David & Cohen
[2022] FedCFamC2F 357
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
David & Cohen [2022] FedCFamC2F 357
File number(s): DGC 1547 of 2020 Judgment of: JUDGE BURCHARDT Date of judgment: 30 March 2022 Catchwords: FAMILY LAW – Parenting dispute about best interests of 9 year old girl – girl and half-sibling brother born to same sperm donor but two different women – one woman asserting 22-year same-sex relationship and that both children were conceived as part of a family unit – other woman wholly denying same-sex relationship and seeking to exclude other woman and half-sibling – court fully convinced of same-sex relationship – denial of the role of the second mother and half-sibling relationship damaging to the child – orders made for the child to live with non-biological mother and half-sibling and to spend limited time with biological mother. Legislation: Family Law Act 1975 (Cth) Cases cited: Goode v Goode [2006] FamCA 1346 Division: Division 2 Family Law Number of paragraphs: 88 Date of hearing: 15 March 2022 Place: Dandenong Counsel for the Applicant: The Applicant is self-represented Counsel for the Respondent: The Respondent is self-represented Counsel for the Independent Children's Lawyer: Ms Wilkinson Solicitor for the Independent Children's Lawyer: Wilkinson and Associates ORDERS
DGC 1547 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DAVID
Applicant
AND: MS COHEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
30 MARCH 2022
THE COURT ORDERS THAT:
1.The applicant mother, Ms David, have sole parental responsibility for the children X born 2013 and Y born 2019.
2.The respondent mother, Ms Cohen, is not a parent to the child Y.
3.The chid X lives with the applicant mother.
4.The child X spend time with Ms Cohen:
(a)from Friday after school at 3:30 pm until Monday at the commencement of school or at 9.00 am on a non-school day every fourth weekend to commence on the weekend of 8 April 2022.
(b)as otherwise agreed between the applicant and respondent in writing.
5.Ms David ensure X continues to engage with her current psychologist for a further 12 months.
6.The Applicant Mother, Ms David, be at liberty to obtain a birth certificate for the child without the consent or participation of the Respondent Mother, Ms Cohen, and these Orders act as authority for same.
7.The order appointing the Independent Children’s Lawyer be discharged.
THE COURT NOTES THAT:
A.These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym David & Cohen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
INTRODUCTORY
This is a very unusual and particularly sad parenting dispute, ostensibly about the best interest of a young girl, X, who was born in 2013. I say ostensibly because there is no dispute before the court about X's half-sibling Y, who was born in 2019. Y lives with his biological mother, Ms David, and at the election of the respondent, Ms Cohen, spends no time with Ms Cohen at all.
The kernel of this distressing dispute springs from the fact that Ms David asserts that she and Ms Cohen were in a same-sex relationship for some 22 years, that X and Y were conceived by the same sperm donor and brought up as part of a family unit, whereas Ms Cohen maintains that they were never in a same-sex relationship and were, so to speak, always two discrete families. It appears that X is aware of this conflict of opinion and, unsurprisingly, it is difficult for her. Her biological mother Ms Cohen has even, on occasion, expressed a view that if any time is spent with Ms David, she will withdraw herself altogether from X's life.
Given the self-representation of both of the parties, and their somewhat unclear positions, the court faces a dearth of tested evidence, and is confronted with a significant forensic challenge. In all the circumstances, and for the reasons that follow, I am going to order that Ms David have sole parental responsibility for X, that X live primarily with Ms David, and spend time with Ms Cohen as recommended by the family report.
THE PARTIES' AFFIDAVITS
The applicant, Ms David, was born in 1979, and Ms Cohen was born in 1969. They first met when Ms David was studying at an educational institution at which Ms Cohen was an educator and they, according to Ms David, entered into a same-sex relationship in 1998, which continued essentially through till separation in April 2020. Ms David's affidavit materials detail the alleged course of the relationship, and her belief that it came to an end primarily because Ms Cohen's mother returned from living in Country M in 2019. Ms Cohen's mother is understood to be of the religious belief that same-sex marriages are against God's law. This family tension is described by Ms David as having, perhaps, compelled the separation.
Ms David's affidavits details her own considerable difficulties with mental health, allegations of violence and mood swings exhibited to her by Ms Cohen during the relationship, and she paints a picture of what she describes as a power imbalance in the relationship, and gaslighting of her by Ms Cohen over the years.
Unsurprisingly, Ms Cohen's affidavit material takes vivid issue with all of this narrative. She has deposed to being heterosexual in orientation (although she told Dr B, the psychiatrist who examined both the parties pursuant to court order, that she had never been in a heterosexual relationship as she had not the time to invest in it). Her position is that she was manipulated by Ms David into permitting her to live with her over the years as a tenant in what was effectively a separate household. Her initial affidavit position was that she was not aware of the identity of the donor who inseminated Ms David with Y, but it is clear from the materials as a whole that this has been a dissimulation. I will return to this aspect of the matter in due course.
This brief outline does not do justice to the fulsome nature of the allegations that each of these parties make against the other, but in the end, I think it adequately describes the central dispute between them.
THE REPORTS OF DR B
Dr B's report on Ms Cohen is dated 3 December 2020. He is, of course, an extremely senior and experienced psychiatrist. The report noted, on page 3, that X was living with Ms Cohen, and had an overnight stay once a week and alternate weekends with Ms David. Ms Cohen indicated that she had no interest in having a relationship with Y, and therefore no contact with him. She hoped that the Family Court would acknowledge her as the mother of X, and that there would be no contact with Ms David. Unless contact was ordered by the court, there would be no contact for X with Ms David.
I note the family history and other matters detailed in the report. At page 5, the report noted:
[Ms Cohen] insists that she has never had a serious relationship because she does not have enough time to invest. She insists that the relationship with [Ms David] was that simply of friends who were sharing a house.
I note that Dr B's diagnosis was various mental health issues
Under the heading "Discussion", Dr B observed:
Not unreasonably [Ms Cohen] presented as somebody trying very hard to present the very best picture for the assessment. She was keen to underline the fact that she is a good mother and that she loves her daughter. She acknowledges that she has refused to allow [X] contact with [Ms David] and that she has no interest in [X] having a relationship with [Y]. She does admit to anger outbursts, recalling the throwing the television remote control and possibly throwing the hot chocolate. She minimises the overdose of Neurofen, insisting that it was just impulsive and cannot recall the reported overdose with valium. She denies ever having banged her head against a concrete wall. She acknowledges the incident in which it is reported that she gave the baby to [Ms David] when she was angry but insists that it was not inappropriate. She reports that it was two months postpartum and, therefore, there may have been an element of baby blues. She denies the report in the Child Dispute Conference Report that she resented having to do the interview. Apart from one episode of cutting she denies other threats to self harm. She does admit to the expression when she was frustrated not being able to find a psychologist "I don't think I will live that long" insisting that it was simply an expression of frustration. She denies verbal abuse of [X] and suggests that when [X] said "mummy is being mean" it is because mummy is being strict. She acknowledges that her daughter has said that she hates the maternal grandmother and does poke her with a bamboo stick and at times refused to look at her but at other times plays constructively with her. [Ms Cohen] has not engaged with [any parenting programs] . She continues to insist that the relationship with [Ms David] was not a sexual one but that it was [Ms David] who informed her mother and it was in that context her mother stated her objections to a same sex relationship on the basis they are "against God's law". [Ms Cohen] also insists that she is not a person who is considering taking her children overseas and denies that there is a pattern of that behaviour within her family. When asked about [X]'s concept of home she reports that for [X] when asked she talks about the house in [Suburb C] that had to be sold because [Ms Cohen] could not maintain the mortgage payments. She acknowledges that given the number of places that she has lived recently the concept of home "is all a mess". [Ms Cohen] reports that she is now looking for work.
In my opinion, [Ms Cohen]'s description of her relationship with [Ms David] is very black and white as is her attitude toward the relationship between the two children and there appears to be no real insight into any possible benefit that could be gained by [X] having a continuing relationship with [Ms David] and [Y]. [Ms Cohen] has made it perfectly clear in my assessment that if contact is not Court ordered it will not occur.
In my opinion, it is of concern that in her determination to terminate her contact with [Ms David] there is an apparent lack of concern for her daughter's emotional reactions and needs.
Dr B's corresponding report into Ms David was dated 10 December 2020. On page 3, the report noted:
On presentation I asked [Ms David] for her understanding as to why she had been ordered to have a psychiatric assessment, her reply was that she was involved in a messy separation and had wanted her former partner to be assessed. She acknowledged that she has her own psychiatric history as a result of childhood trauma. She currently sees a psychologist, [Dr D], and for the last three years has seen him fortnightly.
The report went on, on page 3 to note the mother's relatively frequent hospitalisation as a result of her ill health. I note the report stated:
In [E Hospital] she was diagnosed with [a mental illness] which her psychologist has told her is complex Post Traumatic Stress Disorder, terms which, in my opinion, are interchangeable.
The report noted the then current spend time regime, and Ms David's desire to have more time with X.
Once again, I simply note the family details and family psychiatric history without traversing them.
On page 5, Ms David reported two significant relationships:
1. At the age of seventeen, which lasted for eleven months and ended because she met [Ms Cohen].
2. At the age of eighteen, [Ms David] began a relationship with [Ms Cohen] who was ten years her senior and they were together for twenty two years. [Ms David] insists that it was a same sex relationship and she believes the relationship ended because of pressure from [Ms Cohen]'s mother. [Ms Cohen] had never declared her relationship to her parents and [Ms David] believes that the relationship ended because [Ms Cohen] was no longer able to lead a double life after she had discussed their relationship with [Ms Cohen]'s mother.
As reported there are two children, [X], aged seven, who is the biological daughter of [Ms Cohen] and [Y], aged one, who is the biological child of [Ms David]. Neither child has birth certificates because [Ms Cohen] is very concerned about privacy and refused to allow the donor father to be named, although the donor father has indicated that is not a problem for him.
Dr B's diagnosis was various mental health issues.
It is of course noteworthy that this is almost word for word his diagnosis of Ms Cohen.
Under the heading Discussion on page 6 the report observed:
[Ms David] is a forty one year old woman who, having separated from her same sex relationship of twenty two years, reports that physically and emotionally she is feeling better. In the affidavits presented [Ms David] is described as controlling and domineering, her response is that while she can at times micro manage, generally the power within the relationship was held by [Ms Cohen] and that she tended to do everything that [Ms Cohen] wished, even separating herself from her family. [Ms David] denies being quick to anger but reports that when she is angry she is tearful. She did report … abuse to the police earlier this year because she is concerned that [Ms Cohen]'s family has an extensive past history of … abuse with a tendency to ignore abuse when it is occurring. [Ms David] reports that she is not enrolled in [a parenting program] and is waiting advice about joining a Post Separating Parenting Program because her former partner has indicated that she has no interest in co parenting. [Ms David] expressed concern that because she has sought psychiatric assistance for her mental health issues she is not heard within the Family Court process and feels at times she is being punished for receiving help. In my opinion, there is nothing in this assessment that is a contraindication to [Ms David] continuing to have contact with both children.
THE REPORTS OF MS F
Ms F has prepared two reports for the court dated 7 April 2021 and 7 March 2022 respectively. The reports are in many ways very similar and for that reason I propose primarily to traverse the second one. It should be noted that following the preparation of the first report orders were made by the court on 3 April 2021 which provided for the children to live primarily with Ms David and for X to spend four nights a fortnight and half school holidays with Ms Cohen. The one part of the first report I propose to detail is the interview with X because X was markedly different at the second interview.
Paragraphs 97-98 the 2021 report noted:
During [X]’s discussions with the writer, she referred to [Ms Cohen] as “Mum” or “Mummy” and [Ms David] as “Mama.”
Essentially, [X] expressed frustration by her current parenting arrangements and sought that she primarily lives with her Mama ([Ms David]) and visit Mummy ([Ms Cohen]) once or twice a week, emphasising that she did not want to spend overnight time with [Ms Cohen] and did not want to come into contact with her maternal grandmother…
[X] explained that her Mummy and her [grandmother] do not like her Mama because she is gay.
At paragraph 99:
[X] reported that she did not want to spend significant time with [Ms Cohen] “because she lies.” Lies included that she has been told that [Ms David] is not her mother when she knows that she has two (2) female parents and that [Y] is not her brother, however, she knows that he is. [X] reported that while the above “lies” used to confuse her, that now they just make her angry.
Turning to the updated report at paragraph 3:
As explained during the first family report, [Ms Cohen] claimed that the parents were never in a romantic relationship, and the women were simply flatmates as [Ms David] was unable to live independently due to her mental health issues. Furthermore, [Ms Cohen] denied that the women ever co-parented the children, maintaining that [X] is her biological daughter who has been solely parented by her, while [Y] is [Ms David]'s biological son and that he has been solely raised by [Ms David].
The report noted that the children have the same biological father, Mr G albeit Ms Cohen disputed the method of conception (paragraph 5). Ms Cohen did not seek any time or future relationship with Y (paragraph 6)
The report noted that Ms David indicated that she receives emotional and practical support from extended family members and has a history of accessing community services to manage her mental health issues which she claimed had improved upon separation (paragraph 7) Ms Cohen lives in Suburb H with her mother and has obtained some casual work as an educator and presently applied for full-time positions and that on her work days X would be enrolled in before and after school care dependent upon the location of her future position (paragraph 8).
Both women identify as members of a local religious community (paragraph 9). The report traversed that previous orders made for the ten-four arrangement and half school holidays. The report noted orders for X to attend upon a psychologist such as Dr J but it is unclear whether this has occurred.
At paragraph 14 Ms F set out the kernel of the dispute:
In essence, [Ms Cohen] and [Ms David] hold extremely divergent views regarding the nature of their relationship. According to [Ms David], she and [Ms Cohen] were in a committed same-sex relationship for approximately 20 years, and in that time, they jointly planned for and raised their two (2) children, [X] and [Y]. In stark contrast to the above, [Ms Cohen] completely denies that the women were ever in a same-sex relationship, indicating that [Ms David] was simply emotionally dependent upon her due to her poor mental health issues.
The report traversed the various applications made by the parties and I note at paragraph 26
During her interview, [Ms David] expressed with great sadness that given [Ms Cohen] has refused to co-parent with her and continues to deny that she is a legal and emotional parent to [X], she seeks that [X] lives primarily with her to reduce her exposure to [Ms Cohen]'s emotional and psychological abuse. [Ms David] sought that [X] continues to spend time with [Ms Cohen] each alternate weekend.
At paragraph 30 the report noted:
During her interview, [Ms Cohen] sought sole parental responsibility for [X]. She sought that [X] lives primarily with her and spend limited time with [Ms David] (perhaps a few hours with her on a Wednesday after school). She further expressed her belief that this limited time would eventually cease naturally, as [X] would in time realise that spending time with [Ms David] was “ridiculous”.
At paragraph 51 the report observed
Throughout her interview, [Ms David] experienced periods of an outpouring of grief over [Ms Cohen] continuing to refuse to acknowledge their son [Y] and the long-standing confusion that this is likely to have on both children and [Ms Cohen]'s determined avoidance in co-parenting with her in relation to the best interests if [X]. [Ms David] also expressed concern and care for [Ms Cohen]'s mental health; however, this appeared lessened than exhibited during her previous interview in February 2020. The majority of [Ms David]’s interview consisted of her lengthy explanations of her attempts to communicate with co-parent with [Ms Cohen] and the impact [Ms Cohen]’s ‘stone walling’ had had emotionally upon her and practically and emotional upon [X].
At paragraph 52
[Ms Cohen] presented as an assertive and confident woman. Throughout her interview, [Ms Cohen] reported that since the Interim Orders provided for [X] to live primarily with [Ms David] that she felt burdened and harassed by [Ms David] attempting to communicate with her. She referred to this one-sided communication as just "noise" coming from [Ms David] and emphasised that she wished this to cease. [Ms Cohen] reported that she was a victim of [Ms David]'s ongoing emotional and psychological abuse and therefore sought that [Ms David] cease communicating with her.
It should be noted that I have of course regard to the entirety of the report. I note that paragraph 76
When [Ms Cohen] was asked what Final Orders she would be seeking, she confirmed that she would be seeking that [X] returns her primary care stating, "I want to raise my daughter, and I don't want [Y] in my life,” and “I want freedom in my life with [X].”.
I note that when X was interviewed on this occasion she effectively declined to speak to Ms F and only gave her the small amount of information by writing answers on the whiteboard which she quickly wiped away (paragraph 79).
The report opined at paragraph 80-81:
The limited information [X] did provide confirmed that she enjoyed spending time with both her parents could not identify any safety concerns spending time with either of them. When asked if there were anything she would like to change about her arrangements, she indicated that she wanted to be able to spend her birthday with both parents regardless of which days this fell on.
[X] indicated that [Ms David] was speaking to [Ms Cohen]; however, [Ms Cohen] does not talk to [Ms David]. [X] indicated that she was upset about something; however, she did not wish to share this with the writer.
At paragraphs 83 and following:
83.While [X] did not provide verbal information via a formal interview for the purpose of this assessment, information was still able to be obtained through her behaviours and interactions with her family.
84.[X]'s observation sessions with each of her parents reflected the positive relationship she shares with each of them. While both women had come prepared with different games and activities [X], she enjoyed playing various educational games using the whiteboard. In the presence of [Ms David], she also engaged in some craft activities.
85.As noted during the previous assessment, [X] and [Ms Cohen] appeared most comfortable in their roles, where [Ms Cohen] employed various strategies to bring out the best in [X]'s behaviours, encouraged creativity and problem-solving.
86.[X] demonstrated a high level of affection towards both parents, and she was frequently spontaneously tactile with them.
At paragraph 88:
[X]'s relationship with her brother [Y] reflected a typical relationship between children of different ages and stages. At one stage, [X] became frustrated with [Y] and referred to him as "annoying;” however, five (5) minutes later, she would be observed playing with him and supporting him with an activity.
At paragraphs 92-95 the report noted:
92.According to information provided by [Ms David] (and confirmed by the Independent Children's Lawyer), around the time of the previous Court hearing, [Ms Cohen] conceded she was experiencing distress and acknowledged that she was historically engaged in a same-sex relationship; however, it appears that [Ms Cohen]'s position on this matter has regressed, with her once again denying there was an intimate relationship between them and as a couple made the decision to raise a family together.
93.This assessment has highlighted that [Ms Cohen]'s position has had a significant impact upon [X]. [Ms David] reports that [X] is not allowed to be referred to her as Muma within [Ms Cohen]'s home, is not allowed to refer to [Y] as her brother or refer to other members of [Ms David]'s family by family titles. Furthermore, [Ms David] (and confirmed by [Ms Cohen]) reported that [Ms Cohen] refuses to talk to her and is reluctant to communicate with her regarding [X] which causes [Ms David] some distress.
94.Of most concern, this assessment has reinforced that [Ms Cohen] seeks that [X] lives primarily with her and that her time with [Ms David] naturally dissolves, with [Ms Cohen] reporting that she wants [Ms David] out of her life, citing that communicating with her negatively affects her mental health.
95.During the previous assessments, it was ascertained that both women present as extremely vulnerable women with long psychiatric histories. According to [Dr B], who was Ordered to prepare independent psychiatric assessments for both women for the Court, he indicated [Ms Cohen] likely suffered from [various mental health issues]. It is therefore plausible that [Ms Cohen]'s mental health is negatively affected by the increased stress she experiences having to communicate on a regular basis with [Ms David].
At paragraphs 96-103 the report noted:
96.[Dr B] also reported that [Ms Cohen] appeared to have no insight into any possible benefit for maintaining [X]'s relationship with [Ms David] and [Y]. Furthermore, [Dr B] expressed concern for [Ms Cohen]'s determination to sever their relationship with no concern for the ramification and thus emotional needs and wellbeing of [X]. Despite [Ms Cohen] being provided access to this assessment, it appears as if her views and beliefs have not altered, and she remains determined to sever [X]'s relationship with [Ms David] and [Y] and alluded that this course of action would support her own mental health.
97.This assessment has emphasised [Ms Cohen]'s lack of willingness and capacity to promote [X]'s relationship with [Ms David] or [Y], even for the benefit of [X]. More concerning is that [Ms Cohen] is reportedly actively undermining [X]'s relationship with [Ms David] and [Y] for disallowing her to refer to her mother as [Muma] and [Y] as her brother. This is likely to be emotionally damaging for [X] as she has been asked to deny significant relationships in her life to appease the wishes of [Ms Cohen]. Unfortunately, [Ms Cohen] has demonstrated that she does not possess the capacity to place [X]'s psychological and emotional needs above her own, with his likely to cause [X] long-term psychological and emotional harm.
98.Given that [Ms Cohen] has openly stated she does not wish to communicate with [Ms David] and is unwilling to co-parent with her, it is suggested that the Court consider granting [Ms David] sole parental responsibility for [X]. It is also suggested that [Ms David] provide [Ms Cohen] with [X]'s educational and medical reports and assessments. While [Ms David] is likely to seek to consult [Ms Cohen] regarding important decisions for [X], it is possible that [Ms Cohen] may continue to avoid communication with her.
99.This assessment suggests that it remains in [X]'s best interest to live primarily with [Ms David]. Given the concerns raised above, the Court may need to determine how much time [X] spends with [Ms Cohen] in the future as it is likely that regular time, or even any time, has the potential to disrupt [X]'s relationship with [Ms David] and her brother [Y].
100.[Ms Cohen] clearly dismisses these important familial relationships for [X] and has expressed her wish that these are severed. Both assessments prepared by this writer noted that [X] shares a positive relationship with both her parents and in this assessment expressed a wish to spend her birthday with both of them. It is likely [X]'s wish to maintain her current parenting arrangements, which involves her spending significant time with [Ms Cohen].
101.[X]'s time with [Ms Cohen] may be able to be maintained if she were living with a family member who could monitor [Ms Cohen]'s expressed views in the presence of [X]; however, unfortunately, [Ms Cohen]'s mother has been identified as one who shares similar or even stronger views regarding [X]'s identity and has reportedly openly shared these with [X].
102.In the event the Court determines that [X]'s time with [Ms Cohen] be significantly reduced to protect her emotional and psychological health while preserving this significant relationship, it is suggested that [X] spends time with [Ms Cohen] each third or fourth weekend from the conclusion of school Friday until the commencement of school Monday morning with the provision for religious holidays and special days.
103.In the event that the Court determines that [X]'s time with [Ms Cohen] remains unchanged, it is suggested that this matter returns to Court expediently in the event [X]'s treating psychologist identifies [X] is suffering from psychological and emotional harm or if there is evidence to suggest that [X] begins to align herself with [Ms Cohen]'s views and wishes.
The report recommended sole parental responsibility for Ms David, that X live primarily with Ms David, that there be consideration to reduce to reducing Ms Cohen's time as indicated, and that X continue to engage with her current psychologist for a minimum of a further 12 months.
THE SUBMISSIONS MADE AND EVIDENCE GIVEN AT COURT
What follows is taken from my notes. It should be noted that both parties were self-represented and neither elected to put any questions to the other. It is not clear whether the interim intervention order has been made final, so in any event this might have been precluded by the terms of section 102NA of the Family Law Act 1975 (Cth).
The Opening and Evidence of Ms David
Ms David corrected the minor error in her second affidavit as to the children's ages. She said all she wanted was to co-parent. She requested the enforcement of orders made the previous year. She adopted her affidavits as true and correct, and as indicated, Ms Cohen elected to put no questions to her.
Under questioning by the Independent Children's Lawyer, Ms David confirmed she relies only upon her most recent affidavit. Ms Cohen does not seek time with Y, and so X is the focus. She was questioned about how often she sees her psychologist. She said she sees the psychologist every two to four weeks. She can afford this because he bulk bills. She has been seeing him since 2017.
She was asked when she first met Ms Cohen, and said that they became involved in 1998. They met when she was studying, but it was very distant interaction. She was turning 19 when the relationship commenced in 1998. When asked if there had been arguments with Ms Cohen, Ms David said there was no interaction at all. When asked how she coped with arguments during the relationship, Ms David said it was the blind leading the blind. It was a process of learning. Ms Cohen's anger was frightening, and she (Ms David) was self-blaming. She just had to give her space to rage and not run out of the house after her. The denial of the relationship and that Y is Ms Cohen's son is the worst gaslighting imaginable.
When asked if she advocated for time between X and Ms Cohen, Ms David said she would suppose she was being optimistic. She hoped that the gaslighting will end. She might be foolishly hopeful. She hoped that Ms Cohen will be honest with her daughter about how the family began. She was confident she could comply with the orders proposed by the Independent Children's Lawyer. When asked if X would have stability and not be gaslit, Ms David was very confident that she could do this. She has a very good support group and is standing on two strong legs. Previously she was very flappable but now nothing phases her. She is up at 5.30 with Y and they get through it.
When asked what communication would be like if Ms Cohen spent time with X, Ms David said it was not sufficient. She gets no information at all about what happens when X is with Ms Cohen. X is quite chatty and will tell her which friends she saw but in effect nothing more. X does not usually want to talk about time with Ms Cohen, and this has become more so this year. She seeks sole parental responsibility because otherwise X will not get a birth certificate or passport. She got a thumbs up emoji in response to an email.
She said Ms Cohen had dug her heels in and insists there was no relationship. It's almost like this has increased. It is a surreal experience. Mr G (the children's father) sees the children constantly. It was Y's birthday yesterday. Ms Cohen does not want them together. Mr G is not Dad, he is the donor. He has found a wife and married, but X knows he is her donor. When asked, given the severity of her mental health problems, what would happen if she was in hospital again, to the children, Ms David said they would probably stay with her sisters or close friends. There are lots of options they would be comfortable with.
The Opening and Evidence of Ms Cohen.
Ms Cohen said she would like the court to reconsider about X. If she was not to have fulltime, she wanted the majority of the time. The current orders provide very little time, but before that it was 60/40 and X was more settled. She adopted her affidavits as true and correct, and, again, Ms David did not wish to put any questions to her.
Under cross-examination by the Independent Children's Lawyer, she was asked about the orders made on 23 April 2021. She said her barrister Mr K was coming backwards and forwards. She was in a room without water or air and support. She signed to get 50 per cent of the time but felt she was coerced. She relies upon her affidavit in April 2021. When it was put that the different views that she and Ms David had about their relationship might have a negative impact on X, Ms Cohen said it could. When asked what she had done since April 2021 she said she looks after her daughter. The relationship with Ms David is an adult issue.
When asked what she had done to mitigate the damage to X, Ms Cohen did not really answer the question. She said she had sent the thumbs up message. The intervention order limits what she can say. She is being attacked on both sides. She doesn't talk about court to X. She brought an app, but Ms David did not want to use that and wanted to use another one. When asked if she wanted to co-parent with Ms David, she said she did not know how it would work. They had never co-parented. She had never co-parented with Ms David. Ms David was not parenting X like her. She has done nothing because she can't talk.
When asked about X's time with the donor's family and the bond with his daughter and what role would it be for the donor if X lived with her, Ms Cohen said the donor is not involved in her life. It is a trauma for her that her consent was not followed through. Ms David made the decision herself. If there is a change she will have to deal with it. The relationship with the donor was very difficult at the time. X is disengaging from school. She's not happy and there are absences all the time. X should not be in the middle of this. When asked if she thought X would say she was in favour or against her case, Ms Cohen could not answer.
Counsel put it that it was pressure from her that caused X not to engage with Ms F the second time, but she said this was not true. She does not discuss proceedings. When asked if there was less time would she be involved with X, she said she wanted to be involved even if it was time limited to five minutes. When asked if she considered Ms David to be X's mother, she said not in her understanding of what a mother is. But then when asked if Ms David was X's mother she said yes. When asked why she could not co-parent, she said she was there 24 hours for X. Ms David is not. X is producing trauma and X is struggling with current orders.
She conceded that the two versions of the family could be a difficulty for X. In 2019 she arranged a therapist for X, but she (Ms Cohen) has been removed from a lot of time. Counsel asked if there was sole parental responsibility to Ms David and X was spending time with her, could she encourage the parental relationship with Ms David. Ms Cohen responded yes. She was willing to facilitate a relationship with Ms David. When asked if she would facilitate the relationship with Ms David as her parent, she said she did not understand the question.
In re-examination Ms Cohen said that there was no connection with the donor at the time of the conception. She has been unable to vaccinate X because of time limitations. The current orders are not helping X psychologically.
In response to a question from the Court, Ms David confirmed that while she is not anti-vaccination, she is reticent about vaccinating a child at so young in age. She indicated that she would be prepared to comply with an order that she consult X's general practitioner about the COVID vaccination for X and comply with any recommendations of the practitioner.
The Evidence of Ms F
Ms F adopted her report. Under cross-examination by Ms Cohen (Ms David having expressed no desire to put questions) Ms F confirmed that X was not as chatty at the second interview. She turned it into a game and got limited answers, but it was not a full interview.
Under questioning by the Independent Children's Lawyer, Ms F said X was more guarded than previously. She was not expecting that. She expected the same child, but they can be unpredictable. The Independent Children's Lawyer put it that it was her position that there should be no time with Ms Cohen or time as agreed and asked if this would create any problems for Ms F. Ms F said no. It was the dynamics between the parents. She did not have a lot of faith that they would abide by orders. If X wants time, Ms David will facilitate it even without orders. This causes Ms Cohen stress. She recommended structured time to protect Ms Cohen from unwanted contact from Ms David, which was distressing to Ms Cohen. Ms Cohen was very clear that co-parenting was not going to occur.
Under further questioning by Ms Cohen, she was asked if it was in X's best interest to spend more time with her. Ms F was unsure. There were interim orders for counselling to assist with co-parenting, but there was no evidence to suggest this has occurred.
Final Submission from the Independent Children's Lawyer
The Independent Children's Lawyer submitted this was a very unusual case and a sad one. There is no agreement as to who X's parents are, and this provides shaky ground. The child has a hyphenated name. X is the child of both of them, and therefore Ms Cohen's denial of the relationship and Ms David's role places X at risk. The second report referred to X's trauma. The differing views are taking a toll on her. Ms David entered Ms Cohen's life when Ms Cohen was an educator. There was a power and authority imbalance and it was not equal at the start. Ms David just wanted Ms Cohen to love her. This is blown out of the water by Ms Cohen, who denies the same sex relationship.
Ms David would be put at risk herself if she has to co-parent. She sought orders for very limited time. Ms Cohen is a threat to Ms David's mental health and wellbeing. Ms David should abandon her endeavours to create a relationship between Ms Cohen and Y, as Ms Cohen does not want it. Ms David has X's best interests at heart and should have sole parental responsibility. X should spend time with Ms Cohen until the family look at counselling for their daughter. She is not doing her best at school, but this is not uncommon, given the COVID difficulties.
Final Submissions of Ms David
X's attitude has indeed changed towards school since last year. Ms David blames the way the school offered services during lockdown. X's handwriting has regressed, the same as other kids. The school handled the situation very poorly. There was some bullying, which was not handled. She intends to remove X and place her in a warmer environment. She does not want X to not see her mother. She has seen this with Y. She hopes Ms Cohen will engage in therapy and FDRS. Ms Cohen has not signed both of the birth certificates. She supports the Independent Children's Lawyer with a heavy heart.
Final Submissions of Ms Cohen
Ms Cohen said in the past that she wanted X full-time. If she is unable to obtain this, she wants the majority of the time. She will facilitate the relationship with Ms David. She had not been told about the bullying at school, because the school did not tell her. She was supportive of mediation. Shared care was detrimental. Thing were better under the previous orders. She supports X having ongoing therapy with Ms L, but has not received any information.
THE STATUTORY PATHWAY
The statutory pathway is described by the Full Court in Goode v Goode [2006] FamCA 1346 at [65].
In summary, the amendments to Part VII have the following effect:
1.Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2.The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and s 61DA(2)).
3.If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and s 61DA(3)).
4.The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5.When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6.The Act provides guidance as to the meaning of “substantial and significant time” (ss 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).
7.The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a)the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8.Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9.The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10.When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11.The child’s best interests remain the overriding consideration.
PARENTAL RESPONSIBILITY
The Independent Children's Lawyer supports Ms David having sole parental responsibility. It is inherent in this proposition of course that Ms David must be deemed a parent. This brings us immediately and perhaps rather abruptly to a determination of this central question.
Put shortly, I entertain no doubt whatever that the relationship that obtained between Ms David and Ms Cohen was as Ms David describes it. Although there was little by way of evidence, and cross-examination was not available (or even desired) the sincerity of Ms David's account was completely unmistakable. She entered into a same-sex relationship with Ms Cohen at a young age when, on any sensible view of the matter, there was a significant power imbalance between the parties, given that they met in the context of Ms Cohen being an educator and her being 10 years older in any event.
Although Ms Cohen's affidavit material has sought to point to periods of separation, Ms David's responding material (and I have not traversed this) is entirely credible. I accept that Ms David has significant psychiatric difficulties, as indeed does Ms Cohen, but the notion that she would falsely and manipulatively invent a 20-year plus relationship is simply unbelievable. The reasons for Ms Cohen's denial are all too easy to see. She comes from a conservative religious background in which same-sex relationships are regarded as being against God's law. This must have made matters extremely difficult for her, more so when her own mother returned in 2019. The contiguity of the deterioration of the relationship between the two mothers is all too obvious.
The children do indeed share the same donor father and Ms Cohen's dissimulation as to her knowledge of this (something commented upon by Ms F) is surprising. Furthermore, as Ms F reported, Ms Cohen herself, no doubt much now to her regret and possibly something she will now deny, has conceded that she was in a same-sex relationship. This being so, it is quite apparent that both of the children were conceived in the context of a commitment to a family relationship, and they are both parents of both children.
Given Ms Cohen's adamant denial of this basal conclusion, it is immediately apparent that parental responsibility can only work if Ms David is granted sole parental responsibility. Ms Cohen simply does not wish to communicate with her at all, and indeed wants her completely out of her life.
SPEND TIME AND COMMUNICATION REGIME.
This is an unusual case. Usually, both parents at least pay lip service to the desirability of the child having a meaningful relationship with both of their parents. Of course, neither party seeks that X have any parental relationship with her donor father. This is the case not only rigidly in respect of Ms Cohen but also in respect of Ms David, who describes the relationship as that of a donor, something that X apparently is well aware of and appears to accept.
Ms David in principle seeks very strongly that X have a meaningful relationship with Ms Cohen, and only supports the Independent Children’s Lawyer’s position for very limited time with a heavy heart. This is because of course she would love for Ms Cohen to concede the relationship and co-parent with her, something that as the evidence presently stands is simply not going to occur. In the face of the totality of the materials before the court, it is clear that Ms Cohen does not see any benefit to X in having a relationship with Ms David because she does not consider her to be her mother.
This attitude brings into play, in the light of the central findings just expressed above, the need to protect X from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Pursuant to section 4AB(2)(i), family violence includes "preventing the family member from making or keeping connections with his or her family, friends or culture".
In my opinion, the position Ms Cohen adopts is entirely consistent with this definition. It is not necessary to say more than that.
The Additional Considerations, Subsection 60CC(3)(a)
X's views have been described by Ms F as I have set them out above. She loves both her parents. She knows them both as parents. Although there is no direct evidence, it is instantly obvious that being restrained from acknowledging Ms David as her mother and Y as her brother in Ms Cohen and her mother's home must be extremely confronting and difficult for her. Taken in conjunction with what X had to say at the first family report, it seems clear that X is well aware of her grandmother's views and resents them bitterly. I would infer that she does not want to spend a substantial time in her grandmother's presence, despite occasional affectionate interaction.
Section 60CC(3)(b)
X has loving and well-established relationships with both Ms David and Ms Cohen. She clearly has a loving relationship with Y, subject to the usual sibling fracas. It would seem as I have just said that X's relationship with Ms Cohen's mother is poor. There is no reason to doubt Ms David's evidence that X (and Y) have an excellent relationship with Mr G and his family and numerous other family members and friends. The nature of X's relationship with Ms Cohen's extended family is not, at least as far as I can see, described in any great detail in any of the materials before the court.
Section 60CC(3)(c)
Both parents have sought to take the opportunities to participate in making decisions about X and spend time and communicate with her.
Section 60CC(3)(ca)
Once again, this matter can be dealt with shortly. Each of these parents has fulfilled, so far as I can see, their obligations to maintain X.
Section 60CC(3)(d)
The Independent Children's Lawyer's proposal will reduce, if implemented, the amount of time X spends with Ms Cohen substantially. The effect on Ms Cohen is likely to be significant. She wants X to be in her sole care, or at the very least for the majority of the time. Anything that limits this would be distressing for her.
Oppositely, the relative excision of Ms Cohen from X's life, acceded to with a heavy heart by Ms David, may not make Ms David any happier at all. What she longs for is to have a co-parenting relationship with Ms Cohen. Nonetheless, Ms David is clearly a devoted mother to both X and Y, and I have no doubt that she will take proper steps to adapt if orders are made as the Independent Children's Lawyer seeks. It would seem from what X has had to say and indicate that she herself would prefer to have lesser amounts of time with Ms Cohen, very probably because of her appreciation of the attitude within that household to her family as she sees it.
Section 60CC(3)(e)
There are no practical difficulty and expense issues arising from either side's proposals.
Section 60CC(3)(f)
Both of these parents have compromised psychiatric histories with inevitable deficits as a result. Nonetheless, they both love X and are in a general sense able to provide for her needs. Where Ms Cohen critically fails, however, is that with her denial of the nature of the family in which X predominantly is presently living, and the rejection of her relationship with Ms David, she fails to provide X with the support from which she would benefit. It appears that X finds this emotionally draining.
Section 60CC(3)(g)
I have just said already that the parents both have their deficits. It would seem that in a general way, X is an extremely bright, alert, intelligent and generally happy child, subject to some recent unhappiness at school. It is important to note that both parents regard themselves as religious, something it appears that X has more recently perhaps resisted, no doubt because of her concerns already commented on as to the perception of Ms David in Ms Cohen's household.
Section 60CC(3)(h)
This is irrelevant.
Section 60CC(3)(i)
Ms David's attitude to X is unremarkable. She wants X to have both her parents (as Ms David would put it) in her life, but this is not achievable. Ms Cohen's attitude is no doubt that of a loving mother, but her attitude towards X finds expression in her desire to exclude Ms David because of her desire to exclude Ms David from her own life. This is a deficit commented upon by Dr B and by Ms F and I accept their reservations.
Section 60CC(3)(j)
It is apparent from what Ms Cohen told Dr B that at least some of the allegations of family violence made by Ms David are correct. Nonetheless, I accept Ms F's observation that if X wants time with Ms Cohen she is likely to grant it in any event. Any findings of family violence must be seen against this latter observation.
Section 60CC(3)(k)
There is it appears an extant intervention order, but so far as I am aware it has not been tendered to the Court, so the Court is unaware as to the extent of its terms.
Section 663L.
It is plainly apparent that this long running and distressing matter be brought to an end, and I propose to do so.
Section 663M.
There are no other relevant matters.
CONCLUSION.
In the end, once the Court is satisfied that there was indeed a same-sex relationship between Ms David and Ms Cohen as described by Ms David, the outcome of the case is almost inexorable. The very regrettable failure by Ms Cohen to acknowledge the relationship, springing no doubt from genuinely held religious views, and it seems strongly supported by her own mother, means that every time X goes to stay with her, she will be placed at risk of harm, in the form of emotional abuse. Not to be allowed to acknowledge your other mother, Ms David, and your brother, Y, is only to become more challenging and difficult as X becomes older and presumably more assertive. It is a little short of tragic that Ms Cohen maintains her present position. Seeking to excise Ms David and Y completely, and rejecting Y altogether, even though the couple were not together long before separation after Y was born, is a very sad and melancholy position. It is plainly in X's best interests that she lives predominantly with Ms David, and spend the reduced time contended for by the Independent Children's Lawyer. It is to be hoped that at some not too distant point, Ms Cohen reconsiders her position, but of course, in the end, that is entirely a matter for her.
I have given thought to whether time should be as agreed. I accept Ms F's expert evidence which was not challenged that that may to be problematic. I am going to order that time be reduced to one weekend every four weeks. Ms F's recommendation was for three or four weeks, and she was not asked any questions as to which of these might be preferable. The tenor of her report and evidence, however, is that Ms Cohen's time should be significantly reduced to avoid the difficulties to which I have referred on more than one occasion.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 30 March 2022
0