White and Gibson

FEDERAL CIRCUIT COURT OF AUSTRALIA

WHITE & GIBSON

[2014] FCCA 1276

Catchwords:
FAMILY LAW – Parenting – parties have been in continuous litigation in respect to the living arrangements for their three sons since separation seven years ago. Matter returning on issues of children’s schooling, parental responsibility, name change and time with the father – father’s relationship with two of his sons aged 15 and 11 has broken down because of communication difficulties and the father’s physical display of affection with his partner before the children – parties unable to communicate or make joint decisions – orders made for the mother as primary carer to have sole parental responsibility, for the 15 year old to change school immediately, for all the boys to have the surname of Gibson-White and for the 15 year old to spend two evenings a month with the father and the 11 year old to spend time with the father monthly increasing to alternate weekends and half school holidays – both parties strongly recommended to undergo personal counselling to address their parenting – orders for the family report writer to explain the decision and orders made this day.

Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA

Cases cited:
Goode & Goode (2006) 206 FLR 212; (2006) 36 Fam LR 422; (2006) FLC 93-286;[2006] FamCA 1346

Applicant:

MR WHITE

Respondent:

MS GIBSON

File Number:

SYC 5196 of 2008

Judgment of:

Judge Bender

Hearing date:

21 May 2014

Date of last submission:

21 May 2014

Delivered at:

Melbourne

Delivered on:

19 June 2014

REPRESENTATION

Counsel for the applicant:

Mr Hall

Solicitors for the applicant:

Pearsons Lawyers Pty Ltd

Counsel for the respondent:

In person

Solicitors for the respondent:

The respondent is unrepresented

ORDERS

All previous parenting orders be discharged.
The mother have sole parental responsibility for X born (omitted) 1999 (“X”), Y born (omitted) 2011 (“Y”) and Z born (omitted) 2003 (“Z”).
X, Y and Z live with the mother.
X spend time and communicate with the father as follows:
(a)for one-on-one time no less than two occasions each month as agreed between the father and X and if not agreed on the second and fourth Wednesday of each month from after school to 9.00pm; and
(b)as otherwise agreed between the father and X.
Y spend time and communicate with the father as follows:
(a)each alternate weekend from after school Friday to 5.00pm Sunday with such time to commence on the first weekend of the third school term in 2014;
(b)for half of all school holidays as follows:
(i)The first half in odd number years; and
(ii)The second half in even numbered years.
(c)for one-on-one time on the second Thursday of each month from after school Thursday to before school Friday; and
(d)as otherwise agreed between the parties.
Z shall spend time and communicate with the father as follows:
(a)for one-on-one time from 3.30pm Wednesday 25 June 2014 to 9.00am Thursday 26 June 2014;
(b)from after school Friday to 5.00pm Sunday on the first weekend in July, August and September 2014 with such weekend to coincide with the first weekend each month Y is spending with the father pursuant to Order 5(a) herein;
(c)commencing from the first weekend that Y is spending time with the father in October 2014 pursuant to Order 5(a) herein, each alternate weekend from after school Friday to 5.00pm Sunday;
(d)in the school holidays as follows:
(i)For one week in the 2014/2015 long summer vacation to coincide with the first week Y spends with the father pursuant to Order 5(b) herein; and
(ii)Commencing in the first term school holidays 2015 in accordance with the times set in order 5(b) herein.
(e)for one-on-one overnight time on a night agreed between the parties and failing agreement the first Wednesday of each month from after school or 3.30pm to before school or 9.00am commencing in July 2014; and
(f)as otherwise agreed between the parties.
When Z is spending time with the father pursuant to Order 6 herein the father is restrained from engaging in displays of physical affection with his partner in the presence or hearing of Z or having his partner stay at his residence overnight when Z is with him overnight and in the event the father fails to comply with this order Z shall be permitted to return to the mother’s residence.
When Z and Y are spending holiday time with the father and they are not staying at the father’s residence, the father is restrained from sleeping in the same bed as his partner.
The father’s time with Y and Z pursuant to Orders 5(a) and 6(c) herein shall be suspended during school holidays and recommence on the first weekend of each school term.
The mother is authorised to enrol X at (omitted) Secondary College commencing third term 2014 and to enrol Z at (omitted) Secondary College for his secondary education commencing in 2015.
The mother shall do all acts and things necessary to authorise:
(a)any schools that X, Y and Z attend to communicate with the father and to provide to the father at his expense copies of all reports, school photograph order forms, newsletters, flyers, schedules, written communications and notices including but not limited to parent/teacher interviews, school concerts, speech nights and sporting activities simultaneously with same being issued to the mother;
(b)X, Y and Z’s treating specialists and health professionals to communicate with the father in relation to X, Y and Z’s health and the father shall be able to attend upon these health professionals; and
(c)Y’s case manager at the Department of Human Services to communicate with the father in relation to Y’s care plans.
The parties be permitted to attend all school events and extracurricular activities relating to X, Y and Z normally attended by parents including but not limited to parent/teacher interviews, school concerts, speech nights and sporting activities.
Each party ensure that X, Y and Z attend any scheduled school, extracurricular and sporting event whilst in their care.
Each party keep the other informed at all times of their current residential address and contact telephone number.
Each party shall advise the other of any serious illness or injury suffered by any of X, Y and Z as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
The parties do all things necessary to complete and register the necessary documentation to enable X, Y and Z’s names to be changed to X, Y and Z.
The mother must at all times ensure that X, Y and Z are referred to both in official documents and otherwise by no other surname than “Gibson-White”.

AND THE COURT NOTES THAT:

A.In the event either party attends personal counselling as recommended in the reasons for judgment delivered this day they are authorised to provide their counsellor with a copy of the Family Report of Ms E dated 6 May 2014 and a copy of the reasons for judgment.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

SYC 5196 of 2008

MR WHITE

Applicant

And

MS GIBSON

Respondent

REASONS FOR JUDGMENT

Introduction

On 27 June 2013 after a defended three day hearing I made final parenting orders in relation to the parties’ three sons X born (omitted) 1999 (“X”), Y born (omitted) 2001 (“Y”) and Z born (omitted) 2003 (“Z”).
In paragraph 9 of the judgment delivered by me on 27 June 2013,

I wrote:
There has been almost continuous litigation between the parties in relation to X, Y and Z’s living arrangements since separation.
In paragraph 197 of the judgment delivered 27 June 2013, when contemplating section 60CC(l) of the Family Law Act 1975 (“the Act”), which requires the Court to consider the orders least likely to lead to further litigation, I observed:
… any optimism that these orders will see the end of litigation between the parties has to be somewhat limited.
Sadly, that lack of optimism has proved to be well founded with this matter returning to Court as the parties are yet again unable to agree to the parenting of their sons X and Z.
On 11 October 2013 the father filed a Contravention Application as X and Z did not spend a week with the father in the September 2013 school holidays.
The father’s Contravention Application came before the Court on
13 November 2013. Orders were made adjourning the matter to
26 February 2014 with the following notations:
A.The father has agreed that until the adjourned date, when the children X born (omitted) 1999 (“X”), Y born (omitted) 2001 (“Y”), and Z born (omitted) 2003 (“Z”) are spending time with him in Melbourne, his partner will not stay overnight and when he and the children are on holidays away from his residence, he and his partner will not sleep in the same bed.
B.X and the father have an appointment with Ms L on 25 November 2013 and both parents will speak to Ms L prior to that date to explain the recent difficulties that have arisen in relation to the time between the father and X and Z.
On 29 November 2013 the father filed a further Contravention Application as X had not spent time with the father since the matter came before the Court on 13 November 2013.
When the father’s second Contravention Application came before the Court on 17 December 2013 the matter was adjourned to 22 April 2014 and the orders made 27 June 2013 in relation to X’s time with the father were suspended. The following notations were made to those orders:
A.It is the Courts expectation that Y born (omitted) 2001 (“Y”) and Z born (omitted) 2003 (“Z”) will continue to spend time with the father in accordance with the orders made 27 June 2013.
B.The suspension of X’s time is not a reflection of the father’s parenting capacity but to enable X and the father to work together outside a Court environment with a view to finding their agreed way forward with their relationship.
On 14 April 2014 the mother filed an Application in a Case in which she sought orders that she have sole parental responsibility for X and Z, that she be permitted to enrol X and Z at (omitted) Secondary College and that she be permitted to change X, Y and Z’s surname from White to Gibson.
It became apparent from the affidavit filed by the mother in support of her Application in a Case that Z had not been spending time with the father since March 2014.
When the matter came before the Court on 22 April 2014 orders were made listing the matter for an urgent hearing on 21 May 2014 and for the preparation of a family report to specifically address the following:
(a)any views expressed by the X and Z and any matters (such as the X and Z’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)should the parties have joint shared parental responsibility for X and Z or should the mother have sole parental responsibility;
(d)should X be permitted to change school and which school should Z attend for his secondary schooling;
(e)the relationship difficulties between the father and X and Z;
(f)the extent the mother is influencing the relationship between the father and X and Z;
(g)X’s continued insistence that he be permitted to change his name from “White” to “Gibson”;
(h)any other matters that the Family Consultant considers important to the welfare or best interests of the X and Z.
That report was released to the parties on 6 May 2014.
On the 21 May 2014 the father’s Counsel advised the Court that the father was not seeking to pursue his Contravention Applications. The father sought the leave of the Court, which was granted, to file an Application in a Case and supporting affidavit.
In the Application in a Case filed on the day of the hearing the father seeks orders in the following terms:
1.In all the circumstances, I humbly seek that this Honourable Court make the following Orders in relation to parenting:
(a)That the mother’s Application be dismissed.
(b)All previous parenting orders be discharged save for orders 1, 2, 3, 4, 6, 8, 9, 10, 11, 12, 13, 14 and 15 of the Final Orders made 27 June 2013.
(c)Y and Z spend time with the father as follows:
(i)         Each alternate weekend from the conclusion of school Friday to the commencement of school Monday, with such weekend time to commence on Friday 30 May 2014 and each alternate weekend thereafter and to extent to Tuesday morning in the even Monday is a public holiday;
(ii)    For the first half of terms one, two and three school holidays from the conclusion of school on the last day of each term until 10:00am Sunday in the middle of the school holidays;
(iii)   For the first half of the long summer school holidays from the conclusion of school until the middle of the long summer school holidays commencing in 2014/2015 and each alternate year thereafter with changeover to occur at 10:00am on the day in the middle of the long summer school holidays;
(iv)   For the second half of the long summer school holidays from the middle of the school holidays until the commencement of term one commencing in 2015/2016 and each alternate year thereafter with changeover to occur at 10:00am on the day in the middle of the long summer school holidays.
(v)     Such other times as agreed between the parties.
(d)Y and Z individually spend one-on-one time with the father for one overnight each month as follows:
(i)         The first Wednesday each month for Z from the conclusion of school Wednesday to the commencement of school Thursday;
(ii)    The second Thursday each month for Y from the conclusion of school Thursday until the commencement of school Friday.
(e)That X’s time with the father be the second and fourth Wednesday of each month from the conclusion of school until the commencement of school on Thursday.
(f)That any changeover which does not occur at school, occur at Hungry Jack's in the (omitted) Shopping Centre.
(g)That the mother be restrained from attending the children’s schools on any day that the father is to collect the children pursuant to these Orders.
(h)That the parties do all things necessary to enable the father and Z to forthwith commence therapeutic counselling with Ms L and any costs of such therapy shall be borne by the father.
(i)That Ms L be permitted to report and communicate regarding counselling sessions with X and the father and Z and the father.
(j)That the previous Family Consultant, Ms B, prepare an updated Family Report and that she be permitted to consult with Ms L.
(k)That X be permitted to change schools at the conclusion of the 2014 school year and that he attend (omitted) High School if he wishes.
(l)That Z be provided with a mobile phone from the father in order for Z to communicate with the father.
(m)Such further and other Orders as this Honourable Court deems appropriate in the circumstances.
In relation to the time X and Z spends with the father, it is the mother’s proposal that such time be as agreed between X, Z and the father.

