Harris and Calvert
[2013] FCCA 955
•26 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HARRIS & CALVERT | [2013] FCCA 955 |
| Catchwords: FAMILY LAW – Breakdown of same-sex relationship – preliminary/thresh-hold question regarding whether a parenting order should be made for the young child to spend time with former partner of birth/biological parent. |
| Legislation: Evidence Act 1996 (Cth), s.128 Family Law Act 1975, ss.60CA, 60H, 65C(c) |
| Aldridge v Keaton (2010) 235 FLR 450; 42 Fam LR 369 Aristotle, Nicomachean Ethics |
| Applicant: | MS HARRIS |
| Respondent: | MS CALVERT |
| File Number: | CAC 104 of 2013 |
| Judgment of: | Judge Neville |
| Hearing date: | 19 March 2013 |
| Date of Last Submission: | 2 April 2013 |
| Delivered at: | Canberra |
| Delivered on: | 26 July 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hogg |
| Solicitors for the Applicant: | Sheekey Williams Solicitors, Wagga Wagga |
| Counsel for the Respondent: | Ms Godtschalk |
| Solicitors for the Respondent: | Walsh & Blair, Wagga Wagga |
ORDERS
The Application filed on 24th January 2013 be dismissed.
Within 14 days of the date of these orders, the parties file written submissions of no more than two pages in relation to costs.
IT IS NOTED that publication of this judgment under the pseudonym Harris & Calvert is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 104 of 2013
| MS HARRIS |
Applicant
And
| MS CALVERT |
Respondent
REASONS FOR JUDGMENT
Introduction
At the outset of the seminal Full Court decision in Aldridge v Keaton their Honours (Bryant CJ, Boland and Crisford JJ) said, at [1]:[1]
The fundamental issue raised in this appeal is when it is, or is not, appropriate for a person with no biological connection to a child to have a parenting order made in his or her favour under Part VII of the Family Law Act 1975 (Cth) (“the Act”) in respect of that child.
[1] Aldridge v Keaton (2010) 42 Fam LR 369.
The same issue is the central, and only, matter to be determined here, which involves two women who were once in a same-sex relationship, but have not been so for some time.
The Respondent is the biological/birth Mother of 4 year old X.[2] The Applicant seeks orders that will enable her to re-kindle her relationship, and spend regular time, with X. She has not seen or spent any time with him for some two years or so.
[2] X was born on (omitted) 2009 via IVF treatment.
The Respondent seeks to have the Application dismissed – with an order for costs. Among many grounds of opposition raised by X's Mother is that (a) the Applicant has not spent any time with X for a very significant period of time, (b) X has no relationship with the Applicant and has not had a relationship with her for quite some time, (c) the parties live a significant distance apart, (d) the parties are significantly estranged (indeed, on the Mother’s part, she is openly very hostile to the Applicant), and above all else, (e) she does not consider it to be in X’s best interests to have a relationship with the Applicant.
For the reasons that follow, and because, to a significant degree, I accept the Respondent Mother’s submissions, the Application should be dismissed. Within 14 days of the date of these orders, the parties are to file written submissions of no more than two pages in relation to costs.
These reasons proceed as follows: (a) the orders sought by each of the parties; (b) a summary of the evidence; (c) jurisprudential considerations; (d) discussion & consideration; (e) conclusion.
Orders Sought
The parties’ respective ‘orders sought’ are as follows.
Orders sought by the Applicant
1.That the Respondent has sole parental responsibility for the child X born (omitted) 2009 (“X”);
2.That the Applicant spends time with X as follows:
a.For a period of two months from the date of these orders, each fortnight on Saturday or Sunday for 2 hours from 9.30am to 11.30am, or otherwise as agreed.
b.At the conclusion of the period referred to in paragraph 2 (a) above, for a period of two months each fortnight on Saturday or Sunday from 9.00am to 5.00pm with the Applicant to collect and return X from the Respondent’s resident;
c.At the conclusion of the period referred to in paragraph 2 (b) above, for a period of one month each alternate weekend from 9.00am Saturday to 10.00am Sunday;
d.At the conclusion of the period referred to in paragraph 2 (c) above until X starts school, each alternate weekend from 9.00am Saturday to 5.00pm Sunday; and
e.For one week per year at a time to be agreed between the parties, and if no agreement can be reached then for one week commencing on the third Saturday in June from 10am to 10am the following Saturday;
f.At all other times as agreed between the parties.
3.Once X commences school, the Applicant is to spend time with X as follows:
a.Each alternate weekend from 9.00am Saturday to 5.00pm Sunday;
b.For one week of each school term holiday period on dates to be agreed, and if no agreement can be reached then in the last week of each school holiday period;
c.For two consecutive weeks during the Christmas school holiday period on dates to be agreed, and if no agreement can be reached then the last two weeks of the school holidays, concluding at 10am on the Saturday prior to the first day of school, and commencing at 10am on the Saturday two weeks prior.
d.At all other times as agreed between the parties.
4.That the Respondent facilitate communication between X and the Applicant via Skype or telephone as follows:
a.Twice per week on Tuesdays and Thursdays at times to be agreed and if no agreement can be reached then from 5.30pm to 6.00pm;
b.On X’s birthday from 5.30pm to 6.00pm;
c.On Christmas Eve from 5.30pm to 6.00pm;
d.At all other times as agreed between the parties.
