Jarden and Eastwood

[2020] FamCA 211

FAMILY COURT OF AUSTRALIA

JARDEN & EASTWOOD [2020] FamCA 211

FAMILY LAW – CHILDREN – Interim Orders – Where the Applicant seeks to spend time with the child – Where the Applicant is not a biological parent of the child – Where the Respondent biological mother opposes the application – Where the Applicant is a person concerned with the care, welfare or development of the child – Where it is necessary to restore and create a relationship between the Applicant and the child – Where this necessity must be balanced with the need to protect the child from  potential termination of such relationship pending final orders – Ordered the child to spend limited supervised time with the Applicant.

Family Law Act 1975 (Cth) ss 61B, 61D, 65C

APPLICANT: Ms Jarden

RESPONDENT: Ms Eastwood

FILE NUMBER: NCC 3339 of 2019

DATE DELIVERED: 1 April 2020

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 24 March 2020

REPRESENTATION

SOLICITOR ADVOCATE FOR THE APPLICANT: Ms Karagiannis

SOLICITOR FOR THE APPLICANT: Legal Aid NSW

COUNSEL FOR THE RESPONDENT: Mr Bithrey

SOLICITOR FOR THE RESPONDENT: Cooney Harvey Doney

Orders

1. Pursuant to s 65C(c) of the Family Law Act 1975 (Cth) the Court declares that the Applicant MS JARDEN is a person concerned with the care, welfare or development of the child X born … 2019 (“the child”).

2. Each party shall complete the intake process for attendance at the B Contact Centre C Town (or such other centre as agreed) and do all acts and things otherwise required for the attendance of themselves and the child at the centre.

3. Ms Jarden shall spend time with the child at a contact centre, and failing agreement otherwise at B Contact Centre C Town, or through private supervision arrangements as agreed between the parties as follows:

   (a)For one hour on each of two consecutive weeks commencing in the week starting 6 April 2020;

   (b)Thereafter for two hours on one day each week, commencing in the week starting Monday 20 April 2020.

4. The Respondent MS EASTWOOD shall ensure that the child is taken to and collected from the contact centre or any private supervision arrangement on each occasion as directed by the centre as to times.

it is further ordered that

1. This matter is listed before the Honourable Justice Cleary for a Trial Management Hearing at 10.00 am on Thursday 28 May 2020.

2. No less than fourteen (14) days before the Trial Management Hearing the Applicant and Respondent must each file and serve a completed parenting questionnaire in the form approved by the Principal Registrar.

3. The directions hearing listed before the Registrar at 9.30 am on Wednesday 22 April 2020 is vacated.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jarden & Eastwood has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 3339 of 2019

Ms Jarden

Applicant

And

Ms Eastwood

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Procedural History

1. On 17 October 2019 Ms Jarden filed an Initiating Application in the Federal Circuit Court at Newcastle.  She identified herself as the Applicant mother of the subject child, X, born … 2019 (“the child”).

2. Ms Jarden nominated Ms Eastwood as the Respondent mother.  Ms Eastwood is the biological mother of the child.  The child was conceived by an artificial conception procedure in August 2018.

3. On 3 December 2019, the Respondent having filed a Response, these proceedings were transferred from the Federal Circuit Court to this Court.

4. On 10 December 2019 a registrar of this Court made directions for:

   1.A procedural hearing on 22 January 2020; and

   2.For the parties to attend on a Family Consultant for a Children and Parents Issues Assessment (“CAPIA”).

5. On 22 January 2020 the procedural hearing before the registrar took place.  On that day interim applications were adjourned to a duty list before me on 24 March 2020.

6. An oral application to vacate the date for the CAPIA, for reconsideration after the judicial duty list, was refused.

7. On 31 January 2020, Ms Eastwood filed an application for review of the decision of the registrar and for a threshold hearing in respect of whether Ms Jarden was an “intended parent” and also whether she had standing to bring the application.

8. That Application in a Case came before another judge of this Court on 4 February 2020.  The outcome was the dismissal of orders 1, 3, 4, 5 and 6 of the Application and of the oral application for costs by Ms Jarden.

9. Orders 7 and 8 sought in the Application in a Case were adjourned for hearing before me on 24 March 2020 in consolidation with the parties’ interim applications contained within the Initiating Application of Ms Jarden and the Response of Ms Eastwood.

10. The relevant proposed orders are:

    1.7(a) - whether the Applicant in the proceedings is an intended parent for the purpose of s 60H of the Family Law Act 1975 (Cth) (“the Act”);

    2.7(b) – whether the Applicant in these proceedings is a person concerned with the care, welfare or development of the child for the purpose of s 65C(c) of the Act.

11. On 20 March 2020 the matter was relisted by me.  On that date I advised the parties I would deal with the standing issue [s 65C(c)] and if that was established, would make interim orders, if appropriate, noting the young age of the subject child and the time that had passed since separation, a period of between eight and 10 months.

12. The more complex and time consuming issue of whether there was a de facto relationship between the parties at the relevant time, would be dealt with at trial.  If there is a finding that a de facto relationship existed at the relevant time, then Ms Jarden would become the other intended parent by law unless there was evidence to prove that Ms Jarden did not consent to the artificial conception procedure.

13. That issue of whether or not there was a de facto relationship between the parties was not appropriate for a short urgent duty matter especially where parties are constrained by attending by telephone due to current health restrictions.

14. Cross-examination on factual matters were sought and that is reasonable.

The short hearing

1. Accordingly, on 24 March 2020 I heard by telephone the two listed issues as discussed:

   1.The interlocutory application about standing; and

   2.In the event that Ms Jarden was found to have standing then her interim application for parenting orders in relation to the subject child.

2. Ms Eastwood submits that Ms Jarden does not have standing but in the event the Court finds that she does, then Ms Eastwood submits that the Court should make no parenting orders at this time.  Ms Jarden presses for interim orders to be made for time on a regular basis including at special times.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Applicant – Ms Jarden

   (a)Initiating Application filed 17/10/2019;

   (b)Affidavit of Ms Jarden filed 17/10/2019;

   (c)Affidavit of Ms Jarden filed 2/03/2020;

   (d)Affidavit of Ms D (a friend of the Applicant) filed 2/03/2020;

   (e)Tender Bundle A-E;

   (f)Tender Bundle J1 (153 pages);

   (g)Outline of Case document;

   (h)Written submissions;

   The Respondent – Ms Eastwood

   (i)Response filed 29/11/2019;

   (j)Affidavit of Ms Eastwood filed 29/11/2019;

   (k)Affidavit of Ms E Eastwood (maternal grandmother) 29/11/2019;

   (l)Case Outline document; and

   (m)Tender bundle.

The Parties

1. The Applicant Ms Jarden is aged 48 years.  She lives in C Town.  She has twin daughters aged 19 from a marriage which broke down when the children were five years or younger.  The Applicant is an indigenous woman.  She has suffered for many years from mental illness, perhaps including; bipolar disorder; depression; and possibly schizophrenia.  She has sought and continues to obtain medical advice. She takes medication to control her illness and sees a psychologist as necessary.  She receives a disability support pension.

2. The Respondent Ms Eastwood is aged 42 years.  She is employed as a professional at a government department.  She is currently on maternity leave from that employment.  Ms Eastwood is an indigenous woman.  She has no other children, except the subject child, but took on parental responsibility for her nephew, Mr F, and raised him.  He is now aged 19 and living independently.

3. The question of standing requires a factual finding.  I have read all the material including the thick bundle of texts between the parties, ranging over the period from 2017 until 2019.  Those documents alone reveal an intimate, affectionate, playful and loving relationship between the two women which incorporates the desire of Ms Eastwood to achieve what she had been attempting to achieve for at least three years before the parties met, that is, to have a child. 