Background

The father was born (omitted) 1969 and is aged 45 years old. The father is a (occupation omitted). The father has re-partnered, although he and his partner Mr W (“Mr W”) do not live together.
The mother was born (omitted) 1970 and is 44 years of age. The mother is a part-time (occupation omitted) and is in the second year of a (omitted) degree at (omitted) University. The mother has not re-partnered.
The parties commenced cohabitation in October 1992, married on

(omitted) 1993 and separated in June 2007 when the father advised the mother he is gay.
X, Y and Z live with the mother in (omitted). X currently attends (omitted) College (“(omitted)”) and is in year 9. Z attends (omitted) of (omitted) School in (omitted) and is year 6.
Y is diagnosed with autism, intellectual disability, social developmental delay, congestive heart disease and Lennox-Gastaut syndrome. Y attends (omitted) School, a special school for children with autism in (omitted).
As noted in the introduction to this judgment the parties have been in continuous litigation in relation to X, Y and Z’s parenting arrangements since they separated. At paragraphs 10-29 of the judgment delivered 27 June 2013, I set out the history of that litigation in some detail because of the insight it gives to the dynamics of the ongoing dispute between the parties. I reproduce those paragraphs in this judgment for that same reason:
10.In September 2008, the father filed an urgent Application seeking to restrain the mother from relocating with X, Y and Z to Melbourne from (omitted) where they were then residing. The mother sought to return to Melbourne to avail herself of the support of her family who live there.
11.After a three day defended hearing in February 2009, final orders were made by Judge Walker (then Federal Magistrate Walker) on 5 June 2009 which provided for X, Y and Z to live with the father in the (omitted) area and spend time with the mother both in Melbourne and in the (omitted) area.
12.In August 2009, the father, X and Z were involved in a serious car accident which resulted in the father and X being hospitalised for two months.
13.In August 2009, the mother took Z to Melbourne and the father issued a Contravention Application seeking Z be returned to New South Wales.
14.On 19 August 2009, the mother issued an Application seeking orders that X, Y and Z live with her in Melbourne.
15.On 24 August 2009, interim orders were made that provided for Y and Z live with the mother in Melbourne (X was still in hospital at this point in time).
16.On 23 July 2010, orders were made by consent which provided for:
·the parties to have equal shared parental responsibility for X, Y and Z;
·X, Y and Z to live with the mother;
·X, Y and Z to spend half school holidays with the father;
·whilst the father lived outside of Melbourne, X, Y and Z spend time with the father for two weekends in each school term from after school Friday to 5.00pm Sunday; and
·upon the father’s return to Melbourne (which was expected at that time to be in 2011), X, Y and Z spend time with the father from after school Wednesday to before school Monday in each alternate week.
17.On 23 July 2010, the mother gave an undertaking to the Court that X, Y and Z be known only by the surname ‘White’ and to forthwith do all things necessary to alter any documents or other items that referred to X, Y and Z having a surname other than ‘White’.
18.On 5 October 2010, the father filed an Application in a Case seeking to enforce the 23 July 2010 orders.
19.On 19 November 2010, the father filed an Amended Application in a Case.
20.In 2011 the father returned to Victoria. Having been unable to find a position in a hospital in Melbourne, the father took up a position at the (omitted) Hospital.
21.On 21 April 2011, the mother filed a Response seeking inter alia that the father’s Applications be dismissed, that the father pay half the school fees for X to attend (omitted) College and there be a change of surname for X, Y and Z from ‘White’ to ‘Gibson-White’.
22.On 29 September 2011, final orders were made by consent which provided for the parties to have equal shared parental responsibility for X, Y and Z, for X and Z to live with the mother, for Y to live with the father from 14 October 2011 in (omitted) and for X, Y and Z to spend two weekends each term with the other parent as well as half school holidays.
23.The September 2011 orders also provided that X, Y and Z be known by the surname ‘White’ at all times but the mother be permitted to insert the name ‘Ms Gibson’ as a second middle name for each of X, Y and Z. The order specified that the name ‘Ms Gibson’ was not to be hyphenated.
24.Shortly after the final orders were made on 29 September 2011, the father advised the mother in writing that he was not able to assume Y’s care because of the lack of support services in (omitted). The mother then filed an urgent Application seeking orders for sole parental responsibility for Y and for Y to remain living with her.
25.On 25 October 2011, final orders were made providing for the parties to have equal shared parental responsibility for X and Z, for X, Y and Z to live with the mother and spend time with the father on two weekends each term from 5.00pm Friday to 5.00pm Sunday and half school holidays.
26.An interim order was also made on 25 October 2011 that provided for the mother to have sole parental responsibility for Y. The mother’s Application for sole parental responsibility for Y was adjourned to 5 December 2011 for final hearing.
27.On 5 December 2011, a final order was made by consent for the mother to have sole parental responsibility for Y.
28.It is the father’s evidence that when he was before the Court in September 2011 he raised the issue of X, Y and Z having alternate weekend time with him upon his return to Melbourne, which he anticipated would take place in early 2012. It is the father’s evidence that, at that time, the Court indicated that it could not make an order addressing a possible future event but that the father was at liberty to make a further application seeking additional time with X, Y and Z upon his return to Melbourne.
29.The father returned to Melbourne in early 2012 and commenced the current proceedings on 29 March 2012.

On 27 June 2013 final orders were made for the mother to have sole parental responsibility for Y and the parties to have equal shared parental responsibility for X and Z. The orders provided for X, Y and Z to live with the mother and spend time with the father on alternate weekends, half school holidays, special occasions and for each boy to have one overnight one-on-one with the father each month. Further the orders provided for the father and X to attend therapeutic counselling to assist their relationship.

