Hyland & Hyland
[2023] FedCFamC2F 601
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hyland & Hyland [2023] FedCFamC2F 601
File number(s): NCC 339 of 2023 Judgment of: JUDGE JENKINS Date of judgment: 10 May 2023 Catchwords: FAMILY LAW – parenting – Judicial review - Interim hearing – ex tempore reasons – relocation – artificial insemination – declaration of parentage – multiple parties – split siblings – parental responsibility Legislation: Family Law Act 1975 (Cth) s60CC, 61DA, 69VA Cases cited: Goode & Goode [2006] FamCA 1346 Division: Division 2 Family Law Number of paragraphs: 41 Date of last submission/s: 26 April 2023 Date of hearing: 10 May 2023 Place: Adelaide Counsel for the Applicant: Ms Mansfield Solicitor for the Applicant: Nicholes Family Lawyers Counsel for the First Respondent: Ms Lewis Solicitor for the First Respondent: Barkus Doolan Winning Counsel for the Second Respondent: Mr Wong Solicitor for the Second Respondent: Steiner Legal Pty Ltd Counsel for the Third Respondent: The Third Respondent in person ORDERS
NCC 339 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS B HYLAND
Applicant
AND: MS C HYLAND
First Respondent
MR EDSON
Second Respondent
MR CARDOSO
Third Respondent
order made by:
JUDGE JENKINS
DATE OF ORDER:
10 MAY 2023
THE COURT NOTES:
The following definitions apply for the purpose of these Orders:
"Y" means Y born 2020;
"X" means X born 2017;
"Ms B Hyland" means the Applicant;
"Ms C Hyland" means the 1st Respondent;
"Mr Edson" means the 2nd Respondent.
THE COURT ORDERS:
1.That Orders 3, 4, 5, 6, 7, 9, 10, 11, 12, 15, 16 of the orders made by the Senior Judicial Registrar on 4 April 2023 are discharged.
BY CONSENT
Y's parentage
2.That a declaration be made that Ms C Hyland and Mr Edson are the legal parents of Y pursuant to section 69VA of the Family Law Act 1975 (Cth).
3.That forthwith the parties do all things, sign all documents and lodge all forms/applications necessary to cause Y's birth certificate to be amended to remove Ms B Hyland as a parent, to list Ms C Hyland and Mr Edson as Y's parents and to cause an amended birth certificate to issue for Y, including but not limited to:
3.1causing the lodgement of the following forms (as required) with Births Death & Marriages, NSW Registry:
3.1.1Application to Correct an Entry Birth Deaths and Marriages Registration Act 1995 (BDMR Act);
3.1.2Adding a parent’s details to a birth registration Births Deaths and Marriages Registration Act 1995 (BDMR Act);
3.2Providing any responses, supporting documents or further material required or requested by Births Death & Marriages within 7 days of a request being made.
THE COURT ORDERS
Arrangements for X
4That X live with Ms B Hyland and spend time with Ms C Hyland as agreed in writing, or failing agreement each alternate weekend from after school Friday (or 3:30pm if Friday is a non-school day) until 5:00pm Sunday commencing Friday 12 May 2023, subject to the variation for Mother’s Day provided for in paragraph 5 hereof.
Mother’s Day in 2023
5That X spend time with Ms B Hyland from after school on the Friday (noting that X is currently in Ms B Hyland’s care) to 3:00pm on the Saturday preceding Mother's Day.
6That X spend time with Ms C Hyland from 3.00pm the Saturday preceding Mother’s Day until 5.00pm Mother’s Day.
Changeover
7That unless otherwise agreed, for the purpose of changeover that does not take place at X's school Ms C Hyland cause X to be collected from Ms B Hyland at the Service Station at D Town at the commencement of X's time with Ms C Hyland, and Ms B Hyland cause X to be collected from Ms C Hyland at the Service Station at D Town at the conclusion of X's time with Ms C Hyland.
PARENTING ORDERS FOR Y
8That Y live with Ms C Hyland and Mr Edson.
9That Y spend time with Ms B Hyland as agreed in writing, or failing agreement, each alternate weekend that X is in the care of Ms B Hyland pursuant to these orders, from after day care Friday (or 3.30pm if Friday is a non-day care day) until 5.00pm on the next following Sunday commencing Friday 19 May 2023.
10That notwithstanding any other order, Y will spend time with Mr Edson on Father’s Day from 10.00am to 5.00pm.
Mother’s Day in 2023
11That Y spend time with Ms B Hyland from the Friday preceding the Mother's Day (noting that Y is currently in Ms B Hyland’s care) to 3:00pm on the Saturday preceding Mother's Day.
12That Y spend time with Ms C Hyland from 3.00pm the Saturday preceding Mother’s Day and thereafter in accordance with paragraph 9 of these orders.
Changeover
13That unless otherwise agreed, for the purpose of changeover that does not take place at Y’s day care, Ms B Hyland cause Y to be collected from Ms C Hyland and/or Mr Edson at the Service Station at D Town at the commencement of Y’s time with Ms B Hyland, and Ms C Hyland and/or Mr Edson cause Y to be collected from Ms B Hyland at the Service Station at D Town at the conclusion of Y’s time with Ms B Hyland.
BY CONSENT
Extra-Curricular Activities
14The Parties ensure that the other Parties are informed of any social events that Y is invited to during the time that Y is spending time with the other Party.
Communication and other significant information
15The parties are at liberty to provide a copy of these Orders to X and Y's school and/or day care.
16Ms C Hyland, Mr Edson and Ms B Hyland are to facilitate video communication between the children and whichever of them is not caring for the children pursuant to these orders as agreed in writing and failing agreement at 5:00pm each Tuesday and Thursday.
17For the purpose of order 16, the person/s (being either Ms C Hyland, Mr Edson or Ms B Hyland) who are not spending time with the child/children pursuant to these orders is to initiate the call, and the other person/s (being either Ms C Hyland, Mr Edson or Ms B Hyland) who have the care of the child/children is to ensure the call is answered and that the child/children are enabled to communicate uninterrupted.
NOTATION
A.There is no intention by Ms C Hyland or Mr Edson to change Y's surname prior to trial or the final resolution of these proceedings.
B.Y may refer to the parties as he wishes and no party will discourage Y from calling Ms B Hyland "Mummy Ms B Hyland", Ms C Hyland "Mummy", Mr Edson "Dad" or Mr Cardoso "Papa".
C.The Applicant will facilitate time between the children and the third Respondent during the times the children are in her care.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hyland & Hyland has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(EX TEMPORE)JUDGE JENKINS
These reasons were delivered orally and have been edited and corrected from transcript. I have endeavoured to correct grammatical errors, clarify any citations and generally make my oral reasons easier to read.
This matter comes before me as a review of orders made by the Senior Judicial Registrar on 4 April 2023. It is a hearing de novo. This matter concerns two children, X, aged six years, and Y, aged two years.
BRIEF BACKGROUND
There are four parties in this matter and, for simplicity, the parties agreed to be referred to by their first names. The applicant, Ms B Hyland, is the biological mother of X. X was conceived using donor sperm from a known sperm donor, Mr Cardoso, who is the third respondent. At the time of X’s conception, Ms B Hyland and Ms C Hyland, who is the first respondent, were in a de facto relationship, and, consequently, Ms C Hyland is the mother of X under the Family Law Act 1975 (Cth) (“the Act”). Ms B Hyland and Ms C Hyland agreed that Mr Cardoso would remain involved in X’s life and be called “papa”.
Ms C Hyland is the biological mother of Y. The second respondent, Mr Edson, is the biological father of Y. At the time of Y’s conception, Ms B Hyland and Ms C Hyland were in a de facto relationship and were in the process of artificial insemination using Mr Cardoso’s sperm, with an intention that Ms C Hyland be the biological mother of their second child. However, during this time, Ms C Hyland had a sexual relationship with Mr Edson, and conceived Y. As Y was not born by artificial insemination, Ms B Hyland is not a parent for the purposes of the Act.
Nonetheless, Ms C Hyland believed she had conceived by artificial insemination, and Ms B Hyland was placed on the birth certificate as the other parent of Y. However, over time, Ms C Hyland began to question Y’s paternity as a result of his developing appearance. In or about mid-2022, a paternity test was conducted which confirmed Mr Edson was Y’s biological father. Ms B Hyland has now consented to a declaration that Mr Edson is the father and that his name be placed on the birth certificate.
Ms B Hyland and Ms C Hyland subsequently separated in or about September 2022, and this application arises from the fact that Ms C Hyland has now moved with Y from City E, where Ms B Hyland and Ms C Hyland lived during their relationship, to live with Mr Edson in Sydney, with whom she has rekindled a relationship. X remained in Ms B Hyland’s primary care in City E however the orders made by the Senior Judicial Registrar in April 2023 provide for a shared care arrangement.
Ms C Hyland is now pregnant with Mr Edson’s second child.
Ms B Hyland’s application is to have Ms C Hyland return with Y to live in the City E area. Ms C Hyland resists this application as she wishes to remain living with Mr Edson and Y in Sydney. Mr Edson and Ms C Hyland wish to raise Y together. The case was run on the basis that Ms B Hyland would remain living in City E, and Mr Edson in Sydney. Ms C Hyland says that if Y is ordered to return to live in City E that she would also return.
PATHWAY FOR INTERIM HEARINGS
This is an interim hearing, and, as such, I must follow the pathway set out by the Full Court in Goode & Goode [2006] FamCA 1346 (“Goode & Goode”). Pursuant to s 69ZL of the Act, I am entitled to provide short-form reasons.
Turning to the proposals of the parties, the orders sought by Ms C Hyland are set out in her application for review. In summary, she seeks to discharge the orders made by the Senior Judicial Registrar that provided for Ms B Hyland, Ms C Hyland and Mr Edson to have equal shared parental responsibility for Y, and which required that, within 14 days, Ms C Hyland and Mr Edson move to live within 30 kilometres of City E and for the children to spend time in a four day on, four day off, arrangement between the parties. Ms C Hyland proposes orders that enable her to remain in Sydney with Y, and that Ms B Hyland spend time with Y each alternate weekend, as well as holidays and special occasions. Mr Edson supports the orders sought by Ms C Hyland.
Ms B Hyland seeks orders as made by the Senior Judicial Registrar, with some minor changes which are agreed, save that she does not now seek that Mr Edson return to live in City E. Mr Cardoso does not have a current application before the Court.
There are very few agreed facts, and many in dispute, and these will be discussed further below.
Equal shared parental responsibility
Continuing the pathway in Goode & Goode, pursuant to s 61DA(3) of the Act, it is my view that it is not appropriate in these proceedings to make an order for parental responsibility on an interim basis for Y. There do not appear to be any pressing long-term decisions that need to be made. Given the level of conflict, I do not think it would be appropriate, on an interim basis, to make that order.
As I am not making an order for equal shared parental responsibility, I am not required to consider equal time or substantial and significant time, but, rather and at large, consider what is in Y’s best interests.
Section 60CC of the Act sets out the matters to be taken into consideration when determining best interests. There are two primary considerations, the first of which is I need to consider the benefit to Y of having a meaningful relationship with each of his parents. Secondly, I must consider the need to protect him from harm.
Meaningful relationships
I have already determined that Ms B Hyland is not a parent for the purposes of the Act. However, in any event, each party proposes orders that would, arguably, provide for a meaningful relationship between Y and Ms B Hyland, regardless of where he lives, if not necessarily an optimal relationship. Likewise, Mr Edson could arguably maintain a meaningful relationship with Y, if Y lives in City E.
Risk of harm
In terms of risk, unusually for cases that come before this Court, none of the parties are alleging that Y is in need of protection from physical or psychological harm as a result of being exposed to abuse, neglect or family violence.
I have also considered the additional considerations, although I am not required to specifically address each of them.
Y’s wishes
In terms of Y’s wishes, he is too young for his wishes to be given any weight, even if they could be established with any certainty.
The nature of Y’s relationships with parents and significant others
Up and until at least mid-2022, Y believed that Ms B Hyland was one of his mothers. It is likely he still believes she is a parent, to the extent he is able to understand such a concept.
Whilst the extent to which Ms B Hyland cared for Y, both during the relationship and post separation, is in dispute, it is common ground that she has played a significant role in his life and furthermore, both Ms C Hyland and Mr Edson agree she should continue to have that significant role. In addition, X and Y would consider each other to be siblings, and all parties agree it is important to maintain that bond. In regard to Mr Edson’s relationship with Y, that is a developing one. Y has only known Mr Edson for a relatively short period of his life, and is no doubt working out where Mr Edson fits into the scheme of things.
Effect on Y of any move
Looking at the likely effect on the change of Y’s circumstances, it is likely that Y has already been impacted by the change in his living arrangements, although there is no direct evidence about that. He no longer lives with Ms B Hyland, who he knows or knew as his mother. It is put on behalf of Ms B Hyland that this impact is unnecessary, and that Y has little to gain by being in Sydney. It is asserted that because Mr Edson has so many commitments, he has scant time to spend with him. This is a matter which I shall return to shortly.
The practical difficulty and expense of spending time with Y
The parties live hours apart. It is not in dispute that if Y remains in Sydney, this will limit the amount of time that he can spend with Ms B Hyland and X. It is also not in dispute that if Y lives in City E, this will limit the time with Mr Edson. What is at issue is whether Ms C Hyland is able to afford to return to live in City E, and the ease with which she would be able to obtain a rental property, or whether she could, or ought to, live with her parents. It is my view that, if required, Ms C Hyland could afford, at least in the short term, to live in City E in some way and if I am incorrect about that, it appears she could, in theory, live with her parents.
Other facts and circumstances
Ms C Hyland is in a relationship with Y’s biological father. They live together. They are expecting another child together. Ms B Hyland is asking Ms C Hyland to live away from her partner whilst pregnant and later after the birth of her child, if the matter is not finalised this year (which appears unlikely). As put by Mr Edson’s Counsel, this would also require an intact family to have two homes, with all of the additional expenses that entails.
Although Ms C Hyland may have the support of her extended family in City E, she would not have the support of her partner. This may have a significant impact on her emotional wellbeing, which, in turn, may impact Y.
Other considerations
Although the best interests of Y are paramount, they are not the sole consideration in parenting matters. As such, I also take into consideration the right of the parties to freedom of movement. However, I note that such rights must defer to the best interests of Y, if there is a conflict between the two.
Neither Mr Edson nor Ms B Hyland wish to move locations. Ms C Hyland will move, if Y is ordered to move. Ms B Hyland, Ms C Hyland and Mr Edson are all full-time community workers. Ms B Hyland and Mr Edson work on a roster system. As Ms C Hyland is pregnant, she is currently working shifts Monday to Friday, and, for the most part, is able to work from home.
Presumably, Ms B Hyland, Ms C Hyland and Mr Edson all have the same ability to apply to transfer work places. The point of difference is that, during the relationship with Ms B Hyland, Ms C Hyland applied to transfer from Sydney to City E. As I understand it that was in 2017, and she is still waiting. She says she is number 26, or at least at the hearing, was number 26 on the list. There does not appear to be any way to know how long that transfer will take. In any event, the relationship with Ms B Hyland is at an end, and her circumstances have changed.
In addition, both Ms B Hyland and Mr Edson own the properties, in which they currently live. Ms B Hyland lives in the former home, in City E. Her extended family are in City E, and X goes to school there. Mr Edson works in Sydney. He has a second and, I believe, a third job in Sydney. He lives in a property he owns and shares with his siblings in Sydney. Although not compelled to show why they wish to remain where they are living, both Ms B Hyland and Mr Edson appear to have good reasons for not wanting to move.
