WHITE & GIBSON
[2013] FCCA 619
•27 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WHITE & GIBSON | [2013] FCCA 619 |
| Catchwords: FAMILY LAW – Parenting – matter concerns the living arrangements for the parties’ three children aged 13 years, 11 years and 10 years – the child aged 11 years has been diagnosed with autism, intellectual disability global development delay, congenital heart disease and Lennox-Gastaut syndrome and as having an intellectual age of approximately three years of age – long history of litigation between the parties – whether children’s surname should be changed – best interests of the children. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| AMS v AIF (1999) 199 CLR 160 U v U (2002) 211 CLR 238 Goode & Goode (2006) FLC 93-286 |
| Applicant: | MR WHITE |
| Respondent: | MS GIBSON |
| File Number: | SYC 5196 of 2008 |
| Judgment of: | Judge Bender |
| Hearing dates: | 22, 23 & 24 April 2013 |
| Date of Last Submission: | 24 April 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 27 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fennessy |
| Solicitors for the Applicant: | M D Motherwell |
| Counsel for the Respondent: | Ms Healey |
| Solicitors for the Respondent: | Bayani Harvey Lawyers |
ORDERS
All previous parenting orders be discharged save for orders 11 and 12 of the orders made 29 September 2011.
The parties have equal shared parental responsibility for X born (omitted) 1999 (“X”) and Y born (omitted) 2003 (“Y”).
The mother have sole parental responsibility for Z born (omitted) 2001 (“Z”).
X, Z and Y live with the mother.
X, Z and Y spend time with the father as follows:
(a)each alternate weekend from after school Friday to 5.00pm Sunday, with such weekend time to commence on the first weekend of the third school term in 2013 and each alternate weekend thereafter;
(b)for half of all school holidays for:
(i)the first half in each odd numbered year; and
(ii)the second half in each even numbered year; or
(iii)as otherwise agreed between the parties; and
(c)such other times as agreed between the parties.
The father’s time with X, Z and Y pursuant to order 5(a) herein shall be suspended during school holidays and recommence on the first weekend of each school term.
X, Z and Y individually spend one-on-one time with the father for one overnight each month on such nights as agreed between the parties and failing agreement as follows:
(a)the last Wednesday each month for X;
(b)the first Wednesday each month for Y; and
(c)the second Thursday each month for Z.
The mother shall do all acts and things necessary to authorise:
(a)any schools that X, Y and Z attend or shall attend to communicate with the father and to provide to the father at his expense copies of all reports, 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)Z’s treating specialists and health professionals to communicate with the father in relation to Z’s health and the father shall be able to attend upon these health professionals; and
(c)Z’s case manager at the Department of Human Services to communicate with the father in relation to Z’s current care plans.
The parties be permitted to attend all school events and extracurricular activities relating to X, Z and Y normally attended by parents including but not limited to parent/teacher interviews, school concerts, speech nights and sporting activities.
Each party ensure that X, Z and Y 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, Z and Y 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 shall do all things necessary to enable the father and X to forthwith commence confidential therapeutic counselling with a psychologist as nominated by the father (“the therapeutic counsellor”) and any costs of such therapy shall be borne by the father.
The father shall provide the therapeutic counsellor with copies of the Family Reports of Ms F dated 30 August 2011 and 2 April 2013.
The mother’s Application to change X, Z and Y’s surname from ‘White’ to ‘Gibson-White’ be dismissed.
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
This matter relates to the living arrangements for the parties’ three sons X born (omitted) 1999 (“X”), Z born (omitted) 2001 (“Z”) and Y born (omitted) 2003 (“Y”).
The father is seeking orders that the parties have equal shared parental responsibility for X, Z and Y, that they live with the mother and spend time with the father on alternate weekends from after school Friday to before school Monday and for half school holidays. The father also seeks that each of the boys individually spends one-on-one time with him one night each month.
The mother seeks orders that the parties have equal shared parental responsibility for X and Y, that she continue to have sole parental responsibility for Z in accordance with orders made by consent on 5 December 2011, that X, Z and Y live with the mother, that Z and Y spend alternate weekends with the father from 5.00pm Friday to 5.00pm Sunday and that X spend time with the father for two weekends each school term. The mother proposes that X, Z and Y spend half school holidays with the father and does not oppose orders for X, Z and Y to spend one-on-one time with the father for one night each month.
The mother also seeks an order that X, Z and Y’s surname be changed from ‘White’ to ‘Gibson-White’.
The father strongly opposes any change of surname for X, Z and Y.
Background
The father was born on (omitted) 1969 and is aged 44 years. The father is a (omitted). The father has re-partnered, although he and his partner Mr W do not live together.
The mother was born on (omitted) 1970 and is 43 years of age. The mother is a part-time (omitted) and this year commenced a
(omitted) degree at (omitted) University. The mother has not re-partnered.
The parties commenced cohabitation in (omitted) 1992, married on
(omitted) 1993 and separated in June 2007, when the father advised the mother that he is gay.
There has been almost continuous litigation between the parties in relation to X, Z and Y’s living arrangements since separation. Whilst rather lengthy, I will set out the litigation history in this judgment as it gives an insight into the dynamics of the current dispute before the Court.
In September 2008, the father filed an urgent Application seeking to restrain the mother from relocating with X, Z and Y 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.
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, Z and Y to live with the father in the (omitted) area and spend time with the mother both in Melbourne and in the (omitted) area.
In August 2009, the father, X and Y were involved in a serious car accident which resulted in the father and X being hospitalised for two months.
In August 2009, the mother took Y to Melbourne and the father issued a Contravention Application seeking Y be returned to New South Wales.
On 19 August 2009, the mother issued an Application seeking orders that X, Z and Y live with her in Melbourne.
On 24 August 2009, interim orders were made that provided for Z and Y live with the mother in Melbourne (X was still in hospital at this point in time).
On 23 July 2010, orders were made by consent which provided for:
·the parties to have equal shared parental responsibility for X, Z and Y;
·X, Z and Y to live with the mother;
·X, Z and Y to spend half school holidays with the father;
·whilst the father lived outside of Melbourne, X, Z and Y 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, Z and Y spend time with the father from after school Wednesday to before school Monday in each alternate week.
On 23 July 2010, the mother gave an undertaking to the Court that X, Z and Y 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, Z and Y having a surname other than ‘White’.
On 5 October 2010, the father filed an Application in a Case seeking to enforce the 23 July 2010 orders.
On 19 November 2010, the father filed an Amended Application in a Case.
In 2011 the father returned to Victoria. Having been unable to find a position in a (omitted) in Melbourne, the father took up a position at the (omitted).
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, Z and Y from ‘White’ to ‘Gibson-White’.
On 29 September 2011, final orders were made by consent which provided for the parties to have equal shared parental responsibility for X, Z and Y, for X and Y to live with the mother, for Z to live with the father from 14 October 2011 in (omitted) and for X, Z and Y to spend two weekends each term with the other parent as well as half school holidays.