4. There is evidence through those documents about discussions regarding suitable sperm donors,[1] about the medication Ms Eastwood was taking to support ovulation, about the cycling process which finishes and if unsuccessful, re-starts.  I note the exchange:

   Q:Are we ok to start this again?

   A:       Yes my beautiful, of course we are.

   Referring to yet another cycle of IVF.[2]

   [1] Pages 12 and 13 of the tender bundle.

   [2] Page 18 of the tender bundle.

5. There is reference to the attendance of both parties for medical consultation.[3]

   Q:       Am I coming with you?

   A:       Yes, if you’re well enough.

   A;       This is our baby we are making, I’ll be there.

   [3] Reference D of the tender bundle.

6. There was reference to there being the possibility of two eggs attaching which would result in twins.

7. On 26 April 2018 there is a reference to Dr G reporting in his letter “We also discussed the possibility of egg sharing with Ms Eastwood’s partner carrying the child”.[4]

   [4] Reference D of the tender bundle.

8. I reject the submission by counsel for Ms Eastwood that the doctor may simply have been speculating in a hypothetical way.  That is confirmed[5]in the affidavit of the maternal grandmother,, that there had been discussion about who would carry the baby given the difficulties Ms Eastwood had had. 

   [5] Affidavit of Ms E Eastwood filed 29/11/2019, para 7.

9. At the time when the parties met, Ms Jarden was still legally married.

10. On 16 June 2018 the parties were engaged to marry and subsequently celebrated with an engagement party in July 2018.

11. In June 2018, after the parties became engaged, it is apparent that Ms Jarden began paying attention to becoming divorced.[6]

    [6] Page 61 of the tender bundle.

12. After an IVF cycle in August 2018 Ms Eastwood conceived the subject child. 

13. I find that there was genuine happiness and increased commitment between the two women as a result and discussion about raising the baby.

14. The parties decided to hold a baby shower on … March 2019.  Invitation texts were sent out.  There is reference to Ms Jarden’s daughters being interested and involved in the discussions about the new baby.

15. On 30 March 2019 Ms Jarden and one of her daughters made a bassinette, fitted a baby seat into the car, packed a nappy bag and packed the car.  Obviously in anticipation of the imminent birth of the child.

16. In April 2019 the subject child was born.

17. There are photocopies of numerous letters of congratulations, mostly directed to both parties as parents of the child.

18. On 6 May 2019 a photograph was taken of the child with two pairs of hands supporting him, which I accept are likely to be the hands of the two women given the handwritten note on the photograph.

19. By May 2019 there is some indication that Ms Eastwood was at least flat and definitely by July if not in May, the relationship between the parties ended.  Ms Eastwood said she realised in retrospect that she had been in a controlling and manipulative relationship that she did not wish to raise her son in.[7]

    [7] Affidavit of Ms Eastwood filed 29/11/2019, para 57.

20. It is apparent, through her own evidence, that Ms Eastwood felt overwhelmed by the level of interest, support and advice that she was being given by Ms Jarden.  Anger entered into the relationship.  Nevertheless the parties registered the child with the name X Jarden Eastwood or X Eastwood Jarden at different stages. There was a dispute between them over the order of their two surnames.  The child’s birth certificate issued with the two women showing as the parents. Ms. Eastwood’s evidence is that she now regrets those decisions.

21. The submission was strongly made that Ms Eastwood had, since at least 2014, been on a single minded path to achieving the conception of the child and the development of a relationship between herself and Ms Jarden was secondary and separate to that wish.

22. In my view that is not reflected in the evidence before me.  The social work report put forward by Ms Eastwood dated 29 October 2019 says this:[8]

    [Ms Eastwood] attended initial assessment on 4 June 2019.  During this appointment [Ms Eastwood]  advised that she had been feeling redundant as a mother due to her partner [Ms Jarden] wanting to fulfil all of the parenting duties apart from breast feeding.  [Ms Eastwood] felt that she was not having any opportunity to bond with her baby and this had been making her feel depressed.  For these reasons she had decided to move in with her mother so that she could focus on parenting and building a relationship with her baby.