5.Each party is to keep the other informed of their current address, and contact telephone numbers, the name of X’s treating medical practitioner, any medical condition or serious illness suffered by X, any medication that X is taking.
6.That the parties undertake to maintain a communication book, purchased by the Applicant, to record X’s routine and any issues that will be relevant to the care of X and each party will ensure that the book is placed into X’s bag to accompany him at changeover.
7.Such further and other Orders as this Honourable Court deems fit.
Orders sought by the Respondent
1.That the Application be dismissed;
2.That the Applicant pay the Respondent’s costs.
Summary of Evidence: Applicant
Affidavit Evidence: The Applicant, who says that she is “retired”, but unfortunately did not give any information regarding her age in her affidavit.
She informed the Court in the course of cross-examination that she is aged 56 years, and the Respondent is 45 years old. She is in receipt of a disability pension.
She said that she has known the Respondent since 1999, having met at a Christmas party for a women’s group. She says that the relationship with the Respondent commenced in April 2005, at which time the Respondent was (occupation omitted) in (omitted), and the Applicant was working, on a casual basis, at a (omitted) in (omitted).
The Applicant says that she saw the Respondent most weekends, had daily contact with her, and that they went away on holidays together, although the frequency and duration of the holidays are not provided.
Next the Applicant deposed that in October 2005 she started spending significant periods of time at the Respondent’s home at (omitted). She said the usual regime was that she would spend five days per week at the Applicant’s home in (omitted), and return to (omitted) for two days per week to maintain her house and see her children.[3] There are no details in the Applicant’s affidavit material in relation to her own children.
[3] (omitted) and (omitted) are approximately 100 kilometres apart.
In paragraphs 5 – 9, the Applicant deals with the conception and birth of X.
She confirmed that he was conceived on (omitted) 2008 by IVF.
She deposed that the IVF process was lengthy, which commenced in approximately late 2006 at the (omitted) reproduction clinic. The Applicant contends that she was recorded on all relevant documentation as ‘the Respondent’s partner’. The Applicant also deposes to regularly corresponding with doctors on behalf of the Respondent.
X was born at (omitted) Hospital in (omitted). The Applicant deposed to attending all medical appointments “as the Respondent’s partner” and being present at X’s birth.
The Applicant further deposed that she had numerous conversations with the Respondent about their respective roles in X’s life. This included the Respondent “birth Mother” being very clear that “she wanted to be X’s sole parent, and did not want to share that role and responsibility with anyone.” The Applicant confirmed that she accepted the Respondent’s position in that regard. She also said that the Respondent assured her that she would always be an important part of X’s life.
The next part of the Applicant’s affidavit (pars. 10 – 22) set out what she says was her involvement in X’s life and her relationship with him.
Firstly, photographs which are attached to the affidavit confirm her attendance at the hospital, with the Mother and X, shortly after his birth. The Applicant said that she visited Mother and child in the hospital in (omitted) from (omitted) every day, and whilst the Respondent was in hospital, the Applicant stayed in the Respondent’s house in (omitted) with her daughter and granddaughter.
The Applicant said that much of X’s baby furniture came from her daughter, and that essentially from the time of X and his Mother coming out of hospital, she was then living full-time with the Applicant in (omitted).
For the first six months of X’s life, she says that she and the Respondent shared the day-to-day care of X.
She continued, saying that when X was approximately six months old, the Respondent returned to work 4 days per week, and on those days the Applicant cared for X. She says this routine continued for about six months.
When X was approximately 12 months old, he was put into day-care every second Friday, with the Applicant still caring for X from Monday to Thursday.
In July 2011, the Applicant says that X’s attendance at day-care increased to each Wednesday and every second Friday, and that she continued to care for X on Mondays, Tuesdays and Thursdays, with the Respondent not working on Fridays, so she could care for X on that day.
The rest of this section of her affidavit deals with further aspects of the Applicant’s account of her care for and play with X.
She also referred to the Respondent wanting another child (via IVF). She says that the IVF process continued for approximately one more year, but then ceased when the donor’s samples had all been used.
The next part of the affidavit deals somewhat briefly with the breakdown of the relationship between the parties, part of which related to arguments in relation to X. The Applicant contends that once the attempt to conceive a second child through IVF failed, the Respondent changed her attitude towards her, and claimed that she was treated more like a babysitter from then on, and she said that, “I realised that my emotional relationship with the Respondent was effectively over.” She says X was then enrolled full-time in day-care, and she moved back to (omitted) on (omitted) 2011.
She also deposed that when she left the Respondent’s residence, the Respondent told her, “You will always be a part of X’s life”.
The Applicant says that initially, after separation, she saw X every weekend. She said that she and X used to talk on Skype sometimes (leaving aside the lack of detail regarding the duration and capacity for a child of X’s age to engage relevantly in such contact). In substance, the Applicant says that she has not seen X since approximately September 2011. This would mean that she has had no contact at all with the child for approximately two years.
Next the Applicant outlines very briefly her attempts to seek legal advice and the difficulties that ensued in obtaining it satisfactorily to try to resume contact with X.
Finally, the Applicant deposes that she does not wish to come between X and his Mother, but simply to maintain a presence in X’s life, which would include, when X is old enough, being able to take him on holidays.
Oral Evidence: The following matters were put to the Applicant in the context of, and challenge to, her claim that she had been in a de facto relationship with the Respondent for the period 2005 until 2011.