The Evidence

The Mother

The mother relies on her affidavit sworn 14 April 2014. The mother also gave viva voce evidence at the final hearing of the matter.
In relation to the mother’s application that she be permitted to enrol X and Z at (omitted) Secondary College, it is the mother’s evidence that X has endured ongoing bullying since he commenced at (omitted) in year 7 in 2012.
This bullying was known to both the parties and the school. The school provided considerable assistance to X in relation to this problem, including providing him with extensive counselling and support.
Whilst the bullying of X diminished somewhat in the second half of 2013, it is the mother’s evidence that towards the end of the year, X approached her, told her that he continued to be incredibly unhappy at (omitted), that he had no friends and that he wanted an opportunity to change schools in order to be able to start afresh.
It is the mother’s evidence that she discussed this with X and they agreed that he would continue at (omitted) in year 9 to see if things continued to improve before making such a big decision.
It is the mother’s evidence that after X had been at school for two weeks in 2014, he again approached her and expressed his unhappiness at (omitted) and his continuing desire to be permitted to change schools.
In paragraph 25 of the mother’s affidavit, sworn 14 April, she deposes to X saying to her the following:
“ Mum, I know you said to wait ‘til I was in year 9, but I’m still really wanting to move. I want to make a fresh start at another school where I can put the whole bullying thing behind me. Please listen to me seriously, I have been wanting this since the middle of year 8. I’ve waited like you asked me to, but I still feel the same, even though I’m getting good results. I don’t care where I go, what school it is, but I just want to leave (omitted). I want to be able to get up in the morning and feel good about going to school.”
It is the mother’s evidence that after this discussion with X she realised just how desperately unhappy X was at (omitted) and how genuine his desire was to change school. She then made inquiries at (omitted) Secondary College and, being very impressed with the result of those inquiries, organised for she and X to visit that school.
It is the mother’s evidence that X was impressed with (omitted) Secondary College and indicated to her that he thought it would be a great school for him to go to. It is the mother’s evidence that X then said to her that he realised he would have to get the father’s permission to be able to change schools.
It is the mother’s evidence that X then attempted to contact the father to arrange to meet with him to discuss the change of school.
There was an exchange of emails between the parties as to the reason for this meeting. X then met with his father on a number of occasions and the father indicated to X that he was not in agreement with him changing school, but rather X should continue to attend (omitted) and work through the issues that were making attendance at that school difficult for him.
It is the mother’s evidence that it was not until she was provided with a copy of the father’s Application in a Case and supporting affidavit on 19 April 2014 that she became aware that the father had changed his position on X being able to change schools, albeit that it was the father’s proposal that the change of school not take place until the end of the school year in 2014.
It is the mother’s evidence that she has a genuine concern that if X is required to wait until the end of the year to change school, he will refuse to attend school for the remainder of this year. It is her evidence that whilst she would not support this behaviour from X, she has a real concern that his school attendance would become sporadic, that he may abscond and that the impact on him emotionally and academically could be quite dire.
In relation to bringing an application yet again for a change of name for X, Y and Z, it is the mother’s evidence that she is not trying to be difficult or vexatious in re-agitating the issue, but rather that it continues to be an extraordinarily important issue to X and Z; X in particular.
It is the mother’s evidence that X genuinely links the bullying at (omitted) with his having to use four independent names and that the father’s refusal to acknowledge the importance of this to X, his refusal to discuss the possibility of a name change and the father’s insistence that the school issue is separate to and should be considered independently of the name issue is one of the major factors in the breakdown of X and the father’s relationship.
It is the mother’s evidence that X wishes to be enrolled at (omitted) Secondary College as X.
It is the mother’s evidence that Z similarly wants to be known as Ms Gibson.
In relation to the mother’s application to have sole parental responsibility for X and Z as well as for Y, it is the mother’s evidence that since the parties separated in 2007, they have not been able to agree in relation to one single major decision that has had to be made in relation to the boys’ care.
By way of example of the parties’ inability to agree, the mother points to their inability to agree as to what hospital X should have been transferred when he was badly injured in a motor vehicle accident in (omitted) shortly after separation, the arguments in relation to whether X and Z should attend (omitted) (the irony being that the father initially strongly opposed this suggestion) and the current disagreement about X and Z now being enrolled at (omitted) Secondary College.
The mother also points to the continuous litigation between the parties in relation to parenting matters relating to the boys since separation as being illustrative of their inability to communicate and work together to reach agreement in relation to their sons.
It is the mother’s belief that she and the father will never be able to reach agreement in relation to the major decisions that will need to be made in the future in relation to X and Z.
It is the mother’s evidence that the emotional and psychological impact on X and Z of their parents’ inability to agree has reached a level that it must be seen in their best interests that one of the parents be given responsibility to make these decisions to avoid the ongoing litany of litigation into the future.
The mother argues that as X and Z’s primary carer, that sole decision-maker should be her.
In relation to the time that X and Z spend with the father, it is the mother’s evidence that she believes that there should be no specific orders made in relation to that time, but rather it should be as agreed between the boys and their father.
It is the mother’s evidence that she knows that X and Z love their father, but they are both struggling with that relationship at this time.
It is the mother’s evidence that X and Z are quite different personalities, with X being a more sensitive young man and Z having a more robust personality.
In relation to X, it is the mother’s evidence that X is struggling with what he perceives as the father never being prepared to listen to him and take on his points of view and that X has reached the stage where he is wishing to distance himself from what he perceives as his father’s lack of respect or interest in him and the views that he presents.
It is the mother’s evidence that X also struggles with the overt displays of affection between the father and his partner Mr W.
It is the mother’s evidence that she believes that X is open to spending one-on-one time with his father for a coffee, a meal or a movie and that if the father showed a willingness to listen to X and respect X’s views, their relationship would slowly be rebuilt.
In relation to Z, it is the mother’s evidence that Z does enjoy spending time with his father, but that he is seriously distressed by the overt displays of physical affection between the father and his partner Mr W.
It is the mother’s evidence that despite the undertaking given by the father to this Court in November 2013, Z reports that the father and Mr W continued to hug, kiss, rub each other’s backs and show overt displays of physical affection when Z was with them. When Z asked his father not to do this, it is the mother’s evidence that Z reported that the father told him “not to worry about it”, and “that it was okay” and lacked any insight as to how distressing those overt displays of affection for Z are.
It is also the mother’s evidence that Z raised with her a discussion he said the father and Mr W had in front of him in relation to the possibility of children through surrogacy. Z found this distressing and confusing and asked his mother how a man could have babies without being intimate with a woman.
It is the mother’s evidence that because the father had promised not to be overtly physically affectionate and intimate with Mr W when Z was with him and then continued in this behaviour, Z does not believe that this behaviour will cease and is therefore very reluctant to recommence spending time with the father.
It is the mother’s evidence that if Z were to recommence spending time with his father, initially on a somewhat limited basis, and there were no overt displays of affection between the father and Mr W, Z would over time recommence spending time with his father in accordance with the orders that were made in June 2013.
In relation to the father’s proposal that alternate weekend time be from after school Friday to before school Monday, the mother in evidence very similar to that which was given when this matter was live before the Court for determination in 2013, indicated that the boys like to be able to go to school from their mother’s home on a Monday morning and that she believed a continuation of those arrangements would accord with the boy’s wishes and work best for them.
The mother was questioned in relation to whether she would be prepared to attend counselling with the father in an endeavour to improve their communication. It is the mother’s evidence that she is reluctant to engage in counselling of that type as she does not believe it would be effective, particularly in the environment of continuous and ongoing litigation which has been their history since separation.
When questioned as to how she supports X and Z spending time with the father, it is the mother’s evidence that she does encourage them to spend time with the father but that given their issues in relation to their relationship with their father, she believes she also has a role to support them in those concerns.

The Father

The father relies on his affidavits sworn 29 November 2013,

12 December 2013, 15 April 2014 and 19 May 2014. The father also gave viva voce evidence at the final hearing of this matter.
In relation to the change of school, it is the father’s evidence that he never told X that he was opposed to a change of school per se, but rather that he explained to X that the change of school should not happen immediately.
It is the father’s evidence that before any decision was made for a change of school he chose to speak to the appropriate people at (omitted) to canvass their views on the best way forward for X.
It is the father’s evidence that he believes that if X still wishes to change schools at the end of this year, then it would be in his best interests that that take place at the beginning of 2015.
It is the father’s evidence that for X to start at a new school at the beginning of the school year when every student is starting out at the same time would afford X the opportunity to genuinely start afresh and break into new friendship groups. It is the father’s viva voce evidence that this would be much better for X than trying to find his way at a new school in the middle of the year when the adjustments that he has to make will be much harder and the opportunity to fit in and break into friendship groups that will already be well established will be much more difficult.
The father also believes that if X were to start at the commencement of 2015 he and Z would both start at a new school at the same time which would be a positive for both boys.
In relation to parental responsibility, it is the father’s evidence that whilst he and the mother have difficulty in communicating and reaching decisions, he believes that any order for sole parental responsibility will even further remove him from any involvement or participation in his sons’ lives.
It is the father’s strong belief that if he and the mother attend counselling together they will be able to find a way to better communicate so that they can jointly make decisions in relation to X and Z.
In relation to the name change, it is the father’s belief that if orders were made for the boys to be known as Ms Gibson or Gibson-White, their identification with him as their father and with the paternal family will be lost.
It is the father’s evidence that he believes that this matter has already been determined by this Court and that if either of X or Z wish to change their name, then this is a decision they can make as adults and is not an appropriate decision to be made at this time.
In relation to the father’s proposals for the time that X and Z spend with him, it is the father’s evidence that he believes that if orders are made that allow for time between X and/or Z and himself to be by agreement, X and Z would spend no time with him.
It is the father’s evidence that he believes that the mother and the maternal extended family have had a long-standing and ongoing campaign to alienate him from the boys’ lives, primarily as a result of his sexuality.
The father rejects absolutely the allegations that he does not listen to X and Z or respect their views but is firmly of the view that as the boys’ father, there are decisions that he will have to make in their best interests with which they might not always agree.
The father is keen for there to be ongoing counselling between himself and the boys to better facilitate their relationship and is willing to be responsible for the costs of any counselling that is ordered.
In relation to the concerns raised by the boys regarding displays of physical affection between himself and his partner Mr W, it is the father’s evidence that he will absolutely commit to and abide by any order that requires that there be no displays of physical affection between himself and his partner when the boys are spending time with him.
The father denies that there had been any conversations between himself and Mr W or any other persons about surrogacy or parenting when Z was with them in the January 2014 on summer vacation.

Ms E

Ms E is a family consultant with the Federal Circuit Court of Australia. Ms E prepared a family report in this matter dated 6 May 2014. Ms E also gave viva voce evidence at the final hearing.
In her family report when discussing the adults, Ms E observes at paragraph 28, the following:
The key dynamic within this family constellation is that of control…
In paragraph 29, Ms E expands on this as follows:
Both parents have acknowledged this issue of control explains why the symptoms of their conflict such as disputes about equal shared parental responsibility; a name change; financial matters; the range and extent of the children’s activities; schooling and time with each parent, have, despite Final Orders, remained consistently unresolved.
When discussing Mr White in her family report, Ms E states the following:
31.Mr White’s conversation is … peppered with well-worn phrases about the extent of his child focus and a reflection of the children’s best interests yet Mr White was unmoved, in interview, by considerations about the impact of the continuing litigation on the children. Mr White asserts his desire is for a “…workable even-handed outcome” to the current matter but it is implicit as to whose interests this must best serve for an outcome to be “…acceptable”. This self-focus is endemic and reflected in Mr White’s conversational style as he cannot sustain any conversation about the children’s needs without referring back to and making either his needs central to his conversation, or identifying Ms Gibson’s limitations or explaining how his role as the children’s father should be expressed and understood by others…
…
34.Control as patterned behaviour is a power dynamic utilised by Mr White and reflected in the process litigation has taken. At times during the court process Mr White has resiled from his own applications…
…
35.Mr White acknowledged his role “…as a block” to X’s requests explaining he adopted this position because “…I won’t do things that I don’t think is right” and he is unable to separate his philosophy and reflect on what may be right for his son. Mr White continues to dispute a change of school because “…his (X’s) description of reasons (to move school) have not changed,” but whilst he is unable to identify his expectations Mr White holds his “…wait and see” approach, fully cognizant he is controlling events. Mr White is well informed about X’s emotional difficulties arising from both the family conflict in general and school pressures specifically and he reported that X is “…burdened and pressured…he (X) struggles to fit in (at school)…there has been an issue of self-harm.” Later in interview Mr White conceded he “…would not force him (X) to stay if he is not settling down”, then commenting that he was unlikely to agree to a change because “…changing schools mid-year is problematic.” These musings are typical of Mr White’s presentation and he admits these are about maintaining control of decision making rather than moving forward and addressing the needs of the children.
42.Mr White does not take seriously his children’s appraisals of events such as the manner in which he conducts his relationship nor does he appear to empathise with their concerns promulgating the situation whereby Ms Gibson then becomes the children’s spokesperson. Mr White’s anxiety about his place in his children’s lives and his lack of insight into his own conduct leads him to allege control in the form of alienation by Ms Gibson, Mr White stating repeatedly in interview that if Ms Gibson “…sent the right message” issues would not be on-going issues and in this regard he fails to account for his own conduct…
…
43.… Mr White is aware of X’s deep concern about what he is called and he can report the significant problems this has generated for X but Mr White cannot comprehend this issue from X’s perspective and instead deflects conversation to how the process was managed blaming others, minimizing his impact and absolving himself from responsibility…
…
45.… In interview Mr White admitted that his responses were not sensitive to X’s developmental age and he had consistently failed to connect emotionally with X or to demonstrate that he had either heard and understood or was prepared to resolve the issues X raised...
…
46.The unspoken issue asserting a powerful impact on this family is that of Mr White’s lifestyle…
…
47.Mr White sits comfortably with his sexuality but holds a strong view that others should accept his lifestyle with grace as “… it is not illegal…it is a normal lifestyle choice.”… Mr White acknowledged he kisses, or hugs his partner in the presence of the children but believes he “…is growing and developing the boy’s understanding that (his) sexuality is normal,” and he reframes the concern from being a focus on the children’s sensibilities and their capacity to manage adult issues to become an issue of specific difference blaming Ms Gibson that she is not physically demonstrative, as is he. Mr White reported he is fully cognisant of X’s view about his lifestyle and his objections to witnessing displays of affection between his father and his partner as these issues have been raised in counselling with Ms L. Mr White believes that change is a matter of the children either “…accepting” or “…being told to accept” his lifestyle as normal as currently the children are “…not supported to accept a same sex relationship.
48.Mr White when prompted considered how his own behaviour may be presenting difficulties for two adolescents focused on their own (sexual) identity. He acknowledged, with some distress that X in particular may be experiencing difficulties with his sexual identity… but he appeared unable to emotionally connect to X or Z’s concerns.

