H and J and Anor - [2006] FMCAfam 514

FEDERAL MAGISTRATES COURT OF AUSTRALIA

H & J & ANOR

[2006] FMCA fam 514

FAMILY LAW – Child aged 20 months – applicant not a biological parent of the child – child conceived through assisted conception – applicant and mother engaged in same sex relationship at time of conception – applicant seeks to spend significant periods of time with the child – applicant and mother separated when child aged approximately 12 months – no interaction between child and applicant for approximately 5 months – whether applicant a parent to the child or person significant to her care, welfare and development – threshold test.

Family Law Act 1975 – ss.60B, 60CA, 60H, 62G, 64B, 65C
Status of Children Act (Northern Territory) 1978 – s.5DA

Re: Mark (2003) FLC 93-173
KAM v MJR (1998) 24 Fam LR 656
B v J (1996) FLC 92-716
C & D (1998) 23 Fam LR 375
Stevens v Lee (1990) 102 FLR 108
Re: Patrick (2002) 28 Fam LR 579

Applicant:

W G H

First Respondent:

K J

Second Respondent:

E B

File No:

DNM201 of 2006

Delivered on:

9 October 2006

Delivered at:

Hearing date:

26 September 2006

Judgment of:

Brown FM

REPRESENTATION

Counsel for the Applicant:

Ms Lohmeyer

Solicitors for the Applicant:

Northern Territory Legal Aid Commission

Counsel for the First Respondent:

Mr Story

Solicitors for the First Respondent:

David C Story

Solicitors for the Second Respondent:

No appearance

ORDERS

The matter be fixed for final hearing for two days on 11 and 12 December, 2006.
That each party file and serve all affidavits of evidence on which they propose to rely at final hearing by 27 November, 2006.
That a family report be prepared pursuant to section 62G of the Family Law Act to examine the nature of the relationship between the child
P A born on 30 January 2005 and the applicant; the nature of the relationship between the said child and the mother and the consequences for that relationship, if the child spends time with the applicant in future; and any other matter the family report writer deems relevant.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
D

DNM201 of 2006

W G H

Applicant

And

K J

First Respondent

E B

Second Respondent

REASONS FOR JUDGMENT

Introduction

This case is about P A H, also known as P A J, who was born on

30 January 2005. P’s biological mother is K J. P was conceived through a process of “assisted conception”. On a number of occasions, a man, E B provided his semen in a container to W G H who, using a syringe, inserted the semen into Ms J. One of these operations resulted in the conception of P.
These proceedings relate to whether Ms H is entitled to pursue an order in this court that P spend time with her in future pursuant to the provisions of the Family Law Act 1975 (Cth) (“the Act”). Essentially the issues for the court to determine in the case turn on the application of s.65C of the Act to its circumstances and, in particular, whether Ms H is to be regarded as either a parent to P or a person who is concerned with her care, welfare or development.
P was born at the R D H. Her birth was registered, pursuant to the provisions of the N T Births, Deaths and Marriages Registration Act, on 7 February 2005. On P’s birth certificate, her mother was recorded as K H[1], who is also the informant of the birth. No entry is recorded regarding the identity of P’s father.
[1] Ms J, apparently prior to P’s birth, changed her name by deed pole to K H. I have not been provided with a copy of the deed pole. She has since reverted to the name of “J” and I intend to refer to her as such in these reasons for judgment. In her documents Ms J has referred to P by the name of J. Ms H has referred to her by the name of “H”. In the circumstances of this case, the appropriate nomenclature for P is likely to be a matter of controversy. The child’s birth certificate, filed in these proceedings, gives as her surname the name “H”.
Mr B has been joined as a party to the proceedings and has been provided with copies of the relevant documents. He has chosen not to take part in the proceedings at this stage. It seems he does spend time with P, on occasions, but does not presently seek any orders to formalise this arrangement.
The other party to these proceedings is of course W G H. She is the applicant in these proceedings. It is agreed between all the parties involved in the case that Ms H provided no genetic material, personal to her, to assist in the conception of P. In her documents, she has referred to herself as P’s “non biological co-parent”. For the sake of both neutrality and ease of reference, I will refer to her as “the applicant” in these reasons for judgment.
The respondents to the proceedings are K J and E B. As there is no controversy regarding their biological connection with P, in the sense they provided spectively the ovum and sperm, which resulted in P’s conception, I will refer to Mr B as “the father” and to Ms J as “the mother” in these reasons for judgment.[2]
[2] See Re Mark (2003) FLC 93-173 at 78,770
It was determined that the issue of the applicant’s standing to pursue orders in respect of P should be determined as expeditiously as possible, as a preliminary issue.[3] Accordingly the evidence lead was limited to affidavit evidence only, which has not been tested through cross examination. Nonetheless, although there are significant areas of controversy between the various parties concerned, there is also some agreement regarding the salient chronological detail.
[3] This was the approach adopted by Burr J in KAM v MJR (1998) 24 Fam LR 656 at 667
For obvious reasons, the issues confronting the court in this case are complex ones, in emotional, moral and legal terms. The legislative framework, within which the court must determine the matter, was perhaps not drafted with the factual and relationship situation, which is currently before the court, in mind. As long ago as 1996, Fogarty J said as follows:
“It is a reality of life that children are born as a result of a variety of artificial conception procedures, out of non-traditional circumstances, and into non-traditional families. Legislation which deals with the personal and financial responsibility for such children should be clear and exhaustive and should recognise the reality of these situations.”[4]
[4] See B v J (1996) FLC 92-716 at 83,621
However, regardless of these complexities, it is clear that the proceedings are not concerned with the resolution of the predominance or otherwise of the parties various “rights” towards P. Rather, the focus of the proceedings is how P’s best interests may be served.[5] This is to be achieved by the court being mindful of the objects of Part VII of the Act, which is the part of the Act which deals with children, and the principles which underlie those objects. One of those principles is as follows:
“Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);”[6]
[5] See Family Law Act 1975 at section 60CA
[6] ibid at section 60B(2)(b)
It is the mother’s position that the only persons who can be regarded as P’s parents are she and Mr B. It is the applicant’s position that, as a result of the same sex relationship, which existed between her and the mother, from October of 2001 until January of 2006, she is to be regarded as either a parent for P or, failing that, a person of significance for P.
She contends she was instrumental in achieving P’s conception, although obviously she provided no genetic material in respect of it. Further, she contends she provided nurture and care for P, during the period of her relationship with the mother and afterwards.
It is the mother’s position that, from P’s perspective, given the absence of genetic connection and the now concluded relationship between her (Ms J) and Ms H, the applicant can not be regarded as being a person of significance to P, either now or particularly in the future. The mother contends that whatever significance lay in the relationship between P and the applicant (she asserts it was at best slight), now, given P’s age and level of intellectual and cognitive development, that relationship no longer exists and it is not likely to be in P’s best interests to re-establish it.

The applications

The applicant commenced these proceedings on 24 May 2006.

The mother was named as the sole respondent. In the normal course of events, the application was given a first return date of 4 July 2006.

By this date, the mother had not filed a response. On 4 July 2006, both the applicant and the mother appeared in court through their respective legal advisers. It was agreed between them that the application should be adjourned to 8 August 2006, to enable the parties to attend a Legal Aid conference, to discuss a possible resolution of the matter.
On 8 August 2006, it was clear that the parties themselves could not resolve the issues which had arisen between them. On this occasion, the matter was fixed for hearing on 26 September 2006, in respect of the issue of the court’s jurisdiction to make parenting orders in the applicant’s favour.
Ms H’s application predates the amendments to the Act occasioned by the Family Law Amendments (Shared Parental Responsibility) Act 2006. Accordingly, in her application, on both a final and an interim basis, she seeks “contact” with P for six hours on the Monday, Wednesday and Thursday of each week, as well as on special occasions, until P commences transition. Thereafter, the applicant seeks that P should live with her on alternate weekends and for half of each school holiday. It is her position that she and the mother should have responsibility for “making decisions for the long term care, welfare and development” of P. It is the clear import of Ms H’s application that she wishes to have a substantial degree of input into the future parenting of P.
Although ordered to file a response to the application, the mother has not done so. However, it is clearly her position that she seeks the dismissal of Ms H’s application and opposes any orders being made by this court in respect of the applicant having any type of interaction with P in future.
The applicant and the mother have each filed affidavit material in support of their respective positions. In the applicant’s case, she relies on the following material:
·An affidavit of herself filed on 24 May 2006;
·An affidavit of a psychologist, D T K filed on 26 September 2006.
In the mother’s case, she relies on the following documents:
·An affidavit of herself filed on 22 September 2006;
·A report of a psychiatrist, N McL filed on 26 September 2006.
The evidence of both Ms K and Dr McL was directed, in part, to the extent of the possible attachment between P and the applicant. As matters have unfolded, this is an issue of considerable controversy between the parties.
As has already been indicated, the father has elected not to take part in the proceedings. As a result, he has not filed any formal documents in the case. I did however direct that he be provided with copies of the relevant documents.

Background

For the purposes of these proceedings, I provide the following chronology and statement of facts. Unless otherwise stated, the facts are agreed between the parties and therefore constitute findings of fact.
The applicant was born on 28 October 1968. The mother was born on 18 May 1983. The applicant receives a disability pension. The mother has been a university student but is presently receiving a supporting parent benefit. The parties met in 2001 and commenced a long term sexual relationship in October of 2001. They began to live together, in the applicant’s home in D, in early 2002.
It was not and is presently not possible for the relationship, which existed between the parties, to be ratified by legal process. As is well known, this is a subject of some controversy in the Australian community. It is neither appropriate nor necessary for me to comment on this controversy, other than to record that, on 30 May 2002, the applicant and the mother went through what was described as a “Commitment Ceremony”. This ceremony occurred in the presence of a civil celebrant and the parties to it were provided with a “Certificate of Commitment”. The applicant describes the purpose of the ceremony as being to enable the parties to it to declare publicly their intention to be committed to one another on a long term basis.[7]
[7] See applicant’s affidavit of evidence at paragraph 7
In mid to late 2002, the applicant and the mother attempted to conceive a child through artificial insemination. It was agreed between them that the mother would provide the ovum and semen would be provided for this purpose by a male person known only as T.
This process was not overseen by any medical practitioner and was informal between the parties concerned, in the sense that no documents were drawn up and no particular consideration was given to the possible implications of the process. At any rate, the process was unsuccessful and T was ultimately dismissed from his role as a sperm donor, when it was discovered that he was an intravenous drug user.
In 2003, the mother introduced the applicant to Mr B, who was a friend of her’s. Mr B agreed to provide further semen to the applicant and the mother, with a view to impregnating the mother. It was agreed between the various parties concerned that

Mr B would have no legal status, so far as any possible child was concerned and his role was to be entirely restricted to the provision of containers of his semen.
On a number of occasions, throughout 2003, Mr B supplied containers of his semen to the applicant. The applicant used a syringe to inject the semen into the mother’s vagina. A child was ultimately conceived but the mother miscarried. The process was continued thereafter, solely using Mr B’s donated semen, until ultimately P was conceived.
Prior to P’s conception and afterwards, the applicant and the mother lived together in the same household. Their’s was a homosexual or same sex relationship. The applicant attended, with the mother, on the mother’s gynaecologist, during the mother’s pregnancy with P. The applicant bought a cot, baby clothes and toys in anticipation of P’s birth. Two months prior to P’s birth, the mother changed her surname by deed pole to “H”.
As has been previously indicated, P’s surname was indicated on her birth certificate as being “H”. The applicant is also noted, on P’s birth certificate, as being a witness to the birth. It is clear that the applicant and the mother jointly made a conscious decision that the father’s name not be included on P’s birth certificate. Although there is no direct evidence from the father, it seems clear that he did not object to this course. It is the applicant’s case that she was instrumental in choosing P’s given names. The mother does not specifically refute this assertion.
The most significant area of dispute between the mother and the applicant regards the degree of involvement of the applicant in providing care for P, in the period after her birth. The applicant concedes that she had a small degree of involvement in providing direct care for P, in the first few months of her life, although she provided other housekeeping duties. The father came to

Ms H’s and the mother’s home regularly and took video footage of P, which he and Ms H and Ms J would watch.
It is the applicant’s position that, when P was aged approximately 2 months old, she began to change P’s disposable nappies and feed P, when solid foods where introduced to her.

It is the applicant’s position that she was actively involved with parenting P from this stage onward.
When the applicant celebrated her birthday, in October of 2005, the mother presented her with a birthday card bearing a photograph of P on it. On this card, the mother had attached a “speech bubble” in which P is attributed as saying “Happy Birthday Mummy Number 2”. The applicant relies on this card as evidence of the familial relationship between her, the mother and P.
The mother has a diametrically opposed view of the nature of the relationship between P and the applicant. In her expression, the applicant “assisted minimally with P’s care.”[8] It is the mother’s position that she has been P’s major provider of care, since her birth. In addition, it is her case, supported by Dr McL, that she was the victim of an abusive relationship between her and the applicant.
[8] See mother’s affidavit at paragraph 5
In the context of these proceedings, it is not possible for me to resolve this very significant factual issue between the parties. Both the mother and the applicant have enlisted expert opinion to assist them to support their respective assertions regarding the degree of connection between P and each of them. Neither Ms K nor Dr McL has observed the applicant interacting with P. In reaching their individual conclusions, Dr McL has relied on the history supplied by the mother only and Ms K has relied on the exclusive history of the applicant. Accordingly, there are significant difficulties in the court dealing with the opinions of the respective experts, as it is not presently possible to ascertain the veracity of the factual basis on which each of these opinions is based.
It is common ground between the applicant and the mother that the relationship between them broke down irretrievably in mid January of 2006. Thereafter P continued to live predominantly with the mother, who returned to live with her mother, in the D area. The applicant visited P every few days and spent a number of hours with her. In early to mid March of 2006, the applicant and the mother engaged in a process of mediation, with a view to regularising the applicant’s future interaction with P.
The applicant has annexed to her affidavit, a purported agreement reached between her and the mother, through this mediation, regarding the time the former should spend with P. No objection has been taken to the admissibility of the agreement. Nor has there been any argument regarding its status, either before or after, the recent amendments to the Family Law Act 1975. In any event, it is common ground between the parties that, between January and April of 2006, the applicant had interaction with P for approximately 18 hours per week.
It is also common ground that in late April the mother’s solicitor wrote to the applicant and informed her that his client would no longer agree to P having contact with her. The applicant has not spent time with P since April of 2006.

Ms K’s evidence

Ms K is an experienced psychologist, who has extensive experience of assessing the nature of paediatric relationships. She provided evidence regarding “attachment theory”. She also interviewed the applicant but, as previously indicated, did not observe her interacting with P.
Attachment theory is a psychological theory based on the proposition that infants form ties with other individuals through a process of being proximate to them rather than as a result of being provided with nurture or love alone. The basis of the theory rests in evolution.

For protection, it is thought infants sought to be close to older individuals, in order to be protected from threatening stimuli.

To accord such protection, the individuals did not need to be biologically related to the infant concerned. Accordingly, it is thought that an infant may become attached to other individuals, who are not necessarily the infant’s parents and regardless of whether or not that individual has provided for the infant’s physiological needs or not.
The theory posits that children may develop different types of attachments to individuals based on their experiences and interaction with their care givers. Some of these attachments have variously been described as “secure”; “anxious or ambivalent”; and “avoidant”. It is further argued by proponents of the theory that the nature of an infant’s early attachments has great significance for that individual’s psychological development into maturity and the ability of that individual to form satisfactory adult relationships.

In her report, Ms K wrote as follows:
“Most infants are thought to form more than one attachment. Indeed empirical observations have revealed that the majority of children become attached to more than one familiar person during their first year. At around 6-8 months infants develop selective attachments to particular individuals to whom they will go to in preference to others. This selectivity is relatively persistent over time and is not dependent on the person’s response at that moment. In most cultures biological parents, older siblings, grandparents, aunts and uncles are most likely to serve as attachment figures. Fathers are particularly likely to become additional attachments figures and the strength of the bond is often disproportionate to the frequency of the interaction with the baby. Infants are more likely to securely attach to fathers who have been sensitively responsive to them.
Infants have a small hierarchy of major care givers and not all attachment figures are equivalent. So the child prefers a principal attachment figure for comfort and security. This process is called monotropy and is adaptive.
What determines the structure of an infant’s hierarchy? Factors appear to be:
1)How much time the infant spends in each figure’s care
2)The quality of the care each figure provides
3)Each adult’s emotional investment in the child
4)Social cues
5)Repeated presence across time of the figure in the infant’s life, even if each encounter is likely to be brief.
An infant is likely to choose as a primary attachment figure a person who brings comfort at times of anxiety or fatigue and one who actively interacts with the baby and who is responsive to the baby’s cues. The child also tends to match an attachment hierarchy to the hierarchy of the care-giving in his/her environment. Thus it is adaptive for the child to use, as a principal attachment figure, the person who correspondingly is most strongly bonded to him/her, being the parent with the most parental investment in him/her.
The biological “purpose” of attachment is to provide emotional security and social autonomy. Infants with secure attachments tend to later exhibit greater social competence and better peer relations. This experience fosters self-esteem, self-efficacy and autonomy that makes later social functioning more likely to be adaptive. These infants are more sociable with adults, show greater competence with peers, have more positive affect and increased self-esteem. This experience of secure attachment should serve a protective function, that is increased resilience, to later stressful experiences.”[9]
[9] See Ms K’s report at page 2-3
The applicant described to Ms K being present in P’s household for the first twelve months of P’s life. She also described playing with P and feeding her, from the age of two months onwards. It is also the applicant’s position that the mother was depressed, around the time P was four months of age, and this in turn resulted in Ms H’s greater involvement with P.

In addition, it is Ms H’s position that P would seek her out, in preference to the mother, if she was hurt or depressed.
These various factors caused Ms K to provide the following opinion:
“Hence from the above history it is most likely that P has developed an attachment to Ms H. It is not possible without direct observation to determine who P’s primary attachment figure is, but it could well be Ms H. If this is the case, then the current lack of contact with Ms H may have been detrimental to P’s wellbeing. It is well known in the research literature that the nature of the parent-child relationship during infancy and toddlerhood is believed to be one of the central causal factors in the child’s personality and that the child’s earliest relationships have the greatest impact on the development of mental health and illness.
Loss of significant attachment relationships can lead to an attachment disorder which involves patterns of a grief reaction in children under three years of age.
Moreover insecure attachment prior to age two has been related to lower sociability, poorer peer relations, symptoms of anger and poorer behavioural self-control during the pre-school years and beyond.
For all these reasons and to err on side of caution, it is recommended that contact between Ms H and her daughter is immediately reinstated. Given Ms H’s account, the relationship with her daughter is a strong one and in order to be maintained, it requires regular contact between the two.”[10]
[10] ibid at page 4

Dr McL’s evidence

The mother was examined by Dr McL on 18 August 2006. He is a psychiatrist. Dr McL reported that the mother was “nine weeks pregnant to the father of the first child but they have no relationship.” This fact was confirmed by Mr Story, the mother’s solicitor.

The mother described to Dr McL being in an abusive relationship with Ms H, who allegedly was very domineering towards and demanding of her. The mother presented to Dr McL as tense and agitated.
From the history presented to him and his evaluation of the mother,

Dr McL provided the following opinion:
“At present, your client [Ms J] shows a significant mental disorder characterised by intermittent, mild to moderately severe depressive symptoms associated with an intrusive anxiety state with social phobias and panic attacks. These symptoms occur in an anxious, insecure and dependant personality with low self-esteem. The main triggers for your client’s anxiety symptoms are almost entirely related to dealing with her ex-partner. There is no evidence of intellectual handicap and she denies current drug or alcohol abuse as causes of her present symptoms.
I have no reason to suspect the veracity of your client’s history. The information she gave me is consistent throughout. Her statements regarding the behaviour she experienced during the lesbian relationship are consistent with other information available to me. I have no reasons to believe she is exaggerating or misstating her case in any respect.
Your client indicates a very strong commitment to caring for her infant. She said she has become pregnant a second time because she does not want her child to experience the type of childhood she had, i.e. many years separation from siblings. She was emphatic that she cared for the infant from the outset and her former partner gave very little assistance. I have not seen her with the child but can arrange this if you consider it necessary.
She has a long history of failing to assert herself when bullied (that is why children are bullied) and indicated clearly that this was exactly what she had experienced during the relationship. In view of the importance of her maintaining her mental balance in order to care for the child, it would be appropriate for your client to avoid her former partner if at all possible.”[11]
[11] See Dr McL’s report at page 4
The mother reported to Dr McL that the applicant was not significantly involved in caring for P during the parties’ relationship. She further told Dr McL that the applicant had “yelled” at her and P. On the basis of this history, Dr McL provided the following opinion:
“In view of the fact that Ms H has not seen the child for about four months, and bearing in mind the child’s age and her reported lack of interest in the child, there is no reason to believe that there is now a relationship of significant between her and the infant. That is to say, the child’s interests will not be further damaged by having no further contact with Ms H. Having heard the types of behaviours Ms H exhibited in the child’s presence, there is no reason to believe that she can contribute positively to raising the infant, and ample reason to believe that continued contact with the infant may be detrimental to the child’s mental well-being. Finally, given the accounts of Ms H’s behaviour, there is no reason to believe that she would maintain any relationship with the child beyond a year or two.”[12]
[12] ibid at page 5

The legal principles to be applied

The provisions of the Family Law Act 1975, as they relate to children have recently been changed. The law is complex. However, it is necessary for me to set out the relevant legal provisions in some detail, before applying them to P and the parties’ current circumstances. Part VII of the Act contains the applicable provisions of the law.
At the commencement of Part VII is a list of aims and principles, which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes. The list of objects or aims of the legislation is set out in s.60B(1). They are as follows:
“(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
The principles, which underpin these objects, are set out in s.60B(2) and are as follows:
“(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
In applying these objects and principles, the court is directed to regard the best interests of the child concerned as the court’s paramount or most important consideration.[13] The main instrument by which the court may make a disposition affecting the best interests of a child is through the making of a “parenting order”.
[13] See Family Law Act 1975 at section 60CA
A parenting order need not be confined to an order made in regards to a child’s parent alone. It is an order which deals with such issues as “the persons with whom a child should live”; “spend time and communicate with”; and “the persons, who should have responsibility for making decisions, both significant and otherwise, about a child.”[14] As the expression implies, obviously parenting orders are most usually made in favour of the parents of the child concerned but clearly can include other people who are significant to the child concerned, in the sense of that child’s “care, welfare and development”.
[14] ibid at section 64B(2)
It is the applicant’s primary position that she is to be regarded as one of P’s parents and failing that she is a person who is both presently and likely to remain a person who is significant to her care, welfare and development. Pursuant to s.65C of the Act, a child’s parent; the child him or herself; a child’s grandparent; or any other person concerned with the child’s care, welfare or development; may apply for a parenting order.

Is the applicant P’s parent?

As Brown J pointed out in Re: Mark, there is no specific definition of the term “parent” in the Family Law Act 1975, save with respect to adopted children, which is not presently relevant.[15]
[15] See Re: Mark (supra) at page 165
Section 60H of the Act deals with children born as a result of artificial conception procedures. Artificial conception procedures is a term defined by section 4 of the Act and includes both artificial insemination and embryo implantation. Section 60H is expressed in gendered language and includes references to the concept of heterosexual marriage. The relevant provisions are as follows:
“(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 a man; and
(b)either of the following paragraphs apply:
(i) the procedure was carried out with their consent;
(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 man;
then, whether or not the child is biologically a child of the woman and of the man, the child is their child for the purposes of this Act.
(2) If:
(a)a child is born to a woman as a result of the carrying out of an artificial conception procedure; and
(b)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman;
then, whether or not the child is biologically a child of the woman, the child is her child for the purposes of this Act.
(3) If:
(a)a child is born to a woman as a result of the carrying out of an artificial conception procedure; and
(b)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of a man;
then, whether or not the child is biologically a child of the man, the child is his child for the purposes of this Act.
(4) If a person lives with another person as the husband or wife of the first‑mentioned person on a genuine domestic basis although not legally married to that person, subsection (1) applies in relation to them as if:
(a)they were married to each other; and
(b)neither person were married to any other person.”
Given the section uses language that makes reference to variously “man”, “woman”, “husband” and “wife” it seems clear to me that P is not to be regarded as the applicant’s child, pursuant to this section. The defacto relationship, referred to in sub-s.4, as a result of the language used, does not appear to have application to a same sex relationship.
I am confirmed in this view by my consideration of s.5DA of the Status of Children Act (Northern Territory) 1978. This is the section of the Northern Territory legislation which deals with parenting issues arising from female same sex defacto relationships. It reads as follows:
“Where a woman who is the de facto partner of another woman undergoes, with the consent of the other woman, a fertilization procedure as a result of which she becomes pregnant, the other woman is, for all purposes of the law of the Northern Territory, to be presumed to be a parent of –
(a)the unborn child; and
(b)a child born as a result of the pregnancy.”
The applicable regulations, referred to in s.60H of the Family Law Act 1975 do not include s.5DA of the Status of Children Act (Northern Territory) 1978. However, other sections of the Territory Act dealing with children born as a result of sperm donation and children born as a result of ovum implantation are so prescribed.[16] As a result, I have no doubt that the mother is to be regarded as P’s parent, whereas the applicant is not, for the purposes of the Family Law Act 1975, although the position is different so far as the application of Northern Territory law is concerned.
[16] For example see ss. 5C, 5D, 5E and 5F
The status of Mr B, as a parent to P, given his role as the donor of the sperm concerned is uncertain and complex. Given that he has not formally taken part in these proceedings, it is not necessary for me to resolve this issue.

Is the applicant a person who is “significant” to P’s care, welfare and development?

Clearly, this is the central issue in the case. At this point, the main difficulty confronting the court is the fundamentally different view of the parties regarding the applicant’s involvement in P’s care, in the period prior to their separation and the consequences for P of her not having spent any time with the applicant since approximately April of 2006.
In KAM v MJR[17] Burr J conducted a survey of the meaning of the words “significant”, “care”, “welfare” and “development” respectively. He concluded that the use of the word “significant”, in the context of parenting orders, need not “require the proof of a past history or performance in relation to the child” and cited the example of a long absent relative of a child, who seeks to be involved in the child’s care, following the death of the child’s parents and in the absence of other appropriate guardians. In such a case, the person is significant, both because of a biological connection to the child and a desire to be involved in the provision of future care.
[17] KAM v MJR (supra) at 661-664
Obviously, a biological parent can be significant to a child, in the sense of being important to that child, notwithstanding he or she has had no involvement at all in the care of that particular child. In that case, the importance arises as a result of the particular child having a shared genetic inheritance with the parent. The applicant in this case cannot claim such a genetic significance to P. In my view, her claim to be of significance to P can only be based on what Burr J described as “past performance.”
The applicant’s claim to significance, in P’s life, arises from what she asserts is her involvement in P’s life during its first twelve months and the attachment between her and P which she says has arisen. As previously indicated, the basis of attachment theory is that attachment is not necessarily predicated on a genetic connection. In my view, in terms of the applicable legislation, the applicant cannot claim to be significant to P merely because the applicant and the mother were involved in a significant relationship, at the time of P’s conception and afterwards.
What the applicant must establish is that she has been important or significant to P in terms of her past provision of care to P and thus has been important to P in terms of her previous welfare and development. At the same time, part of this inquiry must also deal with the child’s prospective interests, as the court is also required to consider, notwithstanding past significance, whether it would be in the child’s best interests in future that she have some form of relationship or to spend time with the applicant.
Notwithstanding my earlier comments that any significance in the relationship between P and the applicant cannot be imputed solely by reference to the past relationship between the applicant and the mother, it is clear that significance, in the sense used by section 60B(2) does not depend on biology or genetics alone. In Re:C & D[18] the Full Court said as follows:
“This court made is clear in Rice & Millar and more recently in Re:Evelyn that the biological parent does not stand in any preferred position and that fact does not in any way impinge upon the principle that the best interests of the child are paramount.” (citations omitted).
[18] See Re:C & D (1998) 23 Fam LR 375 at 387
The dictionary definitions of “care” , “welfare” and “development”, provided by Burr J, were as follows:
“care” – “charge; oversight with a view to protection, preservation, or guidance”
“welfare” – “the state or condition of doing or being well; good fortune, happiness, or well-being (of a person, community or thing); prosperity”
“development” – naturally from the word “develop” – “to bring forth from a latent or elementary condition”, “to cause to grow”, “to evolve” and “to grow into a fuller, higher or maturer condition”
It is the applicant’s case that, in the past, she was charged with P’s care, in the sense that she provided materially for her by feeding her, changing her nappies and the like. As such, she provided for P’s wellbeing and assisted her to evolve from a highly dependent new born infant to an older child. It is on the basis of those things that the applicant asserts that she is significant to P.

Clearly there is an evidentiary dispute between the applicant and the mother in regards to these matters. But, in my view, if the applicant’s evidence is accepted, there is at least the potential for her to be regarded as a person who has been significant to P’s care, welfare and development in the past and, if Ms K’s assessment proves to be correct, in terms of the attachment between the two, may continue to be so in the future. As Burr J said in KAM v MJR:[19]
“…the degree or strength of the nexus or concern with the care, welfare or development of the child is again an issue for determination in each case, depending upon the facts and circumstances of each case. … there may well be circumstances in this court where a mere “interest in” or “concern about” the child in question is sufficient to satisfy the threshold test. Once the threshold stage has been passed, the individual facts and circumstances of the matter again must be viewed in order to determine whether or not a parenting order is appropriate and in the best interests of the child, as would be the nature and form of any such order.”
[19]See KAM v MJR (supra) at page 667
The particular factual circumstances of this case are challenging for the court. As I previously observed, the Act does not specifically cater for them. The Commonwealth legislature seems specifically to have rejected the approach adopted by the Northern Territory legislature in s.5DA of the Status of Children Act. The relationships between the applicant, the mother and P do not fit comfortably into any stereotypical notion of what a family is.
Mr Story, counsel for the mother, points to the fact that, in a temporal sense, whatever relationship there has been between the applicant and P was brief and inevitably, as a result, it is far short of any sense of maturation or completeness.[20] In this sense, it is his submission, supported by Dr McL, that whatever significance the relationship had it has now entirely evaporated because P herself can have no memory or cognitive appreciation of it. Obviously, this is not a view shared by Ms K.
[20] Mr Story distinguishes such cases as KAM v MJR (supra) and O & M [2006] FMCA fam 11 from the circumstances of this case, on the basis of the length of time the person seeking to be regarded as being significant in the child concerned’s life had been involved with the child. In each case the child concerned was older and the relationship involved longer than in the present case.
It also seems to be Mr Story’s submission that the absence of a biological relationship between the applicant and P places Ms H’s application into a different category, to an application say brought by a parent, who may not have had anything directly to do with the care of his or her biological child in the past. In essence, Mr Story argues genetic connection of itself imparts significance to a relationship, regardless of the absence of care or nurture in the past.
Kay J formulated the difference in these two categories of applications in terms of what he described as “appropriateness”. In Stevens v Lee[21] Kay J said as follows:
“There then comes a second stage, if I may place matters in degree of appropriateness, where a child has a long and well-established relationship with a person other than the parent. This can be a grandparent; it can be a cousin; it can be a godparent; it can be the next door neighbour; it can be the babysitter; or it can be a stop-parent. In those cases, if the court is satisfied that the relationship is of significance to the child, that a bond exists and that the child will suffer detriment if the bond is severed, the degree of suffering then has to be weighed against the degree of hostility which exists in the custodial parent.
In those circumstances, if the court is satisfied that the welfare of the child will be best served by continuing the association the child has with the person the parent does not desire the child to associate with any longer, the court will not hesitate but to continue the relationship. However, it starts dealing with people who are no the natural parents, the court does not necessarily commence from the assumption that access is going to be good for the child.”
[21] Stevens v Lee (1990) 102 FLR 108 at 1010
The debate between psychologists, other scientists and indeed between members of the community, about the pre-eminence or otherwise of “nature” over “nurture”, in the development of human characteristics and personality are hoary indeed. The scientific evidence in regards to such matters is far from complete. However, it is incontrovertible that children inherit some characteristics from their genetic parents, whether they have anything to do with their parents after birth or not. These characteristics may be simple things, like having blue eyes or a propensity to suffer asthma or indeed may be more complicated characteristics. Precisely what characteristics are capable of being transmitted and whether those characteristics include aspects of temperament and personality, is a matter of debate and conjecture. Again, the competing influences of environment and heredity, in the development of personality, are topics for scientific debate.
Considerations of this nature seem to inform Kay J’s statement that the court starts from a “different premise”, when it is considering the significance of a child’s natural parents as opposed to other persons, who are seeking parenting orders in respect of a particular child. It is clearly the tenor of the mother’s case that it will not be in P’s best interests, in the absence of such a biological connection, for her to spend time with the applicant in future, for a number of reasons.

These reasons include that, given P’s age at the time she was withdrawn from interaction with the applicant, the applicant cannot be regarded as significant, in any realistic way, to P and not the least of them is that any such future relationship will cause her (the mother) a considerable level of anxiety and distress. Again, this is not an issue which I can definitively determine at this stage, on the basis of Dr McL’s evidence alone.
Necessarily, due to P’s age at the time the mother and the applicant separated, they and P cannot be regarded as having been a family together, for a very long period of time. Again “family” is not a term defined by the Family Law Act 1975. Certainly, there is no suggestion in the Act that whether a family has or has not existed, between the protagonists concerned, it affects the validity of any application brought pursuant to it or that the length of the familial relationship concerned affects the standing to bring such an application. It is of course not uncommon for former heterosexual partners to bring proceedings in this court, and the Family Court, seeking orders in respect of children, when they themselves have never lived together or separated either before their child was born or shortly afterwards. Such considerations do not affect their standing to bring an application in any way.
In Re:Patrick[22] Guest J said as follows:
“The term “family” has a flexible and wide meaning. It is not one fixed in time and is not a term of art. It necessarily and broadly encompasses a description of a unit which has “familial characteristics”. Not all families function in the same way. Nevertheless, they enjoy common characteristics such as those demonstrated by the applicants. Theirs is not of a casual or transitory nature but one that has embraced exclusivity and permanency. They are emotionally and financially inter-dependent and I have no doubt, share common interests, activities and companionship. Their biological and psychological relationship to and mutual care of Patrick makes it so much more obvious. In my view, it would stultify the necessary progress of the family law in this country if society were not to recognise the applicants as a “family” when they offer that which is consistent and parallel with heterosexual families, save for the obviousness of being a same-sex couple. The issue of their homosexuality is, in my view, irrelevant. As Nicholson CJ said:
…Sexual orientation is no basis upon which to make assumption about the quality of an individual’s relationship or parenting capacities of a person. That is why sexual orientation in and of itself, has been held to be an irrelevant matter in disputes abut children under the Family Law Act, unless it somehow impinges upon the best interests of a child.”
[22] Re Patrick (2002) 28 Fam LR 579 at 650-651

Conclusions

As a result of these matters, I have come to the conclusion that the applicant cannot be regarded as one of P’s parents. However, in my view, she has the potential to be a person who may be regarded as being significant to P’s care, welfare and development and so is entitled to bring an application, for a parenting order, in this court pursuant to s.65C of the Act. Whether that application is ultimately successful depends on considerations relating to P’s best interests. As a result, it is necessary for the court to embark on a more exhaustive enquiry into whether or not the orders, which the applicant currently seeks, are likely to be in P’s best interests.
One aspect of this enquiry concerns the existing level of significance of whatever attachment P has to the applicant and whether she will suffer detriment if that attachment is either severed or renewed. Part of this enquiry is likely to include considerations of the potential consequences for the mother’s emotional wellbeing, and so her capacity to parent P to the full extent of her ability, if some form of relationship between the applicant and P is reinstated.
Given Ms K’s views about the fragility of whatever attachment P may have to the applicant and the serious consequences which may result if the attachment lapses, it is important that these issues be examined as quickly as possible. Accordingly, I propose fixing the matter for hearing on 11 and 12 December 2006.
It also seems imperative that the question of P’s attachment to the mother and the applicant be independently examined, by a suitably qualified family consultant, pursuant to the provisions of s.62G of the Family Law Act 1975. I propose to make such an order in this case.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: C W

Date: 9 October 2006