The September 2011 orders also provided that X, Z and Y be known by the surname ‘White’ at all times but the mother be permitted to insert the name ‘Gibson’ as a second middle name for each of X, Z and Y. The order specified that the name ‘Gibson’ was not to be hyphenated.
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 Z’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 Z and for Z to remain living with her.
On 25 October 2011, final orders were made providing for the parties to have equal shared parental responsibility for X and Y, for X, Z and Y 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.
An interim order was also made on 25 October 2011 that provided for the mother to have sole parental responsibility for Z. The mother’s Application for sole parental responsibility for Z was adjourned to
5 December 2011 for final hearing.
On 5 December 2011, a final order was made by consent for the mother to have sole parental responsibility for Z.
It is the father’s evidence that when he was before the Court in September 2011 he raised the issue of X, Z and Y 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, Z and Y upon his return to Melbourne.
The father returned to Melbourne in early 2012 and commenced the current proceedings on 29 March 2012.
X, Z and Y live with the mother in (omitted). X attends (omitted) College in (omitted). and is in Year 8. Y attends (omitted) School in (omitted). and is in Year 5.
Both X and Y are active boys with a myriad of extracurricular activities which see them training and playing basketball, football and rugby and attending scouts and cubs. These activities involve one or both of them having commitments on most days of the week.
Z is diagnosed with autism, intellectual disability global development delay, congenital heart disease and Lennox-Gastaut syndrome. Z has an intellectual age of approximately three years of age. Z attends (omitted) School, a special school for children with autism, in (omitted).
The mother has obtained Individual Support Package (“ISP”) funding through the Department of Human Services’ Disability Services to assist in Z’s care in the sum of $46,816.36 per annum. These funds are utilised by the mother in providing the following support for Z during school terms:
·on three nights during the school week, a carer assists in Z’s care at the mother’s home between 4.00pm and 7.00pm;
·each Wednesday night, Z spends overnight at (omitted) in (omitted) from after school Wednesday to before school Thursday. A carer takes Z to and from (omitted);
·once each month, Z spends a weekend at (omitted) from after school Friday to before school Monday. A carer takes him to and from (omitted);
·for 32 weeks each year, nine hours of carer support spread over Saturday and Sunday; and
·Z’s attendance at the (omitted) holiday program for one day in each of the school holidays.
The father is seeking that the parties share the support provided for Z’s weekend care through the ISP funding so that, like the mother, the father is able to balance Z’s care with the needs of X and Y, especially given X and Y’s sporting and other extracurricular commitments on the weekend.
The mother seeks that, given her limited income and that she is Z’s primary carer, the assistance received from the ISP funding be utilised when Z is in her care.
The evidence
The father
The father relies on his affidavits filed 4 March 2013, 15 March 2013 and 19 April 2013. The father also gave viva voce evidence at the final hearing of the matter.
It is the father’s evidence that the parties had agreed that upon his return to Melbourne, X, Z and Y would spend alternate weekends with him as well as holiday time. The father notes this was reflected in the consent orders that were made in this matter on 23 July 2010.
It is the father’s evidence that following the completion of his training in (omitted), he was unable to obtain a placement in Melbourne but was offered a placement in (omitted).
It is the father’s evidence that he moved to Melbourne in (omitted) 2012 after he was successful in obtaining a (omitted) at (omitted). The father states that he has been attempting to negotiate with the mother to put in place an alternate weekend arrangement since this time. It is the father’s evidence that he was left with no choice but to commence the current court proceedings, because the parties were unable to agree.
The father is seeking orders that X, Z and Y spend alternate weekends with him from after school Friday to before school Monday.
It is the father’s evidence that he is able to adjust his working hours to enable him to collect X, Z and Y from school on Friday and return them to school on Monday morning and that he is keen to do this in order to have the opportunity to actively engage with X, Z and Y’s schools and to show the boys that he is in interested in and committed to their education.
Whilst the father acknowledges that X has expressed a wish that the existing arrangements continue for him, whereby X spends two weekends each term with the father, the father is of the opinion that this would not be in X’s best interests because it would not enable he and X to continue to develop their relationship.
The father acknowledges that he and X currently have some difficulties in communicating with each other but he firmly believes that with the assistance of professional therapeutic counselling, those difficulties can be overcome and theirs can be an even more inclusive relationship than that which they currently enjoy.
The father is also of the view that it is very important that all three boys have the opportunity to spend time with the father together as well as one-on-one time with him.
The father is also seeking an order that in addition to having equal shared parental responsibility for X and Y, he also have equal shared parental responsibility for Z.
Whilst conceding that he and the mother have difficulties in being able to communicate with each other, it is the father’s evidence that their communication has improved considerably in the last two years and that they have been able to effectively communicate in relation to making arrangements for X, Z and Y. By way of example, the father indicates that he and the mother have been able to satisfactorily negotiate the weekends that X, Z and Y spend with him during school term time as well as necessary arrangements for their sporting and other activities.
It is the father’s evidence that he believes that with professional intervention the parties’ capacity to communicate could be even more improved. The father expresses a willingness to participate in such counselling.
In relation to Z, it is the father’s evidence that he wishes to be wholly involved in Z’s life, and that he wishes to have an input into the decisions that need to be made for Z’s care now and into the future. The father is strongly of the view that it is in Z’s best interests that both he and the mother have input into the decisions that need to be made for Z’s care and development.
The father agrees that there has been considerable improvement in Z’s behaviours and development in the last 18 months and was very complimentary of the mother and her parenting of Z, and of X and Y.
The father is strongly opposed to the mother’s application to change X, Z and Y’s surname to ‘Gibson-White’. The father expresses a real concern that if orders were made in those terms, the ‘White’ component of the name would be quickly dropped and the boys would simply be known by the surname ‘Gibson’.
It is the father’s evidence that he believes that it is in X, Z and Y’s best interests that they continue to be known as ‘White’. This is the name they have been known by all their lives and is central to their sense of identity. It is the father’s evidence that if upon achieving adulthood the boys still wish to incorporate the name ‘Gibson’ into their surname, then they will be at liberty to do so at that time.
The father acknowledges that X has expressed a wish to be known as ‘Gibson’ or ‘Gibson-White’. The father is of the view that this is motivated by X’s desire to please the mother and the maternal family and that it is not an appropriate decision for X to be making at this age.
The father is seeking orders that will enable him to have access to Z funding so that he can engage carers for Z on some of the weekends that Z is in his care. It is the father’s evidence that whilst he currently manages Z on the weekend, he would seek to have that additional care in order to more equally share his time amongst the boys when they are spending alternate weekend time with him.
The father is also seeking to be able to place Z in mainstream holiday programs during the school holidays, again to enable the father to spend quality time with all three boys.
It is the father’s evidence that whilst he was living in (omitted), Z was placed in a mainstream holiday program in (omitted) and that Z thoroughly enjoyed that program and was never at any risk whilst engaged in activities with that program. The father seeks an opportunity to place Z in a similar holiday program in Melbourne. It is the father’s evidence that the mother is resistant to him being able place Z in such a program, which causes some difficulties for him being able to properly share his time and care for all three boys during the holiday period.
The mother
The mother relies on her affidavits sworn 25 May 2012, 26 February 2013, 12 April 2013 and 18 April 2013. The mother also gave viva voce evidence at the final hearing of this matter.
It is the mother’s evidence that she is agreeable to Z and Y spending alternate weekends with the father. It is the mother’s view however that given X’s strong views that he only wishes to spend two weekends with the father each term, that X should continue to spend two weekends each term with the father.
It is the mother’s evidence that X and the father have a somewhat difficult relationship and that X, whilst enjoying his time with the father, is reluctant for that time to be increased.
It is the mother’s proposal that the alternate weekend time that X, Z and Y spend with the father should be in accordance with the current arrangements, that is from 5.00pm Friday to 5.00pm Sunday. It is the mother’s evidence that the current arrangement enables the boys to come home, have a snack, drop off their school gear, pack their bags and get ready to go and spend time with the father. Z also requires considerable medication which is refrigerated and this arrangement allows for that medication to be collected and taken with Z for the time that he spends with the father.
It is the mother’s evidence that she believes that it is in the best interests of X, Z and Y to return home at 5.00pm on Sunday night. It is the mother’s evidence that this arrangement enables the boys to come home, relax, settle in, have an early night and be refreshed and ready to go to school the next morning.
In the mother’s viva voce evidence, she indicates that if the father does wish to have involvement with the boys’ schools, she would not be opposed to orders that the father collect X, Z and Y from school on Friday afternoon but in that circumstance, the father would need to have his own set of medications for Z.
In relation to the question of parental responsibility for Z, it is the mother’s evidence that she is unable to communicate effectively with the father in relation to Z’s care and development. It is the mother’s evidence that if the Court were to make an order for equal shared parental responsibility, she doubts her capacity to continue to be Z’s primary carer as the stress of having to reach agreement with the father in relation to every decision that needs to be made for Z would be more than she would be able to manage.
It is the mother’s evidence that since orders were made for her to have sole parental responsibility for Z 18 months ago, she has been able to put in place a large number of arrangements that have greatly assisted Z and enabled her to better care for him. Those arrangements include negotiating the ISP funding package with the Department of Human Services; such that Z is now provided with a carer during the week, a respite weekend at (omitted) each month and the necessary supports and services, which have resulted in there being a measureable improvement in Z and his functioning.
Whilst the mother concedes that communication between herself and the father has improved in recent times, it is her evidence that she does not believe that it has reached or can ever reach a level that would enable them to work cooperatively in Z’s best interest.
The mother is resistant to suggestions that she and the father attend therapeutic counselling with a view to assisting them to better communicate. It is the mother’s evidence that the four years of almost continuous litigation at the behest of the father has exhausted her and causes her to have great doubts as to the father’s ability to be conciliatory or follow through with any agreements that they might potentially reach.
It is the mother’s evidence that X in particular has held a long expressed desire to include the name ‘Gibson’ as part of his surname. It is the mother’s evidence that X wishes to have an acknowledgment in his name of a connection to the maternal family and that she believes that he is old enough to have input into the choice of name by which he is to be known.
In relation to the father’s concern that if the Court were to make orders in the terms sought by the mother that X, Z and Y’s surname be changed to ‘Gibson-White’ that the ‘White’ would be dropped off, it is the mother’s evidence that she would happily agree to an order that would restrain her and by association any of the boys from dropping ‘White’ from their surname.
In relation to Z’s funding, it is the mother’s evidence that she receives a finite amount for Z each year and the allocation of the funding across the various supports that she has put in place is something of a compromise worked out by her and Z’s case manager at the Department of Human Services.
The current arrangement enables the mother to have support for Z for nine hours on 32 weekends each year. It is her evidence that if Z were to be in her care for 26 weekends each year, given the proposals that he spend alternate weekends with the father, then the monies that would not be needed for those weekends that Z is with the father could be utilised by her in other ways for Z’s benefit.
It is the mother’s evidence that given she is Z’s primary carer and that she has a limited income compared to that of the father, particularly into the future once he has completed his (omitted), that the funding should remain with the mother and be utilised by her to assist in Z’s care.
It is the mother’s evidence that the father can engage support services for Z whilst Z is spending time with the father on the weekend, but that the father would have to pay for those support services himself.
In relation to Z’s attendance at holiday programs, it is the mother’s evidence that she has major concerns about the capacity of mainstream holiday programs to be able to properly care for Z given his particular and specific needs.
It is the mother’s evidence that Z is a child who requires very specific routines, close one-on-one attention, has an inclination to abscond if the circumstances in which he finds himself are not familiar or are disturbing and that large, mainstream holiday programs, that can cater for anywhere up to 60 children, do not have the capacity or the expertise to manage a child with Z’s difficulties.
It is the mother’s evidence that she is able from time to time to place Z in the (omitted) program with the City of (omitted) on one or two days during the school holidays and that there would be nothing to prevent the father from similarly trying to access that program whilst Z is in his care.
Ms F
Ms F is a psychologist and Regulation 7 Family Consultant with the Federal Circuit Court. Ms F prepared a Family Report in relation to this family dated 30 August 2011 when the matter was previously before the then Federal Magistrates Court in Melbourne.
Pursuant to my orders, Ms F prepared a further Family Report dated 2 April 2013. Ms F also gave viva voce evidence at the final hearing of this matter.
In Ms F's Family Report dated 2 April 2013, under the heading ‘Recommendations’, Ms F set out the following in paragraphs 121 to 126:
121.X, Z and Y live with their mother Ms Gibson.
122.The children spend time with their father Mr White on alternate weekends between Friday and Monday during school time and half school holidays. X and Y spend an additional individual night each month with Mr White.
123.Mr White resumes equal shared parental responsibility for Z.
124.X, Z and Y’s last name is retained as ‘White’.
125.Ms Gibson and Mr White attend joint parenting counselling with experienced professionals such as Ms S or Dr N.
126.X and Mr White attend time limited joint counselling with a professional such as Ms S, Dr N or Ms B.
In her viva voce evidence at the final hearing, Ms F was questioned as to whether it would be in X’s best interest to enable him to spend time with the father in accordance with his wishes rather than insisting that he attend on alternate weekends.
It is Ms F’s evidence that she believes it is in X’s best interest for him to spend more time with the father than he currently does in order to continue to build their relationship.
Ms F gave viva voce evidence that X presents with mixed maturity and that whilst he is a very sensible and reasonable young man, he is emotionally quite immature about family relationships and that there are going to be some issues for him going into adolescence given his family history. It is for these reasons that Ms F is supporting X spending as much time as possible with the father.
It is Ms F’s evidence that from her observations, X demonstrates that he has the capacity to relate with his father in a positive and playful way and that he has the potential to become a very well-rounded young man. It is Ms F’s evidence however that this will occur only if X has the opportunity to build a very strong relationship with the father.
