Biological parent declared not to be a parent – Gear & Anor & Faraday & Anor  FCCA 3165 (8 December 2015)
Last Updated: 14 December 2015
Tobin v Tobin (1999) FLC 92 848
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Connors & Taylor  FamCA 207
Re: Michael: Surrogacy Arrangements  FamCA 691
Wilson and Anor & Roberts and Anor (No. 2)  FamCA 734
Donnell and Dovey  FamCAFC 15; (2010) FLC 93-428
Yamada & Cain  FamCAFC 64
MRR & GR  HCA 4
MS FARADAY AND MS HUGO
SYC 1164 of 2011
7, 8 and 9 September 2015
Date of Last Submission:
9 September 2015
8 December 2015
(1) The Court declares pursuant to section 60H of the Family Law Act 1975 that the respondents Ms Faraday and Ms Hugo are the parents of the child X born (omitted) 2009.
(2) The respondent parents have parental responsibility for the child.
(3) The applicants are injuncted and restrained from interfering with, questioning and in any way impeaching any decision the parents make for X pursuant to order 2 herein but may contact any school he attends from time to time or any specialist medical practitioner he attends to inform themselves of his progress.
(4) The child shall live with the respondents.
(5) The child spend time with the applicants as follows:
<li “=””>(a) The current orders continue until the commencement of Term 2 in 2016.<li “=””>(b) In the upcoming December 2015/2016 school holidays, X will spend four additional days of time with the applicants in addition to each second Sunday, being either a Tuesday or a Thursday of the first, third, fourth, and fifth week of the school holidays or as agreed, failing agreement on a Thursday, from 9am to 6pm.<li “=””>(c) Commencing second term 2016 and during term time, X will spend alternate Saturdays and alternate Sundays with the applicants from 9am to 4pm each day. Time is to commence the first weekend after school resumes and is to continue during all school holidays.<li “=””>(d) Commencing from the 2016/2017 Christmas holidays X will commence one overnight time each alternate weekend being one weekend in December 2016 and 2 weekends in January 2017 from 9am Saturday to 6pm Sunday, otherwise time will be on Saturday and Sunday with no overnight time from 9am to 6pm each day.<li “=””>(e) Commencing the second term 2017, X will spend one overnight period each month with the applicants from Saturday 9am to Sunday 4pm on the third weekend of the month and from 9am to 4pm Saturday and Sunday on the first weekend of the month or as agreed. This regime of time is to continue in the mid-term school holidays but is to extend to 6pm.<li “=””>(f) In the January 2017/2018 school holidays and in term time in the school year 2018 X’s time with the applicants shall be overnight each alternate weekend from 9am Saturday to 6pm Sunday but ceasing at 4pm in the school term.<li “=””>(g) X’s weekend time with the applicants shall cease in all school holiday periods from the commencement of the school year in 2018.<li “=””>(h) For the 2018 term school holiday periods X’s holiday time shall be from Friday 9am the middle weekend of the holidays to Monday 6pm or as agreed. X’s regular weekend time is to commence the first weekend after school resumes.<li “=””>(i) For the 2018/2019 Christmas school holidays X shall spend 2 periods of time with the applicants from 9am Friday to 6pm Tuesday as agreed and failing agreement in the first week of the holidays and in the second week of January.<li “=””>(j) Commencing the school year 2019 and thereafter X will spend each alternate weekend with the applicants from after school Friday to 4pm Sunday commencing the first weekend after X resumes school each term.<li “=””>(k) In the 2019 term school holidays X shall spend one period of time with the applicants from 9am Friday to 6pm Tuesday or as agreed and falling agreement from the mid Friday of the school holidays<li “=””>(l) From the 2020 long school holidays and continuing X to spend 2 periods of 5 nights and 6 days in the applicants’ care as agreed and failing agreement in the first week of the holidays and in the second week of January.<li “=””>(m) From the first 2020 term school holidays and continuing X’s time shall extend to 6pm Wednesday or as agreed and falling agreement from the mid Friday of the school holidays.<li “=””>(n) The parents may take X outside the Commonwealth of Australia on any occasion they deem fit. They are to inform the applicants of the intended destination, return ticket details and provide a contact telephone number so that X may speak to them whilst he is away.<li “=””>(o) The parents may apply for and renew a passport for X on any occasion they deem appropriate without the consent or otherwise of the applicant.<li “=””>(p) The parents may suspend the applicants’ time if they are traveling overseas or having a holiday in Australia with the child by giving the applicants no less than 30 days notice of their intention to travel. No makeup time is to occur.<li “=””>(q) X is to spend Christmas Eve with the applicants from 9am Christmas Eve until 6pm Christmas Eve in each year up until 2019, when he will spend his first Christmas morning with the applicants from 9am Christmas Eve to 12 noon Christmas Day and in each odd numbered year thereafter.<li “=””>(r) Thereafter, for Christmas in even numbered years from 12 noon Christmas Day to 3pm Boxing Day and in odd numbered years 9am Christmas Eve until 12 noon Christmas Day.<li “=””>(s) X is to spend Father’s Day with the applicants from 9am Sunday to 4pm if not otherwise in their care.<li “=””>(t) X’s time with the applicants is suspended the weekend of Mother’s Day if he is not otherwise in his parents’ care and no make-up time shall occur.
(6) The parties are to effect changeover at (omitted) milk bar or as otherwise agreed unless the child is being collected from school.
(7) The parents may provide a copy of these orders to any school the child attends from time to time, medical and other health practitioners he attends from time to time.
(8) Once the child commences one overnight time with the applicants they are to ensure he rings his parents by no later than 10am the morning after his overnight time unless otherwise agreed.
(9) Once the child commences spending 2 consecutive nights with the applicants they are to ensure he rings his parents no less than each second morning by no later than 10am unless otherwise agreed.
(10) The applicants and respondents are to facilitate the child ringing any one of them on any occasion he so requests.
REASONS FOR JUDGMENT (ABRIDGED)
- X is six, and he is attending (omitted) Public School, (omitted).
- In 1996, the mothers commenced their relationship. In (omitted) 2001, the dads commenced their relationship. Y, the respondents’ son, was born on (omitted) 2004. Y’s father, Mr J, is now deceased.
- The parties met in 2007 and had numerous discussions about parenting arrangements, co-parenting a child, conceiving a child. The parties negotiated a family constitution outlining the time their child would spend with each set of adults – laudable in its aims but clearly not practical or realistic as the child had not been born. No one knew what type of a child he was or what the circumstances were going to be at the time of his birth and continuing.
- The IVF treatment was successful and the child was born without any difficulties or concerns. However, cracks in the parties’ relationships began to show very early.
- Mr Gear is put on the child’s birth certificate as a father.
- Difficulties commence from X’s birth.
- In April 2010, the parties attend mediation with Mr C.
- In August 2010, the respondents ask that the applicants no longer provide financial support.
- The parties attend family dispute resolution in August 2010 and February 2011.