When discussing the mother in her family report, Ms E made the following observations:
33.… Ms Gibson appears highly sensitized to any behaviour from Mr White that she considers “…as disrespectful of me” or “…manipulative”. Ms Gibson referred to many years of personal counselling to overcome both the damage to her self-esteem and the impact on the children having witnessed this abuse reporting, that post separation, X would call her “…stupid”. Ms Gibson though, admits she remains hypervigilant to issues of control and she suggests that Mr White “…uses litigation to control me…to have power over me” and she believes, for her psychological well-being “…I need to withdraw from him to recover”.
38.Ms Gibson’s perspective is that any request she makes “…is met with opposition” and her view is that parents could work co-operatively “…if he (Mr White) was respectful of me and the boys…if he (Mr White) came to the party and was flexible.” Ms Gibson reflected however, “…I cannot co-parent with Mr White (Mr White)…the boys are not to be dragged through this (Court) anymore… his needs for control (predominate) even if masked in a lively, respectful manner.”
…
40.… Ms Gibson who perceives Mr White as either stymying decision-making or relentless in pursuit of his own desired outcomes and oblivious to the considerable distress and emotional impact on the children. Over time as Mr White became increasingly remote from the children’s needs, refused to listen to requests or make decisions co-operatively Ms Gibson considers she has been cast into the role of “champion” for the children.
47.… Ms Gibson is openly hostile to the physical expressions of affection between Mr White and his partner and considers “…a line has been crossed,” claiming that the children have witnessed “…inappropriate intimate displays”.
…
48.… Ms Gibson confirmed that X had concerns about his sexual identity and she was “…angry at what he (Mr White) is exposing the children to,” continuing to assert the children are distressed as they have been exposed, by their father to multiple partners (claiming four) they have witnessed intimate displays and have allegedly been engaged in discussions with their father about issues of surrogacy and implications (denied) that Mr White intends to “…have a new family”. Ms Gibson stated “…I do not like this…shoving it down their (the children’s) throats…he is not respectful of me and the boys.”
…
When commenting on both parents in her report Ms E stated the following:
29.… Both parents acknowledge the oppositional nature of their relationship and the truth of the paternal grandmother’s observation… that both are “…fiery and strong-willed” but neither parent is prepared to adopt a conciliatory posture each identifying this as the responsibility of the other parent.
52.… Neither parent however has the capacity to reflect on how they could alter their behaviour yet both parents are intelligent people who continue to tussle for control rather than display a mutual focused concern prioritising and addressing the needs of the children.
When discussing X in her family report, Ms E set out the following:
62.… It is apparent that X is a “big picture” thinker, so his narrative tends to focus on general issues rather than specific details, a style consistent with his mother’s, but in direct contrast to his father’s.
63.… X is a very polite, pleasant and compliant young man who represents himself as having grappled with specific concerns for a significant period of time and who felt frustrated by his father and the system that expressed variable and alternating reports of his degree of maturity.
64.X attempted to explain cogently his degree of frustration with his father, who “…is controlling and doesn’t listen to me.” He considers their differences emerge from his attempts to assert himself and discuss difficult issues with his father. X is sensitive to the style of these circular conversations asserting his father attempts to maintain control of he and the situation by refusing to have an appropriate discussion or reach a resolution. X described his father as a man “…I love and try to talk to but one who doesn’t understand my needs.” X stated, without rancour that his father “…doesn’t listen to my point of view…he has no interest in what I have been saying he is not looking at my side I feel he is just looking at himself.”
66.Discussions about school issues generate great distress for X, who identifies his father as “…most of the reason there is a problem at school.” Year 7, 2012 at (omitted) College, X describes “…as a year of suffering” as it commenced with roll-call and the teachers were required to call out his full name as X, and neither X nor X as he would have preferred… X claims he was immediately teased and called “…a faggot” which evolved into “…you look like a faggot.”…. The sniggering evolved … into cyber bullying... the intensity of the cyber bullying was such that “…it really got to me I felt like I had no support…I felt isolated, shit was happening” and one day, feeling friendless and alone in 2013 in response to more cyber bullying he smashed his computer, injuring himself. X described a bullying incident the day prior to the current interview but stated that although still present the bullying is not of the same intensity and aside from assistance from staff he has looked outside of his school for friends and interests.
67.X explains he wishes to leave the school because “…there is a history…I am not quite comfortable there” and “…I hold myself separate from others as there are not ways to express myself in this school…it is not a good fit.” X notes that he “…gets along well with girls” and “…would prefer a co-educational school” and he looks at an opportunity to change schools “…as a chance to make friends”. X holds a strong view that (omitted) Secondary, with its music program ((omitted)) will meet some of his needs. He notes that he would have to change languages and the restriction moving mid year would be that he has little choice about electives.
68.At the same time he changes schools X wishes to change his name to X reflecting “…it is not to kick my father out… I would always be part of the White family”, he wants to avoid what he perceives as a humiliating commencement at school for which he largely holds his father accountable…. he is “…passionate about having the name X” and “…bummed out” the matter has not been resolved. In a push back to his father’s refusal to discuss this matter and as a consequences of his school experiences X explains “…I am way past Gibson-White” and stated that regardless of what happens now he intends to change his name at eighteen, something he has told his father.
69.… X reported that there is a high level of emotional significance attached to any suggestion he may be homosexual. X acknowledges that “…sometimes” it is an issue for him that his father is homosexual, and admits he frequently worries “…will I end up like him?” … X is fragile about this issue when he considers who he is and draws social comparisons looking for an explanation as to his perception of his relative social isolation, his experience of bullying, his non-main stream preferences and his preferred social experience of spending time with girls.
…
70.X disputed that he has difficulty accepting his father’s sexuality but admits he has difficulty being exposed to his father’s displays of affection towards his partner and identifies this as “…the suffering dad has given me, all this gay shit at home”…. X claims he would feel the same way if it was his mother and her partner and he considers that all such behaviour should be private and he considers displays of affection “…between two men is even worse.”
…
71.X reflected on the extent of the emotional pressure he felt describing that “…everything builds up dad makes my life hard for me and for my mum and this affects me also.” Although X sees his mother as challenging his views he also sees her as his confidant listening to his reasons and ultimately Ms Gibson is seen to be “…fighting for us”… X acknowledged that he was privy to a considerable amount of information about the Court process, and his father, mother and maternal grandfather are largely the source of information, but there are indications that X has both read Court documents and misunderstood or been misinformed about Court Orders.
…
72.X reflected that his relationship with his father had disintegrated as “…I am past that point I am willing to give him a second chance”, yet although hostile to the current therapeutic process and unwilling to engage further with any professionals X could see the benefit of spending some time with his father one to one, and he could reflect that “…if things settle down we could start afresh.”
When discussing Z in her family report, Ms E made the following observations:
74.… The boys are contrasts in personalities, X as sensitive and introspective and Z forthright and perceptive.
…
75.Z has also been informed about Court processes, aware that “…Court asked mum not to tell me but she did” and he reflected that”…both parents discuss the Court Orders.” Again the maternal grandfather’s influence is reported as being significant.
76.… Z explained that “…I know the hugging and kissing is normal” but he finds it awkward “…seeing boy and boy doing what girl and boy do…I can’t look at I am embarrassed by it.” Later in interview Z stated such behaviour was “…disgusting…I can’t get it out of my head...it gives me the shivers” Z is very authoritative in his manner and was very clear he had repeatedly asked his father to stop this behaviour “…because I feel affected by it.” Z noted that Mr W was not the problem “…he doesn’t kiss dad, he co-operates but dad (Mr White) signals Mr W that he is to come over and give him a kiss.” Z reported that as well as witnessing his father and Ms W being affectionate he overhead private conversations which added to his discomfort.
78.Z repeatedly described his father in relation to power dynamics as “…not listening to me” and “…if he doesn’t like something it mostly doesn’t happen.” Z’s view of his father is that he is“…powerful, bossy and scary when he is angry or if you are late or make a mistake” and there is a sense of Z’s being required to comply unquestioning with his father’s directions.
…
80.Mr White is also described, as a person who disappoints as he “…doesn’t keep his promises” but despite these issues Z stated “…I have good memories of dad” and he sees himself as “…managing things differently to X” recalling having fun and enjoying sporting activities with his father. Z spoke positively about Mr W, seeing him as an asset “…he is more playful than dad” and “…we (Mr W and I) have more things in common than I do with dad (Mr White).
81.School issues are not as significant for Z as they are for X, with the single exception that he wishes to be at the same school as his brother. Z would prefer a co-educational school, and for him the notion of being with girls appears to be perceived as some form of inoculation against any same sex preference and a way of damping down his own worries about his sexual identity.
83.Z is prepared to resume spending time with his father provided Mr White contains the following behaviours: “…stop making out, stop smacking and be less strict”. Z though is not convinced that Mr White will contain his behaviour. Z is not concerned if Mr W resides with Mr White, provided he and Mr White do not share the same bed. Z would also like “…mum and dad to stop arguing” but he is also painfully aware that “…it is not possible they could never agree.”
Under the heading Evaluation, Ms E had some very telling insights about the parties and the impact of their behaviours are having on X and Z. Whilst somewhat lengthy, I intend to set them out in this judgment as they go to the heart of the issues for X and Z:
90.It is tempting to sub-title this report as “for want of a hyphen” because the need for drama appears to be a core element here as the issues between the parents, although long standing, are manufactured to support their psychological dance and not the needs of the children. It is evident that Mr White leads onto the dance floor and he consistently fails to comprehend the primacy of the notion of a relationship over his concern about who is the master controller.
…
91.Ms Gibson cast into the role of (omitted) to slay the dragon, must also accept accountability for her role in engaging the children in the parental conflict, keeping them informed and either she, or more likely the paternal (sic) grandfather, stoking the children’s discontent, reinterpreting and reframing events, leaving doors of dispute open even though the Court firmly closed them.
92.Mr White loves his children but they like Ms Gibson have over time developed their own sense of how things should eventuate and Mr White appears limited in his capacity to empathise with his children‘s concerns or to see their point of view.
93.Mr White claims he is driven by fear of loss, a tragic position, but he is also an intelligent man who has experienced a sequence of disappointments but not once has he reconsidered the impact of his style on others. His position is that others should change or accept according to his needs and he appears unable to consider that he should address his own behaviour. In interview Mr White attempted to bolster his position by externalising blame and minimizing his actions, casting himself as central player to a victim narrative.
95.Given the parent’s self-descriptions, one as engaging in conversation with the children and the other as actively blocking conversations it is more likely the children will gravitate to the parent whom they perceive as supporting and understanding them and the children’s reflected appraisal that their father “…is controlling and doesn’t listen to me,” appears to be a genuine reflection of their mutual experiences. It is Mr White’s own conduct that has created divisions between he and his children and it is he who has cast Ms Gibson in the role of the children’s champion. There is though enmeshment between mother and children as apprehensions are shared and the children express concern for and are responsive to their mother’s needs. The children are protective of their mother and reflect Ms Gibson’s need for peace as well as their own.
96.Mr White makes much of his revised sexual preference and his need to be a champion for his lifestyle and for it to be considered normal. Mr White’s philosophy is unchallenged but it is the manner in which he makes his sexuality a predominant issue that has created difficulties for the children both personal and at school. There is an irony, that whilst promoting a climate of acceptance, Mr White has promoted his own beliefs with absolute insensitivity to the needs of his own pubescent boys or the context in which they are immersed. Mr White is aware that his children struggle with their own sexual concerns, but he offers them no respite, guidance, understanding or support, he is entirely focused on his own need to be accepted and he treats the children as unthinking automatons who simply need to be told how to behave.
99.X had an inauspicious start to schooling, he has been profoundly damaged by this experience and although this news is not novel to either parent they allowed this drama to continue unabated for about eighteen months which calls into question the appropriateness of the parental protective behaviours.
100.Mr White knows all these facts but his repeated failure to address issues has become a consistent invalidation of X’s worth and significantly damaged his self-esteem. X, in the past actively sought his father’s help, but unable to empathise with his son’s concerns Mr White instead became obdurate and it became too tiresome and too emotionally damaging for X to try to communicate with his father.
101.X and Z are different personalities and their narratives reflect these differences but the themes are shared, notably around a sense of forced compliance with their father’s directives. They are both disappointed boys, they want their father’s love, and for him to be interested in them, but to do so as individuals rather than compliant children. There is an absence of nurture in their relationship with their father…
…
103.The issue of joint shared parental responsibility is vexatious as at first glance it is apparent that these parents cannot or will not work together and significantly they cannot focus jointly on the needs of their children. The children wanted a normalised separation between their parents, X in particular demonstrated a desire for his father to engage appropriately in family decisions, and it is clear that it would be psychologically distressing for Mr White to be removed entirely from decision making. It is for the Court to determine if the “relief” Ms Gibson experiences having sole parental responsibility for Y would be preferable to the existing situation for X and Z.
In paragraph 104 under the heading Recommendations, Ms E states as follows:
104.The writer would respectfully make the following recommendations based upon this assessment and dependent on relevant findings of fact:
I.That X and Z live with their mother and Z to spend each time with his father from after school on Friday until returned to school on Monday at least one weekend per month or more frequently by mutual agreement;
II.X is to spend time with his father as he wishes but once per month to share a meal with his father and he may choose to do so alone or in the company of his brother;
III.Mr White is free to invited X to events;
IV.It is recommended that there be no further Court Ordered therapy for Mr White and X unless they mutually considered this to be beneficial;
V.Mr White is free to telephone the children as he wishes;
VI.Mr White is retrained from engaging in any sexual or theatrical displays of affection in front of the children and if the children are uncomfortable about his conduct they are free to return to their mother’s care;
VII.Each parent is to have the opportunity to engage in all elements of the children’s life including attendance at school, extra-curricular activities and sporting events and to keep each other informed of any issues regarding the children;
VIII.The children are to be permitted to change schools, although it is considered preferable if such a change could occur at the commencement of 2015 but such as consideration is not mandatory;
IX.When enrolled in the new school it is recommended that the children’s surname follow common practice and they be known as X or Z “Gibson-White”;
X.Mr White is to undergo Parent Effectiveness Training and to provide a certificate of completion to the Court;
XI.Neither parent is to use any form of corporal punishment on the children;
XII.Neither parent nor their relatives or partners are to denigrate the other parent either directly to the children or in the presence of the children.
XIII.Neither parent is to engage the children in any discussion about adult issues and matters before the Court nor to show the children any documents relating to adult matters unless by direction of the Court.
In her viva voce evidence, Ms E was asked to comment on whether X in particular should be permitted to change schools immediately or whether such a change should occur so that he commences at the new school next year. It was Ms E’s evidence as follows:
“I know that he’s very keen to do so and he has certainly put in the energy. But if you are going to ask me as a family consultant when is the best time for a child to change a school, I would have to respond to you by saying that I think it’s going to be in his better interest if he could see the year out… for me there’s a great strength in him leaving the school on a high note. That is, he has worked his way through the bullying, he has managed his school year and he completes his school year.”