At no stage did the Applicant declare to Centrelink or to the Department of Social Security that she was in a de facto relationship. She also confirmed that she has continued to receive a disability pension as a single person, rather than as a person in a de facto relationship.
The Applicant also confirmed that during all of the time that she visited or stayed with the Respondent, she kept her Housing Commission residence in (omitted). She confirmed that she did not tell the Housing Commission that she was in a de facto relationship. She did not change her mailing address from (omitted). Nor did she change the address of any utilities in her name. The Applicant confirmed that she received benefits from Medicare only as a single person, and that she never informed any government agency that she was in a de facto relationship.
The Applicant confirmed that in relation to all of her Centrelink information, she resided as a single person in (omitted).[4]
[4] I should note here that pursuant to an application made by Counsel regarding her evidence in relation to information provided to Centrelink, a certificate was granted to the Applicant pursuant to section 128 of the Evidence Act 1996 (Cth).
It would appear that those parts of the current application to the Court where information is required concerning her relationship status have been filled in incorrectly/erroneously. I do not think anything turns on this.
The Applicant also agreed with the proposition that her sexual relationship with the Respondent ceased in October 2008.
The Applicant confirmed that there were no joint bank accounts with the Respondent, there was no joint property held between them, and that the parties had never spent a Christmas together.
In relation to her description of the relationship with the child, X, the Applicant claimed that she was his carer, rather than a parent, and she confirmed that she is not listed on X’s birth certificate. She confirmed that she accepted the Respondent’s contention in her affidavit material, where the Respondent says that she made clear to the Applicant that it was always her intention to “be [a] single parent”. The Applicant confirmed that she did not wish to share the parental role and responsibility with the Respondent, but simply to spend time with the child.
The Applicant said that she had put and was putting some money aside for X, but otherwise confirmed that she did not contribute financially to X while staying with the Respondent. She said that she was told by the Respondent that what she did around the house and the yard was sufficient payment to “the household.” She confirmed that she paid nothing towards X’s care.
In relation to an incident that took place on 21st August 2011, she confirmed that she broached with the Respondent the prospect of resuming their relationship. She confirmed that the Respondent said that the relationship was over a long time ago, that it did not work out then, and therefore it would not work out now.[5]
[5] Transcript (19 March 2013) p.19. Hereafter, all references will be “T” followed by page number.
She also confirmed that in the course of this event on the 21st of August 2011, she said to the Respondent, “You’ve used me. You brought me over here to make a fool over [sic] me.”
In the course of this unfortunate contest between the parties in August 2011, the Applicant also asked the Respondent to agree on dates and times, in writing, to enable her to see X. She confirmed that she indicated to the Respondent that she would seek legal advice in the light of the refusal of the Respondent to accede to the Applicant’s requests.
Some other issues were raised briefly in the course of the Applicant’s cross-examination, but they do not, in my view, add anything of any significance to the evidence already outlined here.
Summary of Evidence: Respondent
Affidavit Evidence: The Respondent recounted, firstly, and there was no dispute about the circumstances of X’s conception through IVF. Next, the Respondent gave her account of the background to the relationship with the Applicant to the following effect.
She said that the parties met in 1999, that she saw her a few times in the following three years, and that from 2003 she became a friend, initially helping the Respondent’s then-partner (and the Respondent) do some landscaping work at her home.
She then deposed that by 2006, the Applicant was “a very close friend”. In that same year, she was assaulted by her then-partner and, sometime after that assault, the parties “became much closer and we began a relationship”. The detail or designation of the relationship is unspecified.
Between 2006 and 2008, she said that the Applicant lived in (omitted) and travelled backwards and forwards to (omitted); the Applicant stayed with her often. She said that she rarely travelled to (omitted) to visit the Applicant.
The Respondent maintained that the relationship between the parties ended in October 2008. The Respondent confirmed, however, that the Applicant remained living at her house until 25 July 2011. She said that after October 2008, “I considered Ms Harris to be my girlfriend in a platonic manner; we were the best of friends.”
Next, the Respondent said that the circumstances by which the Applicant stayed living with her arose because of circumstances relating to the Applicant’s family. She maintains that most of the Applicant’s wardrobe, for example, remained in (omitted), and that the Applicant kept paying utilities for her house in (omitted) and did not change her address.
The Respondent then deposed generally to the sharing of household duties, and that in October 2008, the Applicant said to the Respondent: “I’d make a better friend than a lover. I think I’d be more comfortable in the spare room,” or words to that effect. The Respondent said that the relationship had dwindled and it was time to go back to being “best friends”. She also confirmed that October 2008 was the last intimate contact she had with the Applicant.
Another conversation in December 2008 between the parties is recounted, but which need not be detailed here.
In paragraph 9 of the Respondent’s affidavit, she deposed to a conversation with the Applicant, which was to the effect that the Applicant would never intervene or interfere, or have any say in the relationship between Mother and child in a same-sex relationship.
The Respondent confirmed that the Applicant was a great support to her during the pregnancy with X. However she disputed the account of some, if not a significant part of, the support provided in relation to the IVF procedure, saying that the Applicant attended on the basis that the Applicant said “I’ve never seen IVF, it might be a bit of an adventure”.
The next part of the Respondent’s affidavit deals with X’s birth and what are described as “child-minding arrangements”.
After noting that X was born on (omitted) 2009, and that she had seven months maternity leave before returning to work in February 2010, the Respondent confirmed that she and the Applicant continued to share household duties. The Respondent maintained, however, that most of her time was spent attending to X’s needs, noting that he was breastfed for that period of time.
