H v J

[2006] FamCA 1398

[2006] FamCA 1398

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA  

AT MELBOURNE  NO. MLF 992 of 2006 

IN THE MATTER OF:

H  (Applicant)

and

J and D  (Respondents)

and

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE JUDGMENT DELIVERED BY
THE HONOURABLE JUSTICE GUEST

Date of Hearing:              12 December 2006
Date of Judgment:           12 December 2006

Appearances:

Dr Alexander of counsel, instructed by Victoria Legal Aid, DX 212467 RINGWOOD, on behalf of the Applicant

Mr Robinson of counsel, instructed by Holding Redlich, Solicitors, DX 422 MELBOURNE, on behalf of the Respondents

Ms Smallwood of counsel, instructed by Donald S Lampe, Solicitors, DX 38239 FLAGSTAFF on behalf of the Independent Children’s Lawyer

CATCHWORDS:

FAMILY LAW - CHILDREN - Application by father as donor for contact to child born of artificial insemination -  Child living with mother and co-parent in same-sex union -  Bitterly contested applications resolved with defining of "family" and role of the donor in these circumstances -  Observations made concerning status of known sperm donor and impact upon children of enduring conflict between parents -  Order for costs in favour of the Independent Children's Lawyer refused.

1. The proceedings before me concern the living arrangements of A who was born in August 2005 and again brings into stark relief the essential requirement that parties utilising IVF procedure and a known sperm donor understand and agree upon their respective rights, duties and obligations arising from that process.

2. The applicant, H, who is the biological father of A, (“the Applicant”) by arrangement between himself, J, the biological mother, and D, her partner and co‑parent, provided his genetic material through the Melbourne IVF program.  An earlier arrangement entered into between them had failed.

3. What was believed by the parties to have been their common agreement as to the role the applicant was to play in A's life transpired to be diametrically opposed thus leading them to court for a definition of that role.  The polarised position between the parties was best defined in the orders sought by each of them prior to the commencement of trial but which were, following a preliminary discussion within the parameters addressed by the High Court in Johnson v Johnson (2000) 201 CLR 488 at 493, pruned sensibly to recognise the centrality of the homo-nuclear family unit, comprised of the mother, the co-parent and A.

4. The applicant sought to spend time with A once each month commencing with a period of two hours, increasing each three months so that after twelve months he would spend time with A on a monthly basis between the hours of 10 am and 6 pm on a Sunday.  Dr Alexander proposed, when addressing me at the commencement of the proceedings and sensibly in my view, that the arrangement be thus maintained until 2011 when A, then aged about five and a half years, would attend preschool.  At that time the arrangement would move, subject to professional advice, to each alternate weekend.  There were some modest additions to the proposal which I need not explain at this juncture. 

5. Dr Alexander further proposed that the biological mother and co-parent be charged with the responsibility of informing A of his origins and the factual identity of the applicant as his “biological father”.  For this purpose, a psychologist be engaged to advise the parties as well as generally concerning issues that may arise from time to time.

6. Mr Robinson, who appeared for the respondents proposed that the applicant spend time with A eight times each year for "up to three hours".  He made it clear that during this time one or other or both of the respondents were to be present at all times "within eyesight" until such time as A was aware that the applicant, who was to be known as “O” and play an avuncular role, was in fact his biological father.  It was expected that such information be provided to A at some unspecified date between this day and the year 2011.

7. Mr Robinson further proposed that an order be made restraining the applicant personally from informing A that he was the “biological father”, and that if this fact was not known to A by the year 2011 the parties then engage a psychologist to assist them on this issue.  In the meantime, the applicant was to be known as “O” and that when A was aware of his biological origin, he would be free to title the applicant as he deemed appropriate.

8. Ms Smallwood, counsel for the Independent Children's Lawyer, submitted as a preliminary view that the applicant should spend time with A no less than once each month on the basis that a lesser time would be unlikely to effect a "meaningful relationship" between the applicant and the child.  Ms Smallwood said that initially the time spent should be of "short duration" building up to a half day within a year.  She relied more upon a conceptual approach.  Such an arrangement would facilitate A becoming, she submitted, "familiar" with the applicant.  I found that to be a submission of good commonsense in the discrete circumstances before me.

9. As to when A should be informed of his genetic blueprint, Ms Smallwood submitted that would be the subject of specialist advice dealing with “how, why and when” that should occur.  In order to effectuate this process, she said that all three parties be equally involved. 

10. On the issue of “supervision”, it was argued by Ms Smallwood that such a process of “observation”, as she styled it would not be in the best interests of A in the long term as there was not a scintilla of a suggestion that the child was at risk with the applicant.

11. The parties have very sensibly, in my view, and with demonstrative good commonsense adjusted the issue.  In cases of this nature, it is fundamental for the parties to understand the important character placed upon the family structure in which A lives.  In Re Patrick (An Application Concerning Contact) (2002) FLC 93-096, I had the opportunity to discuss the role of a family in such circumstances. I had this to say at paragraph 323:

    “In my view, Patrick's ‘family’ is comprised of the mother and the co‑parent.  It is a homo-nuclear family.  They are his parents.  That which constitutes a ‘family’ has been the subject of substantial debate particularly relevant to the gay and lesbian community.  It has been argued that there has been –

    ‘a shift away from the indicia of biology and marriage relationships … towards a more flexible or purposive definition of family.’

    (See: Australian Institute of Family Studies - Family Matters No 55, Autumn 2000; Jenni Millbank).  It appears to me that a ‘… family’ being limited to the traditional hetero-nuclear family does not now reflect the reality of the various family forms within modern society.  I see no reason why ‘… family’ should not also include a homo-nuclear family as part of the diverse configuration of families reflected in our community.”

    [Later at paragraph 325:]

    “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.  Never the less, 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 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 …”.

12. The submissions of Dr Alexander and the form of consent orders proposed on behalf of the applicant appear to me to recognise that it is the biological mother, the co-parent and A that constitute the “family”.  It is, in my view, their stability, their sense of happiness, security and wellbeing that is central to the child’s best interests.

13. The role of a father in this case, at this stage of the proceedings, should be and remain non‑invasive, but one that offers respect and understanding to the pivotal role the mother and co-parent play in A's life.  That is how it should be and remain until such time as A, through his maturing initiative, desire and curiosity, seeks change one way or the other.  If this should require professional assistance as it is prescribed in the consent orders, then so much the better.

14. The role of the applicant is not and can never be, in the circumstances discrete to these proceedings, likened to a “parental” role arising out of a traditional heterosexual union.  The family in this case, in addition to A is comprised of the mother and the co-parent whose relationship, now tested with time, sits seamlessly with what I had to say in Re Patrick (supra).

15. In a very useful paper, The Status of Known Sperm Donors under the Family Law Act, (see:  Australian Family Lawyer Vol 18 No. 4 page 30 at 37) Professor Millbank, having carefully considered this issue, concluded as follows:

    “In my view, for the reasons outlined above, it is absolutely inappropriate to ascribe parental status to known donors.  This is not to suggest that men who are known to and involved with children (whether biological parents or otherwise) should have no form of legal recognition.  Rather, any form of recognition must be alive to two vital facts that are amply demonstrated by the sociological research on lesbian and gay families:  firstly, that for most families it is the mothers who form the core family unit; and, secondly, that known donors engage in a range of roles from limited or casual acquaintance with the child to occasional or frequent avuncular or warm ‘family-friend’ contact, to regular ‘Sunday-Dad’ contact.  In much rarer instances, there are also shared parenting arrangements where father/s live close by and share residence, or have extensive contact with, the child and some degree of parental responsibility. 

    There can be no ‘one size fits all’ ascription of parental status to known donors, who occupy a wide range of roles.  Recognition of known donors must be flexible, and adapted to the individual circumstances of the family involved.  ...”

16. Thus it is clear, in my view, that each case should be considered within the fabric of their own particular circumstances, and it appears to me that the sensible consent orders ordained between the parties in these proceedings are consistent with what Prof. Millbank had to say.

17. It is also quite clear that the “counselling” process undertaken by all the parties when first considering the procedures that ultimately led them to this court, was inadequate. The so-called agreement, it seems to me, was not one that defined the respective roles of those who engaged in the process. With that said, it is important to now move forward and secure a position that promotes the best interests of A and lends support to the mandates of section 60CC(1) of the Family Law Amendment (Shared Parental Responsibility) Act 2006.

18. There is one further matter that I wish to raise and that is that the affidavits address issues that suggest, and I rather suspect that such is the fact, a high degree of tension within the household of the mother and the co-parent arising from the litigation.  What I have to say now is addressed to all three parties to understand that issues of stress should be avoided in the best interests of A.  The affidavits of the respondents reveal that their home environment was, as matters then stood, one affected by elements of stress to varying degrees.  I emphasise that it can only be in A's best interests to ameliorate as much as possible this most undesirable situation. 

19. Such a position was forcefully addressed by Dr Jennifer McIntosh in a paper "Enduring Conflict in Parental Separation: Pathways of Impact on Child Development", (Journal of Family Studies, Vol. 9, No. 1, April 2003), focussing upon the known impacts of entrenched parental conflict on the development of children.  In the course of her paper, Dr McIntosh had this to say:

    “… unresolved, enduring parental (a term which is used in the paper in the traditional heterosexual families but which can apply equally to any family constellation) conflict can violate children's core developmental needs and threaten their psychological growth ...  These findings provide a strong impetus to child focused practices in Family Law dispute resolution.  They point to a need in the practitioner for an unapologetic mindfulness of the needs of children.  The challenge that this research throws down to the practice front is real:  to deal with this not as the ‘flavour of the month’, nor the latest itch in the Attorney-General's Department, but as a fundamental, evidence-based push for evolution in practice.”  (Pages 63-4)

20. Later, under the heading "Through a Developmental Lens: Impact of Parental Conflict", Dr McIntosh went on to say:

    “Secure family environments and emotionally responsive parenting, in all family constellations, provide the core foundation for the developmental needs of children.  Certain developmental goals for children at different stages are more easily threatened by virtue of their age-related ability to understand nuances and implications of parental conflict.” (Page 65)

21. Later in the course of her paper, under the heading "Impacts of Parental Conflict on the Core Developmental Tasks", Dr McIntosh said:

    “Enduring parental conflict disrupts the very organisation of emotional experience in any childhood.  This type of disruption may have both escalating and cumulative developmental consequences.  It interrupts vital attachment processes in infancy and toddlerhood, with high intensity conflict linked with the development of insecure and disorganised attachment styles …  In turn, this interrupts the development of emotional security, with children becoming more prone to negative emotional arousal and distress, less able to regulate their feelings, less optimistic about their ability to cope, and less able to cope.

    Later:

    “A child's ability to regulate their emotions and behaviours develops primarily in a family context.  It is promoted by parental soothing, collaborative conflict resolution, discussion of emotions and the events that elicit them, and coaching of adaptive responses.  When these normative parental functions are eroded by conflict, children's inability to regulate their own emotions and to adapt in a socially competent manner can be sorely compromised.”  (p 66-67)

22. I have taken the time to address these fundamental issues for the benefit of the parties so that the future development for A will be one travelled free of ignorance.  The orders made this day, in my view, demonstrate a determination to address his best interests which is, after all, the paramount consideration.  The respective roles of all three parties are now defined, as are their rights, their duties and their obligations.  Each of the parties must genuinely embrace the spirit and intent of these orders and look ultimately to the establishment of mutual trust, respect and cooperation.  Without that the future will, predictably, be one fraught with dissent and difficulty, the adverse impact of which upon A's development will be apparent from my earlier commentary.

23. I congratulate the parties on having the dignity, commonsense and heightened sense of maturity in coming to this result.  I mark the orders Exhibit “A” and make orders in terms of Exhibit “A”.  I direct the applicant's solicitors engross the orders and that a transcript of my short extempore remarks be transcribed, placed on the court file and provided to all parties. 

24. Finally, there is an application for costs by the Independent Children's Lawyer.  I have considered that application.  I need not state the process of law that underpins my decision for it is well known to the practitioners for each of the parties.  I have regard to the various decisions dealing with such an application (for example; Re. David (Costs) (1998) FLC 92-809) and to the provisions of s 117(2)(3)(4) and (5) of the Family Law Act 1975 itself. In my view, whilst it is appropriate to make such an application in the discrete circumstances of this case, in the exercise of my discretion I will not make such an order against the respondents. (For example, see also Telfer v Telfer (1996) FLC 92-688).

25. In my view, the professional advisors on both sides of the profession have rendered excellent service in effecting this settlement.  The parties could have sat here for the next several days and been ultimately robbed of any meaningful base upon which to build a congenial and co-operative future.  The arrangement now agreed upon, would have, on the discrete facts before me, been the sort of orders made had the matter proceeded in the heat of litigation with its possible detrimental consequences emotionally upon all parties.  I again express my congratulations to the three central parties for undertaking sensible negotiations and I do urge them to embrace the orders in a genuine and principled manner providing a stable foundation that will lead A into the future as a productive member of the community.

    I certify that the preceding 25 numbered
     paragraphs are a true copy of the
    reasons for judgment herein of
    the Honourable Justice Guest.
    
    
    
    
    Associate to Guest J