Halifax & Fabian
[2009] FMCAfam 972
•17 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HALIFAX & FABIAN & ORS | [2009] FMCAfam 972 |
| FAMILY LAW – Child aged 20 months at date of separation – applicant and mother in same-sex relationship – child conceived through assisted conception – biological father unknown – second respondents in same-sex relationship – seek to spend significant time with child and restrain child’s relocation – applicant and one of second respondents biological parents of another child conceived through assisted conception and born during applicant and mother’s relationship – threshold issue of whether second respondents are persons concerned with the care, welfare and development of the child. |
| Family Law Act 1975 (Cth), s.65C |
| B & J (1996) FLC 92-716 KAM v MJR; JIG (Intervener) (1999) FLC 92-847 Venkatesan & Pawar [2007] FMCAfam 1109 L & B [2005] FMCAfam 270 |
| Applicant: | MS HALIFAX |
| First Respondent: | MS FABIAN |
| Second Respondents: | MR DALTON & MR BALLARD |
| File Number: | BRC 737 of 2009 |
| Judgment of: | Purdon-Sully FM |
| Hearing date: | 15 May 2009 |
| Date of Last Submission: | 15 May 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 17 September 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Appearance not required |
| Counsel for the First Respondent: | Ms Brasch |
| Solicitors for the First Respondent: | sbA Family Lawyers |
| Solicitor for the Second Respondents: | Ms Tondelstrand |
| Solicitors for the Second Respondents: | Schultz Toomey O'Brien Lawyers |
ORDERS
That the second respondents are persons concerned with the care, welfare and development of the child, [X] born in 2006 and as such have standing to pursue the orders sought in their response application filed 25 March 2009.
IT IS NOTED:
A.That the matter shall now be transferred to the Family Court of Australia in Brisbane pursuant to Order 2 of the Orders of this Court dated
26 March 2009.
IT IS NOTED that publication of this judgment under the pseudonym Halifax & Fabian & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
BRC 737 of 2009
| MS HALIFAX |
Applicant
And
| MS FABIAN |
First Respondent
| MR DALTON AND MR BALLARD |
Second Respondents
REASONS FOR JUDGMENT
Introduction
This matter concerns one of two young children who are not biologically related and who, to adopt the words of Fogarty J in B & J (1996) FLC 92-716 at 83,621 were born as a result of “artificial insemination procedures, out of non-traditional circumstances and into non-traditional families”.
Ms Susan Lewis, the family report writer, referred to the history to this dispute as being “complex”.[1]
[1] Report of Susan Lewis dated 20 March 2009 at para.4.1
The applicant, Ms Halifax, and the first respondent, Ms Fabian, lived in a same-sex relationship for about 7 years.
During the relationship they each had a child, Ms Halifax giving birth to [Y], now aged 7 years and Ms Fabian to [X], now aged 3 years.
[Y] and [X] have no biological connection. Both were conceived by way of artificial insemination during the course of their biological mother’s relationship with each other.
In [Y]’s case, Ms Halifax used the sperm of her friend, the second respondent Mr Dalton. In [X]’s case, Ms Fabian used the sperm of an anonymous donor.
In February 2005 Mr Dalton commenced a same-sex relationship with the second respondent Mr Ballard.
Ms Fabian wishes to relocate with [X] to [E] in New South Wales to reside with her sister and other family members. [X]’s relocation is opposed by the applicant and the second respondents.
The issue for determination
The parties have agreed that their parenting applications will be determined by the Family Court of Australia.
The preliminary issue that I am asked to decide is whether the second respondents have standing to seek any parenting orders with respect to [X].
Pursuant to section 65C of the Family Law Act 1975 (as amended), a parenting order in relation to a child may be applied for by, amongst others, either or both of the child’s parents or “any person connected with the care, welfare or development of the child.”
It is the second respondents’ case that they are each persons who are concerned with the care, welfare and development of [X].
The applicant, Ms Halifax, was excused from participating in the hearing of that determination. Whilst she is not a participant, in this discussion, I propose to address her as the applicant, Ms Fabian as the mother, and Mr Dalton and Mr Ballard as the second respondents.
The court proceedings
The applicant commenced proceedings in this court on 29 January 2009. The second respondents filed a response document on 25 March 2009.
If the court made the final orders sought by them then:
a)[X] and [Y]’s residence would remain within 30 kilometres of [R];
b)The children would reside together in three households during the week; and
c)The four adults would equally share parental responsibility for the major long term decisions for the children.
The mother filed her response document on 16 March 2009. She seeks an order for sole parental responsibility for [X]. She seeks that [X] live with her and be permitted to relocate with her to [E]. Whilst she seeks parenting orders that will enable the applicant to spend time with [X] and orders with respect to her time with [Y], she seeks no orders with respect to the second respondents spending time with [X].