    [8] Affidavit of Ms Eastwood filed 29/11/2019, para 12.

23. It is compelling evidence of Ms Jarden’s commitment, interest and concern in a child and an expectation at least on her part, that she would be responsible together with Ms Eastwood for parenting the child.

24. I note that both parties told the family consultant that they commenced a relationship in early May 2017 and both concurred in the interview that the first year of their relationship was good, with limited concerns.  Each had her own household during that year.

25. The evidence supports a finding that both women were very much involved in the arrangements of the conception of the child, then celebration of his birth. It may be that Ms Jarden, having given birth herself and cared for twin children, did create the feelings described in Ms Eastwood but the factual exercise in this matter is whether there is a concern in the Applicant for the care, welfare or development of the child. 

26. It is clear to me that there is and that the visiting which went on until about August 2019 was also a reflection of that concern on behalf of Ms Jarden, acknowledged by Ms Eastwood, however reluctantly by then.

The Law

1. I find that the Applicant is a person with a concern for the welfare, care or development of the subject child.  She therefore has standing to make an application for parenting orders.  As yet, there has been no determination whether Ms Jarden is a parent of the child nor any allocation of parental responsibility.

2. By law, Ms Eastwood who is a parent of the child, has all the duties, powers, responsibilities or authority which, by law, all parents have in relation to children.[9]

   [9] Section 61B of the Family Law Act 1975 (Cth).

3. A parenting order confers parental responsibility for a child on a person but only to the extent to which the order confers on the person, duties, powers, responsibilities or authority in relation to a child.

4. A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent, if any, expressly provided for in the order or necessary to give effect to the order.[10]

   [10] Section 61D(1) and (2) of the Family Law Act 1975 (Cth).

5. An order for time for Ms Jarden does not alter the parental responsibilities of Ms Eastwood.

6. Ultimately if there is an allocation of parental responsibility to Ms Jarden, whether or not she is found to be a parent, that position would change.

Conclusion

1. I have found that the Applicant has standing to make an application for parenting orders. 

2. On behalf of the Respondent, Ms Eastwood, it was urged that the Court should make no parenting orders until all issues in dispute have been heard and determined.  Counsel for Ms Eastwood properly conceded that the child would be aged between two and three years by that time.

3. The Applicant presses for a raft of interim orders. The consideration is a balance between those two approaches.

4. First, the need to restore or create a relationship between Ms Jarden and the child against the possibility that she takes a significant role in his life.

5. Second, the need to protect the child from distress through the building up of a loving relationship with Ms Jarden only to have that relationship terminated depending on the outcome of the trial. There are challenges by Ms. Eastwood to the fitness of Ms Jarden, due to mental illness, to care for the child.

6. Accordingly, a short period of time weekly, one hour on the first two occasions and thereafter blocks of two hours, will introduce the child to Ms Jarden and maintain through short enjoyable encounters, an affectionate link with her but one that would not devastate the child if he lost it.

7. Orders are made in line with the recommendations of the family consultant in that way.

8. Finally, the procedural history of the matter over the past five months outlined at the commencement of these reasons reveals a very high level of animosity and distress between the parties. There was no attempt at counselling or mediation and no section 60I Certificate.

9. It is understandable in the circumstances, but the parties should now seriously consider engaging with professional help to:

   1.Understand the perspective of the other party;

   2.Focus on the needs of a very young child; and

   3.Negotiate a way forward until the matter has been heard and determined.

10. In that regard the orders will provide for time at a contact centre which on current indications, is still operative, but in the event that it is not or becomes unavailable then the parties will be required to organise private supervision arrangements.

11. Orders are made accordingly.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered ex-tempore on 1 April 2020.

Associate: 

Date:  1 April 2019