It is Ms F’s very strong recommendation that the best way for the building of a solid relationship between X and the father is with the assistance of professional therapeutic intervention. Ms F believes that such counselling will help the father and X to work out how to better understand each other’s methods of communication and to break down any barriers that might currently exist between X and the father.
Ms F was asked what would be the impact on X if he were to continue to spend the relatively limited time that he currently does with the father. Ms F’s oral evidence was follows:
The research we have about children in later life in terms of ruptured relationships with their parents and being allowed to not have time with one parent is that a large proportion of children who are interviewed as adults indicate great regret that that occurred and some ongoing disillusionment and disappointment and changes in the relationship with the stronger parent. And so that’s why I’m suggesting that we need to prevent that from happening with this family, particularly given the maturity of both parents. I think that they would be able to support the child once a decision is made and they have professional assistance in doing that.
Ms F’s strong recommendation that X and the father commence therapeutic counselling in relation to assisting them in improving their communication and relationship, Ms F was asked whether the increased time between X and the father should commence after counselling had taken place or whether the best way forward is for increased time to start commensurate with such counselling.
It is Ms F’s evidence that it would be appropriate for the additional time between X and the father to commence commensurate with the father and X starting counselling.
Ms F was questioned in relation to the issue of parental responsibility for Z. Ms F indicates that this is one of the areas which she gave the most thought to given the history of this family. It is Ms F’s evidence that:
…if it were not for the father’s competence and his very genuine wish to participate in decisions about Z and to support the mother, I think I would have talked about sole parental as being more appropriate.
It was put to Ms F that given the mother’s genuine distress and concerns about her capacity to parent Z if orders were made for equal shared parental responsibility, a compromised way forward could be to leave sole parental responsibility with the mother but make orders that ensure the father is at liberty to speak with the professionals assisting Z. This would enable the father to gain first hand feedback on what the latest interventions for Z are as well as enabling him to have more involvement with the professionals assisting Z. It is Ms F’s evidence as follows:
If that’s possible, Your Honour, then that might fit with the needs of both. I would be concerned if the father was not able to participate as much as he I think can competently do.
Ms F was quite clear in her evidence that she did not support any change of surname for X, Z or Y.
In paragraphs 96 to 98 of her Family Report of 2 April 2013, Ms F set out the following:
96.With regard to Ms Gibson’s wish to change the children’s last name, it was noted in August 2011 that it was ‘of some concern that she demonstrates a level of limited insight about the effects on the children of the ongoing dispute with Mr White, particularly the name change issue.’ It was further observed that ‘Ms Gibson seems to equate a family name as the primary source of the emotional sense of belonging and personal identity, while in my view, it is more the quality of the emotional relationships and the ongoing building of a sense of self that contributes to individuals’ – particularly children’s – experience of psychological security.’
97. While Ms Gibson apparently encouraged X to retain White for the 2013 school year, she nevertheless continues to demonstrate limited emotional leadership by supporting the child in his ongoing quest to feel a stronger bond and membership of the Gibson ‘clan’ as he puts it, by sharing their last name. In doing so, Ms Gibson is conveying an ambiguous message about how psychological identity and indeed, resilience, is developed in children. She is also conveying a sense of diminution of Mr White’s significance in the children’s lives. The potential difficulties that Z and Y might also experience with a change of their last name at this point in time do not seem to have been appreciated by Ms Gibson, although she acknowledges that further change would be disruptive for children exposed to so much change in their lives.
98.I continue to consider – as I did in August 2011 - that if
Ms Gibson ‘conveyed confidence to X and Y that whatever their names might be, they are unconditionally accepted in the extended family, then the children’s anxieties would quickly settle, although it is likely that given the threats to attachment experienced by both X and Y, anxieties may emerge in other areas’, which would need to be monitored as they have been by both Ms Gibson and Mr White.
Counsel for the mother put the proposal to Ms F in cross-examination that it would be empowering for X and his relationship with the father if his strongly held wish to change his surname to ‘Gibson’ or ‘Gibson-White’ was heard and acted upon. It is Ms F’s evidence as follows:
Unfortunately, Your Honour, I don’t see winning a battle as empowering children. I see it as only conveying to them that the message is that parental relationships can be manipulated. I did not see the father as being rigid about the last name. He gave some quite cogent reasons.
Counsel for the mother asked Ms F to expand on her reasons for her strongly felt views that X, Z and Y’s surname not be changed. Ms F in her viva voce evidence responded as follows:
Because as I’ve noted in both reports, Your Honour, that these children particularly have been exposed to many, many changes and a great deal of anxiety and disruption to their – potential disruption to their development and the sense of their identity and their personal sense of self has been challenged – the development of it has been challenged and to have a name that has remained with them from the time of their birth, right through till at least they turn 18, I think that’s one area that’s quite significant, in this context, that they – that can remain consistent and it also gives them the message that the value of their father has not been diminished by the circumstances of their lives up until now.
Finally, whilst giving her viva voce evidence, Ms F had put to her the respective positions of the father and the mother in relation to the duration of the father’s alternate weekend time with X, Z and Y and in particular whether it should be from Friday to Sunday or from Friday to Monday.
It is Ms F’s evidence that whilst she does not hold a particularly strong view in relation to either proposal and that the proposal of each parent is understandable and appropriate, she would lean more towards the father having the Friday after school to Monday morning so that he could be more actively engaged in X, Z and Y’s school lives.
It is Ms F’s evidence however that given X’s reluctance to spend alternate weekends with his father, a Sunday evening return to the mother’s home might be seen as more acceptable to X and be seen by him to be some concession to his views.
The law
Part VII of the Family Law Act 1975 (“the Act”) sets out the powers of the Court when dealing with parenting matters. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes section 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).
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.
Presumption of equal shared responsibility
In this matter, the father is seeking orders that there be equal shared parental responsibility for all three children; X, Z and Y. The mother is seeking orders that the parties have equal shared parental responsibility for X and Y but that she continue to have sole parental responsibility for Z in accordance with the orders that were made on 5 December 2011.
Section 61DA of the Act sets out that there is a presumption that it is in the best interests of a child that the parents have equal shared parental responsibility. That presumption is rebutted if there has been family violence or if it is not in the best interests of the child.
Section 61DA of the Act provides as follows:
1. When making a parenting order in relation to a child, 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.
2.The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
3.When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
4.The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
It is the father’s evidence that he reluctantly consented to a final order for the mother to have sole parental responsibility for Z in December 2011.
When this matter came before the Court in October 2011, the mother indicated to the Court that she was struggling with the full-time care of Z and was contemplating having him placed into full-time care. Orders were made on that occasion by the Court for Z to live with the father in (omitted). Upon his return to (omitted), it is the father’s evidence that he realised he was not in a position to provide for Z’s full-time care given the lack of support services available in (omitted).