The Respondent asserted that “Ms Harris [the Applicant] didn’t have a maternal bond with X during his first seven months”. It is not immediately clear what she meant by such a statement. She maintained that it was her responsibility to feed and to bath him. X slept in his Mother’s room for the first four months of his life, and then moved across the hall to his own room. The Respondent said that she did not allow X to go in to the Applicant’s room (nor did she go in to it either). She maintained that the Applicant’s room was her own private space.
By way of initial summary, the Respondent said that she was the one who attended to X during the night (if required) and to provide him with a bottle or breakfast in the morning. She described the Applicant’s role “like that of a nanny”.
Upon the Respondent returning to work, which began each day at approximately 8.20am, and from which she returned between 3.40pm and 4pm most days, she said that upon her return from work the Applicant would say “ding, I’m off the clock”. The Respondent said that the Applicant did not play with or attend to X after she returned from work, and that the Applicant came out of her room really only for dinner. The Respondent maintained that she washed up, tidied the house, and then, as required, did preparation for (omitted) the next day.
On the weekends, she said that she was solely responsible for X. She also said that the Applicant often went to (omitted) for the weekend, and that on every third or fourth weekend she took X to (omitted) to visit her family.
When the Respondent could not (she said) find a suitable day-care facility for X, she asked the Applicant if she would look after X for the next five months, four days a week, until his time in day-care could be gradually increased. The Respondent deposed to a conversation to the following effect: (the Applicant is alleged to have said) “…You have to understand that if I start to feel I’m getting too close to him, I’m gunna have to stop. I know how little people get under your skin, and I don’t want to get hurt down the track.” Payment in kind was arranged for the Applicant by the Respondent paying for three or four trips for her to (omitted). Some cash was also provided to the Applicant each time she went to (omitted).
Paragraphs 23–25 recount the Respondent’s assessment or description of the Applicant’s role in X’s life. For example, she deposed that “Ms Harris did not have any parental role in my son’s life”. She contends that the Applicant “never considered herself to be X’s parent”.
The Respondent confirmed that the Applicant made no decisions in relation to any part of X’s life, including his “education, health, diet, routine or future”. She said that she considered the arrangement with the Applicant was such that she was paying her to look after X.
The Respondent also contended that as time went by, the Applicant took less interest in X’s health.
I need not recount in detail the basis for or the background to the Applicant’s return to (omitted), which, amongst other things, followed upon various discussions between the parties at Christmas 2010.
From 2011, with X attending day-care five days a fortnight, it meant that the Applicant was looking after him for two days only, with the Mother looking after him for the balance of the time. The Respondent described the relationship and attendance of the Applicant as more of a “housemate, having to share with X and me”. The Respondent also noted that the Applicant made no financial contributions to X, the house, or otherwise to the Respondent. This was not said critically; indeed she was content for such an arrangement to be in place.
Further, the Respondent said that the Applicant advised her in July 2011 that she was no longer interested in looking after X, and that the Respondent therefore had to arrange alternative care quite urgently. The Applicant was listed as a friend of the family at day-care in (omitted). The Respondent also confirmed that the Applicant and X never spent a night or a holiday together alone.
The Respondent confirmed that in May 2011, she started to spend time with a different person, which developed into “a close relationship”. The Respondent advised the Applicant of this, and confirmed that she (the Applicant) would be gone from the Respondent’s household when the Respondent went out on her first date with her new friend.
The day that the Applicant left the Respondent’s residence completely, 25th July 2011, X was ill. The Respondent sought some brief assistance from the Applicant, who [allegedly] said (at par.38) “no, you’re the parent, you’d better get used to doing it, he’s your responsibility remember. I have plans. Don’t call me or contact me.”
The Respondent deposed further that in August 2011, the parties met in a park (obviously with X also) and that the Applicant sought to have the Respondent sign a piece of paper regarding when she could see X. When the Respondent advised the Applicant that she would not be signing the document, certain threats are alleged to have been made by the Applicant, which may be taken to refer mainly to an Application in relation to property, rather than in relation to X.[6]
[6] See paragraphs 39 – 41.
In paragraph 42 and following, the Respondent recounted an occasion in August 2011 when a further contested conversation took place between the parties, part of which seems to be related to, according to the Respondent’s evidence, her rejection of the Applicant’s proposal that they resume their relationship.
The Respondent recorded that she was very intimidated by the threats, anger and violence that were directed at her by the Applicant.
For a number of other paragraphs, through to paragraph 50, are further accounts of alleged intimidation directed by the Applicant to the Respondent.
The Respondent summarised the current position, as she perceived it, in the following terms (pars. 51 – 55).
The Applicant has not seen or spoken with X since September 2011. At that time he was just over two years old. Since that time, X has not mentioned, or made any reference to, the Applicant.
The Respondent also contended that the Applicant’s threats toward and intimidation of her in July and August 2011 have continued to impact adversely on her.
The Respondent said: “Our relationship ended before X was conceived”. I assume by this that she meant that her sexual relationship with the Applicant had ended at that time but not her resumed/ongoing [platonic] ‘girl-friend’ friendship, and that the soon to be “nanny” role would continue. She confirmed that the Applicant had been her best friend, but that in the light of the now long-ended relationship with her, she maintained that it was in X’s best interests that she sever the relationship with the Applicant; she resisted, in the strongest possible terms, any prospect of the resumption of any relationship that X may have had with the Applicant.
Oral Evidence: The Respondent confirmed that in relation to some ante-natal records, the Applicant is listed on them as “friend”. Similarly, in relation to tendered documents regarding the Respondent’s IVF treatment, it should be noted that the only consent signed was by the Respondent, and that the Respondent’s next of kin was listed as her Mother.[7]
[7] Part of the consent related to the use and storage of eggs and embryos. See Exhibits B, C & F.
In relation to X’s child-care (also in documents later tendered), in August 2010 nobody is listed on these forms as either Father or partner; the Applicant is listed [only] as a person authorised to collect the child.[8]
[8] See Exhibit D.
From the course of her cross-examination, the following matters may be noted.
The Respondent disagreed with the suggestion or the proposition that she always intended the Applicant to have a significant part in X’s life. She even disagreed with the proposition that it was her intention that the Applicant would simply be “a part of X’s life”. She confirmed, however, that for a number of years the Applicant was a significant part of her own life, and yet in saying this, she contended that the parties had not lived together, but rather that the Applicant “stayed with me”. The choice of words was, shall we say, ‘curious’. Indeed, this evidence bordered on the disingenuous, if not being an exercise in dissembling.
She said that after X’s birth, while she was still in a relationship with the Applicant, it was a different relationship. For example, at the baby health centre, after X’s birth, she introduced the Applicant as her “girlfriend”. This is to say that the impression the Respondent sought to present to the world of the relationship between the parties was utterly platonic.
Again, the Respondent confirmed that there was no sexual intimacy between the parties from the end of October 2008. It was suggested to her in this context that while “the sex had stopped or slowed down” it was put to her that she still considered herself to be in a domestic relationship with the Applicant. She denied this. She agreed that the Applicant would still do some of the domestic labours at home, and maintained that the relationship between the parties finished at the end of 2008.
In some evidence that, in certain respects explained later, I found somewhat troubling, the Respondent said: “I have never considered my relationship with Ms Harris would ever be a permanent one or a long-term one.”[9]
[9] T 33.
Some parts of the Respondent’s evidence should be set out in full. Thus (emphasis added):[10]
So, Ms Calvert, can I ask you this that – it’s on a different subject. How would you describe your relationship with Ms Harris today? Would it be good, bad, indifferent, hostile – how would you describe it?‑‑‑I hate her, for want of a better word. I find her behaviour extremely upsetting. I find her relationship with me – from my perspective – I mean, she was my very best friend and she swore that she would never do anything like this. So to me, everything she has ever said to me – I based my whole relationship on what she told me, in terms of, “I won’t do this. I don’t consider myself that. I’m not that. I don’t believe that that should happen” and things like that. She made me feel that I was safe – because my worries and concerns were exactly this sort of situation if I had anyone in my life and because I thought she was my best friend and we didn’t have these sorts of issues that it should not have happened the way it has all turned out. After she abused me, I tried my very best to reconcile our differences, in terms of understanding her, but I couldn’t understand why she was doing that. She was my best friend. I had no reason to change that relationship with her. And I believe that she could have continued to be – she was supposed to look after X two days a week, still. We agreed that I would pay her travel, to do that, to continue our process, but, you know, it’s very difficult when somebody you trust and someone tells you exactly what you want to hear and you believe you and then they go back on the trust that you have for them, and you - manipulate things even though they know it’s not right and you can’t do anything about it. So I’m disappointed and frustrated with her. I’m angry with her for what she did to X.
[10] T 36-37. See also the exchanges at T 39.
The following further exchange is another part of the Respondent’s evidence which I found troubling, notwithstanding that it does not materially affect the issues the Court has to determine. It took place with Counsel for the Applicant (emphasis added):[11]
[11] T 37.
MR HOGG: Ma’am, just continuing on with that line: there was an agreement, wasn’t there – an agreement that my client wouldn’t nominate as a parent because she knew how much it meant to you, but the reciprocal of that was that X would always be a significant part of her life? That was the deal, wasn’t it?‑‑‑No. Why would I make that agreement?
Because you’re in love, you’re in a relationship at the time you conceived?‑‑‑No, I was never in love with Ms Harris.
Ma’am, you were never in love?‑‑‑No.
You certainly were in a domestic relationship for a period of time – you’ve already conceded that?‑‑‑She stayed with me and we had a sexual relationship, but I was never in love with her.
You see, ma’am, what I’m suggesting to you is that you had had extensive conversations in relation to how you would both manage, first of all, the IVF process, didn’t you?‑‑‑No, I made all the decisions regarding IVF. Ms Harris had no say in what I did in IVF. She had no input into how many eggs were put in, who the sperm donor was, how long I would go for, what type of medication I would have. She paid no moneys towards IVF. It was whether I could afford IVF at the time and things like that.
In answer to questions that drew from notes from the IVF clinic, she agreed with a suggestion that the tenor of those notes is that the consultation process was with both she and the Applicant. Although the Respondent accepted what was in the notes, which gave the appearance of the parties being a “couple”, who were pursuing IVF together, the Respondent confirmed that the Applicant was [only] her support person, and in this regard she felt very secure that the Applicant “would be there”.
