Budd and Horne and Anor

Case •

[2015] FCCA 1576

•

11 June 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUDD & HORNE & ANOR [2015] FCCA 1576

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – one child aged four years five months – donor father seeking parenting orders – mothers seek no contact with father – need for appointment of Court Expert – cautious approach to be taken – whether limited time should be spent by father with child for purposes of identification – best interests of the child.

FAMILY LAW – Family Law Act 1975 (Cth), s.60CC(2).

FAMILY LAW – Parental responsibility – equal shared parental responsibility – order for respondents to have equal shared parental responsibility – not appropriate for applicant to have parental responsibility.

Legislation:

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

Federal Circuit Court Rules 2001, r.15.09
Cases cited:
Donnell & Dovey [2010] FamCAFC 15; (2010) 42 Fam LR 559; FLC 93-428
Goode & Goode [2006] FamCAFC 1346; (2006) 36 Fam LR 422; FLC 93-286
Purcell & Nelson & Anor [2015] FCCA 274
Reiby & Meadowbank & Anor [2013] FCCA 2040
Applicant: MR BUDD
First Respondent: MS HORNE
Second Respondent: MS WATSON
File Number: SYC 2891 of 2013
Judgment of: Judge Scarlett
Hearing date: 3 February 2014
Date of Last Submission: 3 February 2014
Delivered at: Sydney
Delivered on: 11 June 2015

REPRESENTATION

Solicitor for the Applicant: Mr Price
Solicitors for the Applicant: Price & Company
Solicitor for the Respondents: Mr Tiyce
Solicitors for the Respondents: Tiyce Lawyers
Independent Children's Lawyer: Ms Webber
Solicitors for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

UNTIL FURTHER ORDER

  1. The child X born (omitted) 2011 is to live with the First Respondents Ms HORNE and MS WATSON.

  2. The First Respondents are to have equal shared parental responsibility for the child X.

  3. The child X is to spend time with the Applicant as follows:

    (a)On the first Sunday in March, June, September and December in each year between the hours of 10:00 am and 12:00 noon;

    (b)For a period of two (2) hours on the child’s birthday; and

    (c)On such other occasions as the parties shall agree.

  4. The Applicant and the First Respondents are to agree on a venue in close proximity to the residence of the Respondents for the Applicant’s time with the child to take place and if the parties fail to agree on a venue then the Respondents will nominate a venue.

  5. In the event that the child becomes distressed during the Applicant’s time with him and is unable to be comforted by either of the Respondents then the Respondents are at liberty to terminate the Applicant’s time with the child on that occasion.

  6. As provided by Rule 15.09, the Applicant and the Respondents in consultation with the Independent Children’s Lawyer are to agree upon the appointment of a Child and Family Psychiatrist as a Court Expert to enquire into and report upon matters relating to the welfare of the child X born (omitted) 2011 and that in preparing the report to the Court the Court Expert is to be requested to consider the following matters:

    (a)The nature of the relationship of the child with:

    (i)the Applicant;

    (ii)each of the two Respondents; and

    (iii)any other relevant person.

    (b)The likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from:

    (i)the Applicant;

    (ii)each of the two Respondents; and

    (iii)any other relevant person.

    (c)The capacity of:

    (i)the Applicant;

    (ii)each of the two Respondents; and

    (iii)any other relevant person

    to provide for the needs of the child including emotional and intellectual needs, including on that capacity of the relationship of the Respondents

    (d)The capacity of the parties to communicate with each other and co-operate in relation to the child’s care, and the impact if any of the child spending regular time in both households;

    (e)The maturity, sex, lifestyle and background of the child and the parties and any other characteristic of the child that the Court Expert thinks relevant;

    (f)The attitude to the child and the responsibilities of parenthood demonstrated by each of the parties;

    (g)The extent to which each of the parties 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 and communicate with the child.

    (h)The practical difficulty and expense of the child spending time with and communicating with a party and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parties on  a regular basis; and

    (i)Any other matter that the Court Expert considers relevant to the welfare of the child.

  7. The Applicant is to be liable for one (1) half of the Court Expert’s report and within twenty-eight (28) days of the appointment of the particular Court Expert the Applicant is to pay his half of the Court Expert’s estimate of fees to the Independent Children’s Lawyer for payment out to the Court Expert upon completion of the Court Expert’s report.

  8. The Respondents are to be liable for one (1) half of the Court Expert’s report and within twenty-eight (28) days of the appointment of the particular Court Expert the Respondents are to pay their half of the Court Expert’s estimate of fees to the Independent Children’s Lawyer for payment out to the Court Expert upon completion of the Court Expert’s report.

  9. In the event that the Court Expert is required to appear to give evidence in this matter, the parties are to be equally responsible for the cost of the Court Expert’s attendance at Court.

  10. The parties are to do all things necessary to facilitate the preparation of the Court Expert’s report including attending on and arranging for the child to attend upon the Court Expert.

  11. Liberty to apply on seven (7) days’ notice in respect of any matters concerning the Court Expert’s report.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2891 of 2013

MR BUDD

Applicant

And

MS HORNE

First Respondent

MS WATSON

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an Application for parenting orders by the biological father of a little boy called X, who was born (omitted) 2011. X is now four years and five months old. Of the two Respondents, Ms Horne is the biological mother of the child and Ms Watson is her de facto partner. The child lives with the Respondents and has not seen the Applicant for over a year.  

  2. The Applicant, whilst he is the biological father of the child, is not a parent of the child by virtue of the provisions of s.60H of the Family Law Act 1975 (Cth). It was the intention of the two Respondents that their names would be on the child’s birth certificate, which they discussed with the Applicant prior to the child’s birth.[1] The child’s birth certificate, showing the names of the two Respondents as Mothers, was tendered by their solicitor, Mr Tiyce, on the first return date.

    [1] Affidavit of Mr Budd 27 November 2013 at paragraph [4]

  3. The Applicant does, however, have standing to bring his Application under s. 65C(c) of the Family Law Act 1975, which provides that:

    A parenting order in relation to a child may be applied for by:

    …

    (c)any other person concerned with the care, welfare or development of the child.

Background

  1. The Applicant’s solicitor, Mr Price, has provided a detailed chronology in his Case Outline Document, which has been very helpful.

  2. The Applicant was born on (omitted) 1975. The First Respondent Ms Horne was born on (omitted) 1977. The Second Respondent Ms Watson was born on (omitted) 1972.

  3. In November 2009 the parties had a discussion in which they agreed that the Applicant would father a child with Ms Horne by way of artificial insemination.

  4. The child X was born on (omitted) 2011.

  5. It is the Applicant’s case that he spent a significant and substantial amount of time with the child between February and September 2011, after which time he says that his relationship with the Respondents began to deteriorate and they became increasingly reluctant to allow him to spend any time with the child.

  6. The last occasion that the Applicant spent time with the child was on 20th January 2013.

  7. The Applicant commenced proceedings by filing an Application for parenting orders and a supporting affidavit on 27th May 2013. The Application was returnable on 5th August 2013, on which occasion the Mother’s partner Ms Watson was joined as a Respondent and the parties were directed to attend a Child Dispute Conference with a Family Consultant.

  8. The parties attended the Child Dispute Conference on 12th September 2013. There was no agreement between the Applicant and the Respondents. In the Family Consultant Memorandum to Court, the Family Consultant, Ms R, recommended that a Court Expert report be obtained from a child and family psychiatrist and that the child’s interests should be represented by an Independent Children’s Lawyer.

  9. On 12th September 2013 an order was made that the interests of the child should be represented by a lawyer under the provisions of s.68L of the Family Law Act 1975.

  10. The Applicant’s Application for interim parenting orders was heard on 3rd February 2014.      

Orders Sought

  1. The Applicant seeks Orders until further order that:

    a)The parties should have joint responsibility for making decisions about the day to day care, welfare and development of the child X during periods when he lives with them;

    b)That the child should live with the Respondent Ms Horne, the biological mother, except as otherwise provided;

    c)That the child should spend time with the Applicant from 4:00pm to 6:00pm on alternate Thursday afternoons;

    d)For a period of three months, that the child spend time with the Applicant each alternate weekend from 10:00am on Saturday until 5:00pm that same day and from 10:00am until 5:00pm on Sunday;

    e)After three months have elapsed, that the child spend time with the Applicant from 5:00pm on Friday evening until 5:00pm the following Sunday evening extending to 5:00pm if the Monday immediately following the weekend is a public holiday;

    f)That the child spend time with the Applicant on the following special days:

    i)From 4:00pm to 6:00pm on the Applicant’s birthday;

    ii)From 4:00pm to 6:00pm on the child’s birthday; and

    iii)From 9:00am to 6:00pm on Fathers’ Day; and

    g)Other ancillary orders relating to telephone communication, medical matters, passports, travel, schooling, changeover and a restraint on denigration of any of the parties.

  2. The Respondents seek the dismissal of the Applicant’s Application with costs.

Evidence

  1. The Applicant relied on the following affidavits:

    a)his affidavit of 27th November 2013; and

    b)the affidavit of his mother, Ms C, of 9th September 2013.

  2. The Respondents relied on the following affidavits:

    a)the affidavit of Ms Horne of 31st July 2013;

    b)the affidavit of Ms Watson of 1st August 2013;

    c)the affidavits of Ms L, Psychologist, of 5th September 2013 and 29th November 2013; and

    d)the affidavit of Dr R, Psychiatrist, of 2nd August 2013.

  3. It is the Applicant’s case that when he agreed to father a child by artificial insemination it was never expressed to him that he was not to be an active father.[2]

    [2] Affidavit of Mr Budd 27/11/2013 at paragraph [1]

  4. The Applicant stated that he had known the Respondent Ms Watson since 1992 and they had become close friends. He said that at Ms Watson’s invitation he attended the Respondent’s residence on 23rd November 2009, where they discussed a proposal put forward by the Respondents that he should be the father of a child that they wished to have.

  5. The Applicant deposed that the arrangement was, as he understood it, that:

    a)The names of Ms Horne and Ms Watson would be placed on the child’s birth certificate;

    b)He would always be the baby’s father and be involved in the baby’s life as the baby’s father;

    c)He did not want to be just a donor;

    d)The child would have 3 parents and would love all 3 parents.[3]

    [3] Affidavit of Mr Budd 27.11.2013 at [4]

  6. It is the Father’s evidence that until the birth of the child he was involved in numerous pre-natal activities with the Respondents regarding the impending birth of the child. He stated that he spent substantial and significant time with the child after he was born on at least 31 separate occasions and was introduced by the Respondents to others as the child’s father.

  7. The Father claims that the Respondents’ relationship with him deteriorated in late 2011, particularly with the biological mother, Ms Horne, reneging on arrangements for him to spend time with the child. The Applicant claims that he spent Christmas Eve 2011 and the child’s birthday on (omitted) 2012 with him and continued to spend time with him throughout 2012. He also spent time with the Respondents and the child on 23rd December 2012 but had not been permitted to spend time with the child after the child’s second birthday on (omitted) 2013.

  8. The Applicant states that he was unable to spend time with the child after that, although he tried unsuccessfully to persuade the Respondents to attend mediation with Relationships Australia in March 2013.

  9. The Applicant also relied on the affidavit of his mother, who deposed as to the discussions between the parties that she witnessed before and after the birth of the child.

  10. The Respondent Ms Horne, the biological mother, deposed in her affidavit of 31st July 2013 that, even though she had never had an easy relationship with the Applicant, she had been persuaded by Ms Watson that they should enter into an agreement with him about conceiving a child.

  11. Ms Horne’s evidence is that the Applicant showed little interest in the child before his birth. She deposed that he became difficult and argumentative. He would “disappear for weeks on end”[4] and then ask to see the child.  She went on to depose that the Applicant’s behaviour was impacting badly on Ms Watson, who suffers from a mental illness. When the Applicant stayed away for several months, Ms Watson’s condition would improve.

    [4] Affidavit Ms Horne  31.7.2013 at [65]

  12. Ms Watson deposed in her affidavit of 1st August 2013 that she had known the Applicant for over 20 years. She said that she suffers from bipolar disorder and has done so for over ten years. She stated that she was in “a fragile state mentally”[5] and complained of stress caused by “the threats and demands made by Mr Budd[6]”.[7]

    [5] Affidavit of Ms Watson 1.8.2013 at [10]

    [6] i.e. the Applicant

    [7] Ibid at [11]

  13. Ms Watson deposed in the final paragraph of her affidavit:

    Ms Horne and I had wanted a sperm donor so that we could have a baby. We chose Mr Budd on my recommendation as he was a long-standing friend of mine and I knew he may have liked the idea of having a child out there that was his biological offspring. We could have bought sperm or used another donor but we chose not to. Ms Horne and I had hoped that Mr Budd would become a good friend of Ms Horne’s and visit the child and us from time to time. We never wanted Mr Budd to be a father to the child in the practical and real sense of the word. At the same time, I never expected that events over the past three years would ruin my friendship or have the effect that they have had on my mental health.[8]

    [8] Ibid at [53]

  14. The Respondents relied on the affidavit of Dr R of 2nd August 2013. She deposed that she is Ms Watson’s treating psychiatrist and has been since 2011. Annexed to her affidavit is a report dated 29th July 2013 in which she states that Ms Watson has been diagnosed with Bipolar affective disorder with attention deficit hyperactivity disorder. Dr R went to state that Ms Watson suffers from ongoing anxiety and has developed excessive fears of losing the child. She is also preoccupied by the environment that the Applicant would provide for the child and whether it is safe environment for the child.

  15. The Respondents also relied on the affidavits of Ms L of 5th September and 29th November 2011. Ms L is Ms Watson’s treating psychologist and has been since her referral by Dr R in October 2012.[9]  

    [9] Affidavit of Ms L 5.9.2013 at [3]

  16. Ms L tendered copies of a psychological report of 30th August 2013 and a further report of 22nd November 2013. She described Ms Watson’s symptoms resulting from what she described as the Applicant’s escalating “demands for access and parenting rights” with threats of court action. Ms L stated that Ms Watson reported a number of symptoms “in response to the demands made on the parenting of her son by” the Applicant, including:

    a)acute fear that the Applicant would take the baby;

    b)anxiety regarding the child when in the Applicant’s care;

    c)anxiety that as a same sex parent male donor demands would be perceived as valid and thereby invalidate her role as a parent and disrupt her bond with the child;

    d)acute distress when reminded with the Applicant’s demands;

    e)reduced ability to concentrate;

    f)depersonalisation and derealisation; and

    g)stress induced rapid cycling of mood in previously stable Bipolar Disorder.         

  17. The Applicant’s application was returnable on 5th August 2013. The parties were directed to attend a Child Dispute Conference with a Family Consultant, which they did on 12th September 2013.

  18. In her Memorandum to the Court, the Family Consultant stated:

    Whilst A might receive some benefit from having a relationship with his biological father, depending on the quality of that relationship, the current situation between the adults likely means that, if he were to recommence spending time with his father, it would place him in a situation of conflict, tension and two different belief systems about family roles. This would likely be stressful for X and detrimental. Based on Ms Watson’s presentation and the reports about her experiences of mental illness, it would also be likely that, without a comprehensive intervention and management plan, Mr Budd’s involvement would cause deterioration in her functioning and possible further hospitalisation which would likely cause stress and disruption for X.

Submissions

  1. I have read the Case Outline Documents prepared by the solicitors for the Applicant and the Respondents. It is regrettable that the Respondents’ solicitor has elected to describe the Father as the “Sperm-Donor”, which appears to be overly dismissive and pejorative. If the Respondents cannot bring themselves to think of the Applicant as the child’s father, they could at least describe him by the more neutral title of “Applicant”.

  2. Ms Webber, the Independent Children’s Lawyer, told the Court that she had formed the view that on an interim basis the child should not spend any time with the Applicant, based on the comments of the Family Consultant and the fact that the child was unlikely to have any recollection of the Applicant after a separation of twelve or thirteen months.

  3. Mr Price, for the Applicant, told the Court that his client was seeking substantial and significant time with the child. He acknowledged that there would need to be a graduated program to allow a gentle reintroduction of the Applicant to the child.

  4. Mr Price stated that his client rejected any suggestions that Ms Watson’s mental illness was exacerbated or worsened by him. He submitted that material produced on subpoena from the (omitted) Clinic evidenced a number of matters contrary to that assertion.

  1. Mr Price referred the Court to the provisions of s.60B of the Family Law Act 1975 (Cth) that supported his client’s view that it was important that the child should receive adequate and proper parenting to help achieve his full potential. He further referred to s.61DA of the Act that there was no evidence to rebut the presumption that it is in the best interests of the child for his parents, including his biological father, to have equal shared parental responsibility for him.

  2. Further, Mr Price submitted that when considering the child’s best interests under s.60CC of the Act, there was no suggestion\n of any need to protect the child from harm as envisaged by s.60CC(2)(b).

  3. Mr Price went on to submit that there was nothing in the Respondents’ evidence about Ms Watson’s medical issues that would provide any genuine basis for the Court to be concerned that the child spending time with the Applicant would pose any or any real risk to the child’s welfare or development. He referred the court to the recent decision in Reiby & Meadowbank & Anor[10] .

    [10] [2013] FCCA 2040

  4. Mr Tiyce, for the Respondents, reminded the Court that the child had not spent any time with the Applicant for the last twelve months, at the hands of the Respondents, not the Father. There is no evidence of any relationship between the child and the father.

  5. Mr Tiyce referred the Court to the decision in Donnell & Dovey[11], where at [101] it was held that s.60CC(2)(a) has no application to a person who is not a parent. Under the provisions of s.60H of the Family Law Act 1975, the Applicant is not a parent. The child has two parents, being the Respondents. The child has two parents in an intact relationship who have raised him since birth. According to the Respondents, the child has not developed an attachment relationship with the Applicant.

    [11] [2010] FamCAFC 15; (2010) 42 Fam LR 559; FLC 93-428

  6. Mr Tiyce also referred the Court to the decision in Goode & Goode[12], as had Mr Price, and stated that very often the factors in s.60CC are not relevant in an interim application.

    [12] [2006] FamCAFC 1346; (2006) 36 Fam LR 422; FLC 93-286

Parenting applications

  1. This is an interim hearing and the Court must follow the necessarily limited procedure referred to in Goode & Goode[13]. The Court must have regard to the matters contained in Part VII of the Family Law Act 1975, particularly:

    a)Section 60B, which contains the objects of Part VII and the principled underlying those objects;

    b)Section 60CA, which requires the Court to regard the best interests of the child as the paramount consideration;

    c)Section 60CC, which sets out the way that the Court determines what is in a child’s best interests;

    d)Section 61DA, which deals with the presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child; and

    e)Section 65DAA, which requires the Court to consider equal time or substantial and significant time with each parent where an order has been made that the parents should have equal shared parental responsibility for the child.

    [13] supra

  2. All of these matters have been considered where they are relevant.

Relevant matters in section 60CC of the Family Law Act

  1. It seems to be clear, as I held in Purcell & Nelson[14], that the provisions of s.60CC(2)(a), which refers to the benefit to the child of having a meaningful relationship with both of the child’s parents, do not apply in this case, as the Applicant, although he is the donor of the relevant genetic material, is not a parent for the purpose of these proceedings by virtue of s.60H(1)(d). Consequently, s.60CC(2)(a) can never have application, as all of the relevant provisions of the Act referring specifically to parents “fall away” (see Donnell & Dovey[15] at [101], [119]-[120]; Reiby & Meadowbank & Anor[16] at [1452]-[143]). This will apply to some of the provisions of s.60CC(3) also.

    [14] [2015] FCCA 2040

    [15] supra

    [16] supra

  2. However, it appears that s.60CC(2)(b), which refers to the need to protect the child from physical or psychological harm, still applies. It is also clear that various provisions of s.60CC(3) which do not refer specifically refer to a child’s parent will still apply.

  3. This is a case where there appears to be animosity between the Applicant and the Respondents, which would clearly have an unsettling effect on the child.

  4. The Family Consultant made it clear that there are no issues regarding violence, drug or alcohol misuse or risk of harm.

Parental Responsibility

  1. The Applicant seeks an order that the parties shall have the joint responsibility for making decisions about the day-to-day care, welfare and development of the child during periods when the child lives with them. As it is the Respondents who are the parents under the law, and not the Applicant, it seems clear that they are the ones who should have parental  responsibility (see Reiby & Meadowbank & Anor at [142]-[143]).

  2. In my view, the decision in Reiby & Meadowbank & Anor at [143] supports a finding that the Respondents should have equal shared parental responsibility for the child. As I said in Purcell & Nelson[17] at [58], I find it difficult to understand how two people can have sole parental responsibility. Thus, the reasoning in Reiby & Meadowbank & Anor in the above paragraphs supports an order that the Respondents have equal shared parental responsibility between themselves.

    [17] supra

Section 65DAA of the Family Law Act

  1. In the particular circumstances of this case, the provisions of s.65DAA of the Act do not apply.

Orders that are in the child’s best interests

  1. I consider that the Court should proceed with caution in making interim parenting orders, noting the animosity between the Applicant and the Respondents. I believe that a Court Expert Report should be ordered, and the appropriate expert should be a child and family psychiatrist. The Independent Children’s Lawyer should be in a position to assist the parties with a suitable person. The parties should share the costs of the Court Expert equally.

  2. I am not prepared to make orders for the Applicant to spend substantial and significant time with the child, but if he continues not spend any time at all with the child, the opportunity for any form of a relationship will be lost.

  3. The time spent by the Applicant with the child should be limited to time sufficient for identification purposes, noting that the child already has two parents who are in a stable relationship. The Applicant’s time with the child should be sufficient to enable him to get to know the Applicant, even if he does not comprehend that he is the child’s biological father. This does not need to be a long period of time, noting the parties’ difficult relationship at present, not does it have to frequent.

  4. At this stage, for identification purposes, the child should spend time with the Applicant for two hours on a Sunday at three month intervals, plus two hours on the child’s birthday. The Sundays should be the first Sunday of March, June, September and December, which automatically include Fathers’ Day and will be close enough to the father’s birthday on (omitted) that another separate occasion should not be necessary. The first Sunday in December should be close enough to December that another occasion should also not be necessary.

  5. For the future progress of the matter, the parties should consider whether the hearing can be kept down to four days or whether it will be necessary to transfer the matter to the Family Court. That is a question for another day.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  11 June 2015


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  • Equity & Trusts

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Reiby and Meadowbank and Anor [2013] FCCA 2040
Donnell & Dovey [2010] FamCAFC 15