad”, to the Applicant’s father as “Grandpa” and encouraged the Applicant’s sisters and brothers in law to consider themselves X’s aunts and uncles. “Grandpa” made a speech to welcome them into their extended family.
i)In his early years, X, the Mothers and the Applicant met regularly so X could spend time with the Applicant in X’s own home or in (omitted), the Applicant was always warmly welcomed, and the hospitality returned.
j)The Applicant’s father said he experienced warm hospitality and encouragement to interact with X as “Grandpa.” When X was 2 or 3 years old, the Mothers said to the Applicant that if ‘Grandpa’ really wanted X baptised, they would have him baptised.
k)On one of X’s early birthdays, the Applicant arranged a joint birthday party for X and ‘Grandpa’ with friends and extended family, described by Mr Oxbourne (Snr) as another “happy family event.”
l)Between visits, the Mothers sent the Applicant photos with messages reading “with love from X to Dad”. The Applicant annexes to his affidavit a selection of these letters, cards, photos, paintings, drawings with X referring to the Applicant as “dad” or “daddy”. [41]
m)The parties usually celebrated X’s birthday around his actual birthday and X either spoke to the Applicant or saw him on Fathers’ Days.
n)The Mothers introduced the Applicant to friends and members of their families as “X's Dad” or “X’s father”. They never suggested he be considered a “known donor” rather than X’s father.
o)In (omitted) 2009, when the Applicant took his father to see X and the Mothers at (omitted), the Mothers welcomed him “X, look who’s here to see you. It’s Dad and Grandpa.” Mr Oxbourne (Snr) describes the Mothers’ warm hospitality and encouragement to interact with X as “Grandpa.”
p)In (omitted) 2011, the Applicant took X to a 3 day extended family gathering at (omitted) which Mr Oxbourne (Snr) describes as “a special and memorable occasion” and again in September 2011, X and the Applicant were part of the Applicant’s extended family Father’s Day lunch. X was described by Mr Oxbourne as “polite, engaged, relaxed, friendly and happy” on every occasion they were together.[42] X has written to Mr Oxbourne, sent him photos of special occasions and drawings he has done, always addressing him as “Grandpa”.
q)The Mothers never told the Applicant that his presence in X’s life was disruptive of what they called their ‘nuclear family’.[43]
r)Communications annexed to the Applicant’s affidavit reveal the Mothers to be warmly and helpfully encouraging of X’s relationship with the Applicant and X to be delighting in the relationship. For example, on (omitted) 2011, X (with his Mother) emailed a photo of himself to the Applicant. Ms Ewans wrote “Hi Dad, Look at me, look at me! See you tomorrow, X xxx”.[44] On (omitted) 2011, in relation to a family reunion being organised by the Applicant, Ms Ewans wrote, “Hi Mr Oxbourne. Sounds great. What a lucky little boy!” [45]
[41] At annexure O-03 of Applicant’s affidavit sworn on 15 May 2015
[42] At paragraph 24 of affidavit of Mr W sworn on 1 May 2015
[43] At paragraph 19 of Applicant’s affidavit sworn on 15 May 2015
[44] Ibid at paragraph 102
[45] Ibid at paragraph 106
The parties are in dispute about how much time X has spent with the Applicant, the Mothers adamant that their time together was considerably less frequent than asserted by the Applicant. Both sides gave detailed affidavit evidence on this issue. However, I find it unnecessary to make precise findings on the quantum of time spent. In general terms, I am satisfied that the Mothers warmly encouraged X spending time with the Applicant in his early years, up to a maximum of 10 times a year, mostly in their presence, occasionally at their home in (omitted), but usually in the (omitted) area until he was 2.5 or 3 years of age. On occasions, these visits involved the Applicant’s extended family and when possible, included time around X’s birthday, on or around Father’s Day and pre-Christmas. On one occasion, the Mothers facilitated the Applicant joining X in a parade in (omitted), both dressed up as (omitted), with costumes made by Ms Rose.
In addition, the Mothers facilitated X sending greetings by card, for example on Father’s Day 2009 “To Daddy, Happy Father’s Day, Love Always X 2009”[46]; and a note after his birthday in 2011, “Hi Dad, thanks for a great weekend, thanks for my beautiful bike. Love X.xxx.”[47] On (omitted) 2011, X sent a birthday painting to ‘Grandpa’, posted by Ms Ewans and enthusiastically received and acknowledged. On (omitted) 2011, the Applicant and Mr M visited X for his birthday and gave him a new pushbike, with a contribution by ‘Grandpa’.
[46] Ibid at paragraph 70
[47] Ibid at paragraph 139
I find that the Applicant has embellished the amount of time X has spent with him without the Mothers, by including in his tally very brief daytime visits and visits when the Mothers were also present. I prefer the Mothers’ evidence of when X started spending overnights, which is consistent with Mr M’s evidence. I also prefer the Mothers’ estimate of the times X spent with the Applicant on skype, that skype contact was irregular and for periods of approximately 5 minutes, rather than regular monthly time for 30 minutes as asserted by the Applicant. I find that X spent occasional overnights as well as day visits with the Applicant at the Applicant’s weekender at (omitted) from when X was approximately 3.5 years of age, and spent time overnight with the Applicant at (omitted) for the first time at approximately the end of 2010 when he was 4 years of age. X spent time with the Applicant, at least every 2 months on average, each year until 2012, sometimes more often, sometimes for a few hours at (omitted), at other times for 1 or 2 nights at (omitted), up to a few overnights each year. In 2011 the Applicant and Mr M sold their (omitted) weekender and I accept Ms Rose’s evidence that this made contact between X and the Applicant harder for X. In (omitted) 2012, X stayed overnight in (omitted) with the Applicant at the home of the Applicant’s close friend Ms M. The Applicant acknowledged that X found overnight difficult in Ms M’s home.[48] I accept that X spent overnight with the Applicant at (omitted) on a few occasions until (omitted) 2013.
[48] Exhibit 4
I find that the Applicant’s evidence about the quantum of time X spent with him is consistent with his quite innocent tendency to magnify his role in X’s life. I note Dr P’s opinion that if the Applicant has amplified the amount of time, it would cause Dr P concern as a result of the Applicant’s “vulnerability to idealise” or as a result of a “disingenuous nature”[49] and am satisfied that the former explanation is more likely.
[49] At page 53 of 1 June 2015 transcript of proceedings
As already noted, the Mothers deny a number of the conversations attributed to them by the Applicant about their intended role for him, including that they discussed together the child’s religious upbringing, education and what would happen if the Mothers died while the child remained dependent. While I accept their evidence that the Applicant may have exaggerated the content of conversations, the frequency of the contact, and may have misinterpreted the Mothers’ good intentions in maintaining a warm and supportive connection between X and the Applicant, I am satisfied the Applicant’s view of his role was genuinely held.
While I agree with the Mothers that their manner of managing X’s relationship with the Applicant was, in hindsight, probably naïve, particularly the complication caused by having X call him “dad”, I also accept that they never intended the Applicant to be X’s psychological father, or that X see him in that role. It was always their plan to tell X he was conceived by way of donor. I accept the Mothers’ evidence that the Applicant has never been involved or asked to be involved in parenting discussions; he has never assisted, nor been asked to assist the family emotionally, physically, financially and has never supported X’s academic or extra-curricular life. However, as already noted, I am persuaded the Mothers’ approach towards the Applicant and his family, and their facilitation of regular time between X and the Applicant, in part caused the Applicant to magnify his significance in X’s life. I share Dr P’s view[50] when he says:
..this difference of perception was “innocent” in that each party was acting out of goodwill towards the other and without deceit, but perhaps naïve, in that each party did not adequately stop to consider how the circumstances might be being perceived and experienced by the other, and stop to consider and to try to communicate about where this might all head, as the child grew older.
[50] At paragraph 109 of Exhibit 1
I also accept Dr P’s opinion that the naiveté was particularly evident in the Applicant, who has viewed himself as playing an essential role in X’s upbringing. I agree with him that the Applicant has mostly misinterpreted pleasant maternal inclusive behaviour as collaboration. For example, he interpreted the Mothers’ phone calls about what school X would attend as being consulted, whereas the Mothers felt they were just keeping him informed.[51] I accept Dr P’s view that[52]:
Mr Oxbourne mistook a pleasant inclusive approach towards a symbolically important “sometimes person” [words used by the Mothers to X] on the part of the mothers, for grateful collaboration with an “equal” [Ms Rose’s report of the Applicant’s remark on 1 July 2013] coparent.