Ms E was asked whether X’s comments to his mother that if the judge makes him stay at school for the rest of the year, he just won’t go to school, impacted on her recommendations as to the timing of a change of school. It was Ms E’s evidence as follows:
“Within my knowledge – limited knowledge of X, he’s a good young man. If his mother said, “You have to stay, this is the order,” … he would comply in a reasonable fashion, but he is also at the absolute end of his tether. So I don’t know whether a nice young man and being at the end of his tether would result in considerable problems. That’s a possibility.”
Ms E explained the basis of her recommendation that there be a name change to “Gibson-White” as follows:
“When I considered this, I looked at it holistically in terms of the boys existing relationship with their father and what was a way that things might move forward in a more normalised fashion and the boys having an opportunity to redevelop, for want of a better word, their relationship with their father... And I think one of the things that’s there is they need to see some concessions from him that he understands the world that they live in and he has some understanding of their needs and some consideration for the way they feel. So a limitation of not changing the name might, again, impact further on the father/son relationship, which I already think is pretty fragile, and that’s my concern… what’s going on for the children is that this is an idea that has been – that they have had fixed in their mind for a long time, that they also have a sense that when parents get separated it’s often normal that names are hyphenated -I know X has moved way beyond that but that’s not the issue we’re talking about – and that there is this considerable fragility in their relationship with their father and they just need some kind of level playing field.”
When discussing the issue of sole parental responsibility and in particular whether an order for sole parental responsibility may in some way alleviate or mitigate the impact of the ongoing parental fighting on X and Z’s mental health which in paragraph 25 of the family report she described as “compromised”, Ms E stated as follows:
“I think that that paragraph stands on its own and it, in fact, is a commentary on the behaviour of both parents. It’s not a commentary about sole parental responsibility or the benefits or limitations of it or whom should have it. And I think I made it clear in my report that that’s a judgment that the court needs to make, not me. I make that observation because they are worn out but they see both of their parents as fighting. I think for a whole range of reasons that their mental health has been compromised. They’re stuck between both parents. The boys love their father and their mother. They have experienced profound differences in style, and as I talk later in my report, have very strong views about the insensitivity of one parent as compared with the other and an extreme difficulty having conversations with one parent as opposed to the other. This comment stands on its own. Unless the parents start behaving like mature separated parents, enabling the boys to transition from one house to another and have a relationship with each parent, these issues still remain. They will not miraculously get better unless the parents conduct themselves differently.”
Ms E was asked about the father’s proposal that he and Z in particular attend counselling to facilitate the process of rectifying their relationship. Ms E was adamant in her response of “absolutely not”.
When Ms E was asked to expand on this response she indicated that she thinks the process of counselling has been tainted for X and Z. Both indicated to her in different ways that when they have talked to professionals they find them untrustworthy and that they are not listened to.
Ms E indicated that neither X or Z are frightened of raising issues with their father but rather they just want to be heard by him and want to have a reasonable conversation with him such that they feel heard and issues are actually resolved.
Ms E gave a perfect example of the kind of conversation she believes the father has to have with Z to move their relationship forward. Ms E indicated that the father needs to say to Z:
“Look, I really understand how distressed you were by the displays between myself and Mr W, and I’m sorry that I upset you, and I will moderate my behaviour. And if you are ever concerned about it again, please come and tell me. This is not a conversation you have to rush home and complaint (sic) to your mother about. I’m the person that has got to change. I will change.”
Ms E indicated that if the father were to have this simple conversation with Z, the father and Z’s relationship would move forward exponentially.
It is Ms E’s evidence that the person who needs counselling is the father and that what he needs is individual counselling that will assist him in learning to listen to and engage with his children at an appropriate level.
It is Ms E’s evidence that she spoke at length with the father during the report-writing process to explain what was happening for X and Z from their perspective and to make very specific recommendations to him about the parenting courses that she believed would assist him to address the problems in his relationships with his sons.
It was apparent from Ms E’s viva voce evidence that she was very disappointed when she read the father’s proposal that there be further counselling for himself with X and Z as it was apparent that he had not taken on board the matters they discussed during the preparation of the family report. Ms E is concerned that the father’s proposals indicate the father continues to lack any insight into his being the primary cause for the breakdown in and difficulties he’s currently experiencing in his relationship with X and Z.
It was put to Ms E by the father’s Counsel that the father was being marginalised from the boys’ life by the mother and the extended maternal family, particularly the maternal grandfather and that this was a major factor in the current difficulties in the relationship between the father, X and Z. In response to this it is Ms E’s evidence as follows:
“I tried to explain in my report very clearly that what has happened to Mr White and his relationship with his children is almost entirely of his own making. It isn’t because, as he imagines, other people have interfered. I’m sure they haven’t helped. I wouldn’t say that there hasn’t been some minimal help, but he certainly has not helped himself. His focus has been on controlling the situation and he has been insensitive to the children. He does not listen to what they say. In fact, I would like to draw your attention to the document you showed me, because I looked at it. In orders – given what the children had – what X had to say about therapy – I notice 8, 9, 10 refer to more counselling… And my point I would like to make is that surely that suggests that Mr White has learnt nothing from the hours of conversation he spent with me… We talked about his deep concern about his children and surely it identifies an intent to continue to be litigious and not to settle.”
The father’s concerns that Ms E’s recommendations that X and Z spend minimal time with the father and that such time otherwise be by agreement would result in X and Z spending minimal, if not no time with the father was put to Ms E. In response it is Ms E’s evidence as follows:
“Look, I understand Mr White’s position. I understand that there needs to be some orders. But I do think that the orders that there need to be should not be lock, stock and barrel orders. They should be an order that there is sometimes, such as I’ve put in, for Z, definite program and arrangement for X, that is, at a minimum, I think, monthly. But there should be an opportunity in the meantime for other times by arrangement and that will happen with the children – this is my belief.”
Counsel for the father questioned Ms E about the specific proposals contained in the orders sought by him. Ms E responded as follows:
“Okay. And I’m saying to you that if that is an order, there will be a problem because X, at this stage, will not adhere to it. If there was an order around spending time with the father informally at a meal, once – starting once a month and you can put it in as a graduated program, once a month for X period of time and then moving down to fortnightly, then I think it will happen. If the issue is forced then I don’t think it will happen. That’s the problem I face.”
Ms E was very clear in her evidence that her recommendations should be seen as a starting point only and it would be her hope that over time both X and Z would spend increased time with their father.
Ms E expanded further on the dynamics of the family and in particular the problems she encountered in putting forward recommendations that she believed would have a reasonable chance of being successful. It is her evidence as follows:
“I would like you to understand that when I spoke to these four people, I became acutely aware and tried to describe in my report that they’re all very strong-willed people. They’re all very nice people but they’re all incredibly unpleasant in that they all want their own way, parents and children. And that’s a problem. It’s a problem deciding what you can put in place that will have a reasonable chance of working for the longest period of time. Now, I’m trying to suggest very clearly, and if it comes as a criticism of Mr White, I’m sorry, but the facts are that he needs to work on his relationship with his boys to ensure that he can keep them close.”
In relation to the issue of name change, it is Ms E’s evidence that she believes that no one is going to be particularly happy with the solution she’s provided, as it does not accommodate Mr White’s needs as the father of the children, not does it necessarily address X’s particularly strident views. She noted, however, that Z just wants to be known as Gibson-White.
When it was suggested to Ms E that if her recommendations were accepted, it would be “chipping off one more point of identification with the father who’s already hanging onto the page by his toenails” Ms E responded as follows:
“I don’t see it as chipping off. I saw it as a route to normalisation.”
Finally, the question of the parents attending counselling with a view to improving their relationship, and more particularly, their ability to communicate, was raised with Ms E. This was done so in the context of the mother clearly stating in her evidence that having read the family report, she did not believe there was anything that she needed to do to better assist X and Z and, the father’s proposal that his problems with X and Z could be addressed by further counselling between himself and the boys.
It is Ms E’s evidence that whilst ideally the parties would benefit from attending counselling to assist their relationship, the first requirement for attending any counselling is a preparedness to change and an understanding of the necessity for that change.
Ms E made the observation that if the parents could genuinely accept that maybe there was one thing at least each of them could work on for the benefit of their children, then counselling would be beneficial. However if the parents’ positions are as were outlined, then Ms E noted that “it’s a complete waste of time for them to undergo counselling.”
Perhaps most sadly and tellingly, Ms E then made the following observation:
“But the ramifications for the boys will be extensive. They will obviously start to pick sides about which parent they want to be with, but they will pick the side that suits them at any particular time. Their behaviour will diminish in quality and their capacity for relationships with others and sustained meaningful adult relationships will also diminish, and that’s a gift that both these parents are giving their children unless they have the capacity to start re‑evaluating the way they conduct themselves.”