It is the father’s evidence that he does not believe the order for the mother to continue to have sole parental responsibility for Z is in Z’s best interests. Whilst the father in no way criticises the care provided to Z by the mother, or the myriad of services and supports that the mother has been able to put in place over the past 18 months to assist in Z’s care and development, he is of the view that Z will benefit from both of his parents having input into the decisions as to his ongoing care and development now and into the future; particularly as given Z’s disabilities, he will be the ongoing responsibility of his parents into adulthood.
It is the father’s evidence that whilst he and the mother have some difficulty in communicating, he believes that in the last two years their ability to communicate with each other has improved. The father believes that, particularly with the assistance of therapeutic intervention to assist them, the parties could develop a cordial and
cooperative parenting relationship which would enable them to work together in the future for the benefit of all three boys, including Z.
It is the mother’s evidence that she does not believe that she would be able to continue as Z’s primary carer if the Court were to make orders that the parties have equal shared parental responsibility for him.
During the course of the hearing of the matter, the mother put forward a proposal that the father have sole parental responsibility for Z and that Z move to the father’s primary care and spend alternate weekends and holidays with the mother. The father rejected this proposal, indicating that he did not believe he would be in a position to be Z’s primary carer.
It is the mother’s evidence that prior to an order being made on
5 December 2011 that the mother have sole parental responsibility for Z, she and the father had enormous difficulties in agreeing as to the appropriate way forward for Z. It is the mother’s evidence that this impacted on her capacity to care for Z and make decisions as to his care which were in Z’s best interests. The mother is strongly of the view that if orders were made for the parties to again have equal shared parental responsibility for Z, their inability to agree would continue and the parties would not be able to reach agreement as to Z’s care to his detriment.
It is the mother’s evidence that, despite having Z’s primary care, when the parties had equal shared parental responsibility for Z she constantly felt that the father undermined and challenged her decisions for Z, such that the already enormous burden of caring for him was greatly exacerbated.
It is the mother’s evidence that since having sole parental responsibility for Z she has been able to put in place arrangements for Z’s support and development. It is the mother’s evidence that Z has improved immeasurably in the past 18 months in terms of his behaviours and this is as a direct result of Z taking medication that enables him to sleep and because of the care and support she has been able to put in place. The mother states that these interventions have enabled her to provide for Z’s care as well as caring for X and Y.
It is the mother’s evidence that shared parental responsibility for X and Y is manageable because the decisions that she and the father need to make for their care are not as frequent, difficult or onerous as those needed for Z. It is the mother’s evidence that given Z’s special needs, the level of decision making is much more complex and that she and the father cannot and will not be able to agree on the best way forward for him.
It is the mother’s evidence that at this time she is not prepared to participate in confidential counselling with the father in an endeavour to improve their communication as she does not believe it would assist them.
It is the father’s evidence that since the order was made for sole parental responsibility in relation to Z, the mother has instructed Z’s school not to speak to him or to allow him to attend
parent-teacher interviews or obtain Z’s school reports or other feedback normally provided to parents.
It is also the father’s evidence that the mother has been less than enthusiastic about him speaking to Z’s paediatrician and other specialists and has advised him after the event when decisions have already been made in relation to changes to Z’s medication and care regimes.
It is the father’s evidence that the mother has also prevented him from being able to speak to the Z’s case manager at the Department of Human Services.
The father is concerned about the mother’s failure to support Z attending a mainstream holiday program during the school holidays when Z is in his care, even in circumstances where Z’s case manager at the Department of Human Services is supportive of the suggested program and has facilitated discussions with that program to confirm their ability to care for Z.
The mother agrees that she has informed Z’s school, his treators and the Department of Human Services that she is the sole decision maker in relation to Z but did so to clarify with them that she is the parent who is solely responsible for decisions in relation to Z’s care.
It is the mother’s evidence that it is Z’s school who raised concerns about their interaction with the father; finding him to be aggressive and demanding in relation to Z, and that it was the school who is reluctant to engage with the father.
It is the mother’s evidence that she does not agree with Z being placed in anything other than holiday programs specifically designed for children with disabilities. The mother raises concerns as to the capacity of mainstream holiday programs to properly supervise Z and have the requisite skill base to know how to manage his particular issues.
The parties in this matter impressed as intelligent, caring and compassionate people who genuinely have the best interests of Z, and of X and Y, at heart.
There is no doubt that both parents have many positive qualities to bring to Z’s care and, ideally, should be making decisions jointly for his future care and development.
The father wants to share parental responsibility for Z and is frustrated by the current orders that limit his ability to have input into the decisions being made in relation to Z’s care.
The mother is absolutely adamant that she cannot continue to be Z’s primary carer if required to jointly make decisions as to Z’s care with the father. It is the mother’s evidence that she cannot communicate with the father properly and feels continually undermined and challenged by him in relation to every decision that she makes for Z’s care.
It is the mother’s evidence that in the 18 months since the sole parental responsibility order was made, Z has thrived. The father agrees with the mother’s evidence in this regard and is glowing in his praise of the care she provides to Z.
The mother is Z’s primary carer. The father agrees he is not able to assume Z’s primary care. It is the mother’s evidence, which is accepted, that she will find it impossible to continue to be Z’s primary carer if forced to continually consult and negotiate with the father in relation to the decisions for Z’s care and development.
In these circumstances, I am of the view that in this matter it is in Z’s best interests that the presumption of equal shared parental responsibility be rebutted and that the mother continue to have sole parental responsibility for him.
It will be vitally important however, given the much greater involvement of the father with Z as a result of the orders this Court will make, that he be fully informed in relation to Z’s schooling, health and care needs.
To that end, orders will be made that will require the mother to authorise Z’s school, medical treators and case manager to provide the father with all of Z’s reports and other relevant information including an opportunity to attend parent-teacher interviews, attend upon Z’s treating doctors and to speak to Z’s Human Services case manager. This will enable the father to be advised by those professionals of Z’s needs and requirements and of the directions for his ongoing care.
It will however be incumbent upon the father to understand that the mother has the final say in relation to Z’s care and that he is required to abide by the decisions that the mother has made, even if he does not necessarily agree with them.
Where the parties have equal shared parental responsibility for the child, section 65DAA of the Act requires the Court to consider the child spending equal time or a substantial and significant amount of time with each parent.
The Full Court in the matter of Goode & Goode (2006) FLC 93-286 held that even where the Court does not make an order for equal shared parental responsibility, the Court should still consider whether the making of an order for equal time or significant and substantial time is in the best interest of the child when determining what orders to make in relation to that child’s living arrangements.
Neither party is seeking orders in this matter that for X, Z and Y to spend equal time with each of their parents. The father’s proposal in relation to X, Z and Y would involve all boys spending significant and substantial time with the father. Whilst the mother’s proposal in relation to Z and Y would involve them spending significant and substantial time with the father, the mother’s proposal in relation to the time X spends with the father would not have X spending significant and substantial time with the father.
Best interests of the child
When determining what parenting arrangements to put in place for a child, the Act is clear that the orders the Court make must be in the best interests of the child. In order to determine what is in the child’s best interests, the Court must consider the matters set out in sections 60CC(2) and (3) of the Act.