[51] At page 42 of 1 June 2015 transcript of proceedings
[52] At paragraph 110 of Exhibit 1
I give significant weight to my findings here.
Breakdown in relationship between the Mothers and the Applicant
It is common ground that the relationship between the Applicant and the Mothers has broken down. The Mothers feel threatened by the Applicant and no longer trust him. They believe their nuclear family is under attack from the Applicant: X is part of a loving intact family and the Mothers do not want that to change.
I agree with Dr P’s summary of the factors which, in his view, resulted in time being stopped in mid-2013: the Mothers observed X’s facial movements, twitches and stuttering; X was becoming more ambivalent about going to Sydney to stay with the Applicant; X reported Mr M giving him “stick” (being sarcastic or dismissive in his manner); and there was a weekend when the Mothers had been unable to contact X by phone on their terms. However, because it is relevant to the issues to be determined, I set out the evidence relating to the breakdown in the relationships between the Applicant and the Mothers chronologically and in some detail.
Ms Ewans says that the arrangements between X and the Applicant were working well until he was about 5 years old when she and Ms Rose first had concerns. X was then less willing to go to the Applicant, and seemed less comfortable about his time with the Applicant. They were not able to identify with any certainty the cause of X’s discomfort, which was occurring every second or third visit. Ms Rose says she thinks X became less comfortable about contact after the Applicant sold his weekender at (omitted) because he no longer had the opportunity to enjoy short visits with the Applicant (including overnight) close to his home, and was seeing the Applicant less frequently. With the exception of a night in (omitted) 2012 in (omitted) at the home of Ms M, (which the Applicant acknowledges was not successful), X had to travel to (omitted), a long way from his home, to spend overnight time with the Applicant.
The Mothers therefore invited the Applicant to their home, cooked him dinner, so he could see X’s room and toys, see the school where X had started that year and see X on stage, hoping that might help X feel more comfortable. They then told the Applicant they were not coping with the travel he was expecting of them and asked him to do half. The Applicant complained of being ambushed and said he would thereafter only see X on neutral territory.[53]
[53] At paragraph 157 of Exhibit 1
On 22 March 2012, the Applicant emailed Ms Ewans to discuss a more predictable structure for X’s time with him and to share his thoughts about his relationship with X.[54] He wanted X to spend time with him on Father’s Day, in (omitted) around X’s birthday and during the Christmas school holidays, and he wanted to come to the (omitted) every 2 months so X could spend time with him there. He wanted the Mothers to share the travel to and from Sydney. He acknowledges being “outside the core relationship he has with you and Ms Rose both emotionally and geographically”. He identifies two issues “managing an emotional connection that has boundaries” and “managing travel demands that come with a non-residential relationship”. He says he needs to listen to them and their needs and also articulate what he would like in the relationship. He suggested encouraging X to initiate calls to him each fortnight.
[54] At page 146 of Applicant’s affidavit sworn on 15 May 2015
On 29 March 2012, the Mothers responded.[55] They said they supported the telephone call, requesting that it happen on weekends. They supported the time arrangements but not assistance with travel. They said they felt no obligation to assist with travel but were happy to help on occasions. They said they felt their ‘taxi service’ for the past 5 years had not been appreciated. They offered their portable booster seat for a car or taxi. The Applicant said their response seemed “harsh and mean-spirited” given the Mothers wanted X to feel connected to him and his extended family and were aware the Applicant did not have a driver’s licence when they entered into the original agreement, and that he would need their help to enable X to spend time with him. I find the Applicant’s note otherwise warm and complimentary. The Mothers’ response indicates they were offended by the suggestion that they were “mean-spirited”. They say they had never demanded anything from him and his involvement with X was “whatever you wish to make it.”[56] They said they would not block him or his family from seeing X, but required more reasonable travel arrangements. Emails remained polite and pleasant[57], with photos and news and words of sincere appreciation to the Mothers from the Applicant.
[55] Ibid at page 145
[56] Ibid at page 143
[57] See for example at page 149 of Applicant’s affidavit sworn on 15 May 2015
According to the Mothers, during early 2012 (although the precise time was not clear from the evidence) X developed physical symptoms which appeared to be the result of stress related to his time with the Applicant and caused the Mothers significant concern. In particular, the Mothers delivered X at 10.00am on (omitted) 2012 to the Applicant, and saw him again at (omitted) on (omitted) 2012 at 10.00a.m. The Mothers noticed X had developed a nervous cough “and an odd disturbing gesture where he frequently brushed his face with his hand.”[58] X told the Mothers that the Applicant had called him ‘Mr Oxbourne’ on that weekend instead of ‘X’. Ms Ewans says X’s behaviour before visits to the Applicant changed. He would be “moody, teary and defiant”,[59] when usually happy and compliant. She says X was unable to verbalise why he did not want to go and when she tried to talk to the Applicant about possible reasons, the Applicant denied seeing any problems and would not acknowledge a problem existed. Friends Ms L (qualified speech therapist with 25 years’ experience, and qualifications in early childhood studies) and Ms M confirm they noticed X’s nervous cough and hand brushing ‘tic’ and other behavioural issues related to X’s visits with the Applicant. Ms Ewans spoke to X’s school Principal, Ms D, who said both she and X’s teacher had also noticed X’s cough and “facial tic”.[60] X was referred to Ms A, a psychologist and Learning Support Teacher. The psychologist recommended time with the Applicant be reduced and then gradually increase again to having a sleepover.
[58] At paragraph 30 of affidavit of Ms Ewans sworn on 17 May 2015
[59] Ibid at paragraph 32
[60] Ibid at Annexure F
When he was nearly 6 years of age, X raised with his Mothers the possibility of him having a sibling. The Mothers decided then to tell him about the origins of the three of them becoming a family. They adapted a book designed for heterosexual people to explain the story about a sperm donor and two mothers.[61] Ms Ewans spoke to her friend, Ms L, an early childhood teacher, about it and decided it was age-appropriate. She read the book to X in Ms Rose’s presence. She told X that the Applicant was his sperm donor and “the truth about how X became part of our family.”[62] She told X that the Applicant provided the seed but did not form part of the family as identified in the book.[63] Neither Mother observed any negative response in X to the book.
[61] Ibid at Annexure C
[62] At page 153 of 2 June 2015 transcript of proceedings
[63] Ibid at page 152
A note from Ms Rose to the Applicant on (omitted) 2012 said, “as X has been a bit clingy lately (omitted) might be the better option” for Father’s Day.[64] On (omitted) 2012, in response to the Applicant’s inquiry about the clinginess, Ms Rose said that when they were discussing Father’s Day, X was adamant he did not want to go to the city because it was “too far from home”.[65] Ms Rose suggested to the Applicant that it may be an age related issue, so they celebrated Father’s Day together in (omitted). X wrote the Applicant a lovely thank you note after the Father’s Day 2012 visit when they had played with the kite and on the bike. On (omitted) 2012, the Applicant wrote to Ms Ewans to discuss his concerns about their communication.[66] He said he was trying to build a reciprocal relationship with X so that he grows up knowing he can and should initiate contact with his “dad” as well as respond to it. The Applicant said he wanted to give X the chance to broaden his range of experiences and build his self-confidence.[67]
[64] At paragraph 190 of Applicant’s affidavit sworn on 15 May 2015
[65] Ibid at paragraph 191
[66] Ibid at page 171
[67] Ibid
In (omitted) 2012, X broke his wrist and the Mothers advised the Applicant. In the following month, X spent day time with the Applicant to celebrate the Applicant’s birthday. In (omitted) 2012, Ms Ewans had a chat to the Applicant to discuss what might be causing X to feel unsettled and the Applicant revealed that Mr M had been “giving X stick” when X stayed with them in Sydney.[68] However, the Applicant seemed unwilling to stop Mr M giving ‘stick’ or even to talk to him about it.