A significant part of her cross-examination was devoted to the attempts by the Respondent to protect herself, in a legal and also in a relationship sense, from the Applicant. For example, she maintained that the Applicant was with her as her friend, who was happy to support her. She resisted strongly any suggestion that there was an agreement between the parties that they would raise X together.[12]
[12] T 39.
The Respondent confirmed that from January to July 2011, the Applicant was still looking after X two days each week. She rejected the proposition that the “minding” of X by the Applicant finished in July 2011 because the Respondent started a new [sexual] relationship with another woman around that time.
The Respondent said that the Applicant’s relationship with X was one of “fondness” and nothing more. Indeed, she would only go so far as to say that X had a “great fondness for her [the Applicant]”.[13]
[13] T 42.
Respectfully, some of this evidence I cannot accept as being very realistic in all of the circumstances. It bordered on the contrived and as suggested by Counsel for the Applicant, “a bit [dis]ingenuous”.[14]
[14] T 42.
The Respondent confirmed that more insistent and/or formalised demands from the Applicant to spend time with X commenced in approximately mid-August 2011.
Observations regarding the Evidence
First, I agree generally with the submission from Counsel for the Applicant to the general effect that, as is often the case, evidence is very much based on “perception”, and that historical perception does not necessarily mean that any single version of events is completely accurate or deliberately misleading. This is certainly the case here.
Secondly, from an evidentiary perspective, in my view the principal difficulty for the Applicant is that there are two over-lapping dimensions of the case: (a) the relationship she once had with the Respondent, and (b) the relationship that she once had with the child X. She sought to build an evidentiary bridge or nexus between the two. While I understand the exercise she undertook, she has two insuperable difficulties.
First, the relationship between the parties was very effectively quarantined and defined according to the terms set by the Respondent. Secondly, her own lack of supporting evidence (e.g. the keeping of her residence in (omitted), all of the documentary records that list her as a single person, and not recording her as being in a de facto relationship) all make the building of the evidentiary bridge between the two relationships hazardous if not next to impossible. Whatever it once was, the relationship between the parties was finished – in whatever form – quite some time ago. Likewise, the relationship time that has lapsed between the Applicant and the child is also quite significant.
Thirdly, although not the subject of cross-examination, the affidavit material from the Applicant set out the reasons for the delay in bringing her application. The main reason was the lack of attention to her matter by her former solicitors. Such delay seemed not disputed, or the cause(s) of it. Obviously, any delay or any possible claims for negligence, for example, are matters for the Applicant. The Court can do nothing about such things in terms of the current application.
Further, whatever the reason for the delay, it has only compounded the reality and the undeniable fact that X has not seen or spent any time with the Applicant for some two years or thereabouts. I should be taken to make this as a formal “finding”. In doing so, in and of itself, in my view, it makes the orders sought by the Applicant virtually impossible to make. After such a long absence from the life of such a young child, the re-establishment of a meaningful relationship, particularly in circumstances where it is vehemently opposed by the child’s Mother, in my view, makes the impossibility insuperable.
The final matter to observe here relates to the Respondent’s evidence which I have referred to as “concerning.” My concern is this.
The Respondent readily acknowledges that, at various stages, the relationship between the parties was that of “friends.” The description and understanding of “friends” in this matter was very malleable. The “friendship” changed, and lasted for a relatively short period of time, into what might be described as “lovers.” It then returned, on the Respondent’s evidence (and somewhat corroborated by the Applicant), back to something akin to “friendship” in the platonic sense.
In her oral evidence, the Respondent accented or otherwise confirmed that, from her perspective, (a) she never intended or perceived the relationship with the Applicant to be permanent or long-term, (b) there was a significant period where sexual intimacy between the parties was a recognised aspect of the relationship, (c) notwithstanding the periods of sexual intimacy, the Respondent confirmed that she never loved the Applicant, (d) the Respondent said that she [now] hated the Applicant, (e) the relationship between the parties (and between the Applicant and X) was more or most accurately described as that of a ‘live-in nanny’ (but obviously with some extra sexual ‘expectations’ or ‘benefits’ for the Respondent), and (f) X’s relationship with the Applicant was, at its highest, characterised as one of significant “fondness.”
In relation to this last matter, the language of “fondness” was, respectfully, confected, contrived and artificial. “Fondness” is not the language used with or by little children. No parent asks a young child: “are you fond of Grandma?” Young children in particular are naturally affectionate. They speak and act in terms of “love”, not “fondness.”
In the light of the Applicant’s evidence, she (a) clearly had an “affection” for the Respondent which lasted beyond the cessation of sexual expression between the parties, and (b) had a desire to continue the relationship significantly after the general characteristics or features of the relationship of “lovers” ceased. Neither of these features was either recognised or reciprocated.
There is abundant literature about relationships and ‘friendship’ in particular. The studies by Konstan (Friendship in the Classical World, 1997), Price (Love and Friendship in Plato and Aristotle, 1989/1997), Cohen (Law, sexuality, and society: The enforcement of morals in classical Athens, 1994), Scruton (Sexual Desire: A Moral Philosophy of the Erotic, 1986 & 1994), and Foucault (The history of sexuality:1, 1976 & 1998), are but representative examples.
However, Aristotle’s discussion in Book VIII of his Nicomachean Ethics remains a standard point of reference. There he distinguishes between friendships that are based on utility, pleasure and virtue. Using this as a convenient point of reference, on the evidence before the Court, the relationship between the parties was, certainly from the Respondent’s perspective, only ever based on either utility and/or pleasure, the latter only for a limited time, the former for a slightly longer period. Respectfully, these bases are necessarily and exclusively self-centred, if not positively selfish because relationships of this kind are based on the utilitarian concept of what can be procured from them rather than what can be done for “the other”, the object of one’s affection. There is nothing self-sacrificing or virtuous about them. It might be going too far to describe such relationships as ignoble.