Background
I have taken into account the following background facts which appear undisputed.
The applicant is aged 38 years. She is a self-employed [omitted]. She resides at [K]. [Y] is in her primary care.
The mother is aged 40 years. She is employed three days a week with [omitted]. She resides at [R] however at the time of the hearing she was considering a move to the south-side of Brisbane as a consequence of an employment re-location. [X] is in her primary care.
Mr Dalton is aged 42 years. He is employed full time as [omitted].
Mr Ballard is aged 44 years. He is employed full-time as a health worker with [omitted].
The second respondents reside together at [R].
The mother moved to Queensland in March 2001 for the purpose of conceiving a child by donor insemination and purchasing a house.
The applicant and mother formed a relationship in July 2001. They commenced to live together in January 2002.
[Y] was born in 2002. Mr Dalton is [Y]’s biological father. He is named on [Y]’s birth certificate as her father. He pays child support for her.
At the time of [Y]’s birth Mr Dalton was in a same-sex relationship with a gentleman called Mr H.
The first respondent gave birth to [X] in 2006. No father is recorded on [X]’s birth certificate.
By the time of [X]’s conception Mr Dalton and Mr H had separated and Mr Dalton had formed a relationship with Mr Ballard.
The applicant and mother’s relationship ended in early 2008. They did not effect a physical separation until 10 September 2008 when the applicant and [Y] moved into separate accommodation.
[Y] attends Grade 1 at [S] College. She has some special needs as a result of hearing loss and some intellectual impairment.
[X] attends a local child care centre.
Pursuant to consent orders made on 26 March 2009 [X] lives with the mother and [Y] lives with the applicant. The orders effect a parenting arrangement whereby the children spend time with each other every weekend, each alternate weekend being an extended weekend. They also spend time with each other on alternative Wednesday evenings.[2]
[2] See Orders 5 to 9
There are no orders that enable the second respondents to spend time with [X]. It appears that this occurs when [X] is spending time with the applicant. Pursuant to the orders the applicant however is not to allow [X] to spend any overnight time with the second respondents.[3]
[3] See Order 18
The Law
The relevant legal principles are succinctly stated by Burr J in KAM v MJR; JIG (Intervener) (1999) FLC 92-847 at para 5 as follows:
5.1.1. Any person may file an application for a parenting order.
5.1.2. A parenting order may be made in favour of a person other than a parent (sec 64C).
5.1.3. In order to proceed beyond the mere making of the application, the Applicant for a parenting order must demonstrate that they are a ''person concerned with the care, welfare or development of the child''. In my view this imposes a threshold test, it being a test to be determined on the individual facts and circumstances of each case.
5.1.4. That 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. For example, as mentioned earlier in my reasons, it may be appropriate for a complete stranger, say in the form of an aunt who resides overseas, to be granted a parenting order by this Court in the event of the death or incapacitation of the child's parents. The nature and degree of her concern with the care, welfare or development of the child in that case, would be defined and determined by entirely different circumstances than those which exist in this matter. I do not find the authority to which Ms Vanstone referred me, to be of benefit or assistance in the context of Part VII of this Act where the Court must regard the best interests of the child as the paramount consideration (sec 65E). 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.
5.1.5. The specific wording of sec 65C(c) appears to require demonstration of a concern with only one of the issues of care, welfare or development. …
In Venkatesan & Pawar [2007] FMCAfam 1109, Altobelli FM after reviewing the case law observed:
9. ... what is interesting about these cases is the common feature. That is that there has to be some relationship between, or involvement with, the child in a meaningful sense in order that the person who makes the application can have standing…
It is for the second respondents to satisfy the court that they meet the threshold test.
The evidence
I have considered the material that I was asked to read.
Whilst the second respondents filed separate affidavits the evidence contained in their documents are largely mirror images. Where, then, I make specific reference to their evidence, I propose to only refer to the evidence of Mr Dalton.
At the hearing I gave leave to the mother to adduce some brief oral evidence to respond to further affidavit material filed late by the second respondents.
I have considered the family report of Ms Lewis dated 20 March 2009.
I have had the benefit of written and oral submissions. I do not propose to respond to each and every submission made however in reaching my decision I have considered all submissions.
Applying the law to the circumstances of this case
I am satisfied on the evidence relied upon by the second respondents that they have an “interest in” and “concern about” [X], which in the circumstances of this case is sufficient to satisfy the test enunciated in KAM v MJR; JIG (supra).
I am satisfied that there is evidence of some relationship and some involvement between the second respondents and [X], in a meaningful sense, to enable me to find that the second respondents are each persons concerned with the care, welfare or development of [X].
The basis upon which I have reached this decision is as follows.