[68] At paragraph 37 of Ms Ewans’ affidavit sworn on 17 May 2015
The Mothers noticed X’s symptoms worsen as time with the Applicant approached and found the Applicant unwilling to discuss the issue. The Mothers subsequently learned that X was homesick (or “sooky” in the Applicant’s words) when staying overnight with the Applicant, which he had not told them. They also learned that the Applicant was managing phone calls because he had observed calls with the Mothers increased X’s “sooky” behaviour, which meant X could not talk to his Mothers when he wanted to. While Ms Rose believes the Applicant thought it was better for X not to speak to the Mothers if it made him “sooky” she strongly believes the Applicant’s management of the problem made it worse for X, particularly on the final contact weekend in (omitted) 2013.
The parties made arrangements for X to spend a weekend in (omitted) 2013 with the Applicant, but X was adamant he would only stay one night. The Applicant then decided, because of time constraints, that he would not take X to see the mechanical dinosaurs at Taronga Zoo (as he had promised X) but instead to see the dinosaurs at the Museum and a production of “(omitted)” at the Opera House. X apparently felt let down by the Applicant about missing the zoo visit, and had already seen the Opera House production. By that time, X wanted to call the Applicant ‘Mr Oxbourne and on that weekend, he wanted to put the Applicant’s contact details in his new address book (given to him for Christmas) under ‘Mr Oxbourne. Dr P says the Applicant should have taken this opportunity, which showed X’s confusion, to explain his true role. Instead, the Applicant insisted X put him under ‘Dad’ which caused X considerable upset. He told the Mothers his new address book was now ruined. However, though the Mothers wanted more control, more safeguards and feedback, they continued to facilitate X spending time with the Applicant. However, as noted by Dr P, the Applicant pushed back against the Mothers’ anxiety and sought more separateness, which made the Mothers’ anxiety worse and increased their sense that he was not respecting them as X’s parents.[69]
[69] At paragraph 156 of Exhibit 1
In the first half of 2013, X continued to see the Applicant for short day time visits, and had occasional skype conversations. With the aim of helping X, Ms Ewans gave details of X’s soccer matches to the Applicant and suggested he come to the (omitted) to watch X play a game of soccer. On (omitted) 2013, the Applicant attended X’s 7th birthday fancy dress party at the school hall in (omitted). I find the communication between the Applicant and the Mothers remained mutually respectful and helpful until the (omitted) 2013 weekend.
X was to stay with the Applicant in (omitted) from (omitted) 2013, the first weekend of his school holidays. According to the Applicant, when he collected X from (omitted) station, Ms Ewans said “please let X call me whenever he wants to” and told him they would be out on Sunday night until 7.00p.m. so to call on her mobile that evening.[70] The Applicant agreed. Ms Ewans says when the Applicant collected X, she also said that X was not “overly comfortable” about going and if he wants to come home, let him.[71] X called Ms Ewans to say goodnight on Saturday evening (omitted) 2013, but thereafter X had no telephone contact with the Mothers until he was returned to Ms Rose at (omitted) railway station on Monday morning, a period of 36 hours without contact. On Sunday (omitted), the Applicant says X had an active day including lunch with the Applicant’s extended family to celebrate ‘Grandpa’ 85th birthday. The Applicant says that X was very tired that night and chose to go to bed and to sleep at 6.00p.m. X rang the Mothers’ landline (not the mobile as requested by the Mothers) and left a message before 6.00p.m. At 7.00p.m. Ms Ewans received X’s message, and immediately called the Applicant. She was told X had been asleep for an hour. She expressed her disappointment that the Applicant had not called the mobile as she had asked and the Applicant had agreed. The Mothers did not believe X had been asleep for an hour, but that the Applicant was blocking X’s contact with them. There were calls back and forth on the Monday morning but X did not speak to either of his Mothers. At (omitted) station, Ms Rose was waiting on the railway overpass to collect X. She says X rushed to embrace her and appeared very unsettled.[72] When he spoke a couple of moments later, Ms Rose noticed his cough and the hand to face movement. According to the Applicant, Ms Rose said that Ms Ewans needed to be “in contact with X 24/7”, that he had to leave his mobile on day and night and if he does not do what she says, X will not be coming to visit again.[73] When the Applicant expressed alarm at being threatened, he says Ms Rose said, “it’s not a threat, it’s just the way it is.”[74] Ms Rose deposes to saying words to this effect, “we need you to have your phone turned on” and suggested that he talk to one of his “sisters to see how mothers might feel when they’re not allowed to contact their children”[75] and to the Applicant responding “I am equal, you just have to trust me.”[76] She deposes to the Applicant using a raised voice and to his demeanour being aggressive and confrontational. She says the Applicant followed her and X to the car, put his head in the back of the car, so close to her she could feel his breath. He told her it was his house policy to turn their phones off every night. She asked, “what if there was an emergency” and he replied “Don’t be so melodramatic, you don’t need 24/7 contact, I am equal and you just have to trust me.” Ms Rose then said “if we have no contact, X will not be going anywhere with you.” She says he accused her of threatening him and she said “it’s not a threat it’s just the way it is.”[77] Ms Rose says X was extremely distressed on their drive home, his nervous symptoms very marked.
[70] At paragraphs 262 to 264 of affidavit of Ms Ewans sworn on 17 May 2015
[71] Ibid at paragraph 78
[72] At page 198 of 2 June 2015 transcript of proceedings
[73] At paragraph 273 of Applicant’s affidavit sworn on 15 May 2015
[74] Ibid at paragraph 275
[75] At page 199 of 2 June 2015 transcript of proceedings
[76] At paragraph 23 of Ms Rose’s affidavit sworn on 17 May 2015
[77] Ibid
Ms L (speech therapist) said after the (omitted) 2013 visit, “X’s behavioural tic and nervous cough were so marked that he could hardly utter a sentence. X’s speech was noticeably disfluent (like a stutter) and it was of concern to me because it was so severe that it affected his ability to speak.”[78] Dr P found Ms L presented these observations to him “in a measured way, separating observation from inference.”[79] Ms M noticed X had a nervous cough in (omitted) 2013 combined with a brush of his face with his hand, 20-30 times a day. She noticed it was still there in (omitted) 2013 but noticeably worse in (omitted). In (omitted) 2013, X told her that his name was now “X” and “I don’t like the name Mr Oxbourne.”[80] X had also told Ms Ewans that he wanted to change his middle name.
[78] At annexure I to Ms Ewans’ affidavit sworn on 17 May 2015
[79] At paragraph 48 of Exhibit 1
[80] At annexure I to Ms Ewans’ affidavit sworn on 17 May 2015
I accept Ms Rose’s more complete version of the exchanges with her and the Applicant at the station on (omitted) 2013. In particular, I accept the Applicant used the words “I am equal” and told her it was house policy to keep their phones turned off at night, and that these remarks would have alarmed the Mothers. I find the exchange would have been frightening and confusing for X who had not experienced conflict before. I am also satisfied that the Applicant chose not to call the Mothers’ mobile on the Sunday evening, because he apprehended X being unsettled if he spoke to his Mothers.