In the helpful little study by the estimable C.S. Lewis, former scholar of mediaeval literature in the Universities of Oxford and Cambridge, he describes ‘friendship’ in the following terms:[15]
Lovers are always talking to one another about their love; Friends hardly ever about their Friendship. Lovers are normally face to face, absorbed in each other; Friends, side by side, absorbed in some common interest….
In each of my friends there is something that only some other friend can fully bring out. By myself I am not large enough to call the whole man [or woman] into activity; I want other lights than my own to show all its facets.
[15] C.S. Lewis, The Four Loves, (Glasgow: Collins, Fount Paperbacks, 1960 [reprint] 1983) p.58.
Neither the description of “lovers” or “friends”, as described by Lewis, was genuinely on display here. On the evidence before the Court, the Respondent clearly never wanted to share anything with the Applicant, other than her bed for a period of time only. The relationship was not fecund, in any sense. In this case, there was certainly no attempt or seeking to have or to engage the “other” party to call or bring out the ‘better lights’ of the other. It was always about the ‘self.’
On the Respondent’s evidence, the parties were never lovers. Presumably their sexual encounters were some form of contact sport. The Respondent’s use of her ‘friend’, for the multiple purposes described (including the care of X) may be viewed in terms of convenience and friendship, as a disposable commodity defined specifically, but not always accurately or clearly, on the Respondent’s terms.
Notwithstanding the above comments, few if any of them bear directly on the legal issue(s) to be determined by the Court.
Legal Principle
The principal legal touchstone for applications of the kind before the Court remains the Full Court decision in Aldridge v Keaton, to which I referred at the outset of these reasons.[16] It is important, not to mention instructive, to note the following from that judgment.
[16] For more recent discussion of relevant matters, see, for example, the judgment of Watts J in Connors & Taylor (2012) FamCA 207.
First, in relation to the scope or content of s.60H of the Act, the Court said, at [22]:
We think from reading the Senate report, it was intended that following amendments to s 60H that children, the subject of proceedings under the Act, regardless of the circumstances of their conception or birth, should have the same rights, protections and privileges under the Act to receive proper parenting from either a biological parent, or that biological parent’s partner (including a same-sex co-parent), as biological children born to men and women who have been legally married, living in a de facto relationship or who have never lived together. We are not sure the legislation has had that effect. However, while some issues in this appeal do focus on the term “person” and “parent” it is unnecessary we say anything further about s 4, s 60H, s 69VA in the context of this appeal, other than to note further legislative amendment may be necessary to clarify the non-biological person’s status as a parent.
Then, at [57], the Court discussed the case law, pre-1995 and pre-2006, in relation to s.65C. The Court said (emphasis added):
Prior to the 1995 amendment to s 65C, the authorities were clear that if an applicant relied on being a person concerned with the welfare of a child, then such applicant did need to meet a threshold test. That continued to be the case when the wording of the sub-section was expanded to include not only the welfare of the child, but also consideration of “care” of a child and “development” of a child (see M & A [2003] FamCA 1340; H & J Anor [2006] FMCAfam 514, per Brown FM). However, the pre-2006 authorities are clear once the applicant has established he or she is a person concerned with the care, welfare or development of the child, the application, be it for orders for a child to live with that person, or spent time with him or her, is one to be determined in the best interests of the child.
The Full Court then moved to consider further the impact or effect of the 2006 amendments to the Act, saying, at [65] and [75]:
[65] The potential uncertainty as to the weight to be afforded to the additional and primary considerations in an application involving a person other than a parent was raised by Finn J in Mulvany & Lane (2009) FLC 93-404. At paragraphs 15 and 16 of her reasons, her Honour said:
It is indeed unfortunate that given the now very detailed provisions of Part VII and the acknowledgement in that Part of the important roles that persons who are not natural parents of a child can have in a child’s life (see, for example, s 60B(2)(b)), that the legislation does not give some clearer indication of the weight to be attached to the child’s relationship with a person other than his or her parent, compared with the child’s relationship with the natural parent in the determination of proceedings between a parent and a person other than a parent.
As the legislation currently stands, and assuming that it is correct that “parent” means only a natural or adoptive parent, it would seem that in a case such as this, the court can only reach its determination in parenting proceedings on an application of s 60CC(2)(b) (protection from harm) and of the additional matters in s 60CC(3) so far as they expressly or impliedly refer to a person other than a parent.
While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant. Our reasons for upholding this view include the following matters:
· the unaltered provision dealing with best interests (s 60CA) and the positioning of the section in the Act;
· the recognition in s 65D(1) that ultimately a court should make such parenting order as it thinks proper; and
· that no provision was included in the Act suggesting greater or lesser weight should be given to any particular applicant.
Next, the Court discussed the capacity of the Act to recognise or to accommodate new forms of family, including families with same-sex parents. Their Honours said, at [78] and [79]:
[78] Children who have been brought up in these new forms of family may be children who fall within s 60H. There will also be children who, while not conceived with the consent of the co-parent (or as described in the legislation the “other intended parent”), have effectively been treated as a child of the relationship of a same-sex couple. Such children may be the biological child of one parent born, before the same-sex relationship commenced, but whose substantial parenting experience has been from each of the same-sex “parents”. More commonly, they may have been conceived as the result of a private agreement with a known donor and without formal consent documentation. These children’s best interests are the paramount consideration to be taken into account, not the circumstances of their conception or the sex of their parents.