- On 3 March 2011, the parties enter into consent orders to provide for equal shared parental responsibility, X to live with the respondents and he to have time with the dads.
- In April/May 2011 the respondents travel to (country omitted) with X without notifying the applicants.
- This behaviour upsets the applicants and in June 2011 they commence proceedings in the Family Court asking to re-open the parenting matter.
- The respondents respond raising a Rice & Asplund argument, which is successful and Justice Rees dismisses their application to re-open.
- The applicants file a review out of time seeking the registrar’s decision making consent orders to be overturned. That application is successful and on 15 November Stevenson J upholds the review dismisses the consent orders and the parties are left with no orders.
- However, these being high functioning well intentioned adults, X continues to spend time with the applicants in accordance with the discharged consent orders.
- X has not had any significant break in time with the applicants, albeit this time has been limited to daytime only.
- The applicants file parenting proceedings in the Federal Circuit Court in February 2013.
- The respondents travel to (country omitted) and are married on (omitted) 2013.
- The matter was listed for interim hearing on 14 February 2014. This hearing was adjourned. Walker J made orders for the matter to be listed for final hearing and ordered the preparation of a family report.
- The parties attended for that report on 17 June 2014 and the report was released on 30 July 2014.
- Her Honour confirmed the hearing before her in September 2014 despite the objections in relation to the report and refused to discharge the report and order a fresh one.
- When the matter came on for hearing in September 2014 her Honour adjourned the hearing due to her retirement in February 2015.
- The matter came before me in September 2014.
- I listed an interim hearing in November 2014. At that hearing I discharged the report, ordered preparation of another report and made orders that when X commenced school in 2015, he was to spend alternate Sundays only with the applicants. He had been spending time each week with his dads for some time on Friday and one day on a Sunday. This was a reduction in his time. However, given he was attending school a change was inevitable.
- As Ms A’s report is released to the Court on 22 June 2015 and the matter came before me for trial on 7, 8 and 9 September 2015.
- In many ways there is little in disputed facts between the parties. They do not really know each other. They do not spend time in each other’s household and never have. Thus, the applicants cannot dispute that the negative impact of their behaviour as alleged by Ms Faraday and Ms Hugo, has had and continues to have upon them and their children. Nor can they dispute the behaviour X is said to exhibit in his mothers’ household at times when he returns from the dads’ care or is to go to their care.
- Similarly, the mothers cannot dispute the behaviour of the child in the dads’ household, which they say is happy content and joyful. The only person who has a relationship with each of the four adults is X.
- Ms Faraday’s affidavit at paragraph 450 sets out in some detail the behaviours of the applicants which have resulted in a significant deficit in her functioning during the course of these proceedings. She says:
- <li “=””>
Mr Gear and Mr Risk have acted in an abusive, entitled and spiteful manner towards me and my family repeatedly over the last six years. The things that have really destroyed any chance of trust were:
- <li “=””>
a) in 2009 when they barged into the hospital room after X’s birth when I was naked and vulnerable, before I had fed my baby or Ms Hugo had held him.
b) In April 2010 when Mr Gear refused to sign X’s passport application to enable us to go to (country omitted) to visit Ms Hugo’s mother who was gravely ill.
- <li “=””>
c) January 2011 when Mr Gear and Mr Risk contacted the mediator and asked for a 601 certificate the day after rang them to say Mr J had died. They showed no compassion for Y whose father had died and I felt their timing was cruel.
- <li “=””>
d) June 2011 when they commenced Court proceedings just months after they had final orders, that is, when they brought an application back to the Court to reopen. All communication had ceased with us by that time and they only communicated to us through their lawyers.
- <li “=””>
e) February 2013 when Mr Gear and Mr Risk had had the children placed on the airport watch list, threatening to prevent us travelling to (country omitted) for our wedding.
- <li “=””>
f) In 2015 they lodged an appeal from the interim decision and tried an about face friendly approach for Court purposes. Ms Faraday says she found their friendliness insidiousness, much more threatening, their honesty of hostility.
- <li “=””>
g) In June 2015 when Mr Gear sent us an email to express his shock and sadness about Ms Hugo’s mother being ill and offering us assistance in the 11th hour. I worry about what they say or do to X to make him fearful and upset and unable to talk to us. I have lived in a hyper-vigilant state for years.
- At Paragraphs 453-454:
- <li “=””>
Every email, every handover, every Skype, every preschool, school event, every soccer match, every public event, every doctor’s visit for X or myself, every Facebook group, every visit to a therapist is an opportunity for Mr Gear and Mr Risk to invade my life.
From the moment of X’s birth when they burst into the room when I was naked and stayed from around 2.30 am until past 9 am, I have felt invaded, controlled and manipulated.
- The concept of invasion, security, the family security being at significant threat from the time X spends with his dads is a real fear of Ms Faraday and I found her evidence on this point to be genuine. She gave her evidence in a calm, collected manner, at times she became upset when matters overwhelmed her but I accept her sincere fear and dread of these men in her life and that they will damage her important intact family which is herself, her partner Ms Hugo, her sons Y and X.
- It is very difficult for Ms Faraday to see any way that X can have a relationship with Mr Risk and Mr Gear without it damaging his vital security with his own family. There is a significant competition between these four people about family. For reasons that I am unable to understand, rather than the dads’ pulling back from this issue of family in the interests of their relationship with X their affidavits were replete with what they say to X about family.
- For example, Mr Gear’s affidavit, paragraph 31:
- <li “=””>
Mr Risk and I have described ourselves to X as being part of his family from as early as X’s life as I can remember. Mr Risk and I have told X that he has uncles, aunts, cousins and grandparents who love him very much. Mr Risk and I joining – spending our free time together as a family unit.
- Paragraph 99:
- <li “=””>
Mr Risk and I considered Y to be part of our extended family. We’ve consistently confirmed to Ms Faraday and Ms Hugo, since we first connected, that Y is welcome to spend time with us and X.
- Paragraph 125, Mr Gear opines of the time prior to X’s birth:
- <li “=””>
At no point during our discussions did Ms Faraday or Ms Hugo indicate to me a desire to preserve their intact family to the detriment of X having a meaningful relationship with Mr Risk and I. I made it clear to Ms Hugo would only agree to father a child in a co-parenting arrangement. At no point before April 2010 did Mr Risk and I have any misgivings regarding Ms Faraday and Ms Hugo’s commitment to the co-parenting arrangement.
- Mr Gear recites that when documents were subpoenaed from X’s school there was no mention of he or Mr Risk as part of X’s family, only Ms Hugo and Y, no mention made of the existing court orders.
- On 10 March 2014 Mr Gear sent this email to Ms Faraday as set out at paragraph 193 of his affidavit:
- <li “=””>
It was our understanding it would mean making arrangements for Mr Risk and I to have appropriate access to X’s preschool. Regrettably, I’ve been advised any communication is by one phone call; clearly an unsatisfactory arrangement that falls well short of our expectations. Mr Risk and I know that X values his time at preschool and would benefit from having Mr Risk and I participating in a range of preschool events as well as visiting his preschool on regular occasions. This would clearly help us positively engage in his progress and development in a meaningful way while allowing us to meet his carers and see his classroom and work. X is also well aware that Mr Risk and I have not visited him at school and he’s told us several times he would like us to meet his friend. Would you please confirm you provide consent to let us have this necessary level of interaction.
This is precisely the behaviour that Ms Faraday talks about as being intrusive, that she finds overbearing and bordering on abusive. Including Y in time with X is for the mothers a further disruption to and breach of their family security.
- The difficulty in this matter is, as Mr Jackson submitted the significant disconnect between expectation and reality. At times the dads’ affidavits and oral evidence could be seen as the dads seeing X and his life as something they must be involved in at all costs even at the cost of spending time with him. What the dads’ expect and what is the reality are disconnected.
- There is a strong sense of it being an imperative for them and him that they are intimately involved in all aspects of his life, school he attends, any medical treatment, any doctor’s treatment, any matter whatsoever no matter how small. With parents who have parented a child together, or who have a good relationship, or have had that level of involvement in the past that may be appropriate.
- The difficulty for the dads here is they have not had nor do they have that level of involvement with X. They have never had that level of involvement with him and the mothers are now exceedingly resistant to any level of involvement. The more the dads have pushed for involvement, the more resistant the mothers have become.
- The result is that the dads need to be involved in and/or have intimate knowledge of every decision such as enrolment in preschool, vaccination, asthma medication, paediatric assessment, swimming lessons or whatever, have pushed the mothers into a corner, and the result has been twofold:
- Ms Faraday’s functioning has been significantly diminished; and
- Their time with X has been much less than it may have been and it may now be in jeopardy.
- Ms Faraday’s evidence was confronting. She was off work for six months in 2014 as she was experiencing extreme panic attacks when any event related to X, his dads or this matter came up and she still has panic attacks. These attacks particularly occur when Court events are on, or events such as having to go to a family report writing interview. At those times she cannot focus or function. She cries hysterically. She and Ms Hugo do their best to protect the children, but, clearly, X is living in a stressed household. The disconnect between this little boy and his life with his mothers and what the dads want for him is profound.
- Ms Hugo, who is the least affected, but still affected, mother, told the Court she believed the dads would not administer X’s asthma medication when he needed it because they, the mothers, had asked them to do it and that this was one of her fears for X spending time with them. I formed an entirely different view of the dads. I have no doubt that if this child required any attention, be it medical or otherwise, the dads would act appropriately to assist him. However, the level of mistrust is such that Ms Hugo genuinely believes these men would put this child’s life at risk just to prove a point against them. Although I formed a view that her belief is not based on any reasonable grounds, it is clear the adult relationship is toxic.
- The mothers are doing all they can to address their impaired functioning and extreme anxiety due in large part to them carrying out orders I made of two Sundays a month with the dads when they sought one day a month. They attend therapy with Mr P. To their credit they have carried out these orders at a cost to their emotional functioning.
- The dads now seek a gradual increase of time such that the child spends holidays, overnights, weekends and enjoys a life with them, in what might be regarded as a normal, regular arrangement. Initially and until recently they were seeking if not equal time, significant and substantial time with the child weekly. This was their position at the report writing interview. The mothers are so fearful of the dad’s involvement in X’s life impacting upon their family unit that they have at times been terror-bound. Ms Faraday says at paragraph 459:
- <li “=””>
For the first time in my life, I felt close to breaking point with this litigation. I’ve required medication. The proceedings have cost us hundreds of thousands of dollars.
- They see their child X crying out, not wanting to go with the fathers, hopping into the boot of the car recently, not wanting to leave, resisting change. When he returns, he is angry and sullen and is easily upset. I am sure he is resistant to going and I am sure he is upset upon his return as it would be clear to him that his mother’s fear his leaving and are anxious for his safety. Given the closeness of his relationship with his mother’s he would feel this fear and at times terror.
- The recording of X’s resistance to spending time with the dads this year is distressing. He was very resistant. One of the mother’s fears is that in some way X spending time with his dads who they agree he loves and that they love him would impact upon their relationship with their child, or his relationship with his family.
- I could find no evidence to support this fear. It has not happened in 6 years and there is no reason or evidence to support a finding it would happen in the next 6 years. In fact the evidence is to the contrary.
- X transitioned to school very well. He is a good student. He socially interacts well with peers and other adults. He is cared for while his mothers are at work by Mr A and he has no difficulty being in Mr A’s care. He can have sleepovers with his big brother and at other friend’s homes. He happily goes with other friends of the mothers. He is well able to be separated from his mothers and be with other adults that his mothers’ approve of, have a positive attitude towards or his mothers’ feel comfortable with and want him to go. That is the evidence.
- The only place on the mothers’ evidence he has trouble adjusting to or adults he has difficulties with are his dads. It is inescapable that their attitude to the dads must be impacting on X’s behaviour and conduct and he would be confused if he leaves his anxious and fearful mothers to go to his dads where he has fun in a secure and familiar environment and then returns to his fearful and anxious mothers waiting on his every word or action. This is quite a lot of pressure for a young child.
- Thus it is in unsurprising that he was showing signs of obsessive behaviour washing his hands, not liking to touch wet things in late 2014 and early 2015 and that this has abated since Mr P’s intervention to assist his mother’s anxiety in his spending time with his dads.
- Both the mothers agree Mr Risk is the dad they can deal with the best. Neither of them can deal with Mr Gear, X’s biological father. The consequence for the dads of putting X’s name on the airport watch list has been detrimental in the extreme. The mothers were struggling with the dads’ overzealous insistence in their eyes of wanting to know every detail of X’s life and this act merely cemented their increasingly negative view of the dad’s motives. To suggest that the mothers would not return to Australia from (country omitted) was fanciful. Both Mr Gear and Mr Risk regret that action. The mothers trust the dads even less now, if that is possible, than they did in 2011.
- Y only spends one day a month with his godfather, Mr R, who was his father’s long-time partner, and the mothers believe this is appropriate for X. However Y’s experience and circumstances are very different from X.
- Y has lost his biological dad, with whom he had a close relationship, and whom his mothers had a positive attitude towards. The mothers do not have a positive attitude to X’s dads and they are very much alive.
- The mothers acknowledge X loves his dads and he has a good time with them. However they say X is resistant to attending his time with the dads. They are fearful of X not being treated carefully or well and give as examples that the dads have let him roll on the grass which results in an allergic reaction of rashes and itching for X, not treating his asthma properly, feeding him food that causes his constipation to flare up. Ultimately the mothers believe the dads do not have his best interests at heart, rather their own need to be a parent and father to the child. Perhaps the dads have this need but that does not mean it will be harmful to X or that his best interest is not also their paramount concern.
- As Ms A’s report was helpful and insightful, as was her cross-examination. She says at paragraph 62:
- <li “=””>
Mr Gear and Mr Risk do have something to offer X in terms of their relationship: their particular influences based on gender and their extended family connections. X has a limited experience with them at the moment, and if they are to have a parental role, he needs to spend more time with them.
- The question, she says, is this:
- <li “=””>
The dilemma is how X can benefit from his relationship with Mr Gear and Mr Risk without it being detrimental to his relationship with Ms Faraday, Ms Hugo and Y. It may be possible for X to gradually spend more time with Mr Gear and Mr Risk so he still primarily lives with Ms Faraday and Ms Hugo, but spends what would be considered at least substantial and significant time with the fathers. Time may slowly be increased.
- At paragraph 60, As Ms A says:
- <li “=””>
If the Court determines that Ms Faraday and Ms Hugo are the ‘parents’ of X and that they should share parental responsibility for him and that neither Mr Gear nor Mr Risk are the ‘parents’ of X and that they should not hold parental responsibility for him then, with respect to the time that X should spend with Mr Gear and Mr Risk, it may be imperative that Ms Faraday’s and Ms Hugo’s proposals be upheld. The advantages of this would be that Ms Faraday and Ms Hugo, as the ‘parents’ of X, would have their decisions regarding X respected. This would decrease any issues of anxiety or of their feeling undermined as X’s primary caregivers and that would ultimately benefit him. The disadvantage would be that X would miss out on the full extent of opportunities for relationships with Mr Gear and Mr Risk who are, at least, adults who have an interest in his development and wellbeing and who love and care for X. If X were to spend time with Mr Gear and Mr Risk one day every four weeks it would give him some opportunity to maintain a connection with them and their families but the extent to which this might be beneficial to him would depend on how Mr Gear and Mr Risk managed their disappointment and grief in response to spending such limited time with X.
- At paragraph 63 she says:
- <li “=””>
The impact of such a parenting arrangement on X would be affected by the quality of his relationships with Mr Gear and Mr Risk which are untested in terms of X spending longer periods of time with them, particularly overnight time. The impact on X would also be affected by each of the adults’ response and capacity to adjust. Mr Gear and Mr Risk would have to manage being less involved with X than they have proposed. Whilst Mr Gear and Mr Risk are likely to be disappointed it is also possible that they would adjust to X spending substantial and significant time with them and be in a position to support X to adjust to such an arrangement. Ms Faraday and Ms Hugo would have to manage X spending more time away from them than they have proposed. At this stage, it seems that Ms Faraday and Ms Hugo may have significant difficulty adjusting to such an arrangement. Perhaps with a gradual change, strict orders and further therapeutic intervention they would be able to support X to adjust to such an arrangement. But there would remain a risk that the disruption caused to their household of X spending time away (because of Ms Faraday’s and Ms Hugo’s compromised emotional response) would be significantly detrimental to both X’s and Y’s development.
- At the date of the report, the dads were insisting on a 6 out of 14 days care arrangement. I observed during the course of the hearing that I would never have made such an order. For such an arrangement to work for a child, his homes would require a high level of cooperation, a high level of trust, and have some degree of respect for each other and exhibit similar parenting styles and values. None of these prerequisites exist in this matter.
- At six, X cannot be exposed to a continuation of conflict. I accept when these proceedings are over and I have made my decision, this may assist tensions and conflict reducing, as there will not be this absolute terrifying spectre, for Ms Faraday in particular, of this child spending equal time with the dads and she and Ms Hugo. I told Ms Faraday, I would not be making such an order.
- In relation to whether I make an order sharing parental responsibility between the respondents and Mr Gear that is in part dependent upon the declaration as to who are X’s parents.
- However in passing I note it may be an imperative that parental responsibility reside with the mothers alone no matter what decision I make as to the declaration sought.
- If I can bolster the mothers’ feeling of security, that they have total control over decisions that are made for X without any capacity of the dads to second-guess, change or have input into, both women agreed, in cross-examination, that would assist them. It would make them feel better and more secure in their family unit.
- Parental responsibility to the mothers may on the evidence be crucial if there is to be any chance of X having an ongoing, meaningful relationship with the applicants. The mothers’ need to feel absolutely secure in their parenting of and their capacity to make decisions for X without interference is pivotal to giving X the best chance of having a relationship from which he benefits with all 4 adults.
- Mr Gear has had at times effected an imperious and somewhat rights-based tone and attitude in his emails. He agreed much of his correspondence had been inappropriate, and it has been. Writing that he wanted to know about X’s scholastic achievements when he had a mere five days at school in his first year 2015 is high-handed, not necessary and bespeaks an adult-focus and not a child-focus.
- As Ms A said, at paragraph 63 of her report:
- <li “=””>
Ms Faraday and Ms Hugo would have to manage X spending more time away from them that they’ve proposed. At this stage, it would seem Ms Faraday and Ms Hugo may have significant difficulty adjusting to such an arrangement. Perhaps with a gradual change, strict orders and further therapeutic intervention, they would be able to support it.
I will not order any more therapeutic intervention. These people have been therapized out.
- The mothers are coping with two days a month on Sundays. It is not ideal for them nor what they want. But they are managing it. They prefer the 4 o’clock ending. That ensures X is settled back into his family and ready for school the next day and this is important point to his mothers.
- One day a month is extremely limited time. As Ms A opined that one day a month, two days a month may not be that different for X in the scheme of things. However, I formed a view it would be very different for X to have his time reduced by 50% and this is the balance I must find in this matter.
- X was suffering the signs of OCD behaviour and this behaviour decreased by about February 2015 with Mr P’s intervention with his mothers. I accept such symptoms may flare up as is the case for Ms Faraday’s significant anxieties which are debilitating and disabling for her.
- This is a finely balanced matter namely X’s right to spend time with these men who if not parents are people with whom he has a relationship and the cost to X of spending that time. The questions I must answer are:
- What is the cost to X of what would be, at one level, a beneficial and meaningful relationship with these men with increased time, building up to overnight time, and ultimately significant and substantial time?
- That if there is a cost to X, is it an unacceptable cost or risk given the benefits of the relationship for him as found by As Ms A and at one level admitted to by the mothers?
- Ms Faraday said she thought when X was about 10 he could have overnight time because then he would be able to say what he wanted and able to say if things weren’t going his way. At his young age of six, she is concerned he does not have a capacity to say no, I don’t want to do that, I don’t like that; I want to do something else. One of her fears is that he may be being made to do or say things or experience things that he does not really want to experience.
- I have no doubt X arks up with his mothers’ at times and tells them he does not want to go. The recording is testament to that.
- However, the question for me is what is behind that behaviour. Is it because he does not have a good time with his dads? I find he does. Is it because his dads do not treat him appropriately or well or engage in appropriate activities with him such as meeting their extended families? I find they do. Is it because his mothers, as much as they try, cannot protect him from their overwhelming sense of dread when he leaves their home, worrying about what state he will be in upon his return, what is happening to him at the dad’s home? This may be the root cause.
- If the mothers could let him go happily, knowing he will come back happy, the world would change. If Mr Risk and Mr Gear could desist from further interfering in the mothers’ choices for X and support and praise their excellent choices and refrain from sending emails which are overbearing and pejorative the world would change.
- For example, Ms Faraday’s annexure “CC” to her affidavit is a communication between the parties on 14 December 2014:
- <li “=””>
We are concerned to read your entry in the communication book in relation to X suffering anxiety while in your care. X shows no sign of anxiety at all when he’s with us. A recent call to X’s preschool also indicated that X is not anxious when he’s in our care. It’s disappointing to read, once again, you’ve sought medical advice and treatment without consulting us or including us in the medical appointments. It is in X’s best interest we be part of any treatment or solution involving his ongoing care. We will be arranging a time to meet with X’s treating doctors, and would appreciate your assistance in facilitating these needs.
- That email is disrespectful. The fact that X shows no anxiety in the home of the dads and shows anxiety in his mothers’ home is not surprising. His mothers are his closest emotional attachment, not the dads he spends 2 days a month with. If X is upset or distressed or things are worrying him it will manifest itself in the home of his mothers, not in the home of his dads. A far better approach for the dads to take is something like “We are concerned to read about X’s distress. How can we assist you in managing our son’s anxiety?”
- That is, you acknowledge the concerns the mothers raise, which are real – the child does behave like this with his mothers – and offer your assistance to address the issue rather than take this rights based doesn’t-happen-with-me approach, therefore what’s wrong with you approach. For this is precisely how Ms Faraday and Ms Hugo feel when the dads communicate with them. Although Mr Gear has said in evidence that he regretted what he said, there is some support for the submission there was little evidence of that being a real regret.
- I will deal with the declarations sought by both parties initially before addressing the issue of parental responsibility and the section 60CC factors and other relevant matters under the Act. It is an imperative I determine who are the legal parents of X before I embark upon my determination under the Act of the orders I should make.
- The mothers seek I make a declaration that they are the legal parents of the child under section 60H of the Family Law Act .
- That section reads as follows:
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Children born as a result of artificial conception procedures
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(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent ); and
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(i) the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or
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(ii) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;
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then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act:
(c) the child is the child of the woman and of the other intended parent; and
(d) if a person other than the woman and the other intended parent provided genetic material–the child is not the child of that person.
- Section 60H(1) operates to define who the parents of a child are in specific circumstances and have created a new class of person as a parent where biology is not the determinative factor.
- As I read the section it is clear that the “other intended parent” is a parent under the Act.
- The Full Court in Tobin v Tobin considered the issue of who is a “parent” under the Act and held that [at para.42]:
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in respect of the Family Law Act , in our view, the natural meaning of the word “parent” is the first definition given in both the Oxford and Macquarie dictionaries, and the definition “a person who has begotten or borne a child”, from the Oxford English Dictionary (2nd ed. vol. 9), which was accepted by Gummow J (in a different context) in Hunt and the Minister for Immigration and Ethnic Affairs  FCA 116; (1993) 41 FCR 380, at 386.
- Cronin J in Groth & Banks referred to Tobin and added that [at para.14]:
The fact that a child has two parents who are her or his biological progenitors permeates the language of the Act. The whole Commonwealth statutory concept as outlined in the Part VII of the Act is one in which biology is the determining factor unless specifically excluded by law.
- Mr Jackson submitted the Act contains numerous references to two parents, as Cronin J stated in Groth & Banks [at para.15]:
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Part VII of the Act contains multiple references to the parents of the child as “either” or “both”. These can be found at s 60B(1)(a), 60B(2)(a) and (b), 60CC(2)(a), 60CC(3)(d)(i),61C(2), 65C(a), 66B(2), 66F(1) and 69C(2). The logical presumption which follows is that the legislature envisaged two parents when dealing with parental responsibility under the Act.
- Aldridge & Keaton [paras.16–18]:
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16. Although not directly raised in this appeal, the question of whether an “other intended parent” is a “parent” for the purposes of Part VII is not without some doubt. This fact is of significance when considering s 60B(1) and (2) and s 60CC(2) and (3). We would, consistent with principles of statutory interpretation, give a purposive construction to the section, and regard both the birth mother and other intended parent as parents of the child. But we note other provisions of the Act appear inconsistent with this interpretation.
17. The Act, in s 4, defines “parent” as “when used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child”.
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18. Section 60H uses the expression “person” and “other intended parent” not “parent”. It appears from the Revised Supplementary Explanatory Memorandum that the drafters intended such a person should be treated in the same manner as a parent, to meet the concerns expressed in representations recorded in the Senate Standing Committee on Legal and Constitutional Affairs’ report on the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (“the Senate report”) but the definition of “parent” in the Act was not amended at the same time amendments were made to s 60H.
- In Connors & Taylor, Watts J made a more firm conclusion [paras.85-86]:
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85. At paragraph 18 of Aldridge & Keaton, the Full Court refer to the Revised Supplementary Explanatory Memorandum and say, “the drafters intended such a person shall be treated in the same manner as a parent”. With respect to the Full Court, that inaccurately paraphrases what the Memorandum says.
86. The Revised Supplementary Explanatory Memorandum is in the following terms:
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76. This item repeals subsection 60H(1) and substitutes a new subsection 60H(1) that deals with both married and opposite and same-sex de facto couples. Opposite-sex de facto couples were previously covered in subsection 60H(4). This subsection is repealed.
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77. These changes will mean that section 60H(1) applies, as well as to married couples, to current or former de facto partners who are of the same-sex and to current or former de facto partners who are of different sexes where children are born as a result of artificial conception procedures. This would mean that female same-sex de facto couples would be recognised as the parents of a child born where the couple consent to the artificial conception procedure and one of them is the birth mother. In addition, genetic material from other than the couple must be used with the relevant donor’s consent. The provision provides that the child is to be the child of the woman giving birth and her de facto partner. [emphasis added]
- Section 60H accords with the state legislation relating to sperm donors which creates an irrebuttable presumption that a sperm donor (whether known or unknown) is not a parent – Status of Children Act 1996 NSW ss.14(2), (4).
- Section 69R of the Family Law Act creates a rebuttable presumption that:
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If a person’s name is entered as a parent of a child in a register of births or parentage information kept under a law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, the person is presumed to be a parent of the child.
- Watts J considered this asserted inconsistency in Re: Michael: Surrogacy Arrangements stating that [paras.47-52]:
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47. Section 69R FLA is in the following terms:-
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“If a person’s name is entered as a parent of a child in a register of births or parentage information kept under a law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, the person is presumed to be a parent of the child.”
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“A presumption arising under this Subdivision is rebuttable by proof on the balance of probabilities.”
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49. In this case, s 69R FLA cannot be rebutted by proof. Paul would be able to pass a parentage testing procedure.
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51. I conclude that the presumption arising from s 69R FLA may not only be rebutted by proof but also rebutted by the operation of another provision of the FLA for the following reasons:
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51.2. Persons providing genetic material in a surrogacy arrangement could register as parents without any State order being made. If s 69R FLA then allowed them to be parents for the purposes of the FLA, the parliamentary intention behind s 60HB FLA would be circumvented.
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51. 4. It would not in my view be possible for a court to make a declaration under s 69VA FLA that Paul is Michael’s father based upon the presumption arising from s 69RFLA, because of the existence of s 60H(1)(d) FLA.
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52. Consequently I find the presumption that Paul is Michael’s father because he is registered as such on Michael’s birth certificate is rebutted by the operation of s 60H(1) FLA
- His Honour’s finding is clear from a reading simpliciter of section 60H. I see no inconsistency with section 60H and the rebuttable presumption of who is a parent under section 69R if for no other reason than section 60H is not rebuttable.
- Justice Dessau in Wilson and Anor & Roberts and Anor (No. 2) was faced with the precise factual matrix in this matter.
- Her Honour says at paragraph 40:
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The provisions of the new section are clear. Ms Roberts and her de facto partner Ms Boston, having consented to the carrying out of an artificial conception procedure, are E’s parents. To remove any doubt, s 60H(1)(d) provides that if any other person provides genetic material, the child is not the child of that person. Accordingly, Mr Wilson is not deemed to be a parent.
- Her Honour goes on to say this does not stop Mr Wilson and his partner from applying for a parenting order. Parenting orders are not dependent upon parentage.
- It is not in dispute nor in doubt that section 60H(1)(b) rebuts the presumption of parentage under section 69R.
- Section 60H was specifically amended in the Act to deal precisely with matters where conception of a child and status of the biological mother and the other intended parent were as is the case for X and his mothers. I see no inconsistency at all. Section 60H is clear in matters presenting with this factual basis. The section operates to deem Ms Hugo as the other intended parent and she with Ms Faraday who is the birth mother are the child’s parent and Mr Gear is excluded as a parent.
- Thus X is by virtue of section 60H a child of the mothers and not a child of Mr Gear. If X is the mothers’ child they are his legal parents and Mr Gear is specifically excluded as a legal parent for the purposes of the Family Law Act . The Act is clear as I see it in this factual matrix.
- Mr Gear sought a declaration under section 69VA of the Act that he and the mothers were legal parents of X.
- However, section 69VA deals with issues of parentage not who is a parent of a child under the Act. There is no doubt as to X’s parentage. Ms Faraday is his biological mother and Mr Gear is his biological father. This is not an issue in question and is not relevant to my determination either on the issue of who are X’s parents or what time with orders I should make.
- On the facts in this matter issues of biology are not determinative of who are X’s legal parents for the purposes of the Act. Indeed section 60H specifically provides for a declaration that a non- biological person may be a legal parent of a child as is the case for Ms Hugo.
- The definition section of the Act as to the meaning of parent does not assist Mr Gear either as it merely includes adoptive parents as parents. Section 60H is the determining section in this factual matrix and it has excluded Mr Gear as a legal parent.
- I would have hoped that Mr Gear would not have asked me to make a declaration about him being a legal parent in the spirit of backing off from his prior rights based approach. However he did not and section 60H is clear. Mr Gear is excluded by the operation of that section as a legal parent specifically and intentionally.
- There is no other section of the Family Law Act where a man who has carried out a consensual IVF treatment with an intact couple can be declared as a parent by declaration. Mr Gear is confirmed as X’s father on his birth certificate and he enjoys that status.
- My making a declaration that the mothers are parents would not necessarily affect his standing as a parent under state legislation or perhaps some other Commonwealth legislation such as Child Support.
- Further it is not necessary such declaration be made in order to determine the time X is to spend with him and Mr Risk. For that is now the only issue. As the mothers are X’s legal parents they share parental responsibility.
- Mr Gear enjoys no such privilege under the Act. He can only be a part of parenting responsibility if I order and I will only so order if it be in X’s best interests to have these 3 adults sharing this responsibility.
- Similarly when I assess the relevant factors under section 60CC of the Act to determine the time with orders I will make, findings as to who are X’s parents will only be relevant to the issue of parental responsibility and section 60CC(1) the assessing the benefit to the child of a meaningful relationship with his or her parents.
- This has been made clear in cases such as Donnell and Dovey where Warnick, Thackeray and O’Ryan observed all the matters under section 60CC(2) and (3) must be assessed and the benefit to a child of relationship with a non-parent may be more important or equally important than a relationship with a parent.
- Similarly in Yamada & Cain the Full Court stated that [para.27]:
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The broad inquiry as to best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognises that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.
- I will now deal with the legislative pathway I am to follow.
- Section 60B of the Act sets out that the objects of Part VII are to ensure the best interests of children are met and ensure children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the children, protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence; ensuring that children receive adequate and proper parenting to help them achieve their full potential; and ensuring that parents fulfil their duties and meet their responsibilities concerned the care, welfare and development of their children.
- Section 60CA determines that the Court must, in deciding whether to make a particular order in relation to a child, regard the best interests of the child as the paramount consideration.
- Section 65D gives the Court the power to make a parenting order and section 64B defines the terms and identifies the matter that may be dealt with by a parenting order.
- Parenting orders are subject to the presumption under section 61DA(1). The Courts should presume that it is in the best interests of a child for the parents to have equal shared parental responsibility. In this matter that means the mothers for they are X’s parents and not Mr Gear.
- I would not rebut the presumption as it is clearly in X’s best interests his parents share this responsibility and such an order is not challenged and they seek an order under section 61C that they have parental responsibility as his parents. The question is do I order Mr Gear to also share this responsibility.
- Section 65DAA which exhorts me to consider whether the child spending equal time or significant and substantial time with each of the parents would be in their best interests by reference to the section 60CC(2) & (3) factors is not part of my consideration as Mr Gear is not a parent of the child.
- There is no impediment to X spending equal time, significant and substantial time or any time with his parents as he lives with them.
- An assessment of the section 60CC factors is clearly the pathway I must take to determine whether Mr Gear should share parental responsibility and the ultimate time with orders I should make.
- The first task is whether I share parental responsibility for X with his parents and Mr Gear.
- One of the significant needs of X is for his parents to be secure and safe in their relationship and their dominion over their child without being second-guessed and interfered with by the applicants.
- Whether the dads think that attitude is right or wrong or whether, the mothers’ fears are even reasonably based is not the issue. It is clear this is how the parents feel, it is clear these feelings have had a detrimental impact upon their functioning and thus on their parenting of X and thus upon X. If all that was in the forefront of the dads’ minds was maximising their relationship with X and time they spend with him they would take steps to minimise these impacts not maximise them.
- Paragraph 127 of Mr Risk’s affidavit says:
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I believe X avoids doing or saying things that he thinks will anger Ms Faraday and Ms Hugo because of the experience he has had whilst in their care and because both he and Y have heard Ms Faraday and Ms Hugo denigrate Mr Gear and I so many times, as have I.
- It is wrong for Mr Risk to suggest X is fearful of his parents. The evidence is to the contrary. This was self-focused and the dads must lift themselves above this pettiness and focus on what really is at issue: their relationship with X. This attitude, these words do nothing but cement for the mothers that they are under threat. If the dads persist in this type of behaviour then no Court order will ensure their relationship with X grows as they seek it does.
- There is no competition for X’s affections. His parents have won that. He has the capacity to have similar level of affection for his dads if they can positively support his mothers’ parenting of him. If they do not X will lose out as he may align with his mothers who are his parents. It was necessary to declare the mothers as X’s legal parents as that declaration is wound up in maximising the mothers’ sole parenting of X and capacity to make decisions for him in the absence of the dads’ interference and is crucial to the success of ongoing time and X’s relationship with his dads.
- There is not one benefit to X in sharing this responsibility with 3 adults and to do so would be a significant negative for him.
- Mr Gear has at times displayed a significant deficit in putting X’s needs before his own and has made choices which have not been in X’s best interest but have satisfied his needs.
- The airport watch list order, wanting to know the child scholastic progress after 5 days in his first year of school, dismissing the parents’ concerns about X’s distress when he returns to their care etc.
- It is axiomatic to this child having the best chance of an ongoing relationship with his dads that the mothers are as secure as is possible at law in their dominion over X otherwise his relationship with and benefit to him of time with his dads will be seriously jeopardised. As Ms A made that clear in her report and only cemented this view in cross-examination.
- Looking at the section 60CC factors.
- X benefits from a meaningful relationship with his parents.
- He will benefit from a relationship with his dads but it may come at an unacceptable cost to his meaningful relationship with his parents if the dads do not change their approach to X’s parents.
- An order that parental responsibility lies only with the mothers and that they are his legal parents will assist the mothers’ functioning as they will know that they and not the dads have the only say in choices for X.
- I will permit the dads to inform themselves of his school progress and any health issues by directly contacting those parties but the order will be clear they will have no input into the decisions made for X by the mothers. This is the price the dads will pay if they are to be a part of X’s life. X will not pay the price.
- The child has not been subjected to abuse neglect or family violence in either home.
- Wishes of the child. He is only 6 and his wishes carry little weight.
- X’s closest emotional attachment is to Ms Faraday followed closely by Ms Hugo. He is closely attached to his brother Y. X has a deep and strong attachment to his family.
- X has a relationship with his dads, however due to limited time it too is limited and does not yet have the depth of his relationship with his mother and brother.
- All the parties have a superior capacity to provide for X’s education. His mothers have a deep capacity to provide for his emotional and psychological needs. This is not as strongly developed in his dads whose needs have at times overwhelmed what is best for X in choices they have made and in their conduct and attitude to the mothers.
- However all the adults in his life love him deeply and have much to offer him.
- Impact of change. This is a large issue for me. If I reduce X’s time I find this may jeopardise his opportunity to develop an important relationship with his dads.
- The mothers have managed to ensure he spends 2 days a month with his dads without incident and matters are progressing reasonably well. I accept as Mr Jackson submitted they could deteriorate quickly. A deterioration not occurring lies in many respects in the dads’ hands and a changed and softened attitude to the mothers.
- The mothers have put in a superhuman effort to foster X’s relationship with his dads in circumstances where their anxiety and at times trauma when he left their care was almost disabling. They have done it and it has worked. He has good relationship with his dads and if the mothers did not support this he would not have a relationship with them.
- However it is impossible to protect your child from your emotional fragility when you have been as distressed as Ms Faraday has been in the past such that you had to have six months of work on stress due to these proceedings. Feelings of being under siege by the dads and their insistence on being involved in every decision about this child’s life have compounded these fears.
- Ms Clifford made the point that the mothers had had some behavioural issues with Y earlier this year, no doubt due to him missing his father. If X’s time is reduced he may suffer the same anxieties and behavioural issues. The mothers appropriately dealt with that matter. However Ms Clifford says X is a child who holds on and with his intermittent but persistent constipation issues he may not be able to talk to anyone in his family about missing his dads as he knows how his family feels about them. That may be correct however the dads need to understand the mothers’ position and respect their parenting of the child. These stresses for the mothers and the dads were compounded by poor court processes at every level.
- I find that the dads wanted too much too soon. They believed they could enforce a parenting arrangement entered into before a child was born upon the lives of the child and his mothers. That is one of the least child-focused approaches I have seen or perhaps it is naivety or ignorance of how parenting works in the real world. Ms Faraday agreed she and Ms Hugo had been naïve in this aspect.
- The dads failed to take into account how the mothers were feeling about their very rights-based approach and each has now taken a position.
- If I am to increase X’s time to enable him to exercise his right to a relationship with these men it must be done slowly and sensitively and the dads must change their approach otherwise the cost to X in a possible diminution of his mothers’ functioning and his own anxieties reappearing is real.
- Any increase in time will be a significant change for X and his mothers. I find that X is capable of spending increased time with his dads including overnight time with the support of his mothers. It is his mothers who have the significant difficulties with any increase in time and/or overnight time.
- Financial support. X’s mothers support him well. The mothers do not want child support but the dads wish to pay and have a bank account for X into the future.
- Neither party has failed to spend time with the child and all parties take their obligations and responsibilities of parenthood seriously and are committed to the child.
- These are the relevant factors under section 60CC as I see them and thus the next task is to determine what orders to make in X’s best interests.
- I will not reduce X’s time with his dads this year to one day a month. One day a month is approaching recognition contact. X has a capacity for a deeper relationship with his dads than one day a month would provide.
- I do not accept the family consultant’s evidence that one day a month or 2 days a month would not be much different for X. It must be different it is either twice as much time or a reduction of 50% and such a result must have an impact upon him. Further his mothers’ believe it will as they seek a reduction to one day a month.
- This was an assessment of risk case. The risk is a further diminution in functioning and therefore parenting of X by his mothers’ due to at times their terror and fear of the child being in the dads’ care.
- I find he is at no risk whatsoever in his dads care. The risk is the impact of spending time with his dads on his mothers’ functioning.
- I find X is entitled to commence a secondary and important relationship with the dads but it is not a competition between what he regards as his home or who he loves the most. Those are concepts that make adults feel good. Those are concepts that satisfy adult’s needs. If adults push their needs onto a child what occurs is anxiety is engendered and the stress and distress and X has already exhibited occurring again. These symptoms have mercifully now ameliorated.
- There is a significant distrust between the parties. Mr Risk could not apologise in the witness box even though he conceded he had made errors. Neither dad demonstrated any insight into the mothers’ needs to be supported in their role as X’s primary carer and his living in an intact family.
- Mr Jackson submitted X’s secure base is the most important thing and I agree with that submission. I have further strengthened that secure base by a parental responsibility order and the 60H declaration.
- That I have declared the mothers as X’s parents is not determinative of the order to make for X to spend time with the applicants that are in his best interests.
- I have determined that it is in X’s best interests to have an ongoing and significant relationship with the applicants. This relationship must develop slowly and over time. The success of this relationship is very much in the applicants’ hands.
- I find the following are the orders that ensure X’s stability and importance of his primary bond with his parents and Y yet give him an opportunity over time to develop a significant relationship with the applicants who as As Ms A opined have much to offer him.
- I will not vary the current orders for term time until the commencement of second term in 2016. I will increase X’s time at a snail’s pace. It will dovetail with Y attending High School in 2018. This will be a time of change for both boys. Their relationship will inevitably change. Y’s interests and activities will broaden and his independent relationships strengthen. The boys will be at different schools and not be at home together each afternoon as is currently the case. It will be a very different life for X once his brother is at High School and this is an appropriate time for X to spend more time away from his family, develop his independence from his family for short periods with his dads.
- In the upcoming December 2015/2016 school holidays, X will spend four additional days of time with the applicants in addition to each second Sunday, being either a Tuesday or a Thursday of the first, third, fourth, and fifth week of the school holidays or as agreed, failing agreement on a Thursday, from 9am to 6pm.
- This later time is important to enable X and his parents to slowly become accustomed to being apart for lengthier time periods. Holidays are an ideal time to commence longer time away from primary carers.
- Commencing second term 2016 and during term time, X will spend alternate Saturdays and then the following Sunday in the applicants’ care with no overnight time. This time is to commence the first weekend after school resumes and is to continue during all school holidays.
- Commencing from the 2016/2017 Christmas holidays, X will commence one overnight time each alternate weekend being one weekend in December 2016 and 2 weekends in January 2017 from 9am Saturday to 6pm Sunday. Otherwise time will be on Saturday and Sunday with no overnight time.
- Commencing the school term 2017, X will spend one overnight period each month with the applicants from Saturday 9am to Sunday 4pm on the third weekend of the month and from 9am to 4pm Saturday and Sunday on the first weekend of the month or as agreed. This regime of time is to continue in the school holidays but is to extend to 6pm.
- In the January 2017/2018 school holidays X’s time with the applicants shall be overnight each alternate weekend from 9am Saturday to 6pm Sunday with such regime of time to continue in the 2018 school year but ceasing at 4pm.
- Commencing the school term 2018 X will spend each alternate weekend with the applicants from 9am Saturday to 4pm Sunday.
- Commencing the 2018 school term X’s alternate weekend time shall cease in all school holiday periods thereafter.
- For the 2018 term school holiday periods X’s time shall commence the mid Friday of the school holidays and cease Monday 6pm.
- For the 2018/2019 Christmas school holidays X shall spend 2 periods of time with the applicants from 9am Friday to 6pm Tuesday as agreed and failing agreement in the first week of the holidays and in the second week of January.
- Commencing 2019, X will spend each alternate weekend with the applicants from after school Friday to 4pm Sunday.
- In the 2019 term school holidays X shall spend one period of time with the applicants from 9am Friday to 6pm Tuesday as agreed and falling agreement from the mid Friday of the school holidays.
- In the Christmas holiday 2019/2020 and continuing, X shall spend 2 periods of time with the applicants of 5 nights and 6 days as agreed and failing agreement in the first week of the holidays and the second week of January from 9am Friday to 6pm Wednesday or as agreed.
- In the 2020 term school holidays and continuing, X’s time shall be from 9am Friday to 6pm Wednesday or as agreed and failing agreement from the mid Friday of the holidays.
- I will make an order that the parents may take X outside the Commonwealth of Australia on any occasion they deem fit and need only inform the applicants of the intended destination, return ticket details and provide a contact telephone number so that X may speak to them whilst he is away. The parents are not a flight risk and never have been.
- The parents also have the capacity to obtain a passport for X and I will confirm by order that this is what the orders intend. The applicants have no input into these matters but need only be informed.
- I will order that the parents may suspend the applicants time if they are traveling overseas or having a holiday in Australia by giving the applicants no less than 30 days notice of their intention to travel. No makeup time is to occur.
- In addition to these specific times it was agreed for X to spend time with the applicants at Christmas although not overnight time.
- I will order that X is to spend Christmas Eve with the applicants from 9am Christmas Eve until 6pm Christmas Eve in each year up until 2019, when he will spend his first Christmas morning with the applicants from 9am Christmas Eve to 12 noon Christmas Day and in each odd numbered year thereafter.
- Thereafter, for Christmas in even numbered years from 12 noon Christmas Day to 3pm Boxing Day and in odd numbered years 9am Christmas Eve until 12 noon Christmas Day.
- These orders balance what I see as supporting X’s right to spend time with and benefit from a relationship with the applicants yet maintain the all-important security of an intact family for him and his mothers.
- This all important security is now fixed at law in that the parents share parental responsibility and X has been declared as a child of them and they are the legal parents of the child and no other adult is.
- The orders provide for the continuation of the current time, which has worked, up until 2016. The orders provide for a modest increase in day time only in 2016 with night time once a month only commencing in 2017 when X will be eight years of age and during the school holidays.
- There will be a slow increase in time to overnight time one night each alternate weekend and ultimately from Friday after school to Sunday afternoon into the future.
- Holiday time will increase slowly to ultimately 5 nights in the applicants care by 2019.
- These orders are in addition to Christmas time, birthdays, father’s day and the like as special events.
- I will also make orders that the parties need only effect changeover not personally do it. It will be preferable for X in reducing his stress if the parties do not come into contact at changeover. The mothers agree they will pay Mr A to affect changeover as they pay him to care for X. Changeover currently occurs at (omitted) milk bar. X likes this spot. He said to Ms Hugo on one occasion “at least I get to have a milkshake”.
- I find these orders provide the balance of maintaining his primary and absolutely essential relationship with his parents who have been his primary carers all his life and his brother and his important relationship with the applicants.
- I have made a practical assessment of what is a very difficult situation, created in part due to the manner in which these parties created this beautiful child. As Ms Faraday said “we were very naïve”. The arrangement worked with Y’s father, it has not worked as successfully with X’s father.
- Having said that, X’s relationship, with his dads has much to offer him provided it does not come at too great a cost to him. I find the gradual and slow increase in time I have proposed will allow X to benefit from this relationship with minimal emotional cost to him.
- I have taken a gentle, softly, softly approach. However, at each stage increasing X’s time will be a change for his mothers and X and his dads must be cognisant of this and act accordingly.
- I issue a word of warning. I have endeavoured by order to maximise the mothers’ feelings of security, intactness, that they are the primary parents and they and only they make decisions for X to give them the security they need to make time with orders work. If the dads do not change their approach and attitude to X’s parents the benefit X receives from this relationship may come at too high a price and time may cease.