I accept Dr P’s opinion that the parties’ markedly different perspectives on the Applicant’s role in X’s life came to a head that weekend, which was bound to happen at some point. On the Mothers’ side, X was spending time, including overnight time when children are most vulnerable, a long way from home with a person not used to caring for children, who had a partner with whom X was not relaxed. The Mothers were aware that X was apprehensive about going. They needed unimpeded regular updates from him to reassure him and themselves that he was all right. On the Applicant’s side, he had noticed that X became more “sooky” and anxious when he had evening telephone contact with the Mothers, so was managing the phone contact as he thought worked best. I agree with Dr P that the Applicant’s “entitled” stance on this issue might well be appropriate if he were a co-parent, but a “very presumptuous” stance in a friend or member of the extended family.[81] The Applicant told Dr P that he linked X’s anxiety to missing his Mothers, and it would appear the Applicant was asserting a right to protect his time with X, much as might a co-parent. Dr P refers to other examples of issues between the parties which highlight their different perspectives of the Applicant’s role. These include the transport issue, the Applicant holding the view that he travelled more than half the distance by train to spend time with X, so more than his share, while the Mothers felt presumed upon, given they had no obligation to undertake the transport. On the occasion X and the Applicant dressed as (omitted) in a parade, the Mothers saw themselves as being “thoughtfully inclusive of Mr Oxbourne” by making the costume and transporting him, and giving X a fun day with his donor “dad” while the Applicant referred to this day as an example of his active role as “dad”. [82]
[81] At paragraph 117 of Exhibit 1
[82] Ibid at paragraph 121
The Mothers wanted and needed the Applicant to step back and acknowledge their role as X’s parents, and his role as “donor”. They retained a solicitor who wrote to the Applicant in August 2013, strongly asserting the Mothers’ legal role as parents. The Mothers were prepared to mediate, but only on terms that they were recognised as the sole parents and that the Applicant had no parenting responsibility. The Applicant did not accept those conditions. I agree with Dr P that the Mothers were prepared to press on if the Applicant was prepared to step back from his threat to their parenting role. The Mothers’ solicitor proposed a daytime visit every 3 months and one call a week, but that was baseline, and as opined by Dr P[83] may have led to a regrowth in the relationship. On 6 September 2013, the Applicant’s solicitor proposed a weekend a month, block overnights in school holidays, time on special occasions, telephone time and transport to be equally shared. The Applicant proposed that X always refer to him as “dad”. The Applicant’s approach reinforced the Mothers’ fears. I agree with Dr P that the Applicant clearly failed to appreciate the degree to which the Mothers found his proposals to be a threat, failing to affirm their parenting roles.[84] As a consequence, the Applicant was unable to make arrangements to see X. Instead, he rejected their proposal to see X at their home on (omitted) 2013, and (as Dr P says), stepped up the threat, sending weekly letters using “dad” as though he was a separated parent.[85] Ms Ewans found the letters from the Applicant to X excessive and concerning and therefore put them in the shed.[86]
[83] Ibid at paragraph 160
[84] Ibid at paragraph 163
[85] Ibid at paragraph 162
[86] At paragraph 55 of Ms Ewans’ affidavit sworn on 17 May 2015
I am satisfied that problems were emerging from early in 2012, but nevertheless, until (omitted) 2013, the Mothers facilitated a warm relationship between X and the Applicant, and had a positive view about X knowing his “dad”. Then in mid-2013 I agree with Dr P that there was “quite a sudden and intense shift to a pushing out and almost spitting on a dangerous person.”[87] Since then, they have believed that he poses a serious risk to the stability of their family life, and therefore no longer support X having time with him. They do not want X to experience his childhood in a “broken family”.[88]
[87] At page 20 of 1 June 2015 transcript of proceedings
[88] Ibid at page 17
I accept Ms Ewans’ evidence that there was not one event that led to the cessation of time in (omitted) 2013. She and Ms Rose had flagged with the Applicant for some time their concerns about X not being happy when with the Applicant, not wanting to go and coming home upset.[89] They tried unsuccessfully to talk to the Applicant about these issues to work out ways to help X. They continued to facilitate time. By (omitted) 2013 they were concerned, and so told the Applicant that X was not comfortable with Mr M and wanted to keep the lines of communication with them firmly open. The weekend of the restricted telephone calls was the final straw, and when the Applicant said “I am equal, trust me” they felt their role as X’s parents under attack.[90]
[89] At page 123 of 2 June 2015 transcript of proceedings
[90] At paragraph 147 of Exhibit 1
In Dr P’s opinion, with which I agree, the Mothers’ intense rejection of the Applicant and their disruption to X’s relationship with him since (omitted) 2013, and in particular since the Applicant commenced proceedings in June 2014, “has occurred in response to the Applicant’s threat to their role as parents and needs to be seen in that context.”[91] In Dr P’s opinion, the Mothers have the capacity to change this over time. He also anticipates that over time, there will be a restoration of the positivity between X and the Applicant.[92]
[91] Ibid at paragraph 138
[92] At page 55 of 1 June 2015 transcript of proceedings
I agree with Dr P that the Mothers have a fundamental need for the Applicant to demonstrate a genuine appreciation of their role as X’s uncontested parents[93] before they can contemplate X spending time with him.
[93] At paragraph 128 of Exhibit 1
I give substantial weight to my findings here.
Impact of litigation on each Mother
When the Mothers stopped X spending time with the Applicant in (omitted) 2013, Ms Ewans made attempts to talk to the Applicant but says he was rude/dismissive and was only prepared to see them in mediation or in court. In the absence of any agreement being reached, the Applicant commenced proceedings, and by June 2014 was seeking orders, inter alia, for shared parental responsibility and for a declaration that he is a “parent”.
Ms Ewans says she never expected the Applicant to make a claim. His proposal to be known as a parent and to have parental responsibility has made her feel “very very threatened.”[94] Even though on 30 October 2014 the Applicant’s solicitor advised the Court (in the presence of the Mothers) that the Applicant would no longer be seeking a declaration that he was X’s parent, no order to that effect was made on that day. The Mothers were only made aware that the Applicant was not pressing his application for that order and the order for parental responsibility, 10 minutes before the hearing started on the first day.
[94] At page 129 of 2 June 2015 transcript of proceedings
I find that the timing of the Applicant’s consent to an order which was inevitable (given the terms of s.60H), had a profound impact on the Mothers’ states of mind and demonstrates the Applicant’s poor appreciation of the extent of the Mothers’ fear of him. I agree with Dr P that had the Applicant consented to an order for the Mothers to be declared X’s parents and to an order for the Mothers to have sole parental responsibility for X well before the commencement of this hearing, the Mothers’ genuine fear that the Applicant was attacking their nuclear family might have abated, at least to a degree. I agree with Dr P that the timing of the Applicant’s consent to these orders gave the Mothers no time to readjust their thinking about the Applicant’s intentions.
It was Dr P’s impression that Ms Rose was traumatised by reading the words “de facto” next to her name in the Applicant’s original Application.[95] She told Dr P that given she is not the biological parent, she feels “desperately threatened” by the Applicant.[96] Ms Rose says “my rights as a mother have been attacked, questioned and undermined. … my life feels in turmoil and I am not sleeping well. I am not a worrier by nature however I have found myself spending time consumed with worry and ‘what ifs’.[97] Ms Ewans describes the impact on her mental and physical health of the stress and uncertainty around these proceedings and the conflict with the Applicant. With no prior history of anxiety, she is presenting with symptoms of stress, her work has been negatively affected and she and Ms Rose are arguing more often, adversely impacting on “X’s usually harmonious home life”.[98] Since 2013 she has felt depressed and disorganised, is not sleeping well (for which she takes melatonin on and off) and does not smile or sing often, as she used to. She has lost her confidence, rarely socialises, fearing that someone else in X’s life might “make a legal claim of being ‘a significant other’ in my child’s life.”[99] As a single income family, Ms Ewans is worried about their livelihood if she is not performing well in her business. Dr P says her emotional reaction is proportionate to her circumstances.
[95] At paragraph 136 of Exhibit 1
[96] Ibid at paragraph 135
[97] At paragraph 15 of Ms Rose’s affidavit sworn on 17 May 2015
[98] At paragraph 19 of Ms Ewans’ affidavit sworn on 17 May 2015
[99] At paragraph 22 of affidavit of Ms Ewans sworn on 17 May 2015
I accept the Mothers’ solicitor’s submission that the manner in which the Applicant conducted his case did not alleviate the Mothers’ fear or enhance the prospects of the Mothers supporting X spending time with the Applicant, even limited time. Counsel for the Applicant referred to the Applicant as “the father” throughout the hearing, which the Mothers found affronting, distressing and insensitive, and I find served to exacerbate the Mothers’ fears and resistance to face to face time. The Mothers do not regard the Applicant as a father to their child, but rather as a “sometimes person” who donated the seed needed for X’s conception. Counsel said:[100]
[100] At pages 155 and 156 of 2 June 2015 transcript of proceedings
Counsel: “You don’t see him as any father, do you”
Ms Ewans: “He’s not a father to my child.”
….
Counsel: “I’m going to continue to call him “the father”..
Ms Ewans: I understand.
I also found counsel’s at times sarcastic style of cross examination unnecessary and unhelpful in the difficult circumstances of this case. For example, he asked Ms Ewans whether she would prefer Father’s Day to be re-named Donor’s Day.[101] I found his submission[102] that the Mothers are “insular”, “narrow-minded” “belligerent” and “appalling” role models particularly unhelpful in a case in which his client had consented to an order that the child live with them.