Whilst it is clear that historically the relationship between the mother and second respondents was not as close as that enjoyed by the applicant (the mother informing Ms Lewis that the second respondents were “intimidating” and “powerful” and that their relationship with the applicant was part of a “very confused puzzle”), and whilst it is clear the mother was less committed to the particular type of non-traditional family arrangement enthusiastically embraced by her former partner, (she having informed Ms Lewis that the applicant was controlling and “wanted things her own way” and “I do what [Ms Halifax] tells me to do”), and whilst there may be some merit in the submission of Counsel for the mother, Ms Brasch, that it was a life-style choice ultimately imposed upon her as a consequence of her relationship with the applicant and her commitment to their parenting of [Y], the evidence is that the applicant and mother made a decision to parent their children together, without differentiation and the mother knew that Mr Dalton (and his partner) would be involved in the parenting paradigm.
Before she fell pregnant with [X] the mother, the applicant and
Mr Dalton and his partner Mr H and/or Mr Ballard[4] met to discuss [X]’s conception and the involvement of Mr Dalton and his partner.
[4] The mother refers to a meeting with Mr H and the applicant and second respondents refer to a meeting including Mr Ballard – there may have been more than one meeting - for present purposes I am satisfied that nothing turns on this.
The mother’s evidence is that she had observed the high level of involvement that Mr Dalton and Mr H had had in [Y]’s life. She told them that she wanted them to play a part in [X]’s life and that she did not want [X] to feel different from [Y], in her words, “that is, having a relationship with her biological father or at least having a male figure in her life.”[5]
[5] Affidavit of Ms Fabian filed on 16 March 2009 at para.20
The applicant and second respondent give similar evidence on this point. The applicant’s evidence is that she and the mother informed the second respondents that they wished them to be “as involved in [X]’s life as they were in [Y]’s life. I recall [Ms Fabian’s] rationale that she did not want [X] to be hard done by or to not have the same benefits that [Y] has or would have”.[6] The evidence of the second respondents is that at one meeting the mother stated that the child she conceived would have their involvement on the same basis as for [Y].[7]
[6] Affidavit of Ms Halifax filed on 29 January 2009 at para.25
[7] Affidavit of Mr Dalton filed 25 March 2009 at para.25
Whilst their role may not have included, on the mother’s evidence, “input decision making”[8], the second respondents were publicly acknowledged as [X]’s “father figures” with the applicant and mother the established “mother figures”. Their role was acknowledged at [X]’s naming ceremony where the four adults affirmed in front of a celebrant and invited guests their “desire to care for [X] in her growth and development as a person” and “as her parents” to take upon themselves “the privilege and responsibility to care for our daughter in body, mind and spirit as her own story is written”.
[8] Oral evidence at hearing
It is difficult to read the Order for Service and not conclude that the second respondents were not simply present[9] but that their intended role in [X]’s life, along with both mothers, was a parental role involving responsibility and commitment.[10]
[9] Affidavit of Mr Dalton filed on 25 March 2009 at para.18
[10] Annexure WD-3 to Mr Dalton’s affidavit (ibid); Para.3.12 Ms Lewis’ report (supra)
The evidence relied upon by the second respondents is as follows:
a)They were involved in the parenting of both children. They had established a home to accommodate the development of the relationship and had made employment and residential adjustments to that end. Their evidence in this regard is supported by Mr S.[11]
[11] Affidavit of Mr S filed 8 May 2009 at paras.19, 21, 23 and 34
b)Decisions were made prior to conception of both children including with respect to religion, education, circumcision, discipline, all four adults agreeing to remain living in south-east Queensland.[12]
[12] Affidavit of Mr Dalton filed on 25 March 2009 at para.24
c)They accepted the mother’s invitation to attend her twelve week pregnancy scan.[13]
[13] Affidavit of Mr Dalton (ibid) at paras.27 & 30
d)They visited the hospital the day of [X]’s birth and daily thereafter and cared for [Y] until [X] was brought home.[14]
[14] Affidavit of Ms Halifax filed on 29 January 2009 at para.26
e)They were introduced as “daddy” to the friends and family of the applicant and mother.[15] In that regard it appears to be conceded that [X] referred to her mother and the applicant as “Mummy” and “Mama” and to the second respondents as “Daddy” and “[Mr Ballard] [first name omitted]” (and possibly “Daddy [first name omitted]” on the evidence of Mr S.)[16] Ms Lewis observed that the children used these names with the four adults during her interviews notwithstanding those interviews occurring some months after separation.[17]
f)The children developed a close attachment to each other and to them.[18] Ms Lewis observed that the children were strongly attached and affectionate with both mothers and affectionate and secure with the second respondents.[19] The mother acknowledged to Ms Lewis that the second respondents loved [X], that [X] was comfortable with them and that they had a bond with her and should spend time with her, her complaint being that they should not be permitted to assume a parental-decision making role.