BALANCING THE COMPETING PROPOSALS
Weighing the competing proposals for Y, if Y and Ms C Hyland are ordered to return to City E, the advantages are that Y would be able to spend substantial and significant time (or even potentially equal time) with Ms B Hyland, whom he has seen and likely still sees as a mother figure, as well as significant time with X. In addition, Y is likely to spend more time with both Ms B Hyland and Ms C Hyland’s extended family. He would also likely do less travel, as Mr Edson only proposes one weekend per month in that scenario.
In terms of disadvantages, however, Y’s developing relationship with his father is likely to be impacted. He would also have to divide his time between three locations, being between Ms B Hyland, Ms C Hyland and Mr Edson. Ms C Hyland is also likely to be affected by living separately from her partner and the father of her unborn child, which may, in turn, impact Y and the household, both emotionally and financially. Finally, after maternity leave, Ms C Hyland would have to travel to Sydney for work for an indefinite period, and care for two children without the day-to-day assistance and emotional support of Mr Edson.
If Y and Ms C Hyland live in Sydney, the advantages would be that Y would be able to live with both his biological parents as an intact family unit and, in due course, with his new sibling. He would be able to develop his relationship and attachment to Mr Edson at a significant period in his development. On that point, I do not accept that Mr Edson would not be able to spend valuable time with Y. Although Mr Edson has a lot of commitments, many working parents do. He may not have a lot of time, but parenting mostly involves routine matters, like driving children to and from day care, making dinner and putting children to bed. Y has a right to have his father involved in these day to day activities, if possible, and is in his best interests. Further to this, Y would only have to divide his time between two homes. In addition, Ms C Hyland would not have to travel to work each day, after her maternity leave concludes, and she would have more time to spend with Y. There would also be less cost to Mr Edson and Ms C Hyland, as they would only have one household.
The disadvantages are that Y would not be able to spend as much time with Ms B Hyland, and would have more limited time with X. Any shared care proposal would be unworkable. Y may also have less time with extended family and he is likely to have to travel more between Sydney and City E for time to be facilitated with Ms B Hyland. He would also be removed from his friends and the community he has lived in, albeit he has only lived in City E for a relatively short period.
DETERMINATION
Having weighed all of these considerations, on balance, I find that Y’s best interests are served by remaining in Sydney with Ms C Hyland and Mr Edson.
In terms of spend time arrangements, Ms B Hyland proposes that, in the event Y remains in Sydney, that she maximises time with him during her six rostered days off, whilst he is not in school. It was argued for Ms B Hyland that, otherwise, if time occurs on weekends, she is likely to have to work on one or both of the weekend days, and she does not have the ability to regularly use annual leave to make the most of that time.
However, the six days Ms B Hyland proposes are not consecutive, and nor do they necessarily line up so the siblings would be together. This is likely to result in a number of changeovers and would require additional travel, and certainly does not provide for any stability or routine for Y. For all of these reasons, I do not find that Ms B Hyland’s proposal is in Y’s best interests.
The only other realistic proposal put forward was by Ms C Hyland and, whilst that will create some difficulties for Ms B Hyland and may limit her time, it is really the only other viable proposal. Whilst Ms B Hyland may have to work on occasion, this will potentially enable Y to spend time with other important people in his life, such as his extended family.
In terms of changeover, I have some sympathy for Ms B Hyland in having to travel across Sydney on a Friday afternoon, and, in my view, it should be a midway point.
INJUNCTIONS
There is insufficient evidence on which to make an injunction with respect to the surname, but I will make a notation that neither Ms C Hyland nor Mr Edson will seek to change Y’s surname prior to any Trial or the final resolution of this matter.
In relation to how Y is to refer to each of the parties, I do not think an order is practical or enforceable, but I will make a notation that the parties will allow Y to refer to them each as he wishes, and will not discourage Y from calling Ms B Hyland, “Mummy Ms B Hyland”, Ms C Hyland, “Mum”, Mr Edson, “Dad”, or Mr Cardoso, “Papa”.
For these reasons, I make orders as set out at the beginning of this judgment.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Jenkins. Associate:
Dated: 24 May 2023
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