Each of the matters set out in subsections (2) and (3) of section 60CC of the Act, where relevant, must be considered and assessed in the context of each of the parties’ behaviours and proposals and a decision made as to which of those proposals, or such other proposal as the Court determines, is in the best interests of the child.
The Court is not bound by the parties’ proposals as to the child’s living arrangements. The Court may make such other order as it determines are in the child’s best interests (see AMS v AIF (1999) 199 CLR 160;
U v U(2002) 211 CLR 238).
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.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
I am satisfied that both the father and the mother in this matter have a close, loving and meaningful relationship with X, Z and Y.
The mother has been X, Z and Y’s primary carer since 2008.
Because of the father’s study and work commitments, X, Z and Y have spent somewhat limited time with him in the last three years, especially when the father has not lived in Melbourne.
In her Family Report dated 2 April 2013, Ms F notes a warm, close and loving interaction between X, Z and Y and both their parents.
The mother reports there to be some tensions in the relationship between X and the father, in particular in relation to their communication. The father acknowledges that at times he and X have clashed.
It is Ms F’s evidence that she believes the relationship between the father and X to have many positive signs and strongly recommends that they undertake confidential therapeutic counselling to assist them to better communicate and understand each other and to ensure a positive, strong and healthy relationship, particularly as X moves through adolescence.
The father expresses a real willingness to engage in that counselling as soon as possible.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Both parties are able to provide X, Z and Y with a safe, nurturing and loving environment and both readily acknowledge the appropriate care the other parent provides the boys with when looking after them.
Accordingly, there are no issues in this matter in relation to any of X, Z or Y being exposed to abuse, neglect or family violence when in the care of either of their parents.
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 interests. Each of the matters set out under that section will be considered in turn where applicable in this matter.
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 has expressed quite strong views in relation to the time he is to spend with the father and in relation to the change of his surname.
X has told Ms F, and this is acknowledged by the father and the mother, that he wishes for there to be no alterations to the current arrangements in relation to the time that he spends with his father; being two weekends during each school term and half the school holidays.
When discussing his reasons for not wanting increased time with his father, X told Ms F that:
… it would be a bit annoying having to pack, it would be a bit disorganised.[1]
[1] Family Report of Ms F dated 2 April 2013 at paragraph 36.
X told Ms F that he wanted her to tell the Judge that:
… the weekends I’m not sure about. I’m fine with the holidays. I might have something on, but I have to choose Dad over things like camps. It can be stressful.[2]
[2] Ibid at paragraph 64.
Over the recent long summer vacation, X had a scout jamboree during the time that he was to spend with the father. There was a great deal of to-ing and fro-ing between the mother and father before agreement could be reached between the parties for X to go on the jamboree. The father only agreed to such an arrangement on the basis that X “made up the lost time” on some other occasion.
It should be stated in this judgment that whichever parent any of X, Z and Y are due to be spending time with, that parent will ensure the boys attend their sporting, school or extracurricular activities and that there will be no expectation of make up time.
It is Ms F’s clear evidence that she believes that whilst consideration must be given to X’s views in relation to the time that he spends with his father, it should not be the factor that determines his living arrangements. In paragraph 102 of Ms F's Family Report dated 2 April 2013, Ms F states as follows:
Rather than reduced time with Mr White, it will benefit X to spend more time with his father, who can be a positive male role model, different from the maternal extended family. It was noted in August 2011 and still holds now, that X’s ‘wishes can be discussed and he needs to feel acknowledged, but a final decision [about time arrangements and other issues such as name changes] should rest with Ms Gibson and Mr White.’
Ms F also expresses some concern about X being enmeshed with the views of the mother and feeling the need to support her.
In paragraph 42 of the Family Report of 2 April 2013, Ms F refers to an issue that emerged during the assessment for the Report of the extent of the mother’s influence on X’s attitudes and wishes. Ms F notes that X had told her that the mother had discussed litigation issues with him and that several times during the interview X referred to ‘us’, being he and the mother, when discussing name change and alternate weekend proposals.
In paragraph 106 of her Report, Ms F suggests that it will be crucial for the mother to maintain appropriate emotional boundaries in her relationship with X so that he can continue to build his own relationship with the father.
In relation to the name change issue, Ms F’s very strong evidence on this issue has already been set out in this judgment. It is
Ms F’s opinion that this is a matter that must be decided by the parties or by this Court and not be determined on the basis of X’s wishes.
Ms F is very strong in her opinion that it is in X, Z and Y’s best interests that their surname remains ‘White’.
In these circumstances, whilst acknowledging X’s wishes and views, I am of the opinion that they should not determine his living arrangements or the name by which he is known at this time.
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 in this judgment, X, Z and Y have a very positive relationship with both the father and the mother.
The mother is X, Z and Y’s primary carer and they have a secure, safe and loving relationship with her.
Ms F has flagged some concerns about X perhaps feeling too emotionally responsible for the mother’s welfare and warns of the importance of the mother maintaining appropriate boundaries so that he does not feel he is responsible for her wellbeing and is able to fully develop his relationship with his father.
The extended maternal family have been an important part of X, Z and Y’s lives, particularly since the boys moved back to Melbourne. The maternal family have provided positive support to the mother in her care of the boys, particularly when the father was not living in Melbourne. I am satisfied that X, Z and Y have a close and loving relationship with their maternal extended family.
X and Y spoke positively of the father’s current partner Mr W, who is a (omitted) and who has been teaching the boys how to do somersaults and other appropriate gymnastic feats.
Both parties confirm that the boys are accepting of their father’s sexuality and evidence no discomfort in relation to same.
X, Z and Y also spend time with the extended paternal family and I am satisfied that they also have a very positive relationship with them.
Section 60CC(3)(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
In considering this factor, the Court must also take into account
subsection 60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) 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; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Whatever their interpersonal difficulties, both parties speak positively of the other in the context of their parenting of X, Z and Y.
X, in particular, is aware of the tension between the father and the mother and, as observed by Ms F, at times seems to identify himself and the mother as ‘us’ against the father and some of his behaviours.
It is Ms F’s evidence that the father and X have quite different communication styles. Ms F in her viva voce evidence described the father as having what she would call as an “ebullient” style of communicating with X, Z and Y, describing the father as active, talking a lot, responding in detail to X, Z and Y’s comments, making active commentary about the boys’ activities and being very physically active and presenting as an enthusiastic and involved parent. By contrast, X is described by Ms F as a much quieter sort of child, who might feel overwhelmed by the father’s energetic form of communication and involvement.
It is Ms F’s evidence that this is why professional counselling will assist X and the father to better understand and communicate with each other.
Section 60CC(3)(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
The parties now live in close proximity to each other, the father in (omitted) and the mother in (omitted).
Any change in routine for Z has to be managed very carefully. Given that Z has been spending time with the father in his (omitted) home since February 2012 and given that in the last 18 months Z has had put in place supports where he has respite care at (omitted), there is no doubt that if both parents jointly prepare Z for an increase in time with the father, Z will be able to adjust to this new arrangement.