g)They spent regular time with the children including on weekends and week days and they were also asked to babysit from time to time.[20] Whilst the mother’s refusal to agree to overnight time caused some angst and created problems, on their evidence, with [Y]’s arrangements, on one occasion the mother did agree to this to enable [X] to spend time with her grandmother, Mr Ballard’s mother who was visiting.[21]
h)They exchanged gifts with the children on birthdays, special occasion, on Father’s Day and at Christmas, including in 2008 after the applicant and first respondent had separated.[22] In this regard the mother accepted that they celebrated Father’s Day with the second respondents, albeit her evidence was that the applicant usually initiated the purchase of gifts for the second respondents, including in 2008; that on a shopping trip with [Y] and [X] at Christmas 2008 she helped the children purchase gifts for the second respondents and that she purchased Easter eggs in 2009 as a gift from the children for the second respondents.[23]
i)They socialised, attended activities, celebrated special occasions and had holidays together. [24]
j)They attended with the children and the mother at the annual gay pride parade marching in the family section of the parade. [25]
k)They established a separate bedroom for [Y] and [X] with a bed that converted to two singles beds to accommodate any overnight stays and did so with the knowledge and without objection from the applicant or the mother.[26]
l)[X] had a photo of the second respondents in her bedroom.[27]
m)They were listed by the applicant as emergency contacts in 2006 and 2007 at [X]’s day-care centre.[28]
n)The mother consulted Mr Dalton about some medical issues to do with [X] given his medical background. [29]
[15] Affidavit of Mr Dalton filed 14 May 2009 at para.19
[16] Affidavit of Mr S filed 8 May 2009 at paras.13 to 15.
[17] Ms Lewis’ report (supra) at paras.10.4, 10.9, 10.10 and 10.15
[18] Affidavit of Ms Halifax filed on 29 January 2009 at para.37
[19] Ms Lewis’ report (supra) at paras.10.9 & 10.10
[20] Affidavit of Mr Dalton filed 25 March 2009 at paras.7 & 8; Affidavit of Ms Halifax filed on 29 January 2009 at para.27
[21] Affidavit of Mr Dalton (ibid) at para.33
[22] Affidavit of Mr Dalton filed on 14 May 2009 at paras.11 & 18; Oral evidence of mother
[23] Affidavit of Mr Dalton (ibid) at paras.3 to 9, 14, 17 and 18; Affidavit of Ms Fabian filed by leave on 15 May 2009 at para 10
[24] Affidavit of Mr Dalton filed 25 March 2009 at para.9, Affidavit of Mr Dalton filed 14 May 2009 at para. 28
[25] Affidavit of Mr Dalton filed 14 May 2009 at para.19
[26] Affidavit of Mr Dalton (ibid) at paras.12 & 16
[27] Affidavit of Mr Dalton filed on 14 May 2009 at para.11; See also oral evidence of mother
[28] Affidavit of Mr Dalton (ibid) at paras.20-21
[29] Affidavit of Mr Dalton (ibid) at paras.24 to 27
Notwithstanding the tensions to which I earlier referred and the fact that each assumed and undertook different responsibilities in terms of the day-to-day care of both children in the context of a non-traditional parenting arrangement involving four adults, the adults each viewed the children as their children, sought, as a goal, to parent the children, and following separation sought to maintain their respective relationships with each child and to the maintain the children’s relationship with each other.
The mother’s sworn evidence is that notwithstanding her decision to relocate it was very important to her that [X]’s relationship with [Y] and the applicant, and her relationship with [Y] remain a priority. She did not want to sever the relationship. She agreed to engage in a mediation that included the second respondents because she accepted that Mr Dalton would need to be consulted with respect to any future parenting arrangements involving [Y].
Conclusion
Ms Brasch argued forcefully and intelligently on behalf of her client and it is true, that discretely or even cumulatively, occasional dinners in the city, an attendance at [X]’s first birthday party, an attendance at an ultra-sound procedure, a subjective desire to care for a child and being a designated RSVP contact on an invitation do not create parental rights and legal standing.[30]
[30] Submission of Ms Brasch
However in the circumstances of this case the evidence points to something more than this; something more than supportive friends helping each other out without intending to create in the other parenting rights, to use the words of Emmett FM in L & B [2005] FMCAfam 270.
I am satisfied in the circumstances of this case that the necessary degree or strength of the nexus or concern between each of Mr Dalton and Mr Ballard and the care, welfare and development of [X] exists.
I am accordingly satisfied that they each has the necessary standing to seek a parenting order under section 65C of the Family Law Act 1975 (as amended).
Having made that determination it will of course be a matter for another court to determine if the parenting arrangements sought by the second respondents will promote [X]’s best interests. Many of the matters raised by Ms Brasch in her submissions together with those identified by Ms Lewis in her report will be relevant to that enquiry.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Purdon-Sully FM
Associate: Melissa Ledger
Date: 17 September 2009
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