The Law

Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

The Presumption of Equal Shared Responsibility

Section 61DA of the Act provides that the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. This presumption is rebutted if there are reasonable grounds to believe that either of the child’s parents have engaged in abuse of the child or family violence or where there is evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for the child.
In those matters where there is an issue as to whether an order should be made for equal shared parental responsibility, it is often the approach of the Court to fully consider all aspects of the best interests of the child before making a determination on the question of parental responsibility.
In this matter, the mother is seeking an order that she have sole parental responsibility for X and Z, and the father seeks an order that the parties continue to have equal shared parental responsibility for them.
Given that this matter is disputed between the parties, the best interests of X and Z will be considered in greater detail before a determination of this issue is made.

Best interests of the child

Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
When determining what is in the best interests of the child, the Court must consider the matters set out in Section 60CC(2) and

Section 60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the Court, must be considered and assessed in the context of each of the parties’ proposals. The Court should then make a decision as to which of the parties proposals, or such other arrangements as the Court determines given the Court is not bound by the parties proposals (see AMS v AIF (1999) 199 CLR 160, U & U (2002) 211 CLR 238), is in the children’s best interests.

Section 60CC(2)

Section 60CC(2) of the Act sets out the primary considerations that the Court must take into account when determining what is in the child’s best interests. They are as follows:

Section 60CC(2)(a) – The benefit of the child having a meaningful relationship with both of the child’s parents

In my judgment of 27 June 2013, I noted at that time that I was satisfied that both the father and mother had a close, loving, and meaningful relationship with X and Z, as well as Y.
There is no doubt that the mother continues to have such a relationship with X and Z. However, at the moment the father’s relationship with X and Z, and X in particular, is very strained.
There is no doubt that it would be in X and Z’s best interests for that relationship to be repaired, and the challenge for the Court is what orders, if any, it can make to assist in this process.

Section 60CC(2)(b) The need to protect the child from physical and psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence

What Ms E refers to in her report as “the parties’ psychological dance” which is their pre- and post-separation relationship is causing X and Z immeasurable emotional and psychological harm.
That neither of the parties accept any personal responsibility for this is perhaps the most distressing aspect of this case, given that both the mother and the father are highly intelligent people who genuinely love their children.
In her viva voce evidence in response to my concerns about the seven years of litigation and the very strong impression given by the parties at the final hearing that neither party had understood Ms E’s report or the very frank and direct conversations that she had with them as part of that process, Ms E responded as follows:
“I think that’s tragic, your Honour, because what it’s really saying to me is they care more about their positions than they do about their children and their children are just a vehicle for continuing their petty arguments and unresolved issues of their relationship, and it’s appalling.”
Quite frankly, having been involved with this family for some time, I must sadly agree with Ms E’s observations.
Unless both parents accept responsibility for their contribution to the difficulties that X and Z are facing and the impact that is having on these vulnerable young men, the long-term implications for their emotional and psychological health are catastrophic.
Whilst the mother sees herself as X and Z’s “champion” and argues that her current application is brought solely because of her concerns for X and Z in the face of the father’s obdurate refusal to listen to and respond to X and Z’s needs, the reality is that in her household the father is not held in high regard. The negative views that her family, and it would appear the maternal grandfather in particular hold, are laid wide open before X and Z, which in turn reinforces the difficulties that they experience in their dealings with and relationship with the father.
However, much of the father’s current difficulties in his relationship with X and Z are as a result of his own actions which in part are a reflection of his personality and his way of communicating with and parenting his sons.
X and Z don’t feel listened to by their father, and X in particular has reached the stage where he is genuinely ready to give up on that relationship because he just finds it too hard.
In her viva voce evidence, Ms E explains:
“I tried to explain to Mr White that when you are trying to deal with children, it is your style that must accommodate the children’s, not the other way around. It’s not just because you’re an adult, it’s because you’re smart enough to realise that what you’re doing is not working. And I was in the painful position of saying to Mr White, “What you’re doing with your children is not working, and you are in a severe – in the current position of losing your relationship in an enduring fashion with them, unless you change your behaviour.””

As set out previously in this judgment, it is Ms E’s evidence that she spoke at length with Mr White on these issues. She gave the impression that she had been optimistic at the end of her discussion with the father that he had understood what it is she was explaining to him in relation to it being his responsibility to look at ways to better communicate with his sons. Her disappointment in his proposal for yet further counselling between himself and X and Z rather than a commitment to undertaking the personal parenting courses that she had recommended was palpable and added to her pessimism for the future of his relationship with his sons and the long-term emotional and psychological wellbeing of X and Z.

Section 60CC(3)

Section 60CC(3) of the Act sets out the additional considerations that the Court must look at when determining what is in the child’s best interest. Each of the matters set out under that section must be considered in turn, where applicable, in determining what is in the child’s best interests.

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.

X will be 15 in less than two weeks’ time. He is described as a delightful, intelligent and sensitive young man who has had an extremely difficult introduction to his secondary education as a result of the bullying he has experienced since he started at (omitted) in 2012.
X has for some time been expressing very strong views around the time he spends with his father, the surname by which he wishes to be known, the concerns he has in relation to his father not respecting his views or listening to him and his father exposing him to overt displays of his sexuality and, in particular, displays of physical affection between himself and his partner.
X is now quite strident in his wish to be permitted to change school from (omitted) to (omitted) Secondary College. Whilst he acknowledges that to change school in the middle of the school year will make it more difficult than if he were to do so at the beginning of next year, he is quite clear that for him this is the only way forward, given his continuing unhappiness at (omitted) where he is still being bullied, where he is socially isolated and where he genuinely feels he is a misfit.
X expresses frustration that his father does not listen to him or respect his views but rather blocks all discussions he tries to have with his father so that it is impossible to reach a resolution of these matters other than for X to agree with the father’s position.
X is also equally frustrated with what he perceives to be an ongoing engagement with counsellors and court reporters who do not listen to him or consider him sufficiently mature to place any weight on his wishes and views.
X’s difficulties are further compounded by the complete inability of the parties to reach any agreement in relation to any of the decisions that need to be made in relation to X’s care. The impact that this is having on him emotionally and psychologically have already been canvassed in this judgment.
In these circumstances, I think it is long overdue for this Court to take serious note of X’s views and wishes and that considerable weight must be given to them in the determination of the matters that are before the Court at this time.
Z is described as a much more robust and strong willed character than his brother. He seems to be able to better negotiate his relationship with the father, perhaps because, as the father himself observed, they are more alike.
However, Z too is starting to encounter the same difficulties in his communications with his father as are described by X in that he reports not being listened to or respected by his father and raises concerns about his father’s responses if he does not agree to what it is that his father wishes him to do or the decisions that his father makes.
Z is much more amenable to spending time with his father as it is apparent that he genuinely enjoys his time with him, particularly as they both seem to enjoy physical activity and sport.
However, Z is clear that the father’s overt displays of physical affection for his partner Mr W are extremely distressing to him and the father continuing that conduct after he had given an undertaking to the Court that he would not do so has undermined Z’s trust in his father. It will be vitally important the father sticks by his commitment to not engage in displays of physical affection with Mr W when Z is with him so that he rebuilds that trust if he wishes Z to start spending ongoing regular time with him.
Again, Z’s wishes in this regard should be given appropriate weight.

Section 60CC(3)(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child).