[101] At page 146 of 2 June 2015 transcript of proceedings
[102] At page 236 of 3 June 2015 transcript of proceedings
I accept that the Mothers believe they are more vulnerable as parents in a same sex relationship, “in circumstances where culturally and politically we do not experience the same level of support and acceptance for our position as parents as is accorded to heterosexual couples.”[103] Because the Applicant was seeking to be declared a “parent” and sought an order for shared parental responsibility, they feel “our longstanding and intact nuclear family is under attack by Mr Oxbourne in circumstances that are not faced by most parents in intact relationships.”[104]
[103] At paragraph 20 of Ms Ewans’ affidavit sworn on 17 May 2015
[104] Ibid
I agree with Dr P that this litigation has had a profound and disturbing impact on both Mothers, in particular because the Applicant was seeking a declaration that he was a “parent” and an order that he have equal shared parental responsibility with the Mothers. I accept that the Mothers feel that the Applicant does not respect Ms Rose as a parent, and has not accepted his position as a non-parent. I agree with Dr P that the Mothers therefore continue to feel intensely threatened by the Applicant, genuinely frightened that if orders are made for X to spend any time with the Applicant, he will destabilise theirs and X’s settled family life.
I give these findings substantial weight in reaching my decision.
Evidence relating to X
Dr P says that X is growing up well. He found X obedient, respectful and contained behaviourally, but also lively and able to express his own views. He spoke to him about engagement in learning, sport, friends and doing jobs around the farm such as feeding the chickens. He presented to Dr P as a sensitive thoughtful child, who was earnest, and wanted to do the right thing by the adult system, which he said comes in part from his sensitive thoughtful upbringing by the Mothers.
He appeared to be of sound and secure character and to be positively engaging with family and the world. His school reports show sound academic progress, consistently high effort marks, and consistently positive attitude/behaviour scores.[105]
[105] At paragraph 240 of Exhibit 1
X’s home is on acreage with lots of space to play. He has his own room and his own pets. He is happily playing his third season for the (omitted) Football Club.
As earlier noted, the Mothers brought to the attention of X’s school Principal, and then a psychologist at the school, behavioural changes in X in 2012. They, and others, had observed a nervous cough, a constant brushing of his face with his hand and the school had also noticed these and other behavioural changes. Ms Ewans denied the symptoms arose as a direct result of X being told the Applicant was a sperm donor because she says she had noticed the symptoms before reading him the book about how his family had been created. There was considerable cross examination of the Mothers about the precise symptoms they observed and when. Both Mothers said they noticed the symptoms would abate after X’s time with the Applicant and increase when X was due to see him. X could hardly utter a sentence after June/July 2013 which the Mothers described as “terrifying and disturbing.” While the evidence was not identical from each witness on what was observed, in my view it was substantially consistent. I am satisfied that X exhibited behaviours which included repetitive facial movements, twitches and stuttering. I find Dr P’s observations noteworthy when he said[106], “the child’s speech was becoming hesitant, and mumbling and stuttering.” He wondered whether this was a similar presentation to that which concerned the mothers in 2012 and 2013. He later noted[107] “he shifted to a disorganised stutter again”. I am satisfied the behaviours were at times very noticeable and at times would abate.
[106] At paragraph 277 of Exhibit 1
[107] Ibid at paragraph 280
Dr P says that it is likely that X’s anxiety observed by the Mothers from 2011/2012 arose out of X’s awareness of the tension in both the Mothers and the Applicant about the dissonance between their perspectives on the Applicant’s role. He may have been exposed to partisan comments from either the Mothers, or the Applicant, or both. It may also be that anxiety was ordinary separation anxiety in a child of X’s age, or about ordinary things like sleeping in a different home, or feeling uneasy about Mr M’s ironic and provocative style of humour. I agree with his assessment, and with Dr P’s view, that it is unlikely that X experienced anything abusive or inappropriate during his time with the Applicant.[108]
[108] Ibid at paragraph 335
I have regard to these findings.
PRIMARY CONSIDERATIONS
The benefit to the Child of having a meaningful relationship with both the Child’s parents
This factor has no application to the Applicant because he is not a “parent”[109] but does apply to the Mothers.
[109] Burton & Churchin & Anor [2013] FamCAFC 180 at paragraph 51
I accept Dr P’s evidence that X is securely attached to both his parents with whom he has always lived. At interview, Dr P observed a warmth and reciprocity between them. X was positive about the wide range of activities he enjoys with each Mother: cooking, gardening, artwork, board games, tennis. He understands that Ms Ewans is his birth Mother and Ms Rose my “mum” who “takes care of me” and “named me” after one of her carers as a child. X’s close and loving relationship with each parent is acknowledged by the Applicant. X will continue to live with his Mothers and will continue to benefit from a meaningful relationship with them both.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Mr Lloyd for the Applicant submits that the Mothers have ‘neglected’ X in refusing to support X spending time with the Applicant. The Applicant’s counsel did not provide the Court with any authorities to support his submission. However, the Full Court in Slater & Light [2011] FamCAFC 1 said:
The term “neglect” ought be given its ordinary meaning, which is akin to failing to afford proper care or attention. The meaning is not wide enough to encompass conduct described as alignment or influence of a child by one parent against another. His Honour fell into error concluding otherwise.
I do not agree with counsel that the Mothers’ conduct constitutes a form of ‘neglect’ in the ordinary meaning of that word. I find no evidence of abuse, neglect or family violence in this case.
RELEVANT ADDITIONAL CONSIDERATIONS
Any views expressed by the Child and any factors (such as the child’s maturity or level of understanding) the Court thinks are relevant to the weight it should give to the child’s views
X reported the Applicant to Dr P to be “disturbing my family…we want to get him out of our lives.”[110] He said, “I don’t want to see him. I didn’t like seeing him. He was mean.” He used the example of the Applicant promising to take him to the dinosaur exhibit at the zoo and instead taking him to the Opera House to see (omitted) which he had already seen. Even after the Applicant reassured X at interview that he has no intention of taking him away from his Mothers, X was adamant he did not want to spend time with him. He said, “On the outside he’s nice and sugary, but on the inside he’s dark”…he sends cards and letters.”[111] X told Dr P why he did not include the Applicant in his family picture and did not expect to ever do so “I used to call him dad, because I didn’t know that he was actually a donor.”…”when I was 6 or 7, my mum made this little book…it said that he’s actually a donor…he donates the sperm, or the seed, so they can have a child, then the donor goes away forever”[112]…“or you can see them now and again… as a friend maybe, a family friend..” When observed with the Applicant, X said “you’re not dad, you’re a donor.” [113]
[110] At paragraph 272 of Exhibit 1
[111] At paragraph 281 of Exhibit 1
[112] Ibid at paragraph 287
[113] Ibid at paragraph 297
Dr P does not find X’s direct comments useful because of his “global negative stance” against the Applicant.[114] X’s narrative about their past interactions is negative as is his narrative about the Applicant’s regular attempts to communicate with him by letter. Dr P believes that X picked up on the difference between how the Applicant was constructing “dad” and him, and how the Mothers were constructing “dad” and him, and the lack of effective communication between the parties. This dissonance contributed to X’s stress. He then chose sides with the Mothers.
[114] At page 23 of 1 June 2015 transcript of proceedings
After X spent brief time with the Applicant during the assessment, he expressed surprise that the Applicant had said he did not want to take him away every weekend and was “not sure” whether to be afraid. He was now unsure as to whether he missed the Applicant.[115] However, if he could choose, X told Dr P he would “stay at the donor thing” rather than Mr Oxbourne being “dad”. He would not see the Applicant. If he had to see him, he might do so on 2 occasions a year. He said it would be best if the Applicant came to his place because “then I would have my Mothers there. I don’t know him… I know them.”[116]
[115] A paragraph 190 of Exhibit 1
[116] Ibid at paragraph 368
While the Mothers’ attitude changed dramatically from mid-2013, as already noted, I agree with Dr P’s assessment that “their primitive and aggressive response” from mid-2013 onwards was[148]:
[148] At page 45 of 1 June 2015 transcript of proceedings
…linked to their defending something quite fundamental within themselves about who they perceived themselves to be and there was a sudden shift from seeing Mr Oxbourne as a sort of a keen and sometimes a bit sort of needy and demanding bloke to a – to an immediate threat to their – their fundamental selves …
… a very fundamental attack on – on their family.
I accept that the Mothers are not satisfied that the Applicant’s attitude to their respective roles has changed, and therefore they remain opposed to X having any face to face time with him.
I give substantial weight to these findings.
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.
Dr P believes the parties will comply with whatever orders the Court makes, as long as the orders are clear and their meaning not open to doubt. He does not support the Court making interim orders to trial a regime of contact, because in his view this would put too much pressure on X. In Dr P’s opinion, it is in X’s best interests for him to get on with whatever is ordered.[149] I agree with Dr P that the Court should not invite further litigation which the making of interim orders would do.
[149] Ibid at page 51
Until the parties are able to re-establish their once cooperative relationship with each other, I find there is a risk of future litigation whatever orders the Court makes. However, I find the likelihood of future litigation less likely if the Mothers are given time to recover from this litigation, and rebuild their trust in the Applicant from a different standpoint, as recommended by Dr P.
I take these findings into account.
Any other matters the Court considers relevant
A number of the above factors apply only to parents. I therefore include here additional matters concerning the Applicant I consider relevant to my determination.
The Applicant has had almost no involvement in X’s pre-school or school life or in his soccer, swimming or other extracurricular activities. The Applicant is not included on X’s school records. The Applicant has not contributed financially to X’s needs in the care of his Mothers, as agreed with them. He knew the Mothers wanted independence.
The parties live a long way from each other. The Applicant does not have a car, nor a driver’s licence. Neither Mr M nor his friend Ms M, who do drive, have (except rarely) assisted the Applicant to transport X during all the years X was spending time with the Applicant. The Applicant would use public transport and the Mothers would do all the car travel involved. The Applicant’s family and friends have not visited X at his home (except on one or two occasions) nor otherwise contacted the Mothers or X at his home.
When the Mothers stopped time between X and the Applicant, the Applicant sent 106 letters addressed to X, 77 of which arrived after the proceedings started. As noted, X read these letters to the Mothers and was aware they were put aside to give to their solicitor. I accept that these letters continued to arrive during the parties’ mediation which the Mothers found intimidating, aggressive and harassing.
PARENTAL RESPONSIBILITY
No issue arises in relation to parental responsibility. While the Applicant sought equal shared parental responsibility with the Mothers in his Amended Application, he withdrew his application for that order at hearing. As already noted, with the consent of the parties and the Independent Children’s Lawyer, an order was made on the first day of hearing for the Mothers to have equal shared parental responsibility for X. The Mothers have always made the major decisions and the day to day decisions concerning X’s welfare and will continue to do so.
Although the Mothers reported arguments between them since these proceedings started, Dr P did not gain the impression from either Mother that they feared the loss of each other or their common bond. Their concern was the possible shift from an “intact family process” to a “broken family process”[150] if the Applicant was successful and they were forced to consult with someone outside their family about important decisions concerning X, and/or X was ordered to spend alternate weekends (or something) with another person (the Applicant). I agree with Dr P. I also agree that when X was spending time with the Applicant in the past, the Mothers had had complete authority and were making good decisions for X in a flexible and collaborative way which I am satisfied they will continue to do.
[150] Ibid at page 29
In circumstances in which X is living with his Mothers who are not separated, it is not relevant to consider the provisions of s.65DAA.
DISCUSSION AND DETERMINATION
This case is challenging in respect of its emotional complexities and sensitivities. However, it is encouraging in respect of the love for X manifestly exhibited by the Mothers and the love and affection for X shown by the Applicant since X was born.
X has intelligent and capable parents. He is progressing well at school, has the support of close friends and extended family, is engaged in sport and extracurricular activities and presents to the Court expert as an intelligent, articulate and delightful child. If the Court leaves things as they are at present, there is no reason to think that X will not continue to do well. However, the Applicant, as sperm donor, while not a parent, is X’s biological father and the narrative of X’s time with him over 7 years illuminates a connection between X and the Applicant to act as a platform for future arrangements. I agree with Dr P that there has been positive value in X’s relationship with the Applicant and that his intentions are positive. I find that there remains a viable relationship between them that is likely to be of present and future value to X if the right conditions prevail.
The Applicant, substantially supported by the Independent Children’s Lawyer, seeks orders for X to spend regular monthly time with him, time on special days and block time during school holidays. In my view, the Applicant’s proposal and the Independent Children’s Lawyer’s proposal both fail to address the significant concerns raised by the Court expert.
The stumbling block to simply reinstating regular time is the Mothers’ profound loss of trust in the Applicant, borne of the attitude the Applicant displayed when X was struggling emotionally over time spent overnight with him, and borne of this litigation, particularly because of the nature of the orders the Applicant was seeking until hearing. The Mothers genuinely believe and fear that the Applicant does not respect them as X’s parents and that any arrangement providing for X to spend time with him will be destructive of their settled life as a family of three. Neither of the Mothers can contemplate having to comply with orders for a regime of any time between X and the Applicant. They will agree to X receiving letters two or three times a year, but want it left to their discretion as to whether face to face time should occur.
Dr P recommends that time occur and believes the Mothers are capable of managing a time regime, and will change their attitude over time. In his view, if left to their discretion, the Mothers would not facilitate any time as a response to their maternal fear. If there is no time, the Mothers’ anxiety about time occurring is likely to increase and Dr P anticipates increased tension and stress for X as time goes on. However, he says the time should be ordered in a way that is not beyond the Mothers, and with some structure and support for them. He recommends “pushing the Mothers to adapt to something and giving them security.”[151] He does not support the regime proposed by the Applicant or the Independent Children’s Lawyer. Dr P said[152]:
… leaping into once a month is going to be a flooding exposure which is potentially disorganising for them [the Mothers] which flows onto the child, finds us back in court with the child refusing… I suppose one is after a dose that is challenging but doable and the reason I recommend quite a low dose was I formed a view that these mothers have really felt challenged in quite a fundamental and disorganising way… part of that was shown in their shift from being quite accommodating during ’11, ’12, ’13, when even then they were worried about Mr Oxbourne, to suddenly being quite aggressive and - and absolute in their rejection of him.
[151] At page 53 of 1 June 2015 transcript of proceedings
[152] Ibid at page 44
I agree with Dr P that the answer to what is in X’s best interests is to preserve the safety and nurturing environment of his parents’ home, and to give them security and reassurance so that they can devote their energies to their family life with X and move on from these proceedings which has been so disturbing and distressing for them and for X. At the same time, it is necessary to provide X with sufficient connection to the Applicant to gain the benefit of any contribution he might make to X’s life. This new arrangement will require both the Mothers and the Applicant to adjust their positions, which will mean pulling back from the positions they have taken at this hearing. The Mothers must allow X to experience some contact with the Applicant, the manner calibrated to X’s capacity and wish to receive it. The Applicant must adjust his proposals to act as a parent to X. He is not a parent, but his role over time could be very valuable to X.
Dr P says[153]:
In my view, the main risk to the child is one of secondary emotional and developmental harm, if the primary issues of the security in role of his parent figures and the establishment of a workable and acceptable model of connection (or lack of connection) with Mr Oxbourne are not resolved. If these issues are resolved within the adult system, the child will be protected from harm, and will adapt with adult assistance to whatever has been agreed or ordered.