[79] In summary, in dealing with any parenting application by a person interested in the care, welfare or development of a child, a court will determine that application applying the relevant provisions of Part VII to determine whether making (or not making) a parenting order would be in the child’s best interests.
Finally, the Court said, at [83]:
(i) a two step approach is appropriate in dealing with an application for parenting orders brought by a person other than a parent, a child, or a grandparent. In other words is the applicant a person concerned with the care, welfare or development of the child (step 1) and if so, what order should be made in the best interests of the child. This consideration may lead to an order for parental responsibility, an order a child live with, spend time and or communicate with the person, or that no such order be made (step 2);
(ii) s 65C does not prescribe a hierarchy of applicants. The application falls to be determined under s 60CA guided by the objects and principles in s 60B(1) and s 60B(2) and based on consideration of relevant matters under s 60CC(2) and s 60CC(3)
Consideration & Conclusion
On the facts and circumstances of the current matter, indeed, on the basis of the evidence of both parties, whatever the position may have been a number of years ago in relation to the care of X, the Applicant is not now, nor has she been at any time within the past two or so years, a person who is “concerned with the care, welfare or development of the child” X. The evidence makes clear that while she certainly was once so engaged in X’s life, she has not been so occupied for a very significant period of time. Accordingly, she does not meet or satisfy the requirements of s.65C(c).
Further to these factual realities, given that there is very significant animus (certainly on the part of the Respondent towards the Applicant), I would have no confidence that the child would be able properly to be quarantined from his Mother’s overt antagonism towards the Applicant. I accept that the Respondent feels significantly let down by the Applicant’s application, and that she proceeded with her life-plan to beget and raise a child via IVF on her own behalf, save for the day to day assistance from her “friend, live-in nanny, sometime [never permanent] lover.”
Accordingly, in addition to the Applicant not being relevantly concerned with the care, welfare and development of the child as prescribed by s.65C(c), in my view, the risks to the child of becoming embroiled further in the fractured relationship between the parties is significant. In such circumstances, it would not be in X’s best interests for the orders sought by the Applicant to be made.
For these two reasons - (a) the Applicant is not a person who satisfies the definition under s.65C(c), and (b) the orders sought by the Applicant are not in the child’s best interests, pursuant to s.60CA - the Application filed on 24th January 2013 must be dismissed. In such circumstances, it is unnecessary to make formal findings in relation to certain other matters, such as when the relationship between the parties formally ceased. Indeed, even if I were to accept the evidence of the Respondent regarding the end of the “lover-relationship” as being in approximately October 2008 (which I would more likely than not do), it remains undisputed that she continued to use the “services” of the Applicant in the care and welfare of X for a significant period of time, namely until 2011. But such a finding does not, in all the circumstances, relevantly assist the Applicant.
Further, even if I was to consider any part of the legislative pathway of Part VII of the Act, in my view, none of it assists the Applicant. Put shortly and bluntly, as difficult as it doubtless is for the Applicant to accept, she has not had any involvement in X’s life for a very significant period of time. Thus the considerations in Part VII of the Act (primary or ‘additional’) are, by and large, impossible to traverse, except to note that the evidence is such that there is nothing upon which a court could find that there is any meaningful relationship between the Applicant and the child so long after any engagement or basic contact between them ceased.
It is highly unlikely that X would now have any relevant or significant memory of the Applicant. While he may be more than amenable to re-kindling what-ever the relationship may have been with her (as would be the case of most children his age), the vicissitudes of distance between the parties ((omitted) and (omitted) is a journey by car of approximately one hour), and the vagaries of time since they last met or spent any time together, together with the defiant and antagonistic stance of his Mother, make any attempted resumption of X’s relationship with the Applicant, at best, highly problematic. In my view any attempt to resume any relationship with X by the Applicant would risk further disappointment, disruption and damage to X, the Applicant and the Respondent.
In the light of the series of failed relationships pursued, unrequited or broken by both parties, and whatever of any new ones fermenting, I venture to offer for their consideration the following from the fifth century (BC) Greek lyric poet Pindar, from his Nemean (VIII.37-44):
Some pray for gold, others for boundless land. I pray to delight my fellow citizens until my limbs are wrapped in earth – a man who praised what deserves praise and sowed blame for wrong-doers. But human excellence grows like a vine tree fed by the green dew raised up, among wise men and just, to the liquid sky. We have all kinds of needs for those we love – most of all in hardships, but joy too, strains to track down eyes that it can trust.
Accepting that praise, human excellence, wisdom, justice, love, joy and trust are often thwarted by human folly and the vicissitudes of life, unfortunately, each and all of these “virtues” (as well as “truth”) were, at best, rarely or only lightly or superficially on display during the relationship between the parties. One hopes that their future, and especially that of X, is more solidly and virtuously based.
In addition to the Application being dismissed, not least because any relationship with the Applicant risks being fraught with likely despair and opposition, the parties are to file submissions of no more than two pages within 14 days of the date of this judgment in relation to costs.
I certify that the preceding one hundred and twenty-three (123) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 2 August 2013
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