There is an issue between the parents in relation to a sharing of the
ISP funding for Z over the weekends when Z is spending time with his father.The father is seeking that he be able to access the ISP funding in order to put in place supports for Z’s care when Z is spending time with him on the weekends so that he is able to be more available to X and Y.
The mother opposes any such funding being utilised by the father given she will continue to be Z’s primary carer and her limited financial resources.
It is the mother’s evidence that in the event the father wishes to avail himself of additional support when caring for Z on the weekend, the father is able to access such care at his own expense.
As noted previously in this judgment, the mother currently receives $46,816.36 per annum in ISP funding. The mother together with Z’s case manager determine what services those funds will be utilised for in order to support Z. Currently, monies have been allocated to provide support for Z for the 32 weekends that he is in the mother’s care.
Given that Z is in respite care for one weekend each month during school term and will now be spending five weekends each term with the father, Z will spend four weekends each term with the mother.
It is the mother’s evidence that she would seek to utilise any funding she currently utilises for weekend care for further supports whilst Z is in her primary care.
As the mother will continue to be Z’s, X’s and Y’s, primary carer, that she will have sole parental responsibility for Z and that she has limited financial resources, I am of the view that the mother should continue to manage the manner in which Z’s ISP funding is utilised.
Section 60CC(3)(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
Given the close proximity between the parties’ homes now that the father is settled in (omitted), there is no practical difficulty in X, Z and Y being able to spend time with the father.
Section 60CC(3)(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
I am satisfied that both the father and the mother are more than able to meet the emotional and intellectual needs of X, Z and Y.
As previously noted in this judgment, the father and the mother are intelligent, committed and caring parents who have continued to properly nurture X, Z and Y despite a difficult and somewhat acrimonious breakup of their marriage.
There is no doubt that the demands of parenting Z with his special needs can at times be exhausting. As Z’s primary carer, the mother will need to continue to ensure that she has in place all the requisite supports necessary to continue to care for Z whilst at the same time ensuring that X and Y have the attention, love and care that they require.
In the giving of her evidence, the mother describes an average week in her household and to say that it was hectic is something of an understatement. The mother describes the household with Z in it as being very noisy as Z only has an “on switch” or “an off” switch and seems to need to have his television, music and computer all going at the same time.
X and Y are keen sportsmen as well as being involved in scouts and cubs and they have activities on just about every evening of the week except Friday, which the mother described as “takeaway and movie night”.
The father has ensured since his return to Melbourne that he has been actively involved in X and Y’s activities, attending X and Y’s sporting events each weekend, whether they are spending time with him or not.
X and Y are understanding of, caring and loving brothers to Z. They accept, understand and love Z for who he is and the joys, delights and challenges that he brings to their lives. This is a credit to both X and Y and to their parents.
Section 60CC(3)(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
This section is not relevant.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right.
This section is not relevant.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I am satisfied that both parties are committed, caring and loving parents, devoted to X, Z and Y and to their welfare.
The difficulties that the parties have in being able to communicate effectively with each other in relation to their sons is most unfortunate.
Whilst the mother was most reluctant to embrace therapeutic intervention to try and assist in improving the parties’ communication, it can only be seen to be in X, Z and Y’s best interests if, with time and hopefully the cessation of litigation, the mother is open to embracing this intervention. This is particularly important given that Z’s disabilities mean that the parties’ responsibilities for Z will continue for his lifetime.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
This section is not relevant.
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
This section is 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
Sadly, these incredibly competent and caring parents have been engaged in almost constant and expensive litigation since their separation.
Whilst this in part has arisen because of the unusual circumstances of their separation and the geographic distances between them, both parties must be exhausted by this process.
More sadly, the requirement to be engaged in ongoing litigation must have impacted on their capacity to move on with their lives and on their ability to communicate and work with each other as their sons’ parents rather than as a separated couple.
In those circumstances, any optimism that these orders will see the end of litigation between the parties has to be somewhat limited.
However, one can only hope that with a full ventilation of these matters and final orders being made that put in place sensible and proper arrangements for X, Z and Y, litigation between the parties can cease and that they can move on and solely focus on ensuring they provide the best parenting support and love for their sons into the future.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
Both parties are supportive of there being therapeutic counselling between X and the father to assist their communication. The father indicates a willingness to be responsible for the costs of that therapy.
Ms F made recommendations to the parties of some well respected family therapists and it is imperative that this counselling start almost immediately.
It is Ms F’s suggestion that the introduction of alternate weekend time between X and the father coincide with the commencement of that therapy. Whilst this would be ideal, I am of the view that alternate weekend arrangements should start from the beginning of term three as any slight delay between the commencement of alternate weekends and counselling between the father and X will not impact on the efficacy of the counselling.
The final issue between the parties was whether the weekend time should be from after school Friday to before school Monday or from 5.00pm on Friday to 5.00pm Sunday. The father is seeking the former and the mother the latter.
The parties’ reasons for their respective proposals, as noted by Ms F, are sensible and both proposals have merit.
It is Ms F’s evidence that she is perhaps more supportive of the father’s proposal for the time to conclude before school Monday in order for him to be able to have a greater involvement with the boys’ schools. Ms F was however sympathetic to the mother’ s position and agreed with the possibility that X would be more amenable to an alternate weekend arrangement if time was to conclude on the Sunday evening.
Conclusion
This will be the fifth occasion on which this Court has made final orders in relation to the living arrangements for the parties’ three sons, X, Z and Y. Hopefully this will be the last time that the Court is called upon by the parties to make such orders.
The parties separated in (omitted) in 2007. X, Z and Y remained living in (omitted) until August 2008 when the father, X and Y were involved in a serious car accident.
After that accident, X, Z and Y moved to live with the mother in Melbourne. Until the beginning of 2012, the father was either living in (omitted) or in (omitted). In those circumstances, X, Z and Y were spending half of the school holidays and two weekends in each school term with the father.
In February 2012, the father moved to live in Melbourne and is now seeking to increase the time that X, Z and Y spend with him to alternate weekends and half school holidays.
The mother agrees to orders being made for Z and Y to spend alternate weekends with the father in the school term but, in light of X’s expressed views that the existing arrangements continue, she does not agree to orders being made for X in those terms.
The father seeks orders that the alternate weekends that X, Z and Y spend with him be from after school Friday to before school Monday to enable him to be fully involved with the boys’ schools.
The mother seeks orders that the alternate weekend time be in accordance with the existing arrangements, being 5.00pm Friday to 5.00pm Sunday. The mother argues that this arrangement enables X, Z and Y to come home from school, change and get ready to go to the father’s, as well as enabling Z’s medications to be taken from the fridge to go directly with him. The mother also argues that the boys prefer to come home on Sunday night, relax and have an early night and be settled and ready to go to school on Monday morning from their home base. During the final hearing of this matter, the mother expressed willingness for the father’s time to commence after school on Friday to enable him to attend the boys’ schools.
The mother is also seeking orders that X, Z and Y’s surname be changed to ‘Gibson-White’. The question of the boys’ surname has been an issue between the parties since 2009. There have been a number of orders made in this Court in relation to that issue, firstly restraining the mother from using any other name but ‘White’ for the boys’ surname and then authorising her to include ‘Gibson’ as a second middle name for all three boys. The mother again brings an application in this regard on the basis of what she says are the strong wishes of X, Z and Y, in particular of X.
Orders were made by consent on an interim basis in October 2011 and confirmed by consent in December 2011, which afforded the mother sole parental responsibility for Z. It is noted that Z is diagnosed with autism as well as intellectual and global developmental delay.
The father is seeking orders that this order be discharged and that he and the mother have equal shared parental responsibility for Z as well as continuing to have equal shared parental responsibility for X and Y.
As previously set out in this judgment, I have determined that in the circumstances where Z is to remain in the mother’s primary care, where the parties’ ability to communicate at this time is limited and where the mother is adamant that her ability to be Z’s primary carer will be compromised if there were an order made for shared parental responsibility, it is in Z’s best interests that the order for the mother to have sole parental responsibility continue.
This order does not mean that the father should not be actively involved in Z’s life or fully informed of all the decisions that are being made in relation to Z.
Again, as previously set out in this judgment, orders will be made that ensure that the father is authorised to attend Z’s school, attend parent-teacher interviews, speak to Z’s treating specialists and consult with Z’s case manager at the Department of Human Services.
It is again noted that it will be vital that the father understands that the mother has sole parental responsibility and that he must accept and support the decisions made by the mother in relation to Z’s care and development.
An issue for the father has been what holiday program Z attends while Z is in the father’s care. The father seeks to be able to enrol Z in a mainstream holiday program. The mother is opposed to Z attending a mainstream holiday program due to concerns as to the capacity of such a program to properly care for and supervise a child with Z’s disabilities.
Given the circumstances, that the mother have sole parental responsibility for Z, the decision as to what holiday program Z attends ultimately rests with her.
Whilst X expresses a clear view that he would prefer the current arrangements to continue whereby he spends two weekends in each term with his father, it is the very strong view of Ms F, the Family Report writer, that such an order would not be in X’s best interests.
Ms F strongly recommends that the relationship between X and the father needs to be encouraged and enhanced and that X needs to spend more time with his father for their relationship to solidify and improve.
It is Ms F’s strong recommendation that X and the father engage in relatively short term therapeutic counselling to support their relationship and to improve their current communication.
Ms F recommends that orders be made for all three boys to spend alternate weekend time with the father during school term to begin concurrently with the commencement of X and the father’s counselling.
I am very much persuaded by Ms F’s evidence that it is in X’s, and in Z’s and Y’s, best interests that they spend alternate weekends with their father.
I am of the view that this time should start from the commencement of term three in the clear understanding that the parties will do everything within their power to ensure that counselling between X and his father is arranged and the appointments start as soon as can be accommodated by the therapeutic counsellor.
In relation to whether that alternate weekend time should be from after school Friday to before school Monday or from after school Friday to 5.00pm Sunday, I am of the view that it is important that the father be afforded the opportunity to be seen at X, Z and Y’s schools and, if appropriate, have a chance to chat briefly with the boys’ teachers. This can be achieved if he collects the boys on Friday from school.
In circumstances where there have been longstanding arrangements for the weekend time to conclude at 5.00pm on Sunday, where Z is used to that as his routine and where X is exhibiting some degree of reluctance to alternate weekend time, I am of the view that it is in X, Z and Y’s best interests that that time conclude at 5.00pm on Sunday.
In her Family Report of 2 April 2013, Ms F recommends that it would be in X and Y’s best interests particularly to have the opportunity for some one-on-one time with the father.
The father is keen for this to take place and would also like an opportunity for some one-on-one time with Z as well.
The father’s proposal is that each of the boys spends one overnight on their own with him each month.
The mother does not oppose orders being made in those terms for X and Y but is a little concerned as to how Z will cope as he is not particularly happy being away from his brothers, though it is noted that Z’s monthly respite care is without X and Y and Z seems to enjoy that time.
X and Y’s current commitments are such that it is apparent that it would be best for X and Y at this time to have a Wednesday night once a month with the father and orders will be made accordingly.
I am also of the view that it would be appropriate for Z to have some one-on-one time with the father, albeit his parents will both have to properly prepare him for this and be sensitive to the adjustments that Z will have to make to accommodate this arrangement. It seems to be common ground that the best night for Z at this time to spend one-on-one time with the father would be a Thursday night.
The final issue for determination by this Court is the mother’s application for X, Z and Y’s surname to be changed from ‘White’ to ‘Gibson-White’. This application is strongly opposed by the father.
Ms F gave very compelling evidence as to why she did not support orders being made for a change of surname for X, Z and Y.
It is Ms F’s evidence that the boys, particularly X, have been exposed to many changes during their lives and have had to deal with a great deal of anxiety and disruption to their development, sense of identity and their personal sense of self.
It is Ms F’s evidence that to retain the surname that X, Z and Y have had since the time of their birth through to at least 18 years of age is most significant in the context of their development and it is important that it remain consistent. It is Ms F’s evidence that retaining the surname ‘White’ will give X, Z and Y the message that the value of their father has not been diminished by the circumstances in which they find themselves living.
Whilst acknowledging that X’s views in this matter are strongly held, it is Ms F’s evidence that X’s views are in part influenced by his sense of responsibility to the mother. Ms F is strongly of the opinion that X’s views should not be the factor that determines this issue.
Again, I am very much persuaded by the evidence given by Ms F in relation to this issue. X has been known as ‘White’ for 13 years. ‘Gibson’ is already in his name, albeit as a middle name. Evidence was given that at school X’s nickname is ‘(omitted)’. There is nothing to prevent X from being known as ‘Gibson’ for the remainder of his school days.
In the circumstances, I am of the view that it is in X, Z and Y’s best interests that they continue to have the surname ‘White’ and the mother’s Application in this respect is dismissed.
In her viva voce evidence, Ms F strongly encourages the father and mother to engage in therapeutic counselling to assist them to better communicate in relation to the parenting of their sons. Whilst the father was enthusiastic to embrace this suggestion, the mother was quite resistant, citing five years of continuous litigation primarily at the father’s behest as proof that such counselling would be of little efficacy.
Whilst having some sympathy for the mother’s position in this regard, there has been some lessening of the tensions between the father and the mother in the last two years, particularly as the mother has come to terms with the basis of the breakdown of the marriage and has started to move on in her own life including commencing full-time studies this year at (omitted) University.
Whilst no order will be made for the parties to attend therapeutic counselling, the Court would encourage the parties, and the mother in particular, to be open to the concept of counselling, perhaps in the future, to assist she and the father to better communicate in order to enable she and the father to better parent their sons into the future.
I certify that the preceding two hundred and forty-four paragraphs are a true copy of the reasons for judgment of Judge Bender
Date: 27 June 2013
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