[153] At paragraph 106 of Exhibit 1
Dr P says that if orders are made for X to spend time with the Applicant, X will be anxious, but will adapt to it. In his view, X’s exposure to the Applicant is one element of appropriate intervention for his anxiety about the Applicant.[154] He says the time ordered should be baseline only and limited,[155] with the option for greater time at the discretion of the Mothers, with any progression being in accordance with X’s wishes as expressed to the Mothers, and progression not to go beyond the past pattern of contact between X and the Applicant. He recommends the Court make clear and simple orders so there can be no misconstruing of their terms. He recommends that for at least a period of time, someone attends with X. He says X would be assisted if time occurred close to his home initially, either on the Mothers’ property or nearby at the house of someone he knew. He says it would help X to know that the Judge decided what was best for him, so loyalty conflict is not an issue for him.[156]
[154] At page 61 of 1 June 2015 transcript of proceedings
[155] At paragraph 380 of Exhibit 1
[156] At page 55 of 1 June 2015 transcript of proceedings
Dr P talked about a baseline contact arrangement of a half day every 3 months. In cross examination, Dr P suggested there is a range of possible contact outcomes from, at the lowest end, cards twice a year (if the Court found the risk to the Mothers of any requirement for contact was too great) to, at the highest, what was in place before time stopped and no more[157]. Dr P said that the question of where on this continuum contact should occur, will depend on the court’s determination of the Mothers’ state of mind over time about the Applicant’s role. In his view, the Mothers may be able to reorganise around how they once thought, but not around a whole new way of thinking they have never held. He said that a whole day or a whole overnight once a month is asking the Mothers to organise around a way of thinking they have never had.[158] Dr P was clear that it is not in X’s best interests for him to “carry into the rest of his growing up this sort of rather polarised and almost sinister view of Mr Oxbourne”[159] so a small amount of contact is better than none, and thereafter graded exposure. Dr P believes that X will have an experience of the Applicant in the way that he remembered him, as quite a fun, interesting person who is quite sensitive, who asks about his day to day life, who does not overtly undermine his Mothers, which he thinks “will be reassuring for him.”[160] Dr P said “I would be leaning more towards the much lower amount of contact, like what I’ve put in my report.”[161] In his view, if time was ordered such that the Mothers were unable to manage, and they continued to feel under threat, the Mothers are more likely to remain openly partisan which puts pressure on X (though he would have more time with the Applicant). In Dr P’s view, such an outcome would increase the risk that at some stage, X would either refuse all contact or move to the Applicant, both potentially disrupting. He said that this could also have adverse consequences for X’s emotional health and character development, by suppressing his own emotions resulting in “dutiful emotionless connection”.[162]
[157] At page 38 of 1 June 2015 transcript of proceedings
[158] At page 40 of 1 June 2015 transcript of proceedings
[159] Ibid
[160] Ibid
[161] Ibid
[162] Ibid at pages 62 to 63
The orders I have made reflect the expert advice of Dr P with which I agree.
X will spend time with the Applicant for short periods of a few hours every couple of months, starting on Father’s Day 2015, because Dr P supports a form of contact between X and the Applicant on Father’s Day, either face to face time or telephone time, because it is “symbolically and foundationally important”.[163] X will have someone with him for support. The Applicant proposed his friend Ms G, who is well known to the Mothers and to X. I find Ms G would be suitable but only if supported by the Mothers. The Mothers proposed (if time was ordered) Ms L. Given the Mothers’ strong resistance to any time occurring at all, I have decided Ms L will attend, or someone else nominated by the Mothers. The first three occasions will occur at X’s home for periods of two hours in the presence of Ms L or a person nominated by the Mothers. This is to assist X to manage any anxiety he may feel on being separated from his Mothers. After 3 occasions at X’s home, time will occur on 3 occasions in the (omitted) area at two monthly intervals, for periods of 4 hours, with Ms L or the Mothers’ nominee present on one further occasion. After 12 months, time will be extended to a whole day every two months, alternating between the (omitted) area and the Applicant’s home in Sydney. As recommended by Dr P, time will increase only with the support of the Respondents in consultation with X, who by then, is likely to have re-established his relationship with the Applicant.
[163] Ibid at page 59
Changeover. The Applicant proposes collecting X from (omitted) at the commencement of his time with him, (when he would travel to and from (omitted) by train) and the Mothers collecting X from the Applicant’s home in (omitted) at the end of the time. (omitted) is approximately 20 minutes’ drive from X’s home or approximately $70 to $80 by taxi each way. The Applicant does not wish to drive or to own a car. He says his partner has a car, and would help when available. The Applicant says he would contribute to the costs of petrol for the Mothers. The Independent Children’s Lawyer proposes that changeover occur at (omitted) Railway station if not otherwise agreed, and that the Applicant contribute $50 to the Mothers at the first changeover on each contact occasion. I have decided that once time starts away from X’s home, changeover will occur at the (omitted) Station, but once time starts in Sydney, because the time is limited to one day, the Mothers will take X to (omitted) station one way, and collect him from (omitted) Station in Sydney the other way. Once 12 months has elapsed, this order will require the Mothers to most of the transport on one day every 4 months, or 3 times a year, which will clearly demonstrate to X that his Mothers support the arrangement. The Applicant will contribute $50 towards the Mothers’ petrol at the commencement of time, an arrangement supported by the Applicant and by the Independent Children’s Lawyer.
Telephone time: I am not persuaded it is in X’s best interests for the Applicant to telephone X. I find such calls likely to unsettle X and the Mothers and to have a negative rather than a positive effect on the reestablishment of X’s relationship with the Applicant. The Mothers will, however, be required to facilitate telephone time on specified occasions each year. As I have not made orders for overnight time without the agreement of the Mothers, I find any order for X to call his Mothers when in the care of the Applicant unnecessary. If X is spending time with the Applicant overnight in the future, I am satisfied the Applicant will permit X to speak to his Mothers at X’s or the Mothers’ request. I urge the Mothers to facilitate X calling the Applicant if he would like to, beyond the terms of the orders I have made.
I have decided to limit cards, letters and gifts from the Applicant to X, except on his birthday, Easter and at Christmas. As with telephone calls, I find such communication likely to unsettle X and to have a negative rather than a positive effect on the re-establishment of X’s relationship with the Applicant, as occurred when the Applicant was sending weekly letters.
I have made orders for the Mothers to keep the Applicant informed of any significant medical issues affecting X, and for the Applicant to receive information from X’s school.
Name. The Applicant is aware that the Mothers have opposed the Applicant being referred to as ‘dad’ for the past two years. The Applicant accepts that it may be easier if he was referred to as something else, such as ‘Mr Oxbourne’. However, the Applicant seeks an order that the Mothers be restrained from referring to the Applicant in X’s presence as anything other than ‘dad’. Dr P does not support such an order or a restraining order on any of the parties on this issue. In his view, which I share, X should be free to call the Applicant ‘Mr Oxbourne’ or ‘dad’ and the Applicant should respect whatever X chooses, when with the Mothers, and when with the Applicant. Dr P says it could be useful for the Applicant to say to X, “you’re welcome to call me dad and I still in many ways think of myself as dad, but I'm Mr Oxbourne. You know, I’m not one of your two parents. That’s your mothers. And there has been this dreadful period…let’s move forward and I will be Mr Oxbourne.”[164] The Court invited the Applicant to consider this evidence of Dr P overnight during the hearing, which the Applicant agreed to do. After consideration, the Applicant did not consent to being referred to as ‘Mr Oxbourne’ instead of ‘dad’, because he believes that it is important for X to know him as his dad and for him to know X as his son. The Applicant said he would be happy to talk to X with the help of a therapist about why X has a wish to call him “Mr Oxbourne”. The Applicant believes X has been “very heavily influenced” by the Mothers on this issue and X has not been free to decide the issue for himself. The Independent Children’s Lawyer submits that in X’s household, the Applicant should be referred to as ‘Mr Oxbourne’ or ‘Mr Oxbourne’. Mr McDiarmid for the Mothers also says, as proposed by the Independent Children’s Lawyer, that it might be helpful for the Court to require the Mothers to refer to the Applicant as “Mr Oxbourne”, as opposed (for example) to ‘donor’.
[164] Ibid at page 51
I agree with Dr P that X should be able to freely choose whether he calls the Applicant ‘Mr Oxbourne’ or ‘dad’ and the parties should give him that freedom and relieve any pressure on him to use any particular term. I agree with Dr P’s recommendation that X’s desire to protect his family (consisting of himself and the Mothers) from stress or danger should be respected by the restoration of maternal security in role. I agree with his recommendation that X’s preference to shift ‘dad’ to another label, perhaps ‘Mr Oxbourne’ who is ‘my donor’ should be respected. I agree the Mothers should call him ‘Mr Oxbourne’ or ‘Mr Oxbourne’. However, I am not persuaded it is in X’s interests for the Court to make any order on this issue, and have therefore not made an order.
Therapy. Dr P recommends counselling for X in the context of his family. He says that “otherwise any benefit for the child is outweighed by the consternation that it creates in the child’s system. And in my experience that leads to the child rejecting the therapy.”[165] Dr P says that the therapist would meet with both Mothers and the Applicant to get some context. The therapist would assist X to have a more integrated view of where the Mothers and the Applicant fit into his life.[166] The therapy would involve parenting work to assist the Mothers with how they think about X’s needs.[167] Dr P says that if the Court determines that there is some advantage to X reconnecting in some way with the Applicant … “then the treatment for the [both] mothers’ anxiety is a graded process of having to be part of that reconnection but with support.”[168] In cross examination, he says “I’m recommending a therapist who helps each side to get their head around how best to help the child with orders…”[169] and not open-ended therapy.
[165] Ibid at page 36
[166] Ibid at page 43
[167] Ibid at page 37
[168] Ibid
[169] Ibid at page 60
I agree with Dr P that therapy for X in the context of his family, involving the Applicant and the Mothers, would be very helpful for X, if supported by all parties. Notwithstanding, I also agree with Dr P that in the absence of the parties’ agreement, such an order would be counter-productive. Unfortunately, while the Applicant supported Dr P’s recommendation, neither Mother would consent. I have therefore not made an order for therapy.
I agree with Dr P that Ms Rose would benefit from counselling in relation to her cannabis use which I am satisfied is poor modelling for X and potentially dangerous if there was an emergency and Ms Rose was required to act quickly while under its influence. However, I am not satisfied therapy would be successful unless Ms Rose is committed to addressing the issue for her own and her family’s benefit. I have therefore not made an order for Ms Rose to seek therapy.
Declaration. The Mothers seek a declaration in accordance with section 60H(1)(d) of the Family Law Act 1975 that X is not a child of the Applicant. The Mothers’ solicitor acknowledges that the declaration sought is not a parenting order. Mr McDiarmid submits that it would be reassuring to the Mothers, and perhaps assist in the repair of the relationship between the Mothers and the Applicant, if the Court made clear findings that the Applicant is not one of X’s parents. Both the Applicant and the Independent Children’s Lawyer oppose the making of the declaration sought. The solicitor-advocate for the Independent Children’s Lawyer submits that it is not in X’s best interests for the orders to include such a declaration, given that the orders “will follow young X around for the next 9 or 10 years…and such a provision has the potential to cause him some embarrassment, maybe at school or in other places where formal documents are required.”[170] Given I have made findings which clarify the Applicant’s legal status in relation to X, and I accept the submission of the Independent Children’s Lawyer on this issue, I have decided not to make the declaration sought.
[170] At page 227 of 3 June 2015 transcript of proceedings
I am guided by the objects and principles already referred to. Having regard to these matters and all my findings, I am satisfied the orders set out at the beginning of these Reasons are in the best interests of X.
Costs of the Independent Children’s Lawyer and Dr P
The Independent Children’s Lawyer seeks her costs in the sum of $3,138 from the Applicant (he has already paid $1,650 to the Legal Aid Commission as an initial contribution) and $4,788.50 from the Respondents. The Respondents did not receive the request for the initial contribution (their solicitor acknowledged the relevant documents had not been forwarded to the Respondents in error), and have made no contribution to date.
In addition, the Applicant is seeking from the Respondents half the fees and disbursements of Dr P, as invoiced. The Federal Circuit Court Rules provide that[171]:
Unless the Court otherwise directs, the parties are jointly liable to pay the reasonable remuneration and expenses of the court expert for preparing a report.
[171] Rule 15.11
In relation to the Independent Children’s Lawyer’s costs, while the usual rule in family law proceedings is for each party to pay their own costs[172], the Court has a discretion to order costs if it considers that there are circumstances to justify it in doing so. The Independent Children’s Lawyer, funded by the tax payer, invariably seeks his/her costs to reimburse the public purse. Section 117(3) provides that the Court may order costs in favour of the Independent Children’s Lawyer “in such proportion as the court considers just”. If the Court determines to order costs, it must have regard to the relevant factors in s.117(2A) of the Act which include “such other matters as the court considers relevant”. The Court must also consider these factors when determining the question of whether the parties should be directed to meet half the costs of the court expert.
[172] Section 117(1) of the Family Law Act 1975
The factors I have considered include the financial circumstances of each party, the conduct of the parties to the proceedings, including the conduct of the parties in relation to admissions of fact, and that the Applicant has, to date, paid 100% of Dr P’s fees and expenses.
According to Ms Ewans' Financial Statement sworn in May 2015, she is self-employed as a (occupation omitted) with a gross weekly salary of $890 a week, net $738 a week. In addition she earns $1 a week from her (omitted) shares, and $325 a week in rent, net $234 from an investment property, a net total of $973 a week. She deposes to modest expenses. She and Ms Rose own their property in (omitted) valued at $450,000 and have two investment properties in (omitted) with a combined total value of $650,000, subject to mortgage loans with a total balance of approximately $217,000. She owns $4,000 in shares, funds in bank accounts with a value of $52,362, (the majority of which is held in a mortgage offset account) two jointly owned cars with Ms Rose both with values under $6,000. She has $27,000 in superannuation funds.
Ms Rose is not in paid employment, but receives gross rent from the investment properties of $325 a week, and $3 a week in share dividends. She receives no Government benefits. She has weekly expenses on the properties. She jointly owns the properties with Ms Ewans as already noted. Ms Rose deposes to owning bank funds of $39,490 (the majority of which is held in a mortgage offset account) and $4,718 in shares. Ms Rose has $17,482 in superannuation benefits.
The Applicant’s financial position is set out in his Financial Statement sworn in May 2015. He deposes to a gross annual salary of $62,920 (or $1210 a week) from the Human Rights Commission, and to gross annual income from two investment properties of $35,100. He deposes to his expenditure exceeding his income but to Mr M earning a higher income and meeting some of his living expenses including entertainment and holidays. The Applicant deposes to superannuation interests of $225,000 and deposes to substantial net non-superannuation assets. I find the Applicant’s Financial Statement unclear as to whether the figures included are 50% of the total value, or the total value. I also question the figure of $700,000 he has included as the value of his life insurance.
While I accept, as acknowledged by their solicitor, that the Respondents have assets sufficient to meet a costs order, this in no way precludes the Court from taking their financial circumstances into account, and I do so. I am satisfied the Applicant has a higher income and greater assets including superannuation funds, has a partner with a significant income, and is therefore in a financially superior position to the Mothers.
Ms Ewans says she has not paid half the fees for Dr P because she and Ms Rose did not ask for an expert report or for the report to be expedited, and the report was only prepared because of the Applicant’s wish for an earlier report. She says she cannot afford to meet half Dr P’s fees as invoiced. While they have funds in their accounts, they are a one income family and need those funds to meet family expenses. Mr McDiarmid submits that had the Applicant acknowledged early in the proceedings that, as provided in S.60H(1)(d) that the Applicant was not a parent, an expert report may not have been necessary and an Independent Children’s Lawyer may not need to have been appointed. While I have been critical of the Applicant for leaving this issue open until the hearing began, I do not accept the Mothers’ solicitor’s submission.
This matter is complex and needed an expert report. Although I accept the Mothers were content to wait for a family report, I am not satisfied the Applicant should be prejudiced because an expert report was ordered. Notwithstanding, I have regard to the Applicant’s stronger financial position, that both he and his partner are employed, and to the fact that he does not have any financial obligation for X. I have decided the Applicant will meet the whole of the costs of Dr P.
In relation to the costs of the Independent Children’s Lawyer, I have decided the Applicant and the Mothers will each pay the $1650 initially requested by the Legal Aid Commission. As the Applicant has already paid this sum, he has no further obligation. While the Applicant agreed to pay the Independent Children’s Lawyer further costs in the sum of $3,138, he is of relatively modest financial means and at the time of that agreement was not aware he would be required to meet the whole of the costs of Dr P. The Respondents will make a contribution towards the costs of the Independent Children’s Lawyer in the sum of $1,650 within 28 days.
I certify that the preceding one hundred and sixty-three (163) paragraphs are a true copy of the reasons for judgment of Judge Sexton
Associate:
Date: 7 August 2015
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