As previously noted, Z and X love both their mother and father.
Z and X have a close and loving relationship with their mother and she is the parent who they feel they can go to when troubled and is the parent who will be their champion in traversing the complicated parental relationships that they have to negotiate.
X is very close to giving up on his relationship with his father as he feels his father does not respect him, does not listen to him and continuously drags the family back into the ongoing litigation. In short, X sees his father as being at the root of many of the problems that he is currently encountering.
Despite all this, X is still open to a relationship with his father but unless there is a dramatic alteration in the way in which the father communicates with him, parents him and relates to him there has to be every chance that the thing the father most fears, which is he loses his relationship with his son, will come to fruition.
Z’s relationship with his father is currently somewhat fractured but is more open to repair than is the relationship the father currently has with X.
All the matters which have been canvassed in relation to what the father will be responsible to do in relation to the reparation of his relationship with X is equally applicable to his relationship with Z.
The maternal extended family, and in particular the maternal grandfather, play a very important role in X and Z’s lives and it is quite apparent that the maternal grandfather has been their confidante since the parties separated.
Ms E raises concerns in her evidence about the influence of the maternal grandfather in the context of him being very negative about the father, very critical of the father’s decision in relation to his sexuality and of his parenting of the boys generally. She is very concerned about the influence of the maternal grandfather in discussing Court proceedings with the boys and flagged concerns about him perhaps putting forward explanation of Court orders that were not necessarily an accurate reflection of their meaning.
Ms E was very clear in her evidence that not only should the mother take on board the importance of her shielding the boys from her negative views of the father and embroiling herself too closely with the issues that they have with him, but also the importance of the maternal grandfather being much less enmeshed in the propagation of negative views of the father and his relationship with X and Z.
X and Z genuinely like the father’s partner Mr W. The difficulty for the boys in relation to Mr W is the physical displays of affection between him and the father in front of X and Z which they find embarrassing and confronting. This is particularly so as both X and Z are currently struggling with their own sexual identity and hold fears about their own sexuality in light of what happened for their father.
It is interesting to note that Z in particular has indicated that it is the father and not Mr W who is the instigator of these displays of affection. It is most unfortunate that the father, in his need to champion his lifestyle and show the boys that his relationship with Mr W is normal, is undermining what is a very positive relationship between X, Z and his partner Mr W.

Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child.

The issue in this matter is not so much about the parents failing to participate in making the long-term decisions for X and Z, but rather their inability to actually make those decisions because of their complete inability to agree, which Ms E identifies as being their need to be seen to be the one in control.

Section 60CC(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.

Both parties have fulfilled their obligations to maintain the children.

Section 60CC(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

At the moment, X and Z are refusing to spend time with their father. The changes that it is hoped these orders will bring about will be a resumption of that relationship.

Section 60CC(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

This subsection is not relevant to the issues for determination in this matter.

Section 60CC(f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.

The concerns about the capacity of the parties, and in part the maternal grandfather, to provide for the emotional needs of X and Z have been set out in some detail in this judgment to date.
It can only again be reiterated that the damage that these parties are doing to X and Z by their inability to communicate, accept any responsibility for the need to change how they interact, to look at how they are parenting, and from the perspective of the father, to look at how his particular parenting and communication style is undermining his relationship with the boys is something only the parties themselves can address.

Section 60CC(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant

The impact of the father’s sexuality on his relationship with X and Z is a very relevant factor in this matter.
As set out by Ms E in her family report, the father holds very strong views that others should accept his lifestyle with grace and is adamant that his sons should accept, or be told to accept, that lifestyle is normal and should therefore accept and embrace displays of physical affection between himself and his partner, Mr W.
X and Z struggle with the father’s displays of physical affection with Mr W because they find them embarrassing and because as young adolescent boys they are struggling with their own sense of their sexuality, particularly in the context of the manner in which their father’s sexuality came to be known and their understanding of the difficulties that that caused him.
X, in particular, is struggling with his sexuality and is genuinely fearful that he, too, might find out that he is gay. X is sensitive young man who is different to many of his peers at (omitted).
The father’s insensitivity to X and Z’s difficulties in relation to this issue has severely impacted on their willingness to spend time with the father.
There is no doubt that the mother continues to harbour genuine resentment towards the father for the impact on her of his disclosure of his sexuality and therefore the breakdown of their relationship and struggles at times to shield X and Z from her hurt about the impact of the father’s disclosure of his sexuality.
It is also apparent that the maternal grandfather is strongly disapproving of the father’s sexuality and the impact that that has had on his daughter and his grandsons. It is apparent that he is not at any pains to hide these views from X and Z which adds to their discomfort.

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:

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

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

This subsection is not relevant.

Section 60CC(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

As noted, the parents in this matter love their children and are genuine in their desire to do what they think is best for them.
The difficulty for X and Z is that the parental relationship between the parties is played out under the key dynamic that both parents want to be the parent who is in control.
As was so eloquently put by Ms E in her viva voce evidence, it is X and Z who are the victims of this dynamic.

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family

Section 60CC(3)(k) any family violence order that applies to the child or a member of the child’s family, if:

(i) the order is a final order; or

(ii) the making of the order was contested by a person

These subsections are not relevant.

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

In the previous judgment delivered by me on 27 June 2013 in relation to parenting matters for the parties’ children I expressed little optimism that the orders made by me at that time would see the end of litigation between the parties.
Sadly, I have absolutely no reason to be any more optimistic that this decision will see the end of litigation as both parties have shown a complete reluctance to accept any orders that don’t accord with their wishes or to engage in the therapeutic interventions that would assist them in their relationship with their sons or with each other.
Because of this, as soon as there are issues about which the parties are unable to agree, their inability to in any way compromise means they return to the Court to have those issues resolved.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant

Ms E has recommended that she meet with X and Z to explain the orders made in the matter in order to avoid what has clearly previously arisen where the parties and extended family have explained previous orders to X and Z in terms that did not necessarily reflect the intent and meaning of the orders.

Parental Responsibility

The mother is seeking an order that she have sole parental responsibility for X and Z. The father seeks a continuation of the existing orders for equal shared parental responsibility.
Section 60DAA of the Act provides that there is a presumption for equal shared parental responsibility which is rebutted in the event of family violence or if such an order is not in the best interests of the children.
It is the mother’s position that it is impossible for she and the father to reach agreement in relation to any of the decisions that need to be made in relation to X and Z’s long-term care. It’s her evidence that she and the father have not agreed on medical issues in relation to X and Z, educational issues in relation to X and Z or appropriate living arrangements.
It is the mother’s evidence that she cannot communicate with the father and describes a pattern of the interaction with the father whereby he will not agree to her suggestion, will insist on interminable discussions that go round and round and round until she either capitulates and agrees to what it is he wants or the decision is not made.
The mother describes the impact of the parties’ continuous inability to make a decision as causing X and Z ongoing distress and believes that it is impacting on their emotional and psychological health.
The mother also expresses despair at having to continuously engage in discussion and negotiation with the father and it is her evidence that this is also impacting on her health and wellbeing.
The mother describes the relief that she has been afforded in being able to be the sole decision-maker in relation to Y’s care and is looking for the same relief in relation to the decision-making for X and Z.
Whilst conceding difficulties in his communication with the mother, the father believes that with professional assistance he and the mother will learn to better communicate in order to be able to reach agreement when decisions are required for X and Z’s long-term care.
The father also expresses genuine concern and distress that an order for sole parental responsibility will further remove him from involvement in his sons’ lives and will be a “further nail in the coffin” in the relationship that he has with X and Z.
As is the case with all parenting orders, a decision in relation to parental responsibility is ultimately determined by what is in the best interests of the children, and in this case the best interests of X and Z.
In the final point contained in paragraph 25 of the family report

Ms E states as follows:
X and Z are worn-out by the parental fighting and as a consequence their mental health has been compromise (sic) and they have been exposed to emotional abuse.
The inability of the parties to be able to agree on a change of school in relation to X is a prime example of the parents’ inability to reach agreement on a long-term issue for one of their children. The unnecessary distress and angst that X has had to endure as a result of this is apparent.
The father’s backflip in relation to this issue where he was first adamant that there should not be a change of school and then that there be a change of school but it not be until the end of the year again is indicative of the father’s communication and negotiation methods.
Whilst ideally two intelligent loving parents should be jointly making decisions for the long-term welfare of their children, in this case it has become absolutely apparent that for these parties this is something they cannot do.
This inability of the parents to make decisions jointly, cooperatively and in a child focused way has and is having serious implications for X and Z both practically and psychologically.
Therefore it is quite apparent that the only order that can be made that is in the best interests of X and Z is for their primary carer, who is the mother to have sole parental responsibility for the long-term decisions for their care, welfare and wellbeing.
Orders will be made that the mother advise the father of all decisions made in relation to X and Z’s education and health, and the father shall be authorised to receive all reports and newsletters and to attend all school activities normally attended by parents, as well as to speak to all X and Z’s treating medical practitioners.

Consideration of Equal Time or Substantial and Significant Time

When parties have equal shared parental responsibility for a child, section 60DAA of the Act requires the Court to consider the child spending equal time, or substantial and significant time with each parent.
The Full Court in the matter of Goode & Goode (2006) 206 FLR 212; (2006) 36 Fam LR 422; (2006) FLC 93-286;[2006] FamCA 1346 held that even where no order is made for sole parental responsibility, the Court should still consider whether it is the best interests of the children to spend equal or substantial and significant time with each parent.

In this matter neither parent is proposing an equal time arrangement.
Further, neither party is proposing orders that would make provision for X to spend significant and substantial time with the father. Given the current difficulties in that relationship it is quite apparent that such an order would neither be practicable, achievable or appropriate.
In relation to Z, the father proposes orders that would see Z spending significant and substantial time with him. The mother is not opposed to Z spending such time with his father but is concerned that if orders were made in the terms proposed by the father, Z would rebel and refuse to spend time with the father.

Conclusion

This will be the sixth occasion on which this Court has been asked to make final orders in relation to the living arrangements for the parties’ sons. When the matter was before the Court in June 2013, I expressed the hope that that would be the last time the Court would be called upon to make such a decision. Sadly, that is not the case, as the orders made on that occasion for X and Z’s living arrangements came unstuck within only a matter of three or four months.
The mother has filed an application in which she seeks in addition to the order for sole parental responsibility for X and Z, orders for a change of school for X and Z, as well, yet again, a change of surname for the boys.
In relation to the change of school, the mother seeks orders that she be permitted to enrol X at (omitted) Secondary College immediately, and that Z attend that school for his secondary education, which he will commence in 2015.
The father now agrees that X and Z be enrolled at (omitted) Secondary College, but in relation to X, proposes that that not take place until the beginning of the school year in 2015, so that X completes the year at his current school, (omitted), and both boys then start at a new school at the same time.
X is unhappy at (omitted). That his schooling there to date has been less than satisfactory is not in dispute. X has been the subject of extreme bullying, particularly for all of 2012, and most of 2013. Whilst the school has worked very closely with him and provided him with all possible supports, his experiences at that school continue to be distressing for him. He has no friends, and somewhat poignantly describes spending lunchtimes and recesses on his own.
The report writer, Ms E, expressed the view that ideally, it is preferable for there to be a change of school at the beginning of the school year. When Ms E considered X’s statements to his mother that if he was forced to remain at (omitted) for the rest of the year he would resist going to school, she expressed the view that perhaps for X, despite him being a good young man, he is at the end of his tether, and she was most concerned as to the impact on him if he were forced to see out the school year at (omitted).
X has expressed a very strong wish to be able to change schools now rather than at the end of the year. I am satisfied he is sufficiently mature to understand the difficulties he will encounter in having to change school midyear and that he is prepared to work very hard to overcome those difficulties.
I am of the view that X’s wishes in this regard should be given real weight, and that orders be made that he be permitted to change schools now, so that he commences at (omitted) Secondary College at the start of Term 3. Whilst it is accepted that he may have some difficulty in initially settling into this school, the benefit of starting at the school at this time is he will have an opportunity to form some friendships before the end of the year, which he can then take with him to Year 10 and the completion of his secondary education.
So that there is no doubt, orders will also be made that will enable Z to attend (omitted) Secondary College when he commences high school next year.
The mother also seeks orders in relation to a change of surname for X, Y and Z.
This is an issue that has been before the Court on multiple occasions and is one upon which I made a determination in June 2013 when the application to change the surname of the boys was dismissed.
When the matter was before me in 2013, I was very much persuaded by the evidence of the then report writer, Ms B, that an order changing the boys’ surname from “White” to “Gibson” or “Gibson-White” was not in X, Y and Z’s best interests, as retaining the surname “White” would give X, Y and Z the message that the value of their father had not been diminished by the circumstances in which they found themselves living. It was Ms B’s evidence that X’s very strongly held views in relation to his name change were in part influenced by his sense of responsibility to the mother and therefore X’s views should not be a factor that determined that issue.
Ms E has a somewhat different view to Ms B in relation to the change of name. It is Ms E’s opinion that if the boys’ surname could be hyphenated to “Gibson-White”, this would normalise matters for X and Z. It is Ms E’s evidence that as it is common for the children of separated parents to have both their parents’ names in their surname, an order hyphenating their surname would accurately reflect X, Y and Z’s current circumstances.
It is therefore Ms E’s recommendation that X, Y and Z be permitted to have the surname “Gibson-White”.
Ms E noted that X is at the stage where even the introduction of the hyphen won’t actually meet his needs, and that whatever happens in relation to the name change, he is adamant that as soon as he is 18, he will change his name himself so that his surname is solely “Gibson”.
The father is concerned that if a hyphenation of the surname is allowed, the mother and/or X and Z will drop the name “White”, and just refer to themselves as “Gibson”.
In her closing submissions, the mother was quite adamant that she will abide by any requirement of this Court that the boys be known by “Gibson-White” until such time as they, as adults, can make a decision about the name by which they are to be known.
That this matter continues to resonate so strongly with X and Z, and X in particular, is indicative of their very strong desire to be heard on this issue.
X attributes much of the difficulties that he experiences at (omitted) with the name issue. Whilst the father is of the strong belief that these matters are not related, it is apparent from the evidence of the school itself that this was one of the root causes of the difficulties for X at that school.
It will therefore be vitally important that, as part of X’s introduction to his new school, this issue should not loom so large that it interferes with him having every opportunity to settle into and be embraced in his new school environment.
In all of these circumstances, I am satisfied that it is in X, Y and Z’s best interests that orders be made that enable X, Y and Z to be known by the surname “Gibson-White”.
When X and Z are 18 they can, of course, make a decision themselves as to the name by which they will be known.
The father is seeking orders in relation to the specific times that X, Y and Z spend with him.
In relation to Y and Z, the father is seeking orders that they spend alternate weekends with him from after school Friday to before school Monday, half of the term holidays from the conclusion of school on the last day until 10am the middle Sunday of the school holidays, for half the long summer vacations, being first half in 2014/2015, and each alternate year thereafter, and the second half in 2015/2016, and each alternate year thereafter.
The father is also seeking orders that Z spend time with him overnight on the first Wednesday of each month, and Y spend time with him overnight on the second Thursday of each month.
The father seeks orders that changeovers that do not occur at school occur at Hungry Jacks in (omitted) Shopping Centre, that the mother be restrained from attending the children’s school on any day he is collecting the children pursuant to these orders, that he and Z commence counselling with Ms L, that Ms L be permitted to report on those counselling sessions and that the previous family consultant Ms B prepare an updated family report and that she be permitted to consult with Ms L in relation to that process.
In relation to X, the father is seeking orders that X spend time with him on the second and fourth Wednesday of each month from after school until the commencement of school Thursday.
As set out earlier in this judgment, the mother is seeking orders that the father spend time with X for one occasion each month for dinner, a movie or some individual one-on-one time. In relation to Z, the mother proposes he spend time with the father, at least initially, for one weekend a month from after school Friday to 5pm Sunday. The mother also proposes that there be no orders in relation to counselling and that changeovers that don’t occur at school take place at her house as they have done without incident for some years and that she not be restrained from attending the children’s schools on any day that the father is to collect the children pursuant to the orders of the Court.
The father expresses real concern that any orders that do not specifically set out his time with X and Z will ultimately result in him spending no time with them. The father is also concerned that the limited time recommended by the report writer, Ms E, does not afford any opportunity for him to have a meaningful relationship with his sons.
I will deal firstly with X.
It is apparent that at the moment X’s relationship with his father is hanging by a thread. An order that requires X to spend two overnights per month with his father at this time is doomed to failure.
X was adamant in his discussions with Ms E that whilst he is amenable to spending some one-on-one time with his father, to push him to overnight time at this juncture would result in him rebelling against that arrangement.
It is the fervent wish of this Court that its order promote the repair of the relationship between the father and X, and not inadvertently contribute to its ultimate demise.
Accordingly, orders will be made that X spend time with his father on no less than two occasions each month. Such time is to be for a dinner, movie or other agreed activity, and shall take place one-on-one between X and the father who are to be the only ones present, unless otherwise agreed between X and the father.
If agreement is unable to be reached as to the two occasions on which X and the father spend time with each other that time shall occur on the second and fourth Wednesday of each month from after school to 9pm.
In relation to Z, orders will be made that will start time between he and the father slowly so that the father is afforded the opportunity to rebuild Z’s trust in his commitment to refrain from displays of physical affection between himself and Mr W.
Z will spend one weekend each month with the father in July, August and September 2014 and with that weekend to coincide with the first weekend that Y is spending time with the father under the current arrangements.
Z will also spend one-on-one overnight time with the father on one night each month. That first night will be Wednesday 25 June 2014 and thereafter it shall be the first Wednesday in each month.
When Z is spending time with the father, the father will be restrained from displays of physical affection between himself and Mr W and if he is unable to commit to this restraint, not only will Z refuse to spend time with his father, but he will be at liberty to return to his mother.
From October 2014 Z will resume spending alternate weekends with the father on the same pattern as Y.
In relation to holiday time, Z will spend one week in the long summer vacation with the father and commencing the first term holidays 2015 will spend half the term holidays and half the long summer vacation with the father in accordance with the orders made in June 2013.
In relation to the duration of the alternate weekend time, I am not satisfied that there is any reason to vary the orders that were made in June 2013 to extend that time to before school on the Monday morning. I am satisfied that the long-standing arrangements whereby the boys return to the mother’s home on Sunday afternoon reflect a well settled routine and accord with Z and Y’s wishes.
The father sought to vary the school holiday arrangements as set out in the June 2013 orders but no evidence was placed before the Court as to why such alteration was needed or in the boys’ best interests. Accordingly the 2013 orders in relation to the school holidays will not be varied.
I am not satisfied that it is necessary to restrain the mother from attending at the boys’ school when the father is collecting them from the school, albeit she should only do so upon the specific request of the school.
In relation to changeovers not at school, I accept the mother’s evidence that she and the father do not interact when changeover occurs at her home. I am satisfied there is no reason to alter the long-standing arrangement that changeovers not at the school take place at the mother’s home.
Finally, in relation to the question of counselling, it is very apparent that X and Z are well and truly “counselled out” and that any orders for counselling would be counterproductive and would not address the issues that are currently at the heart of the difficulties in the relationship between X and Z and the father.
What is very apparent is that it is the parents who most need counselling in this matter.
If the father genuinely wants to repair his relationship with X and Z then the father must undertake the counselling that has been recommended by Ms E to address his parenting of X and Z so that he is able to develop the requisite insights and skills that will enable him to change the manner in which he communicates and parents his sons. The father must develop the understanding that it is his responsibility to effect change, as a failure to do so will, in all probability, see the end of his relationship with his sons.
Similarly, I am of the view that the mother should attend counselling that will enable her to develop the strategies that will enable her to shield her sons of her negative view of the father and to put in place barriers that will ensure that she is not overinvested in being her sons’ “champion”, but rather empowers them, as they mature and develop, to manage their relationship with their father appropriately.
Orders will not be made directing the parties to attend the recommended personal counselling. If they do not now understand the necessity for this counselling and voluntarily attend such counselling, ordering them to do so will be futile. I reiterate however that if they fail to accept the need for and undertake the recommended counselling it will cause irreparable long-term harm to X and Z.
Orders will not be made for joint counselling for the parties to address their communication difficulties. Nothing would be achieved at this time from such counselling given the parties’ long-standing entrenched patterns of interacting and the mother’s strong opposition to such counselling. Again, it can only be hoped that if this endless litigation finally ends and both parties see the benefit to themselves and more importantly to their sons of them learning to better communicate, then such counselling will take place.
It is also important that the mother have a discussion with the maternal grandfather about the importance of him exercising a great deal more restraint than he has to date in expressing his negative views of the father to X and Z, as these discussions are not assisting them.
Finally, I will follow Ms E’s recommendation that she explain this decision and the orders made to X and Z and accordingly the mother will be requested to have X and Z attend upon Ms E for that purpose.

I certify that the preceding two hundred and forty nine (249) paragraphs are a true copy of the reasons for judgment of Judge Bender

Associate:

Date: 19 June 2014

[2014] FCCA 1276

19 June 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction