CRISP & CLARENCE
[2015] FamCA 964
•9 November 2015
FAMILY COURT OF AUSTRALIA
| CRISP & CLARENCE | [2015] FamCA 964 |
| FAMILY LAW – PARENTAGE – where the parties underwent an in-vitro fertilisation procedure (IVF) – where the applicant is the biological progenitor of the child – where there was a donor sperm – where the respondent is the surrogate mother – where the respondent opposes any finding that the applicant is a parent – where the issue for determination is whether the applicant is a parent of the child either by reference to state legislation or the Family Law Act 1975 (Cth) – where the child was born in South Australia but the fertilisation procedure occurred in another state – where if it is found that the parties were in a de facto relationship then the child will be considered a child of the respondent and the applicant. FAMILY LAW – DE FACTO RELATIONSHIP – consideration of whether a de facto relationship existed – where the date of separation is in dispute – where it is found that notwithstanding the physical separation of the parties the de facto relationship endured and continued beyond the date of conception. FAMILY LAW – CHILDREN – parental responsibility – where the parties live in different states – where it is ordered that both parties have shared parental responsibility for the child – where it is ordered that one party have sole parental responsibility of the child in respect of education and health – where it is ordered that the child live with the respondent and spend gradually increasing time with the applicant. |
| Acts Interpretation Act 1954 (Qld) – s 32DA Family Law Act 1975 (Cth) – s 4AA, s 60B, s 60CA, s 60CC, s 60H, s 61DA, s 65DAA, s 121 Family Law Regulations 1984 (Cth) – reg 12CAA Family Relationships Act 1975 (SA) – s 10A, s 10B, s 10C(3), 11A Status of Children Act 1978 (Qld) – s 19E, s 19F |
| AMS v AIF (1999) 199 CLR 160 Bullivant & Holt [2012] FamCA 134 Cadman & Hallett (2014) FLC 93-603 Donnell v Dovey (2010) FLC 93-428 Dundas & Blake [2013] FamCAFC 133 Ellison & Karchanit (2012) Fam LR 33 Groth & Banks (2013) 49 Fam LR 510 Hunt v Minister for Immigration and Ethnic Affairs (1993) 113 ALR 509 Jonah & White (2012) FLC 93-522 Lipman v Lipman (1989) 13 Fam LR 1 Mason & Mason & Anor [2013] FamCA 424 Mazorski v Albright (2008) 37 Fam LR 518 MRR v GR (2010) 240 CLR 461 Pavey & Pavey (1976) FLC 90-051 Re Mark: An Application Relating to Parental Responsibility (2003) FLC 93-173 Re Patrick (2002) 28 Fam LR 579 Roy v Sturgen (1986) DFC 95-031 Todd & Todd (No 2) (1976) FLC 90-008 Weston v The Public Trustee (1986) DFC 95-032 |
| APPLICANT: | Ms Crisp |
| RESPONDENT: | Ms Clarence |
| FILE NUMBER: | ADC | 3416 | of | 2013 |
| DATE DELIVERED: | 9 November 2015 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 20, 21, 22 and 23 April 2015 and 24, 25 and 26 August 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Dr Brasch QC |
| SOLICITOR FOR THE APPLICANT: | Hartley Healy Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Foley |
| SOLICITOR FOR THE RESPONDENT: | Harrington Family Lawyers |
Orders
That all previous parenting orders are discharged.
That the applicant and the respondent have shared parental responsibility for the child Y born … 2012 (“the child”).
That the respondent have sole parental responsibility in respect of the child for the following:
(a) the child’s education both current and future; and
(b) major long term issues in respect of the child’s health.
Prior to making a decision in the exercise of the respondent’s sole parental responsibility for the child’s health and education pursuant to these orders, the respondent shall:
(a) advise the applicant in writing as to any decisions being made;
(b)seek her written response about that decision permitting her sufficient time to property consider the decision;
(c)by reference to the best interests of the child, consider any response by the applicant before making such decision;
(d)advise the applicant in writing as soon as reasonably practicable of the result of the decision;
(e)if there is any emergency situation that does not reasonably permit the respondent to consult with the applicant in advance, the respondent will make any decision that is in the child’s best interests (to address that emergency) and will as soon as is reasonably practical notify the applicant of the emergency, the advice provided and of the decision made.
That the child live with the respondent.
That the applicant and respondent do all acts and things and sign all documents necessary to cause the child’s birth registration details to be amended to ensure the applicant is named as a parent of the child on the child’s birth certificate.
That the child spend time with the applicant from the commencement of these orders as follows:
(a)until 1 December 2016, on the first weekend of a six week recurring cycle from 9 am to 5 pm Friday and from 9 am Saturday to 5 pm Sunday in Adelaide;
(b)from 2 December 2016 to 15 December 2017, on a six week recurring cycle from 9 am Friday to 5 pm Sunday or if the following Monday is a public holiday in Adelaide and at the election of the applicant until 5 pm on Monday;
(c)from 29 January 2018 (the academic year), on a six week recurring cycle:
(i)from 5 pm Friday to 5 pm Sunday in Adelaide SAVE for orders 7 (c) (ii) herein;
(ii)from 5 pm Friday to 3 pm Sunday in Brisbane or Sydney at the applicant’s discretion on four weekends per annum during the school term when the child would be spending time with the applicant pursuant to the six week cycle being weekends in the following periods:
·late February/early March
·late May/early June
·late June/early August
·late October/early November
That should the applicant be unable to spend time with the child with respect to the orders made herein THEN on or before 14 days prior to the commencement of her time with the child the applicant will notify the respondent in writing, by text message or email that she is not able to spend the entirety of the time as provided by these orders with the child and if so what period, if any.
That to give effect to orders that provide the opportunity for the child to travel to Brisbane or Sydney, this shall occur by ordinary domestic airline and save as to any agreement between the applicant and the respondent, the applicant or her parents shall accompany the child on the flight.
That in semester 3, 2016 gazetted Adelaide school holiday period, the child’s time with the applicant pursuant to order 7(a) shall be extended by a further two (2) nights, (four (4) nights in total).
That in December (Christmas) 2016 Adelaide school holiday period, the child’s time with the applicant pursuant to order 7(b) shall be extended by a further three (3) nights (five (5) nights in total).
During the 2nd and 3rd semester of the Adelaide school holiday period (but not the first term 2017) commencing 2017 and thereafter, the child’s time with the applicant shall be as follows:
(a)the first half of the short end of term school holiday periods with the applicant in even numbered years to commence at 5 pm on the last day the child attends school pursuant to her school semester term, with such holiday time to conclude at the mid-point as defined in order 12(c) herein;
(b)the second half of the short end of term school holiday periods with the applicant in odd numbered years to commence at the mid-point in order 12(c) herein, with such holiday time to conclude on the last day before the child would resume her schooling;
(c)that the mid-point for those school holidays shall be calculated as follows:
(i)if there is an odd number of full days in the school holiday period excluding the last day of school and the commencement day of school, the collection time is to be 10 am on the middle day of the school holiday period;
(ii)if there is an even number of full days in the school holiday period excluding the last day of school and the commencement day of school, the collection time to be 5 pm on the last day of the first half of the school holiday period.
That all holidays including Christmas holidays shall be defined as a period from the conclusion of the last day that the child attends school at the end of the school term until the first day of the child’s next school term.
During the Adelaide Christmas school holiday period commencing December 2017, the child’s time with the applicant shall be as follows:
(a)for a period of two (2) weeks to commence at the mid-point as defined in order 12(c) herein, with such holiday time to conclude at 5 pm fourteen (14) days thereafter.
As and from the Adelaide Christmas school holiday period commencing December 2018, the child’s time with the applicant shall be as follows:
(a)the first half of these holiday periods in even numbered years to commence at 5 pm on the last day the child attends school pursuant to her school semester term, with such holiday time to conclude at the mid-point as defined in order 12(c) herein;
(b)the second half of these holiday periods in odd numbered years to commence at the mid-point as defined in order 12(c)(i) herein with such holiday time to conclude on the second to last day before the child would resume her schooling.
That orders providing for the child to spend time with the applicant during school term periods are to be suspended during all school holiday periods.
That in respect to the applicant’s air travel and incidental expenses associated with her travel to Adelaide to spend time with the child, the applicant shall be responsible for her air travel and incidental expenses.
That in respect to the respondent’s air travel and incidental expenses associated with her travel to Brisbane or Sydney to collect the child at the conclusion of the applicant’s time pursuant to Order 7(c)(ii), she shall be responsible for her air travel and incidental expenses.
Other than as provided for by these orders, the applicant shall be responsible for the travel costs of the child.
On all other occasions other than as provided for by these orders the applicant is responsible for and paying the child’s airfares to and from Adelaide PROVIDED that the respondent is responsible for booking and paying for the child’s airfares from Brisbane or Sydney to Adelaide.
For the purpose of the child spending time with the applicant in Adelaide, all handovers are to occur at the respondent’s residence or at such other place as the parties may agree.
The respondent is to facilitate the child having Facetime communication with the applicant as follows:
(a)each week on Sunday at 5 pm South Australian time or at such other time as the parties may agree AND on any other occasion as maybe instigated or requested by the child;
(b)on Mother’s Day should this fall on a day when the applicant is not spending time with the child, at 9 am South Australian time;
(c)on the applicant’s birthday should this fall on a day when the applicant is not spending time with the child, at 9am South Australian time;
(d)on Christmas Day should this fall on a day when the applicant is not spending time with the child, at 9 am South Australian time;
(e)on the child’s birthday should this fall on a day when the applicant is not spending time with the child, at 9 am South Australian time.
When the child is spending time with the applicant during school holiday periods, or on Mother’s Day, the respondent’s birthday, Christmas Day or the child’s birthday, the applicant is to facilitate the child having Facetime communication between the respondent and the child at 9 am Queensland time on each of those occasions.
That the applicant will facilitate the child having Facetime communication with the respondent at such other times as may be instigated by the child.
That each party keep the other party informed of changes to the respective parties residential addresses and/or home telephone numbers and/or mobile phone numbers within seventy two (72) hours in writing of any such change.
That the respondent provide to the applicant forthwith the names, contact details and addresses of any and all medical practitioners (the child’s general practitioner and any other health professionals) who are involved in treating or caring for the child.
Both the applicant and the respondent are entitled to receive at their own request in writing and expense any and all information in relation to the health and wellbeing of the child, including but not limited to details of any illness suffered by the child and the treatment required and that this order shall constitute an authority to each of the child’s medical practitioners to provide that information.
That each party inform the other as soon as is reasonably practicable of any significant medical condition, health issue or significant illness suffered by the child and to authorise any treating medical practitioner to give the other parent such information as they may reasonably request pertaining to the condition.
That in the event that the child is prescribed medication or a particular form of treatment which is required to continue into a period when the other parent will be caring for the child any medication or materials required for treatment will be sent with the child along with a description of the condition for which it is required and appropriate discharge or method of treatment.
That in the event that an urgent medical decision must be made by either party and the other parent is not able to be contacted after all reasonable attempts have been made or if a parent fails to respond to a reasonable request for information, the parent caring for the child will make the decision and inform the other parent as soon as is reasonably possible.
That both the applicant and the respondent shall be noted as emergency contacts at the child’s day-care and schools.
That the applicant and respondent authorise the child’s day-care/school to provide to the other parent all information and documents about the child including but not limited to copies of all school reports and any other reports of the child’s progress and behavioural issues and all notices received from the school including newsletters, parent letters and general notices and that this information shall constitute an authority to the child’s day-care/school to provide that information.
That the parties and each of them are able to attend parent/teacher meetings, sporting and/or special events and any other day-care/school activities to which parents are invited.
That each party keep the other party informed of any extra-curricular activities engaged in by the child and each party authorise the other to communicate with and obtain copies of all relevant information concerning those extra-curricular activities from the organisers of same PROVIDED that any extra-curricular activity that is likely to impact upon the other parties time with the child shall be the subject of agreement and that in any event any obligation created by the respondent in respect of extra-curricular activities for the child will not place any obligation on the applicant to attend with the child in respect of the extra-curricular activities unless the activity has been the subject of agreement between the parties.
That the parties be permitted to upload photos of the child to their respective secure Facebook page PROVIDED the particular Facebook page is available for viewing by the immediate and extended families of the parties.
That the applicant and the respondent are restrained and an injunction is granted restraining them from allowing any other party to post information in respect of the child on social media sites or from posting any narrative in respect of these proceedings and the dispute between the parties.
That during the time the child spends with the parties pursuant to these orders the child be permitted to travel with the respondent within Australia during the time the child spends with her AND commencing 15 December 2017 the child be permitted to travel with the applicant within Australia during the time she spends with her.
That the applicant and the respondent and their agents are restrained from taking or sending or attempting to take or send the child from the Commonwealth of Australia unless agreed in writing by the parties.
That neither party denigrate the other, their respective partners, families or friends directly or in the presence or hearing of the child.
That the respondent refrain from discussing with the child these proceedings (SAVE AND EXCEPT for the terms of these orders in so far as to how the orders affect the child).
That the applicant refrain from discussing with the child these proceedings (SAVE AND EXCEPT for the terms of these orders in so far as to how the orders affect the child).
That the applicant and respondent are to forthwith do all such acts and things as are necessary to obtain a passport for the child which shall be held and retained by the respondent unless with the consent in writing of the parties overseas travel with the child is permitted, in which case the passport will be provided to the applicant for the period including travel preparation (but not less than thirty (30) days prior to travel), the period of travel and a period of seven (7) days thereafter whereupon the passport will be returned to the respondent.
That in the case of emergency concerning the child or otherwise provided for in these orders the parties shall communicate with each other by telephone, but in all other circumstances the parties shall communicate by email, text messaging and any other form of communication as may be agreed.
That all proceedings be removed from the pending list of cases.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Crisp & Clarence has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 3416 of 2013
| Ms Crisp |
Applicant
And
| Ms Clarence |
Respondent
REASONS FOR JUDGMENT
revised
INTRODUCTION
By Further Amended Initiating Application filed 16 April 2015, Ms Crisp (“the applicant”) seeks the following summarised orders in relation to the child Y, born in 2012 (“the child”):
(1)That the applicant be declared a parent of the child.
(2)That the parties have equal shared parental responsibility.
(3)That the child live with the applicant on specific occasions.
(4)Various specific issues orders.
(5)That the child’s birth certificate be amended to include the applicant as a named parent.
By Amended Response filed 9 March 2015, Ms Clarence (“the respondent”) seeks orders that she shall have sole parental responsibility for the child who shall live with her and by clear intent, shall spend only limited time with the applicant for three to four occasions per year with a maximum duration of three hours and communication between the applicant and the child limited to Facetime and on the child’s birthday.
The clear intent of the respondent’s orders is to avoid the child confusing the proper status of the applicant and the respondent on the asserted basis that it is in the best interests of the child that the applicant be known as a donor and not a parent. It is argued that the applicant should only play a minimal or modest role in the child’s life.
The proceedings were heard on 20, 21, 22, 23 April 2015 and then on 24, 25 and 26 August 2015 with judgment being reserved following final submissions.
DOCUMENTS RELIED UPON
The applicant relied upon the following documents:
(1)Case Outline
(2)Further Amended Initiating Application filed 16 April 2015
(3)Affidavit of applicant filed 19 January 2015
(4)Affidavit of Ms C filed 16 January 2015
(5)Affidavit of Ms N filed 16 January 2015
(6)Affidavit of Mr L filed 16 January 2015
(7)Affidavit of applicant in reply filed 20 March 2015
The respondent relied upon the following documents:
(1)Amended Response to Initiating Application filed 9 March 2015
(2)Affidavit of respondent filed 10 March 2015
(3)Affidavit of Ms W filed 6 March 2015
(4)Affidavit of Mr M filed 9 March 2015
(5)Affidavit of Mr X filed 9 March 2015
(6)Affidavit of Dr G filed 11 March 2015
(7)Affidavit of Ms H filed 11 March 2015
(8)Affidavit of respondent filed 18 March 2015
The orders sought by the applicant are extensive and in addition to the declaration sought that she is a parent of the child and the corresponding amendment to the child’s birth certificate to reflect parentage, the applicant seeks a graduated approach with the child spending increasing periods of time with her, the child spending time in Adelaide from Saturday to Monday on a six weekly cycle, half school holidays and at the applicant’s election, regular time with the child in Brisbane.
The orders as set out in the Further Amended Initiating Application were supplemented by a Memorandum setting out further or amendments to the orders as sought by the applicant noting that the respondent agrees to orders 4, 26, 27, 28, 34, 52, 53, 54, 55, 56 and 62 of the application and subject to the orders sought by the respondent in the Amended Response, seeks that the Amended Initiating Application be otherwise dismissed.
BACKGROUND
The applicant was born in 1984 and was 31 years as at the date of trial. The respondent was born in 1971 and is 44 years of age. The parties met in 2004 and commenced cohabitation in September 2004. The applicant alleges that the parties separated after a de facto relationship of approximately seven years in or about August 2011. The respondent considers that the parties separated on 21 March 2011 and despite that she hoped for a reconciliation that did not eventuate.
Following the commencement of their cohabitation, the parties each allege that their relationship was at times highly conflicted. Nonetheless, during the period that the parties agree they were in a de facto relationship, they projected themselves as a couple to friends and family.
In addition, the parties worked together as sales professionals and planned financially for their future. Each of the parties purchased and disposed of property and in 2007 the parties moved into the respondent’s premises at Suburb V.
On 7 August 2007 following counselling, the parties underwent an in-vitro fertilisation procedure (“IVF”) resulting in the collection and preservation of the respondent’s eggs.
In 2008, the respondent commenced counselling and received therapeutic assistance from Ms H and in 2009 the parties engaged in couples counselling with Ms H.
In early 2010, the respondent began to receive transfers via IVF.
In May 2010, the applicant had her eggs harvested and fertilised with the same donor sperm as was used with the applicant’s eggs. Fertilisation was initially successful, however the embryo proved not to be viable.
There was some disharmony between the parties and between July 2010 and March 2011 the applicant lived in her own property at Suburb A and with the respondent at Suburb V.
On 21 March 2011, the applicant moved out of the V property and shared accommodation with Mr L and Mr S at their property. It is at this date that the respondent alleges that the relationship between the parties ended.
From March to July 2011 the applicant alleges that she spends four nights a fortnight at the respondent’s residence. This is disputed by the respondent who says that the applicant moved out permanently. The parties dispute the extent to which the applicant and respondent saw each other.
Each of the parties engaged in counselling with Ms H and on occasion, jointly. The respondent relies upon the purported statements of the applicant expressed during the counselling sessions that she no longer wished to be in a relationship with the respondent because she was not ready to have a child.
The respondent does accept that there were some occasions when they spent time together. In particular, it is not controversial that the parties celebrated the respondent’s 40th birthday by spending two days together on the Sunshine Coast.
The applicant alleges that in April 2011 she suggested that there be a transfer of her embryos to the respondent. There is a factual dispute as to the basis of the applicant’s suggestion. The applicant asserts that the suggested transfer was on the belief that the parties would be a family together and that this would strengthen their relationship. The respondent considers that the offer of the applicant’s embryos was not conditional upon a resumption of a relationship but was considered by both of them to be a generous gift but without any condition.
In May 2011 the applicant provided consent to the fertility clinic and the parties commenced the IVF cycle. Both parties were required to sign a consent form. The suite of documents signed was predicated on the representation that the parties were in a relationship. The applicant considers that this was an accurate reflection of the position, whereas the respondent asserts that the parties understood they were making a misrepresentation in order to receive the necessary fertility treatment.
On 31 May 2011 the applicant provided her first embryo and on 11 July 2011 it was implanted in the respondent. A consideration of the nature of the relationship of the parties in the days leading up to the embryo transfer is critical.
Immediately following the implantation the parties continued to exchange emotionally charged communication including text messaging. The parties continued to socialise and whilst the applicant relies upon the conduct of each of them to the other, the tenor of the communication that passed and their overt socialisation, the respondent does not accept that there had been at any relevant time but in particular as at 11 July 2011, a resumption of the parties relationship.
Certainly by August 2011 the conflict and activity consistent with a separation was evident. The parties dissolved their working partnership and they had difficulty in remaining in close proximity in their work environment. The applicant tells her parents that the parties are no longer in a relationship and says that it is at this time that her friends became aware of the separation. Whilst strongly denied, the applicant considers that August 2011 is the approximate date of separation.
In September 2011 the applicant advised her family that the respondent was pregnant with her biological child. It is in that month that she commenced a relationship with her current partner.
The parties discussed their respective relationships with the child. The applicant considers that she is a parent. The respondent asserts that there was an agreement for the applicant to have a special relationship with the child, but certainly not to be represented as a parent. It is her position that if that had not been the clear agreement, she would not have accepted the transfer of the applicant’s embryo.
On 2 November 2011 the parties attended a 20 week scan. The respondent considers that it is only when the reality of the likely successful pregnancy becomes apparent that the applicant became determined to seek a greater involvement with the child than as a donor of genetic material.
The parties struggled with the complexities of their situation and notwithstanding the respondent’s dismay upon discovering the applicant had commenced a new relationship, there continued an unstructured sexual relationship.
In February 2012 the respondent moved to Adelaide with the alleged intention to remain for six months and to return to Brisbane in September 2012.
In April 2012 the child was born.
The parties continued to struggle with the complexity of their circumstances. The applicant visited the respondent and the child in Adelaide from time to time. She was still of the belief that the respondent and the child would return to Queensland.
The parties underwent mediation in September 2012 and agreement was recorded in a Heads of Agreement. The applicant spent varying periods of time with the child both in Adelaide and in Brisbane.
Over the ensuing months the respondent determined that the applicant’s time with the child should be restricted. Between April and November 2013 the applicant did not see the child resulting in proceedings being commenced on 17 September 2013.
RELEVANT ISSUES
Notwithstanding that the applicant is the biological progenitor of the child the respondent remains strongly opposed to any finding that the applicant is a parent or that the child should recognise the applicant or refer to her in such terms. Accordingly, the issue for determination is whether the applicant is a parent of the child either by reference to state legislation and/or the Family Law Act 1975 (Cth) (“the Act”).
Separate to any finding as to parentage, the parties are not agreed as to the future parenting arrangements in terms of the child spending time with the applicant. Whilst it is not suggested on behalf of the respondent that there is a direct connection between a finding as to parentage and the extent of time that the child should spend with the applicant, it is nonetheless argued that it is a factor to be brought to account, in particular in support of the orders sought by the respondent which would see the child spending modest time with the applicant.
IS THE APPLICANT A PARENT?
There is no general definition of “parent” within the Act. Section 4(1) reads: “Parent, when used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child.”
As has often been the subject of comment, the definition of “parent” is unhelpful.
In Groth v Banks (2013) 49 Fam LR 510 Cronin J considered the relevant authorities in respect of the definition of the term “parent” and considered that it should be given an ordinary dictionary meaning.
Gummow J (as he then was) in Hunt v Minister for Immigration and Ethnic Affairs (1993) 113 ALR 509 accepted the ordinary meaning of the word “parent” as being “a person who has begotten or borne a child”.
The Full Court in Donnell v Dovey (2010) FLC 93-428 considered that “parent” referred to both the adoptive parent but also the biological parent.
In Re Patrick (2002) 28 Fam LR 579, Guest J referred to B & J (1996) FLC 92-716 in which Fogarty J was required to consider whether a known sperm donor was a parent for the purposes of the Child Support (Assessment) Act 1989 (“the Assessment Act”). The known donor provided his sperm to a lesbian couple. It was conceded that whilst the donor was registered as the father on the birth certificates of the children, he took no active role in the children’s lives. His Honour by virtue of s 26 of the Assessment Act considered the only person liable to pay an assessment was a parent as defined. The biological parents of a child are treated in law as the parents of a child. However, that position changes if the child has been born as a result of an artificial conception procedure. Section 5 of the Assessment Act excludes donors of genetic material where a child is born by means of an artificial insemination procedure.
Section 60H of the Act considers the position of the children born as a result of artificial conception procedures.
Section 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 biological a child of the woman and of the other intended parent, for the purposes of this Act;
then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act.
(c)the child is the child of the woman and of the other intended parent; and
(d)if a person other than the woman and the other intended parent provided genetic material, the child is not the child of that person.
Section 60H(2) if:
(a)a child is born to a woman as a result of carrying out of an artificial conception procedure; and
(b)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman;
then, whether or not the child is biologically a child of the woman, the child is her child for the purposes of this Act.
Section 60H(3)…
Section 60H(4) – (repealed).
Section60H(5):
For the purposes of subsection (1), a person is 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.
Section 60H(6)
In this section:
This Act includes:
a)The standard Rules of Court; and
b)The related Federal Circuit Court Rules.
Section 60H provides for the displacement of the donors of genetic material as parents and sets out the circumstances in which a child is not the child of a donor of genetic material. In Groth & Banks (supra) Cronin J summarised the three instances in which a donor is not a parent of a child born as a result of an artificial conception procedure:
(a) where the child is born while the mother is married to or the de facto partner of another person – section 60H(1);
(b) where a child is born to a mother and under a prescribed law of the Commonwealth or of a state or territory, the child is a child of that woman – section 60H(2);
(c) where the child is born to a mother and under the prescribed law of the Commonwealth or of a state or territory, the child is a child of the man – section 60H(3).
The section has been considered to “enlarge, rather than restrict the categories of people who may be regarded as the child’s parents” (per Brown J in Re MarkAn Application Relating to Parental Responsibilities (2003) FLC 93-173 at [40]).
In Ellison & Karchanit (2012) 48 Fam LR 33 Ryan J considered the application of s 60H(1) if the parties were found not to be in a de facto relationship at the time of the procedure (see [57 – 61]) and after noting Brown J’s statement in Re Mark concerning enlarging the categories of who may be regarded as a parent, her Honour concluded at [61]:
…so that it is clear; in my opinion the language of section 60H(1) delineates the circumstances in which the section will apply. If those circumstances are not present then the section has no application. Read in the context of Part VII, section 60H(1) is not intended to be an exhaustive definition and thus does not operate to exclude a person as a parent if his or her circumstances do not coincide with those identified in the section.
In Mason & Mason & Anor [2013] FamCA 424 Ryan J considered the construct of sections 60H and 60HB which she noted were inserted into the Act as part of the Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 (Cth). Her Honour considered that s 60HB is silent as to the definition of “surrogacy arrangements” and that it would therefore be a process not dissimilar in definition to an artificial conception procedure. Her Honour considered as follows:
…However, this invites the question, why would Parliament simultaneously introduce two different provisions; one general and one specific more limited than the general? The answer would appear to be that Parliament intended to adopt the same scheme that operates in the states and territories. Namely a scheme for the declaration of parentage and, for children born of a surrogacy arrangement, the transfer of parentage in accordance with an order made by the Supreme Court of NSW.
STATE LEGISLATION – SECTION 60H(2)
As the child was conceived in Queensland but born in South Australia, there is a dispute as to which Act should apply for the purposes of s 60H(2).
“Prescribed Laws” are to be determined by reference to reg 12CAA of the Family Law Regulations 1984 which provide that for the purposes of s 60HB(1) the following laws are prescribed:
(1) Status of Children Act 1974 (Vic), section 22
(2) Surrogacy Act 2010 (Qld), section 22
(3) Surrogacy Act 2008 (WA), section 21
(4) Parentage Act 2004 (ACT), section 26
(5) Family Relationships Act 1975 (SA), section 10HB
(6) Surrogacy Act 2010 (NSW), section 12
(7) Surrogacy Act 2012 (Tas), section 16
It is possible that the relevant state legislation is either Queensland being the state in which the child was conceived or South Australia being the state in which the child was born.
In South Australia, the question of who is a parent of a child conceived through a fertilisation procedure is determined by Part 2A of the Family Relationships Act 1975 (SA) (“the Family Relationships Act”). Section 10B provides that Part 2A applies in respect of either:
(a)a fertilisation procedure carried out before or after the commencement of the Reproductive Technology (Clinical Practices) (Miscellaneous) Amendment Act 2009
either within or outside the State; and
(b)a child born before or after commencement of the Reproductive Technology (Clinical Practices) (Miscellaneous) Amendment Act 2009
either within or outside the State.
It would seem therefore that the Family Relationships Act can therefore extend to situations such as this which although a child was born in South Australia, the fertilisation procedure occurred in another state.
Section 10C(3) of the Family Relationships Act is the equivalent of s 60H of the Act. It provides a list of presumptions to be applied in respect of who is a parent when a woman gives birth as a consequence of a fertilisation procedure. A donor is presumed not to be the mother/father/co-parent unless they were in a “qualifying relationship” at the time of procedure.
A qualifying relationship is defined in s 10A as a “marriage-like relationship between two people who are domestic partners (whether of the same or opposite sex)”. A domestic partner is defined in s 11A as a close personal relationship in which two people live together for either a period of three years, or a period of four years during which a person has lived with the other for an aggregate period of not less than three years or a child of whom or the other person are the parents has been born.
If the applicant is found to be in a qualifying relationship at the time of the procedure, then the applicant is taken to be a “co-parent”. Co-parent is not defined and it is unclear whether it is to have a different status or meaning than “parent”.
Section 19E of the Status of Children Act 1978 (Qld) (“Status of Children Act”) is the equivalent s 60H of the Act. The Status of Children Act applies irrespective of whether a child was born in Queensland. It applies if the applicants were in a de facto relationship as defined in s 32DA of the Acts Interpretation Act 1954 (Qld) (“AIA”). The AIA defines a de facto relationship as two persons who are living together as a couple on a genuine domestic basis but who are not married or related by family. Section 32DA(2) lists a number of criteria to take into consideration when determining whether “genuine domestic basis” exists. Section 19F of the Status of Children Act provides that a presumption of parentage under s 19E is an irrebuttable presumption.
It seems that if the parties were in a “qualifying relationship” at the time of the procedure namely, a de facto relationship being the parties living together on a genuine domestic basis or as domestic partners where the parties live together on a genuine domestic basis, either Act is applicable and is conceptually similar to s 60H of the Act.
If the parties are de facto partners, in a de facto relationship or domestic partners then the child will be considered as a child of the respondent and the applicant. For all purposes, each of them would be parents of the child.
The enquiry is therefore to consider the nature of the relationship that existed between the parties as at 11 July 2011, the date on which the child was conceived.
WAS THERE A DE FACTO RELATIONSHIP?
The meaning of a de facto relationship is set out in s 4AA of the Act:
4AA(1) A person is in a de facto relationship with another person if:
(a)the persons are not legally married to each other; and
(b)the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
4AA(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d)the degree of financial dependence or inter-dependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)the care and support of children;
(i)the reputation and public aspects of the relationship.
4AA(3) No particular finding in relation to any circumstances to be regarded as necessary in deciding whether the persons have a de facto relationship.
4AA(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
4AA(5) – For the purposes of this Act:
(a)a de facto relationship can exist between two persons of different sexes and between two persons of the same sex; and
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
In Cadman & Hallett (2014) FLC 93-603 the Full Court considered a ground of appeal that asserted that the trial judge had failed to determine that the parties “had so merged their lives that they were for all practical purposes, living together as a couple on a genuine domestic basis”.
Their Honours then said at [40] – [41]:
The phrases used in both the ground and the written submissions seem to have been taken from Jonah v White (2011) 45 Fam LR 460 at [60] and [66].
In dismissing the Appeal from that decision, the Full Court in Jonah v White (2012) FLC 93-522 did not adopt that expression which had been used by the trial judge but rather at [32] and [33] said:
[32]It is immediately apparent that the touchstone for the determination of whether a de facto relationship exists is the finding that the parties to it are a “couple living together on a genuine domestic basis”.
[33]The court may consider the matters to which the following subsections refer in determining that seminal question posted by section 4AA(1)(c). We accept the submission that none of the matters referred to in the section has precedence over any other, nor must all necessarily be found before a finding of a de facto relationship is made.
In Weston v The Public Trustee (1986) DFC 95-032, Young J considered that the proper approach was to split the phrase “a couple living together on a genuine domestic basis” into three component parts namely:
(a) living;
(b) bona fide domestic basis; and
(c) as his wife.
This approach was considered by Powell J in Roy v Sturgeon (1986) 11 Fam LR 271 and at page [274] his Honour noted that:
With respect, it seems to me that to attempt to dissect the phrase “living together as a husband and wife on a bona fide domestic basis “into discreet “elements” and then to test the facts of a particular case by reference to a set of a priori rules in order to establish whether the particular “element” is or is not, present, is to ignore the fact that, just as human personalities and needs vary markedly, so, too, will the various aspects of their relationship which lead one to hold that a man and a woman are living together as husband and wife on a bona fide domestic basis vary from case to case. As I said in D v McA (1986) 11 Fam LR 214, it seems to me that each case will involve the court making a value judgment having regard to a variety of factors relating to the particular relationship…
Such an approach has legislative support by reference to s 4AA(2) and s 4AA(4) which allows a broad discretion as to the weight that can be afforded to the circumstances that the Court considers most relevant.
If the applicant is not able to establish that at the time of conception the parties were in a de facto relationship, it is further argued that the applicant is nonetheless a parent pursuant to Part VII of the Act. This arises because she is the biological progenitor and that in the circumstances of this case there is sufficient evidence to establish an intention for there to be a parental relationship between the applicant and the child as distinct from the biological father who is an anonymous sperm donor. The very nature of the relationship between the parties, tumultuous as it was, should distinguish the position of the applicant from that of a mere donor. The applicant relies upon the decision of Cronin J in Groth & Banks [2013] 49 Fam LR 510 where his Honour summarises the position at [16] as follows:
The applicant fits that presumption in the Act of who is a parent. He is the biological progenitor and one of two people who set about a course of conduct with the intention of fathering a child. On the face of the language in the Act and the facts here, logical conclusion would be that the applicant is the parent of the child. If one turns to the sections of the Act that displaces biological progenitors as parents, little changes.
EVIDENCE IN RESPECT OF WHETHER A DE FACTO RELATIONSHIP EXISTED
It is agreed between the parties that they were in a de facto relationship from 2004 until 21 March 2011. When the parties met the applicant was 19 years of age and the respondent 33 years of age. The respondent considers that the relationship ended when the applicant left the V property. By her own admission, the respondent was hopeful that the parties would reconcile. It is her contention that they did not stop communicating with each other and spending time together.
On the respondent’s case there remained a friendly relationship and apparently because the applicant understood the depth of the desire of the respondent to have a child, an offer was made in early May 2011 to donate embryos that had been fertilised with the same donor sperm that had been used to unsuccessfully fertilise the respondent’s ovum. Conception following implantation occurred on 11 July 2011. The respondent considers that she only agreed to receive the embryos from the applicant on the basis that the applicant “would be a known donor with a fairly distant role in the life of any child conceived from the donation”.
In February 2012 the respondent returned to Adelaide and remains in South Australia. The child was born in April 2012 and has lived with the respondent mother since birth. Subject to some initial arrangements for the applicant to spend time with the child, generally time has been spent pursuant to Court orders. The extent of the current arrangements for the applicant to spend time with the child are as provided for in the order of 26 August 2015 from 9am to 4pm on 2, 3 and 4 October 2015 and then on 20, 21 and 22 November 2015.
The contest therefore focusses on the status of the relationship between the parties, if any, between 21 March 2011 and 11 July 2011.
To put the current dispute into focus, the respondent concedes that if her earlier attempts at conception using her own ovum had been successful, the applicant would be a parent. It is also conceded that if there was a relationship as at the date of the child’s conception that would be sufficient.
Evidence of Applicant
The applicant agrees that there were difficulties in the parties’ relationship. She considers that to a significant degree the conflict was largely to do with the inability of the respondent to conceive. To some considerable extent, I am able to find that the respondent was preoccupied with a desire to give birth and parent a child. Whether this was the only stressor for the parties is not easily determined and in all probability is of little or no consequence. The applicant concedes that from July 2010 to March 2011 she spent the majority of her time with the respondent but did spend some nights at her property in Suburb A. She says there was good reason to do so in that she was preparing her property for sale. The respondent does not agree with the frequency and extent of the time the respondent allegedly spent with her and considers that the parties were spending increasingly more time apart.
The focus on the relationship between the parties and the respondent’s desire for a child persuaded the applicant to attend relationship counselling with Ms H. The respondent had been attending on her psychologist for a number of years. The client/patient relationship is demonstrably between the psychologist and the respondent.
The respondent does not concede that the purpose of the counselling was necessarily to assist in reconciling their relationship but rather, is relied upon to establish the contention that the donation of the applicant’s embryos to the respondent was unconditional.
The applicant left the respondent’s home in March 2011 and did not tell her family and friends that she had moved out of the respondent’s home, nor that the parties were engaged in counselling. She took up residence with two friends and paid them the sum of $10,000 she says by way of rental pre-payment.
The respondent highlights the rental arrangement as a clear indication that there was an acknowledgment by the applicant that any attempts at reconciliation were abandoned.
The applicant says that she continued to spend four to five nights a week at the respondent’s home and that this occurred through to July 2011 and even extending into August 2011. Whilst I do not accept the extent of the alleged frequency, I do find that the applicant was a frequent visitor to the respondent’s home.
That finding gains some assistance from the extent and nature of the communication between the parties, but in particular the tenor of their text messaging during the relevant period.
It is not disputed that the parties continued a sexual relationship, but by necessary implication the respondent does not agree with the frequency of visits and therefore the frequency of their sexual relations.
To some extent the frequency of sexual relations is of less weight than the admission that from time to time the parties engaged with each other sexually.
There is however some relevance as a chronological marker to the allegation of the applicant that the parties engaged in sex three days before the conception of the child in July 2011.
At [121] of the applicant’s trial affidavit it is alleged that in the period following the successful conception, the parties engaged in discussion concerning their future relationship and involvement with the child. The applicant considered that they had a future together centred on their joint care of the child. If accepted, the applicant refers to ongoing exchanges of expressions of affection and love and she was involved in the initial doctor visits, an obstetric appointment in which the applicant says she was introduced as the respondent’s partner and some pre-planning for the birth.
A feature of the parties’ relationship was their heavy reliance upon text messaging as a form of communication. The detail of their text messaging in particular centred around 11 July 2011 is significant in the overall factual matrix and determination as to whether the parties were in a de facto relationship at the relevant time.
From the perspective of the applicant, it is difficult for her to assess how and why the relationship that did exist between the parties finally came to an end. On 6 August 2011 the applicant asserts that the respondent took steps to bring to an end their working partnership. The level of disputation and disagreement increased and by late August 2011 the applicant considered that the relationship was over.
The Respondent
The respondent is adamant that the parties separated on 21 March 2011 following their return from holiday on the Sunshine Coast.
She considers that the date of separation is marked by the departure of the respondent from her home. There is no doubt nor dispute that at least as at 21 March 2011 the parties lived in a de facto relationship.
It is the respondent’s evidence that she was determined and resolute to have a child. Her first ovum collection commenced in 2007 through to 2010. It was her intention that the harvested eggs would be frozen and then later fertilised.
In 2010 the respondent commenced five IVF cycles using her own frozen embryos. The procedures were unsuccessful. In May 2011 she underwent an implantation of a frozen embryo from the applicant. The procedure was unsuccessful, but as now known, the second transfer of an embryo from the applicant took place on 11 July 2011 and was successful.
The respondent considers that the applicant was never supportive of the deep desire of the respondent to give birth. At each unsuccessful procedure the respondent was devastated, whereas the applicant appeared unmoved. It is the contention of the respondent that whatever the motive was behind the applicant agreeing to her embryos being transferred, it was not because she had any wish to have a family as part of a family unit. The respondent states that the contention between the parties as to the applicant’s perceived lack of interest was a matter raised with the counsellor.
Moreover, the total cost of the fertility and IVF treatment was in excess of $61,000. The respondent paid for the entirety of the cost. She never sought from nor did the applicant offer to contribute.
The respondent relies upon the discussion of the parties during counselling on 11 March 2011 to demonstrate that the relationship had effectively come to an end.
Clearly there were complications for the respondent in that the parties spent some days on the Sunshine Coast to celebrate the respondent’s 40th birthday. The applicant gave jewellery to the respondent with a promise of an electronic device in the next few days.
Following their return, the parties remained living at the respondent’s Suburb V home and on 17 March 2011 had dinner with the applicant’s parents but did not tell them of the intention to separate.
After the applicant left the premises on 21 March 2011, the respondent apparently returned the gifted jewellery. It was later returned to her by the applicant.
There is no doubt that the breakdown of the relationship as signified by the physical separation of the parties and the removal by the applicant of her personal possessions was emotionally distressing. This is clearly evidenced by the respondent’s statement that she was “devastated beyond belief” when the physical separation caused her to realise that the relationship was over.
The separation of the physicality of their domestic arrangements was mirrored in a severing of their working partnership.
The applicant also paid back the monies owed to the respondent by way of six transfers in the sum of $5000 in April 2011.
The respondent also focusses on the speed at which the applicant formed a new living arrangement with two friends which involved the prepayment of board and expenses in the sum of $10,000. Any accounts either in the joint names of the parties or in the name of the applicant but pertaining to the respondent’s premises were transferred. An example was the transfer of the Foxtel account from the applicant’s name to that of the respondent.
The applicant alleges that following their physical separation she was a regular and frequent visitor to the respondent’s home. The picture painted by the applicant is that in addition to there being a working association, albeit now significantly constrained, she attended the respondent’s home on four to five times on average each week.
In an attempt to refute the suggestion of frequency of time together, the respondent had her solicitors prepare a schedule from various documents including text messages, bank statements and some financial records. That schedule is incorporated in paragraph [57] of the respondent’s trial affidavit. It is very much the gloss of the respondent and represents a reconstruction by her from her own documents. Certain matters are not in dispute. The parties engaged in ongoing and frequent text messaging as a significant if not primary source of communication when they were not in other’s physical presence. The respondent’s case is not that the parties did not spend time together but rather to reject the frequency as asserted by the applicant. If the matter was entirely determined on the question of frequency of contact, I would be inclined to prefer the evidence of the respondent. The issue is not so easily resolved. It is more a matter of the nature of the relationship that existed between the parties following their physical separation in March 2011 rather than the frequency of time spent together. Certainly their physical relationship is important, but I consider it to be but one of a number of potential relationship indicators.
On the respondent’s case, whilst the parties did not engage in regular sexual relations, their post-separation relationship was not without intimacy. They also engaged in social activity not just restricted to each other, but including family and friends.
The respondent properly admits to exchanges between the parties expressing their love for each other on a number of occasions, but with increasing frequency leading up to 11 July 2011 being the date of implantation of the applicant’s fertilised embryo.
It is instructive to consider the description by the respondent of the engagement of the parties with each other in the days leading up to the implantation:-
7.7.11Parties or one of them attend [Ms H]. [The applicant] stays at my home.
8.7.11 [The applicant] stays at my home.
9.7.11 [The applicant] stays at my home. We have sex and smoke speed.
10.7.11[The applicant] stays. Each of us tell the other they love them. Breakfast at [a] Hotel – [the applicant’s] lunch party – [the applicant] talks in text message in effect in getting speed for pipe.
11.7.11[The applicant] remains until before work.
The summary of the respondent’s position is encapsulated in paragraph [63] of her affidavit:
It was not until [the applicant] offered her embryos to me and had told me that she had discussed this with [Ms H] on an informal basis previously that [the applicant] and I started to resume a friendship. The donation from [the applicant] was clear that she wanted to help me have a child, but I always hoped we might have a family together. During that time we saw [Ms H] together. It was agreed that we would see each other “platonically” with me continuing with the pregnancy on my own. Should we get back together sometime down the track, that would be great, but the clear intention by [the applicant] of the embryo donation was for me to have a baby on my own.
It is not the position of the applicant that the relationship was “platonic”, that it was agreed the respondent would continue with the pregnancy without involvement of the applicant, or that the embryo donation was to enable the respondent to conceive a child on her own.
The child clearly enjoyed her time with the applicant and it is a reasonable assessment that she missed that involvement.
There is nothing in the evidence of the report writer that would suggest that the child does not desire to see and spend more expansive time with the applicant.
Section 60CC(3)(b)(c) and (ca)
The report writer observed the child to have a close relationship with each of the parties. There is a strong attachment between the child and each of them and I am satisfied that the parties are genuine in their desire to maintain a relationship with the child. The applicant is properly complimentary of the parenting attributes of the respondent although it could not be said that the sentiment is mutually expressed by the respondent. I do not ignore the concerns of the respondent that the applicant is not sufficiently careful in her supervision of the child. She is clearly anxious about these matters and whilst I consider that anxiety to be genuine, I have no doubt that the applicant will do all that is necessary to ensure that any time she spends with the child is undertaken in a safe and nurturing environment.
An issue of contention is the extent to which the parties are involved or fail to be involved in making decisions about major long term issues affecting the child.
The respondent would seek to exclude the applicant from all but the most mundane of decision making. The applicant seeks to be integrally involved. The matter was given direct consideration by the report writer who considered that the distance separating the parties and the child and the frequency of time spent as sought by the applicant was such that consideration should be given to certain significant areas such as education and health remaining as the sole discretion of the respondent. The basis is not simply to pander to the perceived anxiety of the respondent, although I bring to account the matters raised by her, her presentation and the evidence of her psychologist (noting that the report writer also made those enquiries), but there are practical issues that are more easily achieved by the respondent than in conjunction and concert with the applicant.
The parties are improving in their communication and it may be that a significant milestone has been reached as evidenced by the recent email correspondence forwarded by the respondent, but arising from the orders that I propose to make there will be a change in the care arrangements for the child. It may be that the respondent’s anxiety will cause difficulties in the communication. There is uncertainty as to the attitude of the parties towards each other when each of them have to adjust to the new arrangements.
It is incumbent on the Court to ensure that orders have the least level of disruption for the child and it seems to me that the two areas where that has the real potential to occur is education and health. That does not mean that the applicant should not be kept informed and have all possible authority necessary to seek information either independently or directly in respect of health and education, but I consider that it would be in the best interests of this child for the respondent given her primary care to undertake those roles.
There are a range of other areas in which it is appropriate for the parties to consult and consider the involvement in major long term issues relating to the child and I temper the evidence that I have heard about the parties, the conflict, the extent to which that they are able to communicate appropriately with each other, but also their sense and sensitivity in making the appropriate parenting orders that serve the best interests of this child.
Section 60CC(3)(d) and (e)
It is not suggested that the orders being sought by the applicant would see a fundamental disruption to the primary care of the child as currently exercised by the respondent. It is proposed that she would spend time with the child on a six weekly cycle with a graduated introduction to overnight time. As discussed, the report writer considers that that time should be spent in Adelaide in the medium term to minimise the potential for any separation anxiety. I consider the assessment of the report writer to be persuasive and based on solid foundation.
The applicant seeks that on a regular basis the respondent travel with the child to Queensland to enable time to be taken in the home of the applicant and her partner. Whilst I consider that there will ultimately be an advantage to the child in experiencing the applicant’s home as distinct from the somewhat artificial environment forced upon the applicant by the child spending time with her in Adelaide, nonetheless they are matters that at this stage, and given the age of the child and the anxiety of the respondent, are of advantage to the applicant but not to the child. She will enjoy her time extended as it will necessarily be, with the applicant wherever that is taken.
Section 60CC(3)(f)
The parties have a high capacity to provide for the needs of the child. The applicant has a partner and whilst I have been critical of her insensitivity towards the respondent at the early stages of the proceedings, I note that there has been strict compliance with the orders previously made prohibiting the use of social media in respect of the child and I am entitled to draw the conclusion that the litigation and orders made have had a salutary effect on both parties and their family.
I also have heard evidence from the applicant’s mother and I am satisfied that the child will gain significant benefit from spending time with the extended families of each of the parties.
Section 60CC(3)(g)(h)(i)(j) and (k)
The application of these sections is irrelevant to the matters that I have to decide.
Section 60CC(3)(l) and (m)
I am not yet certain that the parties are able to put their differences behind them, but I am satisfied that they have a level of maturity, intellect and growing understanding that the needs of the child come before their own anxiety and concerns. It is important that the proceedings are brought to an end and that the orders I make provide the parties with the best chance of resolving their ongoing differences. Obviously there may well be difficulties in the future and the very complexity of the orders sought by the applicant may well in and of themselves invite further litigation.
In that respect I have reviewed the cross examination of the respondent in respect of the orders sought by the applicant. In addition to the orders to which the respondent was prepared to consent as set out in her Memorandum it would seem that she is also prepared to consent to orders 7 and 8 (if an order is made that the child can travel to Brisbane and Sydney), order 12 in so far as it relates to Facetime communication, order 14 providing that 14 days’ notice is given by the applicant if she is unable to exercise her holiday time as ordered and order 15 to 21 in so far as the child should travel by air and that the cost of travel should be shared between the parties in circumstances where the Court finds that the applicant is a parent of the child.
In respect of order 22, the respondent considers that handover should always occur to and from her residence. Order 24 to 28 refer to Facetime communication and whilst generally the respondent does not oppose the orders sought, she does not agree with the frequency as promoted by the applicant being two occasions per week. Orders 29 and 33 meet with the respondent’s approval as does 34, 35, 36, 37, 38 and 39. Orders 62 to 64 relate to methods of communication between the parties and would appear not to be objectionable.
The respondent maintains significant objection to the use of social media, the concept of overseas travel and the ability of the applicant to have direct contact with the child’s school as distinct from receiving school reports, school notices, photos and other school related material either directly from the school or provided by the respondent.
PARENTAL RESPONSIBILITY
When making parenting orders, the determination of parental responsibility is not an unfettered discretion. I am obliged to consider the provisions of s 61DA and it is important to emphasise that there is a positive obligation to apply the presumption that equal shared parental responsibility is in the best interests of a child. The presumption is able to be rebutted if evidence supports a finding that abuse of the child or family violence has occurred (s 61DA(2)). I have found that there is no evidence of family violence or abuse. The presumption may still be rebutted pursuant to the provisions of s 61DA(4) if there is:
…evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
In the decision of Dundas & Blake [2013] FamCAFC 133 the Court considered the standard of evidence required to justify the rebuttal of the presumption. Their Honours found at [15] that s 61DA is:
…a significant provision of the Act and it requires, in our view, significant attention in the evidence.
The applicant seeks an order for equal shared parental responsibility, whereas the respondent seeks that she have sole parental responsibility. The report writer gave the following evidence:
Communication continues to be problematic related to the parties lack of trust, their respective views as to their role and consequent rights to make decisions and have access to information, but also their respective anxiety about the ultimate outcome and how it will impact on their lives. It is possible communication may improve with a judicial decision, following which the expectations for both parties will be clear moving forward. However, this will require a commitment from both parties to consider their respective attitude and behaviour if they are at all times to prioritise [the child’s] needs.
Under cross examination the report writer noted that the parties were unhappy with the level of communication between each other and she formed the view that there was ongoing and self-evident mistrust. The email comprising Exhibit “6” was however a positive sign.
Given the age of the child and the distance between the applicant and the child, the report writer considered that this would limit the extent of their ability to jointly parent. She acknowledged that education and school is a big issue as is the medical issues that impact the child.
It could not be said that the issue of communication alone is the only determining factor. The evidence as to whether in the future communication will continue to be as problematic as experienced in the past is uncertain. There are areas however that are of less impact on the child than the areas of heightened contention namely, education and health.
I have found that the child needs consistency of education and certainty of appropriate medical treatment. There is a practical reality that on a day to day basis major issues in respect of education and health are going to fall to the respondent rather than the applicant. That is a different consideration than the proper provision of information in respect of the child’s education and health being provided to the applicant.
I also take into account the sensible concession by the applicant that the respondent has provided reliable and high quality parenting for the child.
I consider that the parties are able to communicate with each other in respect of most issues but not with any certainty matters of education and health.
I propose to order that the parties have shared parental responsibility but subject to appropriate conditions of consultation and the provision of relevant information, the respondent should have sole parental responsibility for the child’s health and education.
CONCLUSION
I do not consider it is appropriate to make a declaration that the applicant be declared a parent. I have made a finding to that effect.
On the basis of that finding, I propose to make an order that the parties do all things necessary to cause the child’s birth registration details to be amended to ensure and reflect the applicant is named as a parent on the child’s birth certificate. That document will then assist the parties in respect of any enquiry or application that requires proof of parentage.
I propose to adjust the orders that the applicant seeks in respect of the time that the child will spend with her to reflect the evidence of the report writer that unless accompanied by the respondent, the time spent with the child should be taken essentially in Adelaide until the child is five years of age. I will however adjust the times and dates for the graduated increase in time that the child will spend with the applicant.
Obviously, the respondent may be amenable to travelling with the child to Brisbane or after April 2017 the child shall travel between Adelaide and Brisbane by air travel at the shared expense of the parties during school term time but at the sole expense of the applicant in respect of holiday time after 2017.
I propose to order that school holidays be shared between the parties, but do not consider that the evidence supports Christmas school holidays as and from December 2017 being divided equally into two separate blocks. I consider that the period of time that such an order would entail may well be difficult for the child and potentially a source of anxiety. I propose to extend the time to the Christmas school holiday period commencing December 2018, restrict the time that the child will spend with the applicant in those holidays to a two week block with the holidays then being shared equally commencing in December 2019.
There seems to be some good sense in providing for the child to travel unaccompanied after the age of 12 years. I acknowledge however that given that time is nine years away, it is hoped by then the parties have reached accord and accommodation and I do not consider it necessary nor prudent to attempt to regulate the arrangements between the parties so far into the future.
It seems good sense that the handover should be to and from the respondent’s home. It is not opposed by the respondent and she argues that the child’s clothing and personal effects necessary for the time that she is to spend with the applicant would be best accommodated away from school. There is merit in that argument but it is tempered by the consideration that if there is hostility or conduct which would cause distress or embarrassment to the child then any subsequent consideration may well find favour in the changeover occurring to and from the child’s school thereby avoiding personal conflict between the parties.
The parties are generally agreed that Facetime is an appropriate method of communication. However, I consider that an obligation requiring the respondent to facilitate Facetime communication each week on two occasions is unnecessarily onerous and save and except as may be requested by the child, one occasion per week should suffice. It is necessary that the respondent is able to attend to the arrangements in her household without unnecessary interference. I also propose to alter the time slightly to accommodate commitments either of the child and/or the respondent.
Given my proposed treatment in respect of parental responsibility, I consider it appropriate (and it does not seem objectionable to the respondent) that the applicant be provided with all relevant and proper information in respect of the child both as to education, health and extra-curricular activities. Given the proposed order for shared parental responsibility, it seems to me proper that the parties should consult in respect of the child’s extra-curricular activities particularly if they have the potential to impact upon the time that the child will spend with the applicant given the obligation placed upon her to travel to Adelaide to give effect to the orders.
I propose to order that the parties do all things necessary to obtain a passport for the child but that it is retained by the respondent. I do not propose to make orders that would enable either party to travel with the child outside the Commonwealth of Australia without their express consent. The parties will need to negotiate this aspect of their lives. In any event, at this stage there is no immediate benefit that would inure to the child by overseas travel.
The applicant seeks orders which set out the nature and method by which the parties will communicate with each other. I consider that orders of that type are unnecessarily prescriptive. A practice has developed where at the very least email communication has been utilised to good effect. In the past the parties were able to communicate via extensive text messaging. It will be a matter for the parents of the child to work out the most effective and suitable communication between them that will serve the interests of the child.
The respondent continues to oppose any reference to the child either by narrative or photograph posted on social media. I consider it unrealistic to prohibit all use of social media in respect of the child. It is a reality of modern life that communication between friends and family utilises social media. There is however advantage to the child in imposing on the parties an injunction that would require them to only post photographs and references to the child by way of secure Facebook entry and to restrain each of the parties from engaging in any discussion on social media of these proceedings generally noting the prohibitions in the Act pursuant to s 121.
I make orders as appear at the commencement of these reasons.
I certify that the preceding two hundred and ninety seven (297) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 9 November 2015.
Associate:
Date: 9 November 2015
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