ALDRED & WARBURG

[2020] FCCA 2524

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALDRED & WARBURG [2020] FCCA 2524

Catchwords:
FAMILY LAW – Parenting – same-sex couple – applicant claimed the children were conceived by way of private artificial conception procedures – respondent claimed the children were conceived by way of sexual intercourse – determination of how the children were conceived – consideration as to how the legislative framework should be applied – consideration of parental responsibility – consent for children to live with the respondent and spend alternate weekends with the applicant – determination as to holiday and special occasion time orders – respondent unilaterally changed the children’s surnames after separation – determination as to whether the children’s surnames should be changed back to their original registration.

Legislation:

Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC, 60H, 61B, 61C, 61DA, 64C, 65C, 65DAA, 65DAC

Evidence Act 1995 (Cth), s.140

Cases cited:

Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286

MRR v GR [2010] HCA 4

Mason & Parsons [2019] HCA 21, (2019) 59 Fam LR 503

Aldridge v Keaton (2010) 42 FamLR 369

Rice v Miller (1993) 16 FamLR 970

Potts & Bims [2007] FamCA 394

Chapman & Palmer (1978) FLC 90-510

Applicant: MS ALDRED

Respondent: MS WARBURG

File Number: BRC 6976 of 2017

Judgment of: Judge Lapthorn

Hearing date: 27 April 2020

Date of Last Submission: 27 April 2020

Delivered at: Brisbane

Delivered on: 10 September 2020

REPRESENTATION

Solicitors for the Applicant: Self represented

Solicitors for the Respondent: Self represented

ORDERS

1. That, subject to these orders the respondent, Ms Warburg have sole parental responsibility for all major long term issues in relation to the children, X born in 2013 and Y born in 2015 (“the children”).

2. That the parental responsibility provided for in Order (1) herein must be exercised as follows:

   (a)The respondent must provide to the applicant, Ms Aldred, at least twenty-one (21) days prior written notice by email of her proposal regarding any decision relating to a major long term issue affecting the children or a child;

   (b)The applicant shall provide to the respondent within fourteen (14) days of the date of the respondent’s notification, her written response by email to the respondent;

   (c)The respondent must consider the applicant’s response before making a final decision upon which she must thereafter notify the applicant of that decision in writing by email within seven (7) days of the date of the applicant’s reply; and

   (d)Unless otherwise agreed in writing the respondent must not alter the children’s residence in a way that will make it more difficult for them to spend time with the applicant in accordance with these orders.

3. Notwithstanding Order (2) herein, each party shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with that party. 

4. That the children live with the respondent.

5. That the children spend time with the applicant as agreed between the parties and failing agreement as follows:

   (a)Each alternate weekend from 4:30pm Friday to 1:30pm Sunday;

   (b)Each Boxing Day from 9.00am to 5.00pm;

6. That notwithstanding any order for the children to spend time with the applicant, unless otherwise agreed between the parties, the children shall spend time with the respondent from 5.00pm Christmas Eve to 9.00am Boxing Day each year.

7. That in the event the children are due to spend time with the applicant pursuant to these orders on a weekend in which Mother’s Day falls the children will spend that weekend with the respondent with the weekend foregone by the applicant being made up on the following weekend.  To remove any doubt the children will then spend two consecutive weekends with the applicant. 

8. That on every Mother’s Day the children are to communicate with the applicant by way of Facetime at a time agreed to between the parties and failing agreement between 9.00am and 9.30am.  The respondent is to assist the children to initiate the call.

9. That during school holidays the children spend time with the applicant as agreed between the parties in writing and failing agreement as follows:

   (a)In 2021:

   (i)On the Easter weekend from 4.30pm 1 April (Holy Thursday) to 4.30pm 5 April (Easter Monday).

   (b)In 2022:

   (i)During the school holidays at the end of term 1 for a period of four (4) consecutive nights as agreed between the parties with such time not to incorporate the Easter weekend and failing agreement from 4.30pm on the first Sunday to 4.30pm on the first Thursday; and

   (ii)During the school holidays at the end of term 3 for a period of four (4) consecutive nights as agreed between the parties and failing agreement from 4.30pm on the first Sunday to 4.30pm on the first Thursday.

   (c)In 2023:

   (i)For a period of four (4) consecutive nights as agreed between the parties in January during the school holiday period at the conclusion of term 4 of the 2022 school year and failing agreement from 4.30pm on the first Sunday of January 2023 to 4.30pm on the following Thursday;

   (ii)For a period of four (4) consecutive nights over the Easter weekend during the Easter school holiday period at the conclusion of term 1;

   (iii)For a period of four (4) consecutive nights as agreed between the parties in September during the school holidays at the conclusion of term 3 and failing agreement from 4.30pm on the second Sunday of the school holidays until 4.30pm on the following Thursday; and

   (iv)For a period of four (4) consecutive nights as agreed between the parties in December / January during the school holiday period at the conclusion of term 4 and failing agreement from 4.30pm on the first Sunday of January 2024 to 4.30pm on the following Thursday. 

   (d)In 2024:

   (i)For a period of five (5) consecutive nights as agreed between the parties during the Easter school holidays with such time not to incorporate the Easter weekend;

   (ii)For a period of five (5) consecutive nights as agreed between the parties in September during the school holidays at the conclusion of term 3 and failing agreement from 4.30pm Sunday of the first week of the school holidays until 4.30pm the following Friday; and

   (iii)For a period of five (5) consecutive nights as agreed between the parties in December / January during the school holiday period at the conclusion of term 4 and failing agreement from 4.30pm on the first Sunday of January 2025 to 4.30pm the following Friday. 

   (e)In 2025:

   (i)For a period of six (6) consecutive nights incorporating the Easter weekend during the Easter school holiday period at the conclusion of term 1.

   (ii)For a period of six (6) consecutive nights as agreed between the parties in September during the school holidays at the conclusion of term 3 and failing agreement from 4.30pm on the Sunday of the second week of the school holidays until 4.30pm the following Saturday.

   (iii)For a period of six (6) consecutive nights as agreed between the parties in December / January during the school holiday period at the conclusion of term 4 and failing agreement from 4.30pm on the first Sunday of January 2026 to 4.30pm the following Saturday.   

   (f)In 2026 and each year thereafter:

   (i)For a period of seven (7) consecutive nights as agreed between the parties during the Easter school holidays with such period to not include the Easter Weekend in even numbered years and to include the Easter Weekend in odd numbered years commencing 2027;

   (ii)For a period of seven (7) consecutive nights as agreed between the parties in September during the school holidays at the conclusion of term 3 and failing agreement from 4.30pm on the Sunday of the first week of the school holidays until 4.30pm the following Sunday in even numbered years and from 4.30pm on the Sunday of the second week of the school holidays until 4.30pm on the following Sunday in odd numbered years; and

   (iii)For a period of seven (7) consecutive nights as agreed between the parties in December / January during the school holiday period at the conclusion of term 4 and failing agreement from 4.30pm on the first Sunday of January 2027 to 4.30pm the following Sunday. 

10. That on a child’s birthday the party with whom the child is not living with or spending time with according to these orders, will communicate with that child by Facetime at a time agreed between the parties or failing agreement between 4.30pm and 5.00pm unless the parties have reached agreement for that party to spend physical time with the child on that day.

11. That on the birthdays of the applicant and the respondent, the parties are to ensure the children communicate with the party whose birthday it is by way of Facetime at a time agreed between the parties or failing agreement between 4.30pm and 5.00pm unless the parties have reached agreement for that party to spend physical time with the children.

12. That the children communicate with the applicant by Facetime once per week on Wednesdays between 4.30pm and 5.00pm with the applicant to telephone the respondent who will ensure her telephone is switched on or able to receive calls during this time.

13. That changeovers occur at the B Service Centre, City C Northbound.

14. That in the event the applicant is not able to personally collect or drop off the children due to work commitments, the applicant’s partner, Ms D is permitted to collect and drop off the children so long as she has a clear driving history. 

15. That neither party leave the children unsupervised in the presence of the respondent’s father and any person that they are aware of with a violent criminal history or sexual abuse allegations.

16. That each party keep the other party informed at all times of their residential address and contact telephone number.

17. That in the event a party intends to travel with the children for a block period in excess of four nights they are to notify the other party of the travel arrangements including details of where the children will be staying.

18. That each party be at liberty to take the children to a registered medical practitioner in relation to common illnesses however in the event of ongoing major health issues the respondent is to arrange such treatment in consultation with the applicant as part of her exercise of sole parental responsibility for the children.

19. That each party keep the other party informed of the names and address of any treating medical or other health practitioners who treat the children and authorise the practitioner to provide the other party with information that they are lawfully able to provide about the children.

20. That by this Order the applicant is authorised to apply to Medicare Australia to have the children added to her Medicare Card.

21. That by this Order the parties authorise the schools attended by the children to give each party information about the children's education progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at that party's cost).

22. That during the time the children are with either party, that each party shall:

    (a)Respect the privacy of the other party and not question the children about their personal life;

    (b)Speak of the other respectfully;

    (c)Actively encourage the children's relationship with the other party;

    (d)Not discuss adult issues with the children and use their best endeavours to ensure that others do not discuss adult issues with the children;

    (e)Not denigrate or insult the other party in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other party in the hearing or presence of the children;

    (f)Not interrogate the children about their life, circumstances or any such thing where undue pressure is applied; and

    (g)That communication between the applicant and respondent is to be in writing by email unless in the event of an emergency when it can be by telephone. Communication is to be in accordance with the Parenting Orders Program (POP) email communication guidelines.

23. That the respondent is at liberty to take two weeks holiday with the children twice a year and time with the applicant will be suspended for that period. The respondent will provide the applicant with no less than seven days’ notice of her intention to rely on this Order.  This order does not permit a variation of Order (5)(b) unless agreed to between the parties in writing.

24. That the applicant is at liberty to take two weeks holiday twice a year and time with the children will be suspended for that period.  The applicant will provide the respondent with no less than seven days’ notice of her intention to rely on this Order.

25. That the respondent will provide the applicant with all information necessary for her to care for the children including dietary requirements and health issues.

26. That the process to be used for resolving future disputes about the children or the terms or operation of these Orders shall be as follows:

    (a)The parties shall consult with the Family Dispute Resolution Practitioner or a Family Relationship Centre to assist with resolving any dispute in relation to the children or reaching agreement about changes to be made to the parenting arrangements for the children.

    (b)They shall pay the costs of the Family Dispute Resolution Practitioner equally.

    (c)In the event that they are unable to, for any reason, to have an appointment with the Family Dispute Resolution Practitioner and cannot agree on an alternate Family Dispute Resolution Practitioner, the applicant shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability.

    (d)The respondent shall choose one of the listed practitioners within seven (7) days of receipt of the list.

    (e)If the respondent fails to choose then the applicant may choose.

27. That unless there are some emergent circumstances, before an application is made to a Court for a variation of these Orders to take into account the changing needs of the children, each party is to attempt to take the steps referred to in the preceding Order.

28. That the applicant will respect the children’s rights to pursue a relationship with their biological fathers in the future.

Notations:

1. That the applicant undertakes to ensure that the children will sleep in suitable beds.

2. That the applicant undertakes to ensure that the children have healthy meals for the duration of their visits that meet nutritional requirements and the dietary requirements of the children.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 6976 of 2017

MS ALDRED

Applicant

And

MS WARBURG

Respondent

REASONS FOR JUDGMENT

Introduction

1. Ms Aldred, the applicant in these proceedings, has asked the court to make a number of parenting orders in relation to two children:  X born in 2013 and Y, born in 2015.  The respondent, Ms Warburg, gave birth to both children.  She also seeks parenting orders but does not agree to all of the orders sought by Ms Aldred.  The two women were in a de facto relationship at the time the children were conceived and subsequently born and accordingly, Ms Aldred considers herself to be a mother to the children.  Although Ms Warburg is supportive of the children spending time with Ms Aldred she does not consider Ms Aldred to be one their mothers.

2. A significant issue in this case has been the circumstances surrounding the conception of the children.  Ms Aldred is of the belief that Ms Warburg utilised artificial conception procedures with the assistance of a man named Mr E who came to the attention of the parties through the use of a website known as F.com.  Ms Warburg on the other hand gave evidence of conceiving the children by way of sexual intercourse.  She said she is not sure who X’s father is, as she was at the time of her conception having sexual relationships with both Mr E and Mr G.  Her evidence was that she conceived Y through sexual intercourse with Mr G.  The birth certificates for the children do not contain the names of either man as the father nor do they record Ms Aldred as a parent. 

3. Consistent with order (7) of my orders made 5 August 2019 Ms Warburg notified Mr E and Mr G of these proceedings and that in the event that they wished to take part in these proceedings they were to file an application no later than 4 October 2019.  Neither person did so.  Ms Warburg did not call either man in her own case to corroborate her evidence.

4. I was satisfied to proceed in the absence of Mr E and Mr G.  Throughout these reasons I will refer to Ms Aldred as the applicant and Ms Warburg as the respondent.  I will also refer to X and Y as the children.  I mean no disrespect in doing so.

Competing Applications

1. Each party exchanged with the other a proposed minute of order that was styled as offers of settlement in the week prior to the hearing.  At the commencement of the hearing I confirmed with the parties that the documents exchanged where in fact their proposed minutes of orders which they invited the court to make.  Ms Aldred’s minute of order was admitted into evidence and marked A1 and Ms Warburg’s minute as R1.  At the commencement of the hearing the parties indicated some of the issues had narrowed and the trial proceeded on the basis of the issues remaining in dispute.

2. The applicant sought orders for the parties to have equal shared parental responsibility for the children whereas the respondent sought an order for sole parental responsibility in her favour.  The parties agreed that the children should spend time with the applicant on alternative weekends from 4:30pm Friday to 1:30pm Sunday and otherwise live with the respondent.  They were in dispute however as to school holiday time and special occasions.  They were also in dispute as to the surnames to be used for the children and as to the handover point where the children would transition between the two homes. I will address in more detail the issues that remained in dispute in the discussion section of this judgment.

3. This trial was heard by way of Microsoft Teams videoconferencing as it was heard during the COVID-19 Pandemic restrictions.  The parties consented to this approach. 

Material relied on 

1. The applicant relied on:

   a)Her Initiating Application filed 7 July 2017;

   b)Her Notice of Risk filed 7 July 2017; and

   c)Her affidavit filed 30 March 2020.

2. The respondent relied on:

   a)Her Response filed 31 August 2017;

   b)Her Notice of Risk filed 31 August 2017; and

   c)Her affidavit filed 31 August 2017.

3. The court had the benefit of:

   a)A Child Dispute Conference Memorandum to Court authored by Family Consultant H and dated 2 November 2017;

   b)A Family Report dated 11 April 2018 prepared by Family Consultant J; and

   c)A Family Report dated 4 March 2020 prepared by Family Consultant K.

4. The parties did not require any of the family consultants for cross-examination.  Although all of the reports were relevant, the more recent report by Ms K assumed the most relevance given it was closer in time to the final hearing and more reflective of the current circumstances for the parties and the children.

The Evidence

1. In determining this matter I have had regard to all of the written evidence referred to above along with the oral evidence given.  In order to avoid repetition and limit the length of this judgment, apart from setting an informative background, I will not repeat the evidence save that which is necessary for me to determine disputed issues and carry out my assessments in accordance with the legislative framework. Therefore throughout these reasons I will refer to a number of facts.  Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.  In determining disputed questions of fact the court is required to assess the evidence on the balance of probabilities.[1]  

   [1] Section 140 Evidence Act 1995

1. The parties each gave differing accounts of their relationship and the circumstances surrounding the conception of the children.  In assessing the evidence I found the applicant to be a more reliable witness than the respondent.  Overall her evidence appeared consistent not only before me but also in her accounts to the three family consultants.  She was also clear in her recollections.  The respondent however gave her evidence in a more vague or generalised fashion and was not always consistent.  I was left with the impression that at times her evidence was clouded by an attempt to paint a picture that minimised the role of the applicant in the lives of the children and to bolster her case that the applicant was not a co-parent of them.  Her failure to call the purported fathers of the children is an important consideration given the seriousness of her claim which I will address in more detail below.  Unless otherwise stated in this judgment, where their evidence differed I preferred the evidence of the applicant.

2. The applicant is 52 years of age and the respondent is 36.  They met in 2005 through their employment with the same company whilst the applicant was living in Sydney and the respondent in Brisbane.  After commencing their relationship the applicant moved to Brisbane and began living with the respondent at her parents’ home before moving into their own residence at Suburb L in 2006. 

3. From the evidence it is clear that the parties experienced periods of separation under the one roof prior to their final separation.  The date of separation was disputed with the applicant claiming it occurred in June 2016 and the respondent saying it was October 2015.  I have insufficient evidence to determine this dispute but I am satisfied that they each had different understandings of their relationship by the end of 2015 such that the respondent would have considered the relationship to have been over long before that was acknowledged by the applicant.  Whilst this is important to each of the parties, it is not important to the ultimate determinations I am required to make in these proceedings as on each party’s case they were in a de facto relationship at the time of each child’s conception.

4. The applicant lives in Suburb M with her partner Ms D and Ms D’s mother.  She works as an admin assistant with twelve hour shifts four days on and four days off.  The respondent lives in Town O.  She has been in a relationship with Ms P for over five years but they do not live together.  Neither party has any other children.

5. The respondent described to Family Consultant Ms H a relationship marred by family violence.  She said the applicant would scream at her, slam doors, check her phone and pressure her regarding spending time with the children.  The applicant denied being threatening or violent or aggressive towards the respondent although she acknowledged they had their verbal arguments usually over finances and the respondent’s sexual relationships outside of their relationship.  There have not been any family violence orders made between the parties.  

6. When the parties decided to have children the applicant took a higher paid fly-in-fly-out job in Town Q on a two week on one week off roster. 

7. The respondent claimed that the parties experienced various periods of separation albeit under one roof.  The respondent claimed the parties first period of separation was in 2011 for a period of three months.  It is the respondent’s case that the parties’ relationship continued to deteriorate after this time with other short periods of separation until the final separation in October 2015.  As I have indicated earlier the applicant did not consider the relationship to be over until June 2016.

8. Following separation the children remained in the care of the respondent and by agreement would spend each alternate Friday night in the applicant’s care however Ms Aldred stated that Y would often not attend.  This arrangement did not last long as the respondent unilaterally ceased the children’s time with the applicant in late 2016.  The applicant quickly arranged for mediation through R Counselling however the respondent declined to participate.  Soon thereafter each party was granted aid to attend a Family Dispute Resolution Conference facilitated by Legal Aid Queensland.  The conference took place on 8 March 2017 and a parenting plan was agreed to which provided for the applicant to spend time with the children on one Saturday each month.  This time was conditional on the applicant engaging with a professional to discuss the respondent’s anxiety.  The respondent told Ms J that her solicitor agreed to this arrangement without her consent.  I do not accept this.  The respondent’s signature is on the parenting plan.  

9. The applicant however, only spent time with the children on one occasion in accordance with the parenting plan.  On 8 May 2017 the respondent sent an email to the applicant stating that she would be ceasing the children’s time with her.  The applicant obtained a s60I certificate and instituted these proceedings on 7 July 2017.  On 8 November 2017 the parties reached an interim agreement consistent with the recommendations of Family Consultant Ms H for the applicant to spend supervised time with the children given they had not spent any time with her for some months.  Orders were made in accordance with the agreement and in December 2017 the applicant commenced spending time with the children at a contact centre for two hours per fortnight.  

10. The Family Report of Family Consultant Ms J issued in April 2018 and on 2 May 2018 consent orders were made in line with the recommendations. These orders provided for the children to spend unsupervised time with the applicant from 9am to 4pm on Sunday three weekends out of four.  Changeovers however remained at the contact centre.      

11. Further orders were made by consent on 5 November 2018 providing for the children to spend time with the applicant from Saturday morning to Sunday afternoon each alternate weekend with changeovers at the contact centre.

12. The updated family report by Family Consultant Ms K was issued on 5 March 2020.  The report recommended that the children live with the respondent and spend time with the applicant from Friday to Monday each alternate weekend with changeovers to occur at school.  A recommendation was also made for the children to spend block periods with the applicant during school holidays and for special occasions to alternate between the parties.   The family consultant also recommended that the parents ensure they communicate together in relation to the children’s emotional and behavioural presentations and in relation to any advice they receive in relation to handling these issues as well as X’s toileting and dietary requirements.

13. At the time of hearing neither party had put into evidence the children’s birth certificates.  The respondent was directed to provide these to my chambers following the hearing and they were then admitted into evidence as exhibits R6 & R7.  The certificates of both children list the respondent as the children’s mother.  There is no father listed on either birth certificate.  The certificates record each child’s surname as Warburg.  However, under the section History Record it can be seen that both children were previously registered with the surname Warburg-Aldred until 2016.  The respondent gave evidence that she initiated the children’s change of surname and her decision to do so was a result of legal advice.  The respondent did not consult the applicant prior to changing the children’s names. 

14. The respondent, in her oral evidence, said that the applicant prepared the paperwork for the children’s birth certificates and that she signed them under duress whilst still in hospital.  She did not make this claim in her affidavit or provide any evidence to support her assertion of duress.  She said the absence of that evidence was due to a lack of legal assistance.  I do not accept her evidence in that regard.  The respondent had clearly obtained legal advice as to how her case was to be presented given her claim that she was advised to change the children’s birth certificates and her knowledge as to the need for consent by the applicant in relation to conception. 

15. The children were born some eighteen months apart.  Whilst I accept the relationship was at times conflictual there was no evidence before me sufficient to enable me to make a finding that the respondent was under duress on each occasion she signed the registration of birth forms. 

16. X was baptised in 2014 and Y in 2015.  On each child’s certificate of Baptism their surnames were recorded as Warburg-Aldred and each of the parties were recorded as the parents.

17. Whilst the children’s surnames have been changed, the child X shares the middle names of both the applicant and respondent.  The child Y has the middle names of both parties’ fathers.  The respondent asserted that these names remained when she changed the surnames as they were also her family names.        

18. The respondent rejected the proposition that she changed the children’s surnames in an attempt to remove the applicant from their lives.  I do not accept her evidence.  At around the time the children’s surnames were changed the respondent ceased the applicant’s time with them.  I find that the parties intended to call the children by the hyphenated surname incorporating both their surnames and the change to the registration was carried out unilaterally by the respondent in an attempt to exclude the applicant from their lives.

Legal Principles

1. All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975.  In determining their outcome the Court is required to have regard to the objects and principles that underlie that part[2] and must consider the best interests of the child as the paramount consideration.[3] 

   [2] S.60B

   [3] S.60CA

2. The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[4] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests the principles are:

   a)Children have a right to know and be cared for by both their parents;

   b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;

   c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;

   d)Parents should agree about the future parenting of their children; and

   e)Children have a right to enjoy their culture.

   [4] S.60B lists the objects and principles for Pt VII.

3. The legislative framework which must be followed in all parenting cases,[5] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[6]  This presumption does not apply in cases of child abuse and/or family violence or may be rebutted when the evidence establishes that it is not in the child’s best interests for it to apply.[7]

   [5] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286

   [6] S.61DA

   [7] S.61DA(2) & (4)

4. For the purposes of Pt VII, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[8]  Unless there is a court order to the contrary each of a child’s parents has parental responsibility for that child until they reach the age of 18 years.[9]  When a court has made an order for two (or more) people to share parental responsibility for a child any decision involving a major long-term issue must be made jointly by those people after consulting each other.[10]  A major long-term issue in relation to a child means an issue:

   [8] S.61B

   [9] S.61C

   [10] S.65DAC

   about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

   (a) the child’s education (both current and future); and

   (b) the child’s religious and cultural upbringing; and

   (c) the child’s health; and

   (d) the child’s name; and

   (e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.[11]

   [11] S.4

5. In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable.[12]  If the court finds that equal time is not in the child’s best interests or  that it is not reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so must again be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.[13] Neither party sought an equal time arrangement for the children but I was asked to determine the extent of time particularly during school holidays which would fall within a consideration of substantial and significant time. Substantial and significant time is defined in s 65DAA(3) as time that includes days that both fall on weekends and holidays and days that do not fall on weekends or holidays. The time should allow the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child as well has allowing the child to be involved in occasions and events that are of special significance to the parent.

   [12] S.65DAA(1)(a) & (b), MRR v GR [2010] HCA 4

   [13] S.65DAA(2)(c) & (d)

Is the applicant a parent of these children?

1. As can be seen from that summary of the legislative framework, reference is frequently made to “parents”.  In this case the respondent held strongly to the view that the applicant was not a parent to these children.  It is therefore necessary to look at how the law considers people in situations such as this. 

2. Section 60H makes provision for determining parentage when children are born as a result of artificial conception procedures. Although the nature of each child’s conception is in dispute in this case, I will first address s.60H. So far as is relevant that section provides:

   60H (1)     If:

   (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

   (b)  either:

   (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

   (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;

   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.

   …

   (5)    For the purposes of subsection (1), a person is to be presumed to have consented to an artificial conception procedure being carried out unless it is proved, on the balance of probabilities, that the person did not consent.

3. In Mason & Parsons[14] the plurality[15] of High Court held that:

   [54]  …..[T]he ordinary, accepted English meaning of the word “parent” is a question of fact and degree to be determined according to the ordinary, contemporary understanding of the word “parent” and the relevant facts and circumstances of the case at hand.

   [14] [2019] HCA 21, (2019) 59 Fam LR 503

   [15] Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ.  In a separate judgment Edelman J agreed with the joint decision.

4. The High Court considered the meaning of “parent” and s.60H in the following paragraphs:

   [26] The primary judge and the Full Court were correct in holding that s 60H is not exhaustive of the persons who may qualify as a parent of a child born as a result of an artificial conception procedure. Although the Family Law Act contains no definition of "parent" as such, a court will not construe a provision in a way that departs from its natural and ordinary meaning unless it is plain that Parliament intended it to have some different meaning. Here, there is no basis in the text, structure or purpose of the legislation to suppose that Parliament intended the word "parent" to have a meaning other than its natural and ordinary meaning. To the contrary, s 4(1) provides that, when used in Pt VII, "parent", "in relation to a child who has been adopted, means an adoptive parent of the child". That implies that there is an accepted meaning of "parent" which, but for the express inclusion of an adoptive parent, would or might not extend to an adoptive parent. Section 61B, which defines "parental responsibility" by reference to the legal duties, powers, responsibilities and authority of parents; s 69V, which provides for evidence of parentage; and s 69W, which provides for orders for carrying out parentage testing procedures, are also consistent with a statutory conception of parentage which accords to ordinary acceptation. Section 60B(1) perhaps suggests that a child cannot have more than two parents within the meaning of the Family Law Act. But whether or not that is so, s 60B(1) is not inconsistent with a conception of parent which, in the absence of contrary statutory provision, accords to ordinary acceptation: hence, as it appears, the need for the express provision in s 60H(1)(d) that, where a child is born to a woman as a result of an artificial conception procedure while the woman is married to or a de facto partner of an "other intended parent", a person other than the woman and intended partner who provides genetic material for the purposes of the procedure is not the parent of the child.

   [27] So to conclude does not mean that the only persons who, by law, have parental responsibilities are persons who are parents according to ordinary acceptation or are otherwise defined in the Family Law Act as parents. And it does not mean that the only persons who may seek parenting orders under s 61D are parents according to ordinary acceptation or are otherwise defined as parents. The range of permissible applicants is broader than that. But it is implicit in each of the provisions that have been mentioned that the Family Law Act proceeds from the premise that the word "parent" refers to a parent within the ordinary meaning of that word except when and if an applicable provision of the Family Law Act otherwise provides. [Footnotes omitted]

5. The issue as to the nature of each child’s conception is relevant in order for me to correctly follow the legislative pathway.  Therefore it is necessary to look at each party’s evidence in this regard. 

6. The respondent claimed that although the parties were in a relationship at the time of the conception of each child the conceptions themselves were not with the consent of the applicant nor were they achieved by way of artificial procedures.

7. According to the applicant the parties began planning to have children in around 2011 or 2012.  She said the respondent agreed to be the biological mother of the children due to her age.  They registered with an online website called F.com, creating a profile seeking a suitable sperm donor.  The parties understood that this was an international website used to locate surrogate mothers and sperm donors.  

1. The applicant gave evidence that they received “about six” enquiries online from potential donors, one of whom was a man named Mr E.  The applicant said the respondent was hesitant to use Mr E but following a discussion between them and after a number of unsuccessful attempts with other donors, the parties selected Mr E and the respondent contacted him to make arrangements.  For clarification it should be noted that the arrangements were for a private procedure not through an authorised clinic.

2. The applicant understood X’s conception was as a result of artificial insemination which took place at the parties’ home.  She conceded that her understanding of X’s conception was informed by what the respondent had told her as she was away working at the time.  Accordingly she was not a witness to or involved in any procedure. The applicant never had any direct conversation with Mr E regarding X’s conception nor had she spoken to him since X’s birth. 

3. With respect to Y’s conception the applicant’s evidence was that the respondent had made arrangements with Mr E whilst she was away with work but her understanding was based solely on what the respondent had told her.

4. The respondent gave evidence that the parties’ attempts to have children through artificial conception ceased in 2011 after a “very poorly executed day” with an unnamed donor at Suburb S.  She stated that this event caused a major rift in the parties’ relationship.  

5. The respondent said she received Mr E’s contact details from the applicant but was unware that the applicant had obtained his details from the website.  She claimed that the parties had discussed pursuing an open relationship and believed that by giving her Mr E’s details the applicant was assisting her to pursue a sexual relationship with him.

6. In cross-examination the applicant challenged the respondent’s evidence.  It was put to her that she had access to the co-parenting website; knew the passwords and organised the Suburb S donor as well as two other men who came to their house.  The respondent denied these assertions and maintained her position.       

7. The respondent gave evidence at the hearing that she maintained a sexual relationship with Mr E from 2012 to 2013.  She said she would meet Mr E whilst away on business trips and would communicate two to three times per week.  During her evidence the respondent described the relationship as an affair.

8. The respondent also claimed to have been in a sexual relationship with a Mr G during her relationship with the applicant and Mr E.  The applicant was not aware of the respondent’s relationship with Mr G.  The respondent said that she first met Mr G at a tavern in 2010 but started a sexual relationship with him in 2012 which lasted until 2016.    

9. The respondent stated that because she was having sexual relationships with both Mr E and Mr G in the same time period, she was unsure who X’s biological father was.  However, in relation to Y she was certain that Mr G was the father as she was pursuing a sexual relationship solely with him at the time.       

10. On 5 August 2019 I made an order requiring the respondent to write to the children’s purported fathers to notify then that should they wish to become a party to these proceedings an application should be filed by 4 October 2019.  No application was forthcoming.  During the hearing the respondent was asked to provide evidence of her compliance with that order.  Although she did not have it to hand at the time of giving her evidence, at my direction she provided the correspondence to my chambers by email following the hearing.  This correspondence became exhibits R2, R3 and R4.

11. Exhibit R2 appears to be an email dated 4 September 2019 from the respondent to Mr E placing him on notice as per my order.  The email correspondence contained no reply from Mr E.   

12. Exhibit R3 is a screen shot of a Facebook Messenger conversation between a Ms T and the respondent on 20 August 2019.  Therein the respondent states she is trying to contact Mr G and requests an email address.  Assistance from Ms T was forthcoming.  

13. Exhibit R4 is a screen shot of a Facebook Messenger conversation between Mr G and the respondent on an unknown date.  The message read:

    Hi Mr G, I am in a court matter with my ex partner re your child.  The judge would like to know which you would like – To be a joint party with me or a witness.  Could you please respond before 11:30am.

    Kind regards,

    Ms Warburg.

14. The respondent gave evidence that she had attempted multiple times to talk to Mr G but that he “keeps wiping clear his Facebook”, she no longer had his mobile phone number and he was becoming elusive. 

15. When I consider the competing evidence of the parties I am satisfied that they set out to have children together.  However, I cannot be satisfied that the applicant has established that either of the children were born as a result of an artificial conception procedure.  I accept her evidence that the parties had registered with a web site in order to find a sperm donor and had followed up on that on at least six occasions.  This was a joint endeavour.  I also accept that the applicant had discussed Mr E with the respondent.  Although the respondent did not call either Mr E or Mr G to corroborate her evidence as to the sexual relationships, the applicant was not present at the times of conception and therefore her evidence is based on what she was told by the respondent and assumed given past discussions.  Therefore her evidence is a belief rather than an observed fact. 

16. I accept the respondent was having sexual relationships with other persons during the parties’ relationship. A point that was conceded by the applicant. On the balance of probabilities I find that each child was conceived as a result of the respondent having sexual intercourse with a man. Consequently s.60H does not apply.

17. Notwithstanding that finding, I am satisfied that when the respondent became pregnant with each of the children, the parties intended to have the children together.  When the children’s births were registered their names included the surnames of each of the parties and this was also done on their Baptism certificates.  Each of the parties were recorded as the parents of the children on those certificates by the Roman Catholic Church where the children were baptised.  I have earlier in this judgment rejected the respondent’s claim that she acted under duress in registering the children’s names.  Her unilateral actions in amending the birth certificates were strategically designed to bolster her position as the only mother of the children and to remove the applicant from the children’s lives.

18. In assessing the evidence, I am satisfied that the applicant was intended by both parties to be a mother to these children at the time of their conceptions and subsequent births.  Does that intention however make the applicant a “parent” for the purposes of the legislation?  As I indicated above the High Court in Mason & Parsons held that the Family Law Act proceeds from the premise that the word “parent” refers to a parent within the ordinary meaning of that word except when and if an applicable provision of the Act otherwise provides.

19. Given that s.60H does not apply, and having regard to the evidence that was before me, I am satisfied that in applying the ordinary meaning of the word “parent” to this case, X’s parents would be the respondent and either Mr E or Mr G. Y’s parents would be the respondent and Mr G.

20. That of course does not preclude the applicant from seeking parenting orders. Section 64C provides that a parenting order may be made in favour of a parent of a child or some other person. Section 65C provides that a parenting order may be applied for by either or both of the child’s parents, or the child, or a grandparent of the child, or any other person concerned with the care, welfare or development of the child. It was not asserted in this case that the applicant was not a person concerned with the care, welfare or development of these children. The relevance of determining whether the applicant is a parent or other person concerned with the care, welfare or development of the children is in how the court is to apply the objects, principles and best interests considerations set out in the Act.

21. In Aldridge v Keaton[16] the Full Court held that the matters set out in s.60B(2) (a)-(e) should be read conjunctively saying:

    [45] … While the emphasis placed on parents by the legislature is of particular importance, the relevance of the principle that a child spending time with people significant to their care, welfare and development must also guide consideration of relevant matters under s 60CC(2) and (3).

    [16] (2010) 42 FamLR 369 at 381 para [45]

22. In Rice v Miller[17] the Full Court expressed the view:

    We are thus of the view that the fact of parenthood is to be regarded as an important and significant factor in considering which of the proposals best advances the welfare of the child. We would reiterate, however, that the fact of parenthood does not establish a presumption in favour of the natural parent nor generate a preferential position in favour of that parent from which the Court commences its decision making process. Each case must be determined according to its own facts, the paramount consideration always being the welfare of the child whose custody is in question.

    [17] (1993) 16 FamLR 970 at 977

23. In Aldridge v Keaton  the Full Court adopted the following approach:

    [83]  (i) a two step approach is appropriate in dealing with an application for parenting orders brought by a person other than a parent, a child, or a grandparent.  In other words is the applicant a person concerned with the care, welfare or development of the child (step 1) and if so, what order should be made in the best interests of the child.  This consideration may lead to an order for parental responsibility, an order a child live with, spend time and or communicate with the person, or that no such order be made (step 2);

    (ii)    s 65C does not prescribe a hierarchy of applicants.  The application falls to be determined under s 60CA guided by the objects and principles in s 60B(1) and s 60B(2) and based on consideration of relevant matters under s 60CC(2) and s 60CC(3).

Determining the best interests of the children – the s.60CC considerations

1. The court is required to determine the children’s best interests by considering the relevant factors set out in s.60CC. In order to limit duplication I propose to group together a number of these factors.

2. Some of these provisions also appear to relate to parents only.  In Potts & Bims[18] Moore J considered the approach to be adopted in cases between a parent and a non-parent saying:  

   [8] The provisions about children’s arrangements are to be found in Part VII of the Family Law Act 1975. The concept of best interests of the child is at the heart of it and that is designated to be the paramount consideration in making any parenting order. Some Part VII provisions refer to ‘parent/s’ which, given the word’s ordinary meaning and in the absence of an expanded definition or some other descriptor such as ‘party’, means a number of sections do not apply when assessing ‘best interests’ in proceedings that are not between parents but between a parent and a non-parent [eg. relative]. Section 60B(1) and (2) set out the objects of Part VII and the principles underlying them. However, a number are expressed to apply to ‘parent/s’ and so are excluded in proceedings of the latter kind. For example, paragraphs 60B(1)(a), (c), and (d) fall away and what remains is paragraph (b); namely, the object of protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Similarly, paragraphs 60B(2) (a), (c) and (d) fall away as underlying principles and there remains paragraph (b); namely, [‘except when it would be contrary to a child’s best interests’] ‘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)’. With objects and underlying principles as a guide, the determination of what is in a child’s best interests requires the court to consider both ‘primary considerations’ and ‘additional considerations’ set out in s 60CC. But again the use by the legislature of the word ‘parent/s’ in a number of those considerations operates to exclude those factors in proceedings between a parent and non-parent. Falling within that group is the primary consideration in paragraph 60CC(2)(a) and the additional considerations at paragraph (c), (e), and (i). However, that does not mean those considerations are to be ignored if the facts of the case raise them as issues because they can be addressed under other considerations such as paragraph (f) [capacity to provide for needs] or, if nowhere else, under paragraph (m) [any other fact or circumstance relevant]. On that same analysis, the presumption of equal shared parental responsibility imposed by s61DA and, if it applies and the order is to provide for equal shared parental responsibility, consideration of the child/ren spending equal time or substantial and significant time, as set out more particularly in s65DAA, are not prescribed pathways in the reasoning process towards a best interests conclusion in proceedings between a parent and non-parent. Nonetheless, the particular applications may make it necessary to address those outcomes in any event.

   [18] [2007] FamCA 394

3. Although I have not found the applicant to be a “parent” for the purposes of the Act, I am satisfied in the circumstances of this case that it is appropriate to consider all of the factors set out in s.60CC(2) and (3) as if they are applicable to both parties. In doing so I rely on s.60CC(3)(m) which requires the court to consider any other relevant fact or circumstance. I have come to that decision because I am satisfied both parties initially intended the applicant to be a mother to these children and acted accordingly up until separation. To exclude the applicant from the considerations relevant to parents in the circumstances would be artificial and may distort the decision making process leading to a decision that is not in either child’s best interests.

The children’s relationships[19]

[19] S.60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child’s parents.

1. I am satisfied the children have their primary relationship with the respondent.  She has been their primary caregiver since birth.  The children were observed by Ms K in the most recent report to be relaxed, enthusiastic and content in her company.  The respondent appeared to be warm, gentle, encouraging, playful and supportive in her interactions with the children and they were responsive and engaging in return.  I find that they have a good, loving and positive relationship with the respondent and would find their primary support in her.

2. The parties were at odds as to the extent of the applicant’s involvement with the children during the relationship.  On the respondent’s case the parties separated when Y was only five months old and on the applicant’s case he had just turned one.  There was no dispute that the applicant was a fly-in-fly-out worker and accordingly she was not as available to the children as the respondent.  The respondent however claimed that she was solely responsible for their care even when the applicant was back from work.  I do not accept her evidence in this regard.  Her evidence was designed to minimise the role the applicant has played in the children’s lives.  I find that the applicant did care for the children whilst she was in the home but there can be no doubt that the respondent was the main care provider.

3. I accept the applicant’s evidence that after separation she would see the children on visiting them at the former relationship home for short periods of time before having some overnight time with X.  At some point in late 2016, the timing is not clear, the respondent stopped all time between the children and the applicant.  Despite a parenting plan being signed by the parties in March 2017 providing for the children to spend time with the applicant once a month the respondent did not honour the agreement after the first visit.  It was not until December 2017 that the children started spending any time with the applicant.  This time was initially supervised given the length of time since the children had seen her and their young ages.  There can be no doubt that the absence of the applicant in the children’s lives at this very important time developmentally would have had an impact on their understanding of her relationship with them and their bonding with her.  The report writer opined that the children had experienced disruption and turbulence during their vulnerable early childhood years noting the conflictual relationship between the parties, disruption to their caregiving relationships, and ongoing disruption in the child/mother relationships especially with the applicant.  She also said that their separation from the applicant was likely to have been distressing for them, particularly with the limited cognitive capabilities they would have had at the time.

4. In May of 2018 the supervision was uplifted and the time extended to seven hours on three weekends in every four.  In November 2018 the time was extended to overnight time Saturday morning to Sunday afternoon each alternate week which has continued to this day.  I am therefore satisfied that since late 2017 the children have been able to have consistent and regular time with the applicant and would have been able to develop and grow their relationship with her.

5. When in the most recent report the family consultant explored X’s perception of the applicant’s role in her life she was unable to articulate an understanding of how she fitted into her family.  Y described the applicant as a friend.  Notwithstanding this the report writer observed the children to break into wide warm smiles when they saw the applicant.  They ran over to her and X jumped up and down presenting as being pleased to see her.  Y followed X, jumping into the applicant’s arms and giving her a big hug.  They were also happy to see the applicant’s partner.  The family report writer concluded that the interactions were fun and uplifting with a familiar, loving and comfortable tone to the observations.  There were exchanges of delight and laughter.  When it came time for the observations to end both children were observed to jump into the applicant’s arms, where they embraced each other.  The applicant told the children she loved them and they snuggled into her chest.  Before they left, Y again jumped into the applicant’s arms.  The children were relaxed and uplifted.

6. This positive observation was contrasted with an informal observation by the report writer.  She noted a significant change in the children’s behaviour towards the applicant when they were near the respondent.  The children appeared uncomfortable.  The report writer opined that the children were feeling caught between the parties and cognizant of the parental dispute.  X was clearly aware of the respondent’s dislike of the applicant.  At paragraph [105] of her report the family consultant had this to say:

   ……I observed what seemed like incongruent and modified behaviour when X and Y were around the different parties that is presenting as subdued around Ms Aldred when Ms Warburg was in close proximity and then noticeably excited to be with Ms Aldred when they were alone. This information could suggest X and Y are cognizant of the adult dispute and grievances towards each other, where they are seeking to modify, change their behaviour and potentially seek to please Ms Warburg in response to what they might feel she wants from them.  This could be particularly detrimental for the children’s on‑going emotional well-being, and it would be significantly important for the parties to role model, convey positive messages, and avoid contact if interactions remain tense and hostile.

1. Although the respondent ran her case on the basis that she would consent to the order sought by the applicant that the children spend time with her on alternate weekends Friday to Sunday, she maintained that the children were experiencing difficulties associated with the current time and at times did not want to go.  She attributed this to the applicant’s care of the children.  I do not accept this.  Both children were positive in their comments about spending time with the applicant.  I am satisfied, given the observations of the family consultant, that the children have a close and loving relationship with her.  Any negativity they are experiencing in their relationship with the applicant can be attributed to their experience of the respondent’s behaviour and attitude towards the applicant.  The respondent has not been able to bring herself to support the relationship nor shield the children from her own anxiety surrounding their time with her.  X told the family reporter that the respondent had told her she did not like the applicant.

2. Notwithstanding the children being unable to place the applicant in a role within the family but seeing her rather as a friend I am satisfied their relationships with her go beyond that.  The respondent has clearly undermined the applicant’s role as a mother to the children such that they do not perceive of her precisely in those terms but there can be no doubt that the relationships are strong, close and loving.  Over time the children will come to acknowledge the applicant as their other mother although unless there is a change of heart by the respondent they are unlikely to do so in front of her.

Risk of harm[20]

[20] S.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

1. There have been no family violence protection orders between the parties.  The respondent claimed to be a victim of family violence from the applicant particularly in relation to aggressive behaviour such as screaming and by slamming doors.  She also alleged the respondent would check her phone and pressure her in relation to the children’s time with her.  In my assessment of the parties I came to the conclusion that their relationship was marred at times by heated conflict that would manifest itself in loud arguments.  Two of the significant causes of this conflict were financial concerns and the respondent’s sexual relationships outside of their relationship.  I am satisfied that both parties were responsible for this conflict and that they have both been abusive and insulting of and to each other verbally and in messages.  Notwithstanding that finding, I find that their current relationship is not so negative despite a lack of trust and anxiety particularly from the respondent’s perspective.

2. I find that there is no evidence that either party is currently at risk of harm from the other as a consequence of family violence and nor are the children.  There is also no evidence of the children being exposed to neglect or psychological harm in either household.

The children’s views[21]

[21] S.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.

1. Although the respondent suggested the children did not always want to spend time with the applicant it is clear from what they have said to the family consultant that they enjoy their time with her and want it to continue.  Their reactions in seeing the applicant were consistent with their stated views.

2. The children are still young and their views in and of themselves will not be determinative of this dispute however I am satisfied that their views need to be taken into account and given some weight.

Practical difficulties[22]

[22] S.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.

1. Although the respondent lives on the Region U and the applicant in a suburb of Brisbane. I am satisfied they live in sufficient proximity to enable regular and frequent time arrangements to be put in place that would not adversely affect the children’s daily lives.

Parental capacity and responsibility[23]

[23] S.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.

1. The respondent raised issues with the applicant’s capacity to parent the children although this appeared to be largely historic.  She told the report writer that she was concerned with past alcohol and drug issues in relation to the applicant but said that she did not have any current information to suggest this was occurring now. 

2. A significant issue was her stated concern that the children were diagnosed with trauma related behaviours as a consequence of spending time with the applicant.  The children see a psychologist once a month but the respondent did not file any affidavit from this professional to support her claims. 

3. The family report writer found it difficult to define what the respondent’s concerns were for the children’s time with the applicant.  I too experienced this difficulty.  X has had urinary incontinence issues for some time which the respondent has attributed to her spending more time with the applicant.  Although this child has been seeing a specialist and received a referral to a hospital incontinence programme the respondent did not file any evidence to support the assertion this issue was associated with the child’s time with the applicant.

4. The respondent also claimed that Y had been presenting with escalating unsettled behaviour where he would physically lash out, particularly with X.  She said he was being assessed for Attention Deficit Disorder.  The family report writer noted that he did not appear to present with any hyperactivity issues when observed by her. 

5. There is no evidence to support any finding that the children’s presenting emotional or health issues are related to their spending time arrangements with the applicant.  Indeed the family consultant’s observations of the children with the applicant were incongruent with such a finding.  Given the respondent invited the court to make orders for the children’s time to increase by one night a fortnight I am not satisfied she honestly believes the children are adversely affected by spending time with the applicant.

6. I find that both parties have the capacity to meet the children’s day to day needs as well as their emotional and intellectual needs.

7. I do have some concerns however in relation to their ability to share information in relation to the children in a positive way.  No doubt the respondent’s desire to be considered the only mother to these children has influenced the way she has communicated with the applicant.  I take some comfort however in the report writer’s observation that the respondent appeared to have some psychological learnings in relation to strategies to support adjustment.  She told the report writer that she realised she could not control outcomes and would be able to accept a decision for increased time between the children and the applicant.  It would appear that she has sought out psychological help for herself.  With the litigation coming to a close, even if disappointed with the outcome, I have confidence the respondent will accept the court’s decision and focus on ensuring the best outcomes for the children moving forward. 

Limiting further proceedings[24]

[24] S.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.

1. An important consideration in determining children’s best interests is for a court to make orders that are least likely to result in future litigation between the parties.  Although this is not always possible and it is difficult to predict the future I am able to look to the past as a guide to potential issues that might arise in the future.  In this case each of the parties will benefit from having orders put in place to guide them in parenting the children.  Although the respondent did not follow the parenting plan back in 2017, since orders have been made by the court there has been, by and large, compliance with them.  There is nothing in the evidence to suggest that this would not continue after the cessation of these proceedings.

2. Notwithstanding my findings in the previous section that the parties should be able to communicate respectfully when sharing information about the children in the future, given their past difficulties in communicating effectively, particular care needs to be taken in assessing their ability to communicate about the significant decisions that need to be made for the children.  There is some risk that these parties will struggle to reach agreement at times.  I will address this when I consider the presumption of equal shared parental responsibility and the competing proposals in this regard.  

3. Subject to that issue, I am satisfied that the parties will be able to otherwise comply with orders made by the court even if they are not happy with the outcome.   In complying with the orders they will be able to avoid future litigation.  I will however make provision for alternative dispute resolution so that they are aware of how they are to try and resolve future disputes.

Presumption of Equal Shared Parental Responsibility

1. Although I have undertaken the exercise of considering the children’s best interests on the basis that both parties are parents, given my findings that the applicant is not a parent for the purposes of the Act, I am satisfied that the presumption of equal shared parental responsibility does not apply.  I am however asked by the applicant to make an order for the parties to share this responsibility.  That is opposed by the respondent.

2. The respondent asserted that there was family violence in this relationship.  Whilst I have found there to have been conflict between the parties I am not satisfied that respondent has established her case for sole parental responsibility solely on the basis of family violence.  The respondent further argued that the parties have not been able to communicate effectively to make decisions together in the best interests of the children.  The evidence shows that the respondent unilaterally changed the children’s surnames and enrolled them in their school.  Her insistence that the applicant was not a parent to these children no doubt motivated her thinking in this regard such that she did not bother to consult with the applicant.

3. The applicant would like to be involved with future decisions for the children.  A desire consistent with her identification as a mother to these children.

4. Whilst I have much sympathy for the applicant’s position I am not satisfied that it would be in the best interests of these children for both parties to share parental responsibility.  Although I have found that the respondent has sufficient insight to develop strategies to cope with a decision she is not happy with, I am not satisfied she will be able to bring herself to work constructively with the applicant in making decisions.  I accept she is entrenched in her views that she should be able to parent the children and make decisions for them as their mother.  To require the parties to work together in arriving at a decision has the potential to sow the seeds for further conflict down the track leading to a risk of further litigation or ongoing conflict.  This would not be in the children’s best interests.  

5. I am satisfied however that the applicant should not be excluded altogether from such decisions given the initial intention of the parties was to have these children together.  I will make an order that prior to the respondent making a decision in relation to the children’s long term welfare she advise the applicant of the decision she intends to make and to invite a response expressing her views.  The respondent would be required to give due consideration to the applicant’s views before making her final decision and then notifying the applicant that the decision has been made.

6. It is important for the respondent to understand that although an order has been made giving her sole parental responsibility it does not enable her to move the children’s residence to such a distance away from the applicant that would preclude or make it more difficult for the children spending time with her in accordance with these orders.

Consideration of Equal Time or Substantial and Significant Time

1. To their credit the parties reached agreement that the children should continue to live primarily with the respondent and that they should spend alternate weekends from Friday to Sunday with the applicant.  They remained in dispute however in relation to school holiday time and time on special occasions.  The applicant sought orders that would see the children spend time with her on Mother’s Day and Christmas Day.  This was opposed by the respondent although she sought orders for the children to spend Boxing Day with the applicant.  The respondent was also open to the applicant spending Australia Day with the children and time over the Easter period.  She did not support block periods during the school holidays which the applicant wanted to share with her.

2. Each proposal would see the children spending substantial and significant time with the applicant which is defined in s.65DAA(3) as time that falls on weekends and holidays and time that does not fall on weekends or holidays that allows a parent to be involved with the child’s daily routine and occasions and events that are of particular significance to the child and parent. In the following paragraphs I set out my reasons for the making of time orders between the children and the applicant. I am satisfied that the orders I propose to make fit within the definition of substantial and significant time and that it is in the children’s best interests and reasonably practicable to make the orders.

3. When making submissions the respondent sought an order for the children to be with her for Mother’s Day.  The applicant did not oppose that although she sought an order for the children to phone her on that day.  The concession made by the applicant was child focussed.  The respondent asked that she have the whole weekend and for the applicant to have a make-up weekend if the children were to be otherwise with her on Mother’s Day. 

4. Having found that the parties were intended to be mothers to these children, notwithstanding the children’s current understanding of the applicant’s role in their lives, I am satisfied that it would be in the children’s best interests if they could recognise both the applicant and the respondent on that day.  Given the applicant’s concession, I propose to make an order that in the event the children are due to spend time with her for their weekend time when Mother’s Day falls the children’s time with her should instead take place the following weekend which would see the children spend time with her for two consecutive weekends.  In any event the children should have a Facetime session with the applicant on Mother’s day at a time agreed between the parties but in case they can’t reach an agreement I will order that it take place between 9.00am and 9.30am.  This will go some way in ensuring the children get the opportunity to recognise her on this special day.

5. The applicant would like the children to spend time on Christmas Day with each of parties in alternate years.  Her proposal would see the children spend time from 4.30pm Christmas Eve to 10.30am Boxing Day with the respondent in even numbered years and for the same time with the applicant in odd numbered years.  The respondent proposed the applicant’s time be 10.30am to 4.30pm Boxing Day so that the children are with her every Christmas Day.  She also sought an order that would enable her to travel away over Christmas and provide make up time for the missed Boxing Day.  The applicant was also seeking an order to allow flexibility to either party if they wanted to take the children away over the Christmas period.  Whilst Christmas Day is important to families I am not satisfied the children’s best interests would be served by making alternate Christmas Day orders.  Boxing Day is of course the next day.  If the children are to spend every Boxing Day with the applicant they will develop a routine and in effect enjoy two Christmases, one with the respondent on Christmas Day and one with the applicant on Boxing Day.  Necessitating a shared Christmas Day or alternate Christmas Days is more of an adult focused approach than a child focused one.

6. Having said that I am not satisfied it is appropriate to make the respondent’s orders in relation to travel at Christmas as this may develop into a means of ensuring the children don’t get to spend time with the applicant close to Christmas Day.  I will make the orders subject to agreement between the parties to allow for some flexibility but without agreement the parties will need to ensure the children spend Christmas Day with the respondent each year and with the applicant on Boxing Day each year.  The respondent’s times for the Boxing Day orders were a bit narrow and I propose to order from 9.00am to 5.00pm given it is summer time rather than the 10.30am to 4.30pm as proposed.

7. The applicant sought orders that would see the children spend time with her during school holidays on a shared basis.  During submissions she conceded that, at least initially, the children would struggle being away from the respondent for lengthy periods of time given she has been their primary care giver.  The respondent opposed the making of orders for school holiday periods but she was open to reviewing this in about three years when the children were older.  Both parties accepted that if I was to make orders for holiday time it should be built up to enable the children to cope with longer periods away from the respondent.

8. The respondent’s proposal for a review in three years, whilst child focused, has the potential for further conflict between the parties.  In order to minimise the risk of future litigation, I will make provision for holiday time in these orders as I am satisfied that the children would benefit from such time.  Having said that, the block holiday times need to be gradually increased in length over time so that the children will get used to spending longer periods away from the respondent.  I will make orders that will provide for a four day block period over Easter weekend 2021 with the applicant.  That will be the only block period that year.  In the following year the children will spend a four day block period during the Easter school holidays but not over the Easter weekend as that weekend will be alternated between the parties from year to year.  The children would then spend further four day periods during the September 2022 school holidays and in January 2023.  From that year the children will spend time with the applicant during the Easter, September and December/January holiday periods increasing by one day each year until they are spending seven days in each of those periods.  I do not propose to make an order for equal school holiday periods as the applicant is unlikely to be available to the children for that amount of time each year.  The drafting of the orders will allow for the parties to reach their own agreement as to the dates of the times spent but in case they are unable to come to an agreement there will be a fall-back position.

9. I was not persuaded to make any provision for Australia Day as sought by the respondent.  That however does not preclude the parties from reaching an agreement in that regard.  I have not made specific orders for spending time arrangements for birthdays but will make an order that in the event the children are living with or spending time with a party on their birthday the other party may have a period of Facetime with that child if they do not reach an agreement for the spending of physical time with the child.  A similar order will also be made for a party’s birthday.

Other Orders

1. The parties could not agree as to where the children would transition into each other’s care.  The respondent wanted the handovers to take place at a contact centre were as the applicant sought the handovers to take place at a service station.  I accept the respondent would feel more comfortable attending the contact centre for handovers given her anxiety in coming into contact with the applicant.  Without minimising the validity of her concerns I am not persuaded it is necessary for that arrangement to continue.  There are no family violence orders between the parties, the children are familiar with the applicant and there are costs associated with using the service provided by the contact centre.  As the children get older they are likely to question why they have to go to the contact centre for the short periods of handovers.  On balance I prefer the applicant’s proposal.  Whilst a service station can be a busy environment I am satisfied the children would be safe now that they are older.  It is also a public place with CCTV which should bring some comfort to the respondent.

2. The applicant sought an order that the children be able to speak with her by Facetime once per week on Wednesdays between 6:00pm and 6:30pm. This was opposed by the respondent but during submissions asked that if such an order was to be made she would like it to be earlier than the times proposed.  I am satisfied that it is in the children’s best interests to speak to the applicant by Facetime each Wednesday given the importance of their relationships with her.  As the applicant said she could be available from 4.30pm I will order the calls take place anywhere between 4.30pm and 5.00pm.

3. The applicant sought an order for the surnames of the children to be changed back to the names they were originally registered in.  This was opposed by the respondent.  I have earlier in this judgment made the findings that the parties intended to give the children the surname: Warburg-Aldred and that the respondent unilaterally changed the names on their birth certificates removing the applicant’s surname from the names of the children in an attempt to remove the applicant from their lives.  She did this on in 2016.  Although the respondent said she did this in 2015, I am satisfied she is mistaken in that regard as the birth certificates for each child clearly indicate it was in 2016.

4. In determining whether to change a child’s name the court is required to consider that child’s best interests as the paramount consideration just as is required for all parenting orders.  Whilst not an exhaustive list, in determining the child’s best interests, a court should look at:

   a)the short and long term effects of any change in a child’s surname;

   b)any embarrassment likely to be experienced by the child if their surname is different from that of the parent with whom they primarily live;

   c)any confusion of identity which may arise for the child if the name is changed or is not changed;

   d)the effect which any change in surname may have on the relationship between the child and a party to the proceedings; and

   e)the effect of frequent or random changes of name.[25]

   [25] See Chapman & Palmer (1978) FLC 90-510

5. Both children have now been known by the respondent’s surname for the majority of their lives.  The change of name was registered in 2016 when X was just three years old.  She will turn seven later this year.  Y, who is now five years of age, was only 18 months old when his name was changed. 

6. At that point in their lives the children would not have experienced any confusion by the change and are unlikely to have been aware of it.  Over time they will have come to recognise their surname as used by the respondent.  X has been attending school under this surname for a couple of years.  I am concerned that a return to using their original names at this point in time would risk creating confusion for the children.  Whilst the benefit to them in sharing each party’s surname would be to help them understand the role that was intended to be played by the applicant in their lives, now that a number of years have passed I find that the risk of confusion outweighs that benefit. 

7. On the applicant’s evidence the children’s middle names were chosen in an attempt to connect both families.  Although the respondent said the names were all within her own family I am satisfied the intention was to blend names to achieve a connection with both families.  Over time the applicant will be able to talk to the children about how their middle names were chosen which will help them to piece together the connection and help foster in them a sense of their family history and identity.  At an appropriate time the children will no doubt be shown their birth certificates which indicate the change of surname.

8. The respondent’s unilateral decision to change the children’s names was a selfish attempt to remove the applicant from her life and the lives of the children.  It was not a child focused decision on her part.  Despite my criticism of her decision, the test for deciding what should happen going forward is the children’s best interests and I cannot be satisfied that these would be met by a return to their previously registered names.  I am however satisfied their relationship with the applicant will not be detrimentally affected by keeping the names they have become used to as they already have a close relationship with her.  This will continue to grow over time as a consequence of the spending time with orders that will be made.  For those reasons I will not make any order in relation to the children’s names.

9. The respondent sought an order that in the event that the applicant intended to have the children spend overnight time at a residence other than her own she be required to notify the respondent seven days prior as to the address details where the children would be staying.  I am not persuaded to make this order.  Although I accept the respondent lacks trust in the applicant there was nothing in the evidence to lead me to find that the applicant is unable to make child focused decisions or to put the children in harm’s way.  If the applicant and children were visiting friends for the day but decided to stay over for the night she would be in breach of such an order.  I do not consider the respondent’s proposal to be in the children’s best interests.  Having said that, if the parties were to take the children on an extended holiday it would be appropriate for them to notify the other where they would be staying.  I do not consider this should only apply to the applicant.  Both parties are significant to the care of the children and should be informed about travel arrangements.  Even though I have found it is in the children’s best interests for the respondent to have sole parental responsibility the primary reason for that was the poor level of communication between the parties rather than any diminution of the applicant’s role in the children’s lives.

10. The applicant sought an order that the parties keep the other informed of their residential address and contact details.  The respondent on the other hand did not want to be required to keep the applicant informed of her residential address.  Given both parties will be significantly involved in the children’s lives it is important that they are each aware of where the children are living and for them to have the other’s contact details.

11. The respondent was not supportive of the applicant having any significant role in the children’s medical care.  She proposed an order that she be required to keep the applicant informed of the children’s treating general practitioner but only for the sole purpose of her accessing emergency care.  This again was consistent with her desire to minimise the role of the applicant in the children’s lives.  I do not consider that proposal to be in the best interests of the children and would be too restrictive.  The applicant on the other hand sought the more traditional orders for each party to keep the other informed of medical treatment and to be authorised to obtain information from medical practitioners.  She also sought an order that she be permitted to apply for a Medicare card for the children.  Given the children will be spending significant and substantial time with the applicant including block holiday periods it is important that she be fully aware of the children’s medical needs and to be able to access that care through the Medicare system.  Having said that, given I will be making an order for the respondent to have sole parental responsibility for the children, albeit in consultation with the applicant, any major ongoing medical care should be organised by the respondent.  This would not preclude the applicant taking the children to a doctor if they presented with flu like symptoms whilst spending time with her.  For that reason it is in the children’s best interests to make an order, requested by the applicant, for the children to be included on her Medicare Card.

12. For these reasons I make the orders set out at the commencement of this judgment.

I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn

Associate:

Date: 10 September 2020

S.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).
S.60CC(3)(c): The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child.
S.60CC(3)(d): The likely effect of any changes in the child’s circumstance, 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.S.60CC(3)(j): Any family violence involving the child or a member of the child’s family.
S.60CC(3)(k): If a family violence order applies, or has applied, to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following: i) The nature of the order; ii) The circumstances in which the order was made; iii) Any evidence admitted in proceedings for the order; iv) Any findings made by the court in, or in proceedings for, the order; v) Any other relevant matter.S.60CC(3)(m): Any other fact or circumstance that the court thinks is relevant.S.60CC(3)(ca): The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
S.60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents