Gaze & Maltby
[2022] FedCFamC2F 1013
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gaze & Maltby [2022] FedCFamC2F 1013
File number: BRC 11825 of 2020 Judgment of: JUDGE LAPTHORN Date of judgment: 4 August 2022 Catchwords: FAMILY LAW – Parenting – Application to dismiss an Initiating Application for Parenting Orders on the basis the Applicant was not a parent – Same sex couple – Consideration as to whether the parties were in a de facto relationship at the time of the child’s conception achieved through a private artificial conception procedure – Declaration as to parentage Legislation: Family Law Act 1975 (Cth), ss 4AA; 60H; 60I; 65C; 69VA
Evidence Act 1995 (Cth) s 140
Cases cited: Clarence & Crisp [2016] FamCAFC 157, (2016) FLC 93‑728, (2016) 55 Fam LR 292
Jonah & White [2012] FamCAFC 200
Division: Division 2 Family Law Number of paragraphs: 119 Date of last submission/s: 7 February 2022 Date of hearing: 31 January 2022 Solicitor for the Applicant: Aboriginal & Torres Strait Islander Legal Service Counsel for the Applicant: Mr Thomas Solicitor for the Respondent: Harrigan Lawyers Counsel for the Respondent: Mr Duplock ORDERS
BRC 11825 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS GAZE
Applicant
AND: MS MALTBY
Respondent
order made by:
JUDGE LAPTHORN
DATE OF ORDER:
4 August 2022
THE COURT DECLARES THAT:
1.Pursuant to section 69VA, the applicant, Ms Gaze born in 1983, is a parent of the child X born in 2019.
THE COURT ORDERS THAT:
2.The respondent’s application to dismiss the Initiating Application filed 31 August 2020 and the Amended Initiating Application filed 26 July 2021 be dismissed.
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 a pseudonym Gaze & Maltby has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE LAPTHORN
INTRODUCTION
I am asked to determine whether the Applicant has standing in which to bring a parenting application. The applicant, Ms Gaze, commenced proceedings seeking parenting orders in relation to the child X born in 2019. The respondent, Ms Maltby, has asked the court to dismiss the application arguing the applicant is not a parent of the child and therefore does not have standing pursuant to s65C to commence the proceedings.
The child was born as a result of a private artificial conception procedure in 2019. The parties are in dispute as to whether they were in a de-facto relationship at the time of the insemination. The applicant asserted they were in a de facto relationship commencing 18 December 2017 to 10 October 2019. The respondent considered their relationship as “dating which included sexual activity,” “from around December 2017 until about May 2018. After that [their] relationship was friends only”.
The hearing proceeded on the basis of determining the preliminary issue of the existence of a de facto relationship, and if there was a de facto relationship, were they in it at the time of the insemination. If so found, the Applicant sought a declaration that she is a parent of X.
MATERIAL RELIED ON
The applicant relied on:
(a)Her Amended Initiating Application filed 26 July 2021;
(b)Her affidavit filed 7 January 2022;
(c)The affidavits of:
(i)Mr B filed 5 July 2021; and
(ii)Ms C filed by leave on 31 January 2022;
(d)Her case outline filed 24 January 2021; and
(e)Her submissions filed 7 February 2022.
The respondent relied on:
(f)Her Response filed 19 October 2020;
(g)Her affidavit filed 15 December 2021;
(h)The affidavits of:
(i)Ms D filed 5 July 2021;
(ii)Ms E filed 21 December 2021; and
(iii)Mr F filed 19 October 2020;
(i)Her case outline filed 24 January 2021; and
(j)Her submissions filed 3 February 2022.
In their consolidated affidavits each party referred to an earlier affidavit filed by the other. The applicant referred to the respondent’s affidavit dated and filed 2 August 2021 and I have had regard to only the specific paragraphs and annexures referred to. The respondent referred to the applicant’s affidavit dated 29 June 2021, filed 5 July 2021 and was tendered by the applicant.
The respondent was afforded the opportunity to file a response to the applicant’s written submissions but she elected not to and advised Chambers of this by email on 9 February 2022.
A number of documents were tendered into evidence[1].
[1] Exhibit A1 Donor Message Log
In determining this matter, I have had regard to the written evidence referred to above along with the oral evidence given. Throughout these reasons I will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the court is required to assess the evidence on the balance of probabilities.[2]
[2] Section 140 Evidence Act 1995 (Cth)
Throughout these reasons I will refer to Ms Gaze as the applicant and Ms Maltby as the respondent and the child X as the child. I mean no disrespect in doing so.
CREDIBILITY
Both parties together with Mr B, Ms D, Ms E and Mr F were cross examined. The applicant impressed as an honest witness although I am satisfied that she minimised the difficulties in her relationship with the respondent. The respondent’s evidence however was less impressive, in that I found her to be at pains to ensure her evidence was designed to minimise her relationship with the applicant. Although she did make some appropriate concessions, overall I was not persuaded that she was accurately recalling the facts. Her witnesses, Ms D, Ms E and Mr F were all motivated by the same desire to see that that applicant not be found to be a parent of the child. Accordingly their evidence lacked objectivity. Mr B presented as an honest witness giving direct and forthright answers to questions. I had no hesitation in accepting his evidence.
Subject to any specific findings below, I am satisfied that where the evidence differed the evidence of the applicant is to be preferred that of the respondent and her witnesses.
BACKGROUND
The 38 year old applicant, Ms Gaze, is of Aboriginal descent being of the G people of Region H and is employed in law enforcement. The 37 year old respondent, Ms Maltby, is a home maker. The parties met in August 2017 whilst undertaking training for the Employer J on the Region K.
The parties commenced a relationship on 18 December 2017 and began living together two months later on 18 February 2018. Later that year they holidayed together, including an overseas cruise, and together attended an Event L convention.
In 2019 the parties met Mr F, a sperm donor of Aboriginal decent, and on approximately four or five times that month and in March the applicant inseminated the respondent with Mr F’s semen using a syringe and a few months later, the parties found out the respondent was pregnant. That same month the parties attended two weddings of friends of the respondent and they holidayed together on Region H in 2019.
During the pregnancy the parties attended doctor and ultrasound sound appointments together. On 10 October 2019 following an argument where the applicant punched the wall next to where the respondent was standing, the applicant moved out and the applicant alleged it was at that time they separated. Notwithstanding the end of their relationship (on the applicant’s case) they attended together three further midwife appointments and a few months later held a baby shower at the applicant’s sister’s house where family members of both parties attended.
In late 2019 (on the applicant’s case) or early 2020 (on respondent’s case) the parties again attended upon Mr F and the respondent inseminated the applicant with Mr F’s semen via a syringe, however this insemination was unsuccessful.
In 2019 the applicant drove the respondent to the hospital and the child X was born. The applicant cut the umbilical cord.
In 2019 the respondent announced on Facebook the birth of the child and tagged the applicant in that post. The applicant took the respondent to a midwife appointment a few weeks later and the applicant looked after the child at the respondent’s home on Christmas night. The applicant alleged that in early 2020 the respondent told her that the respondent didn’t know if she wanted the applicant to be on the child’s birth certificate and the following month the respondent restricted the applicant’s time with the child to four hours a week but they holidayed together with the child in Melbourne. It is during this trip that the applicant last saw the child.
In May 2020 a s60I certificate issued and on 31 August 2020 the applicant commenced these proceedings. The respondent filed her response documents and at the first court date the matter was adjourned for the allocation of a date for a preliminary hearing, which was later set down for 6 August 2021 however that date had to be vacated due to a Covid-19 lockdown. The hearing date was re-allocated and the preliminary hearing was conducted on 31 January 2022.
THE LAW
Section 65C sets out who may apply for a parenting order:
A parenting order in relation to a child may be applied for by:
(a) either or both of the child’s parents; or
(b) the child; or
(ba) a grandparent of the child; or
(c)any other person concerned with the care, welfare or development of the child.
For the purposes of these proceedings it will be necessary for the applicant to establish that she is a parent of the child if she is to have standing to bring the application. Section 69VA provides:
As well as deciding, after receiving evidence, the issue of the parentage of a child for the purposes of proceedings, the court may also issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.
Determining parentage when a child is born as a result of artificial conception procedures is to be considered having regard to s60H which provides:
(1) If:
(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent); and
(b) either:
(i) the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or
(ii) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;
then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act:
(c) the child is the child of the woman and of the other intended parent; and
(d) if a person other than the woman and the other intended parent provided genetic material—the child is not the child of that person.
…
(5) For the purposes of subsection (1), a person is to be presumed to have consented to an artificial conception procedure being carried out unless it is proved, on the balance of probabilities, that the person did not consent.
[emphasis added]
It is for the applicant to prove, on the balance of probabilities, that she and the respondent were in a de facto relationship at the time of the procedure that led to the conception of the child. The test to be applied in determining the existence of a de facto relationship in parenting cases is the same as that employed in property cases[3] and is to be assessed having regard to the definition set out in s4AA which reads:
[3] Clarence & Crisp [2016] FamCAFC 157, (2016) FLC 93-728, (2016) 55 Fam LR 292
Meaning of de facto relationship
(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).
Working out if persons have a relationship as a couple
(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 interdependence, 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.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(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.
(5) For the purposes of this Act:
(a)a de facto relationship can exist between 2 persons of different sexes and between 2 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 Jonah & White[4], the Full Court approved the approach taken by the trial judge, where he described the key to the definition of de facto relationship as:
… the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, 'living together' as a couple on a genuine domestic basis”. It is the manifestation of ‘coupledom’, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.
[4] [2012] FamCAFC 200 at para [21]
I propose to address each of the s4AA(2) elements separately.
The duration of the relationship
The applicant asserted she and the respondent were in a de facto relationship for almost 22 months from 18 December 2017 to 10 October 2019.
A screenshot of the respondent’s Facebook profile showed that on 18 December 2017 her status read, “In a Relationship with Ms Gaze”. The respondent however did not consider she and the applicant were in a de facto relationship but rather that they were “dating which included sexual activity” “from around December 2017 until about May 2018. After that [their] relationship was friends only”. I accept the submission that a Facebook status of being in a relationship is not evidence in and of itself that the relationship was a de facto one. It is however, one factor to be considered along with all other factors.
The respondent’s evidence was not always clear. On the one hand she said that the romantic relationship ended at around the same time the applicant moved into her home which was in February 2018 but she also gave evidence of forming the view that she did not want to continue dating the applicant from around May 2018 at the latest. There was no corroborative evidence of her having told the applicant of her desires in that regard. There was however evidence that they continued to go out together to dinner, coffee, movies, and concerts. The respondent asserted this was as friends only. I found the respondent to be minimising their relationship and do not accept her evidence in that regard.
It was agreed that following a disagreement on 10 October 2019, the applicant left the house and the respondent sent a text telling the applicant that they could no longer live together and in the days thereafter the respondent arranged to collect her belongings.
The nature and extent of their common residence
The parties differ as to the extent of time they spent together prior to cohabiting. The applicant said they “were together all the time” staying at each other’s house. The respondent however said that prior to the applicant moving in they “spent time with each other several times a week … in conjunction to working together at the Employer J” and estimated that “outside of work, [they] probably spent about 50% of time being together (at most).” Notwithstanding my finding that I preferred the evidence of the applicant over that of the respondent, on this aspect I was persuaded that the respondent’s recollection was more accurate.
There was no dispute that in February 2018 the applicant needed to move out of her accommodation and the respondent, with the consent of her mother, invited the applicant to live with her at her parents’ place. The respondent and her mother asserted this living arrangement was to be temporary whilst the applicant found alternate accommodation. I do not accept that evidence given the length of time the applicant actually lived in this home. There was no evidence of her looking for alternate accommodation during this 20 month period.
I accept the applicant’s evidence that from the time she moved in with the respondent on 18 February 2018 the parties shared a bedroom until she moved out on 10 October 2019. I also accept that there were times when the respondent slept on a couch, especially when she was pregnant. The parties worked shift work which at times meant they did not sleep at the same time. The applicant tendered a series of text messages for the month of March 2019 which showed the parties going to sleep at different times with both texting the other about going to sleep and wishing the other “good night”, “Night my love” or “Night baby xx”.
The applicant alleged that they spoke of moving out of the respondent’s parents’ place to a bigger home and annexed a text message the respondent sent the applicant on 25 September 2019:
Stuff is in mums (sic) room cos (sic) we have no room. Baby will be in our room for 6 months. Then will prob (sic) have a bigger place. We have to work with what we got.
I find that this message could be consistent with the parties being in a relationship as at 25 September 2019. I caution to add that the message on its own would be insufficient to make such a finding but it must be considered along with the other indicia.
Whether a sexual relationship existed
The applicant alleged that they would kiss each other hello and goodbye and regularly had sex however the sex became less often, to about once a week upon learning that the respondent was pregnant in 2019.
It was not disputed that the applicant inseminated the respondent with the donor’s sperm using syringes, however the applicant claimed they also had sex during the process which was denied by the respondent. Whilst the insemination took place at Mr F’s house, he was unable to attest to how the parties conducted the process as it occurred in a bedroom with the door closed. I preferred the evidence of the applicant.
Whilst working together at the Employer J, Mr B observed the parties spending their time together when on breaks, regularly kissing and cuddling in the back of the work car.
As noted above, the respondent was of a view that they were dating which included sex and alleged that in May 2018 upon no longer wanting to pursue the applicant they no longer had sex and “were (only) friends” and annexed a text message sent by the applicant to the respondent on 20 May 2018:
Baby you used to fuk (sic) me all the time, now I have to beg for days before you will even to...
The rest of the message and her response was not provided. I do not consider the message to be evidence of a sexual relationship having ended. Whilst it is apparent the applicant was disappointed in the waning of the amount of sexual activity it is not evidence of there being none.
The respondent maintained they were no longer in an intimate relationship, notwithstanding they had the following text exchange on 31 July 2018:
[applicant] Can’t wait till you get home.
[respondent] Same same
[applicant] Your (sic) MINE tonight [winking face emoji]
[respondent] I’m yours every night
The respondent’s mother’s evidence was that the parties were in a relationship but did not have a sexual relationship and she never saw them hug or kiss or refer to one another affectionately as “babe” or “baby”. The respondent’s own evidence however was that she did not keep from her mother the fact that she was in a romantic relationship with the applicant. I was not impressed with Ms D’s evidence. She was clearly determined to support her daughter and downplay the role of the applicant in her daughter’s life.
The presence or absence of an active sex life is not in and of itself evidence of the existence or otherwise of a de facto relationship but is a relevant consideration. After considering the evidence of the parties I preferred the evidence of the applicant and find that they had a sexual relationship throughout their time together albeit the frequency of sexual activity waned over time much to the disappointment of the applicant.
The degree of financial dependence or interdependence, and any arrangements for financial support, between them
It was undisputed that both parties worked as law enforcement officers and whilst residing together the applicant worked approximately 50 hours per week and the respondent worked approximately two days per week until her pregnancy.
The parties did not mingle their finances through a joint bank account and each maintained their own accounts.
The applicant claimed she would pay rent and outgoings in cash given to the respondent to give to the respondent’s mother. The respondent asserted that from May 2018 the applicant did not consistently pay rent or contribute to outgoings, having only paid $200 in rent the entire period of living at the respondent’s parent’s place and only contributed towards two electricity bills.
The applicant claimed they would both pay for the groceries and she (the applicant) would also pick up food or groceries on her way home. The respondent asserted that her mother paid for the groceries and she would occasionally contribute towards the purchase of meat, but conceded that on occasion the applicant would pick up food after work.
The applicant alleged they would often go on dates for dinner or coffee, see movies in Gold Class, attend concerts and a video game arcade. She said she would generally pay for these activities and had calculated that she had paid for about 30 dates or holidays during the relationship. The respondent disputed this claiming that she (the respondent) usually paid her own share and noted that after May 2018 they “only went on a few coffee and other outings as friends” and that “occasionally [the applicant] may of (sic) paid for a movie, [a small toy figurine] and coffee”.
The respondent’s mother claimed that the applicant did not share her money with the respondent, that the respondent paid her bills with her own money and the applicant only paid rent for about 2 months and each party would pay for themselves when they went out.
The bank statements for one of the applicant’s bank accounts was tendered by the respondent and showed regular cash withdrawals ranging from $100 to $500 however there was no evidence as to how these cash funds were utilised. The applicant’s descriptions on some of transitions did however show that:
(a)on 24 May 2018 the applicant transferred $200 for “Food from Coles”;
(b)on 25 July 2018 the applicant paid 6 months car registration ($293.55) for the respondent;
(c)on 21 February 2019 the applicant transferred $300 for “My love”;
(d)on 15 March 2019 the applicant transferred $200 for “Ya wife”;
(e)on 28 March 2019 the applicant transferred $200 for “Food”;
(f)on 28 March 2019 the applicant transferred $300 for “My love”;
(g)on 23 April 2019 the applicant transferred $150 for “My love”
(h)on 7 May 2019 the applicant transferred $70 for “Food”;
(i)on 7 June 2019 the applicant transferred $300 for “Food”;
Under cross examination the applicant clarified “My love” and “Ya wife” were references to the respondent.
In relation to the costs associated with the pregnancy, the parties agree that the applicant purchased ovulation tests ($38.90), a home insemination kit ($65) and paid $219.50 for the respondent’s first ultrasound in 2019. The applicant also alleged that she paid for the respondent’s doctor’s appointments but the respondent denied this noting she did not have any doctor’s appointments on those days but did on one occasion. The respondent was silent on who paid for the appointment.
In 2019 the applicant attended with the respondent the 12 week ultrasound and alleged that she paid for those scans together with the 4D ultrasound pictures, however the respondent claimed she paid for the 4D scan with her mother paying the appointment fee. Neither party provided any evidence of having made this payment.
The parties agreed that the applicant purchased a cot, crib and change table, however the respondent claimed she later returned those items. They are in dispute as to who purchased the pram, car seat, seat installation and clothes for the child.
I note that the payments/purchases made in relation to the pregnancy and the child occurred after the timeframe in consideration and therefore do not hold significant weight, but are indicative of the nature of the parties’ relationship that continued beyond the date of insemination.
The respondent attested that she had not named the applicant as her partner or de-facto partner for social security, as a beneficiary in her will, life insurance or superannuation. There was no evidence that the applicant had listed the respondent in her will, life insurance or superannuation.
I am satisfied that although the parties kept their finances separate they each made financial contributions to the common relationship. I reject the respondent’s evidence that the applicant did not contribute much and find that she was attempting to minimise the applicant’s contributions.
The ownership, use and acquisition of their property
Save for some whitegoods, being a freezer and an air-conditioner and items for the baby, no substantial property was acquired during their time together. This is not surprising given the relationship only lasted about 20 months and they took advantage of the respondent’s mother’s generosity in housing them both during that time.
The parties disagree about the purchase of an air-conditioner and a freezer. The applicant claimed they purchased an air-conditioner a few months prior to the child’s birth and the cost was split, whereas the respondent provided a receipt for an air conditioner purchased a few months prior to the child’s conception and claimed she paid for it from her savings. Similarly, the freezer was said by the applicant to have been purchased by both parties and the respondent claimed she solely paid for it from her savings. Neither provided any evidence that their funds were used for these items.
It was agreed that when travelling, the parties would predominantly use the applicant’s car. The applicant claimed it was because her car was newer whereas the respondent said it was because the applicant wanted to be the driver.
The degree of mutual commitment to a shared life
The parties had contradicting views of the level of involvement made to household tasks.
The applicant alleged that whilst living together they would undertake household tasks together such as cooking, cleaning and grocery shopping and in support annexed a number of text messages sent by the respondent from June to September 2019 providing the applicant with a list of grocery items to be purchased.
The respondent conceded that on occasion the applicant would pick up food after work but overall asserted the applicant failed to contribute to household chores and did not clean or maintain the cleanliness of the house. The respondent attested in her affidavit that the applicant cooked “2-5 times in the whole time” they lived together and when the applicant became a vegetarian/vegan she thereafter would only cook her own meals and clean her own dishes. However, under cross examination the respondent’s evidence was that they shared the cooking and would regularly cook meals for each other and at times for her parents.
You shared the cooking? Yes.
And you both did a bit of cooking for each other? And family. Yes.
Yes. And your mum, who was there, too? Occasionally. Yes.
Yes? Yes.
Okay. Occasionally. So let me just clear that up. Is it the case that you and [Ms Gaze] would cook meals for each other fairly regularly when you were living together? Yes, because mum would normally cook for my father.
Right. Okay. But you wouldn’t cook for your mum and dad. You would just cook for the two of – the two of you would cook for the two of you? Sometimes.
Yes? Yes.
And your mum and dad would cook for themselves normally? Yes.
Okay? Well, my mum would.
Occasionally? My dad burns stuff.
Yes. Okay. So occasionally. Occasionally your mum would cook enough for all of you, including you and [Ms Gaze]? Yes.
And occasionally you guys would do the same? Yes.
But most of the time, you and [Ms Gaze] did your own cooking, and your mum and dad – or your mum did your cooking for your mum and dad? Yes.
The respondent also asserted the applicant would include her washing in with the respondent’s, but contrary to this the respondent texted the applicant on 21 March 2019:
[applicant] Do u (sic) want your pants put in the wash
[respondent] If you want babe
The parties also dispute the extent of the applicant’s involvement in the maintenance of the yard. The applicant claimed she assisted and would borrow her mother’s ute to take items to the tip whereas the respondent claimed the applicant did not assist and gave an example of the applicant not assisting the respondent’s mother removing leaves that had been cleared from the gutters by the applicant’s nephews.
The parties agreed that at the respondent’s request, the applicant assisted the respondent in her studies for a certificate.
The parties travelled together to Melbourne in 2020. Again, whilst this occurred about a year after the date of the insemination, it is indicative of the nature of the parties’ relationship that continued beyond that date and their views of their relationship.
On 12 October 2019, two days after the applicant had moved out (and separated on the applicant’s case), the respondent informed the applicant “And yes I still want Melb, (sic) it’s out (sic) first family trip.” However, their relationship deteriorated after that because later, on a date not specified, the respondent did not want to travel with the applicant and sought to travel alone or with someone else but the applicant refused to transfer the bookings. The respondent annexed their text exchange on this issue where the applicant also referred to the trip as “a family holiday we booked before we broke up”. The texts provided by the respondent do not include the respondent’s response to the applicant’s statements of them being a family, the child being her family and their son.
Perhaps the most telling example of a commitment to a shared life was the agreement to have a child together. This was not only evidenced by their mutual text exchanges in relation to finding a sperm donor but by Mr F’s message to them congratulating them on ‘making a family’. Whilst I accept that two persons could support one of them becoming a parent the level of intimacy in their messages at the time of conception and their mutual involvement thereafter in attending to the needs of the unborn child go beyond that of two friends.
Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship
The relationship of the parties was not registered.
The care and support of children
Decision to have a baby
It was not contested that it was in around 2007 the respondent made the decision to have a child and in 2015 joined a sperm donation Facebook group. Prior to her meeting the applicant she had tried about 15 to 20 times to conceive a child via both IVF and natural conception but all these attempts failed.
The applicant asserted that she and the respondent had a number of conversations about them being parents together; for them to have two children, with the respondent to have the first child and the applicant to have the second child a year later; for the children to be of Aboriginal heritage and for them to use the same sperm donor for both children. The respondent disputed such conversations occurred. I preferred the evidence of the applicant.
The respondent did however say that during a four hour telephone conversation on 14 December 2017, the applicant told the respondent that she (the applicant) was not ready for children and a family but would support the respondent as the respondent wanted to try to have a child after Event J and that the applicant had indicated a future interest in having a child and that “[the applicant] was more than welcome to use the same donor, as suitable donors are sometimes hard to find.”
The applicant rejected the respondent’s version but did agree that the respondent had informed her that she (the respondent) would not put on hold having a baby although she did agree to wait a year before she would try for a baby. This period was to ensure their relationship was established. I have no hesitation in finding that the respondent had been wanting a child for a very long time but I was persuaded to accept the applicant’s evidence that they had reached an agreement to wait a year to test their relationship.
Notwithstanding this decision to wait a year, whilst at dinner with Mr B in July 2018 the applicant informed him that she and the respondent, who was present, had decided to have a baby together. The respondent did not contradict the applicant. Whilst the respondent maintained that the applicant could be domineering, I did not find the respondent to be in any way submissive. I find that she did not dispute what the applicant said because it was the truth.
Although Mr F tried to down play the presentation of the parties as a couple I am satisfied that he saw them as a couple at the time of the insemination procedure and later referred to them making a family with the pregnancy.
Sperm donor & insemination
The applicant is a G woman. She asserted the parties wanted the child to be brought up in her culture which was the reason they looked for an Aboriginal donor. Whilst I accept the respondent’s evidence that she was not particularly concerned with the heritage of the donor I am satisfied that she was happy to search for an Aboriginal donor given she was in a relationship with the applicant and she knew how important that issue was for her.
In April 2018, upon finding Mr F, the following text exchange took place between the parties:
[respondent] So baby I was talking to a protential (sic) donor before, liked his stat (sic) and he msged (sic) me. That cool?
[applicant]Yes babe
[respondent] Guess what baby
[applicant]What baby?
[respondent] He’s got blue eyes and brown hair too and he (sic) aboriginal too, so he’s kinda (sic) you but a guy lol
[applicant]Wow babe
The applicant recalled their arrangement with Mr F was that he would provide his sperm, he would not visit the child nor contribute financially for the child and if the child wanted to know him upon attaining the age of 18, the applicant and respondent would let the child know who the donor was. The respondent denied this being the arrangement but offered no details of what was discussed and/or agreed to. Similarly, Mr F was vague and unable to inform the court of any agreement of the post birth arrangements. It is clear from the donor message log however that he was kept informed of scans and the birth etc.
The parties first met Mr F in 2019 and thereafter on about four or five occasions that month the applicant inseminated the respondent with Mr F’s semen using a syringe but those attempts failed. In 2019 the respondent added the applicant to the Facebook group the respondent had established to communicate with Mr F and they again attended upon Mr F on about four occasions and at some point in 2019 the parties found out together that the respondent was pregnant.
The respondent attested in her affidavit that “the child was conceived through invitro-fertilisation (“IVF”) in 2019” however her evidence does not contest the fact that the applicant inseminated her with Mr F’s semen via syringe and under cross examination it was clarified that she viewed IVF and artificial insemination as “the same sort of concept”.
On 11 April the parties argued and the respondent texted the applicant:
… Your (sic) 35 talk to em (sic) like a (sic) adult instead of shutting me out. We are having a fucking kid together. [emphasis added]
Pre-birth and the birth
Again, the parties’ actions and interactions after the date of insemination, give an insight into the parties’ relationship prior, and their views of same.
It is not disputed that the applicant attended with the respondent for antenatal check-ups; ultrasounds; a “Precious previews 4D scan”, and the child’s check-ups and vaccinations.
The applicant alleged that they would liaise with each other about appointments, with the respondent reminding her of upcoming appointments and ascertaining the applicant’s availability for others. Notwithstanding that on the applicant’s case the parties had separated, the applicant continued to attend midwife appointments with the respondent and drove her to the hospital for the birth, where the applicant cut the umbilical cord.
The respondent asserted that the applicant imposed her attendance at these appointments, by volunteering to book the appointments thus securing the applicant’s attendance. The respondent claimed that any dispute, disagreement or objection had to the applicant attending the appointments led to “frustration, irritation and argument”.
The respondent also alleged that the applicant’s involvement “was in the form of a friend who was also living in the same house.” The respondent claimed that “[she] was unable due to [her] shyness and dislike of confrontation to ask [the applicant] to leave [her] life. [She] did not want to evict [the applicant] from the house for the sake of avoiding upsetting her and to avoid any turbulence it would cause between [them].” The respondent submitted that the applicant’s involvement in her life was due to the “insistence, persistence, controlling and dominating pre-disposition of the applicant … combined with [the applicant’s] submissive, timid, and shy nature”. I do not accept her evidence.
After birth
The parties disagree as to the amount of time the applicant spent with the child. The applicant asserted that in the first six weeks she spent at least a few hours nearly every day with the child and thereafter two to three hours with the child when the respondent and her mother went out. The respondent claimed that the applicant would only see the child for two to three hours “twice a week or so” after the first week.
In a text exchange between the parties on 10 December 2019, the respondent said:
No I don’t act like your not the other parent, but your not the only parent …
The respondent asserted that her “plan” was to not have the applicant on the child’s birth certificate and in a text message with a friend on 4 January 2020 the respondent said:
… Just makes me think that when I use (sic) to “hurt” her she would msg (sic) me but I told her I don’t want her on cert (sic) and nothing.
Like wouldn’t she fight for that like she did for me.
I find that this message is consistent with an expectation that the parties were having a child together even if subsequently the respondent wanted to distance the applicant from the child’s life.
The respondent asserted the applicant’s reasoning was because the respondent had told her that she (the respondent) “wanted to rip off Centrelink with single pay”. I make no finding in this regard.
After a holiday together in Melbourne towards the end of February 2020 the respondent refused to let the applicant see the child and on 10 March 2020, in an effort to completely break ties with the applicant, the respondent texted her:
Look I am not arguing with you about this anymore. I know the truth, so does mum and [Ms E]. He is my child and that is what is biological. You were kicked out because of your controlling and narssicitic (sic) behaviour and let’s not forget how you were going to physically assault me. You went behind my back and caused this extra stress in already a stressful situation, I am no longer going to interact with you because all you do is bait me into a fight to make me look bad when we all know the real truth. You are not welcome at my house and are not welcome to harass me on a daily basis and if you show up at my house or continue to harass me I will take this further. I will also bring this up in my next meeting with [M Counsellors]. Good night [Ms Gaze]. [Emphasis added]
A second child
The applicant asserted that it was their intention to have two children, the respondent having the first child and the applicant having their second child a year later. This was denied by the respondent, however in 2019 (on the applicant’s case) or 2020 (on the respondent’s case) the respondent inseminated the applicant with Mr F’s semen using a syringe but the insemination was unsuccessful.
The respondent’s mother asserted that neither party ever discussed with her the applicant being a parent to the child or being involved in any parenting role and that she knew her daughter had been trying for a child since 2007 and claimed the respondent “wanted to be a single mother”.
Six days after the applicant moved out, the parties have the following text exchange.
[respondent] So what’s gonna (sic) happen when u (sic) get pregnant? Will I be involved or what?
[applicant]Yes why wouldn’t you?
[respondent] She (sic) checking. Wasn’t sure
[applicant]I don’t want to be a single parent raising a kid by my self (sic)
[respondent] Ok :)
The reputation and public aspects of the relationship
The applicant claimed that she introduced the respondent as her girlfriend to her family. The respondent asserted that the applicant would initially introduce her to her family as a friend because the applicant had not yet told her family she was a lesbian, and at Christmas in 2017 the applicant told her family that she was seeing another woman. The respondent could not recall the applicant calling her “girlfriend”, and only calling her “Ms Maltby” or “Ms Maltby”.
The applicant claimed to have attended Christmas lunch with the respondent and her family in 2017 and 2018. The respondent said the applicant only ever attended in 2018.
On 18 December 2018 the respondent posted on Facebook that she and the applicant went to the cinemas to watch a movie and added to that post “Dinner and movie, 1 year anniversary date with my love”. Under cross examination the respondent conceded that the anniversary was not of her and the applicant being mates.
During their relationship the parties attended together holidays, sometimes with their families; an overseas cruise; concerts; an Event L convention; and weddings of the respondent’s friends.
The applicant listed the respondent as her next of kin at her doctors and the applicant was listed as the other parent for the child however the respondent asserted that it was the applicant who named herself as the next of kin and it was not a joint decision.
Notwithstanding that the parties were living in the respondent’s mother’s house, the respondent’s mother did not find out that her daughter was pregnant until three months later in 2019.
In 2019 the applicant made the following Facebook post which she tagged the respondent:
So we’ve been keeping a secret [emoji]
#parentstobe #cantwait
[a picture of a chalkboard saying:]
CUTENESS IN PROGRESS
[a picture of a baby in the womb]
BABY MALTY DUE 2018 [heart shape]
That same day the respondent’s sister-in-law made a post on Facebook saying “… I’m gonna (sic) be an AUNTY. … my sis (sic) is having a baby with her love [Ms Gaze].” The post included a photo of the card sent by the respondent which included:
Hi Aunty, My mummies say it’s your birthday. So HAPPY BIRTHDAY. You don’t know me yet but if things go to plan you will meet me [soon], we will share a date. I’m 24 weeks tomorrow (FRIDAY). I got my mummies to add a photo of me, I think I’m pretty cute. …
The respondent claimed that the card was written with the applicant standing over her and she “felt required (despite the fact I did not want to) include [the applicant] in … announcing my pregnancy. I did not want to upset [the applicant] or create a situation of conflict or argument.”
The respondent asserted that she did not want to argue or have any disagreements during the pregnancy. She also claimed that due the applicant’s behaviour it was hard for her to say no to the applicant and that arguments made the respondent feel bad and she did not want to further upset the applicant.
The respondent claimed that when she used the words “I love you” to the applicant it was never said “in any more than a friendly way. I say “I love you” to majority of my friends in text messages as a way of ending and signing off my text messages. For me this does not carry any significance.” The respondent annexed ‘various text messages between [her] and [her] friends, demonstrating [her] saying I love you” however the texts annexed were only with one person, Ms N, and interestingly these texts provided were in October 2017, prior to parties meeting and in August, September and October 2020, after the parties had separated.
The respondent’s Facebook post in 2019 announcing the child’s arrival, showed that her profile as “Ms Maltby is with Ms Gaze”
In a text chat (-09) on 17 November 2019 between the respondent and a friend, the friend wrote:
Then dont (sic) do it your (sic) not her gf [girlfriend] no more
Each party alleged that the other took issue with them spending time with their friends and family. The applicant claimed that she “ended up cutting ties with friends because of the questioning from [the respondent]”. The respondent claimed the applicant “would not allow [the respondent] to attend any social events with friends or family without her”.
The respondent’s mother claimed that the parties “never presented in public as [a] couple, … never heard them refer to each other as a couple, … never showed affection in public or any signs of intimacy when presenting to the outer world”. She was silent on the parties’ interactions in the house.
Ms E, a long-time friend of the respondent claimed that following her conversations with the respondent she was of the view that the parties’ relationship was of a casual nature and soon after the applicant moved in with the respondent and her mother, the respondent’s feelings towards the applicant diminished and that the respondent was unable to end the relationship because the applicant “would not allow that to happen or acknowledge [the respondent’s] feelings”. The applicant rejected the assertion that the respondent attempted to end their relationship asserting that “at no point before separation [October 2019 on the applicant’s case] did [the respondent] ever ask [the applicant] to leave or say she wanted to break up or be only friends”.
Ms E attested in her affidavit that from her observations of when the parties were living together, she “never saw any body language or actions that would represent that they were a couple in any way” and that when attending her wedding in 2019 the parties attended together but “they certainly did not represent as a couple or did not introduce themselves as a couple to [her] friends or family”. Yet under cross examination Ms E contradicted herself when she confirmed that the reason she had invited both parties on the same invite was because the parties were a couple.
The applicant had only met Ms E twice, once being at Ms E’s wedding where the applicant asserted that she and the respondent “were holding hands and kissed a few times there” and rejected Ms E’s claim that they did not represent as a couple given Ms E was not with them for most of the night.
Mr B, a long-term friend of the applicant, also attended the same law enforcement officer training as the parties. Mr B and the respondent were partnered together during the Event J and would have dinner or coffee with the parties. During breaks or at the end of shift Mr B would drop the respondent off to the applicant or he would pick the applicant up in the patrol car and he observed the parties sitting in the back kissing and cuddling. Mr B was not challenged on this.
The numerous text messages exchanged between the parties in March 2019 was tendered and both parties call the other “babe” or “baby”. Yet notwithstanding this type of communication the respondent’s mother claimed that she never heard either party saying those words when residing at her house.
I find that the parties held themselves out as a couple and the respondent’s suggestion that they were together as friends is a later re-writing of the truth in order to deny the applicant’s role in the child’s life.
CONCLUSION
When I take into account all of the above considerations I find that the parties were in a de facto relationship from around February 2018 until October 2019 or possibly until early 2020. Relevantly for the purposes of this hearing however they were in a de facto relationship at the time of conception.
The parties lived together in the same household, sharing for the most part, the same bed. They engaged in a sexual relationship and although they did not mingle their finances they both contributed financially to day to day costs and in preparation for the birth of the child. They held themselves out as a couple and exchanged communications as a couple. They planned together to have not only the child the subject of these proceedings but another child that did not eventuate. I accept that the respondent was not always happy in the relationship but the test is not whether the parties had a happy and loving relationship but rather whether they had so merged their lives that they were for all practical purposes, living together as a couple on a genuine domestic basis. I am satisfied they did.
It follows therefore, that pursuant to section 60H, the applicant is a parent of X. I will make the declaration sought by the applicant, pursuant to section 69VA, to reflect that finding and dismiss the respondent’s application to dismiss the Initiating Application filed 31 August 2020 and the Amended Initiating Application filed 26 July 2021.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lapthorn. Associate:
Dated: 4 August 2022
Exhibit A2 Text messages page 2751 to 2865
Exhibit R1 Account ending 739 statements 110 – 116
Exhibit A3 Affidavit of Applicant filed 5 July 2021
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