Keaton and Aldridge
[2009] FMCAfam 92
•9 February 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KEATON & ALDRIDGE | [2009] FMCAfam 92 |
| FAMILY LAW – Parenting – child conceived through assisted conception – child not biologically related to applicant – whether applicant is a parent of the child – whether s.60H(1) of the Family Law Act requires existence of de facto relationship at time of conception or birth – whether applicant and biological mother were in same-sex de facto relationship at time of child’s conception – applicant a person significant to child’s care, welfare and development – allocation of parental responsibility – safety concerns and applicant’s psychological states – different parenting styles – best interests of the child. |
| Commonwealth Powers (De Facto Relationships) Act 2003 (NSW) Commonwealth Powers (De Facto Relationships) Act 2003 (Qld) Commonwealth Powers (De Facto Relationships) Act 2004 (Vic) Commonwealth Powers (De Facto Relationships) Act 2006 (Tas) Family Law Act 1975 (Cth), ss.4AA, 60B, 60CA, 60CC, 60EA, 60H(1), 65C(c), 69VA Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) Property (Relationships) Act 1984 (NSW) Property Law Act 1974 (Qld) Status of Children Act 1996 (NSW) s.14(1), s.14(1A) Succession Act 1981 (Qld) |
| Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337; [1937] ALR 221; (1937) 4 ATD 163 Ganter v Whalland (2001) 54 NSWLR 122; (2001) 28 Fam LR 260; [2001] NSWSC 1101 Greenwood v Merkel (2004) 31 Fam LR 571; [2004] NSWSC 43 Hayes v Marquis [2008] NSWCA 10 Houston v Butler [2007] QSC 284 KQ v HAE [2007] 2 Qd R 32; [2006] QCA 489 Mao v Peddley [2001] NSWSC 254 Re C and D (1998) 147 FLR 120; (1998) 23 Fam LR 375; (1998) FLC 92-815; [1998] FamCA 98 Re J & M; Residence Application [2004] FMCAfam 656; (2004) 32 Fam LR 668 Re Mark: An Application relating to Parental Responsibilities (2003) FamCA 822; (2003) FLC 93-173 |
| Applicant: | MS KEATON |
| Respondent: | MS ALDRIDGE |
| File Number: | SYC 3130 of 2008 |
| Judgment of: | Pascoe CFM |
| Hearing dates: | 25 & 26 November 2008 |
| Date of Last Submission: | 26 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 9 February 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Anne Rees |
| Solicitors for the Applicant: | Watts McCray Lawyers |
| Counsel for the Respondent: | Ms Margaret Cleary |
| Solicitors for the Respondent: | Dettmann Longworth Lawyers |
ORDERS
That the child [X] born in 2006 reside with the respondent.
That the respondent have sole parental responsibility for the child.
That the child spend time with the applicant as follows:
(a)Commencing from Saturday 14 February 2009, each Saturday from 10.00am to 1.00pm, for seven weeks.
(b)Thereafter each alternate Saturday from 10.00am to 4.00pm, for eight weeks.
(c)
Thereafter every third weekend of the month from 10:00am to 4:00pm on Saturday and from 10:00am to 4:00pm on Sunday, for
6 months.
(d)Thereafter every third weekend of the month from 10:00am on Saturday to 4:00pm on Sunday.
(e)On such other occasions as the parties may agree.
Each year the child is to spend time with the applicant on the applicant’s birthday, if it does not otherwise fall in a period when she spends time with the child, for three hours to be agreed between the parties. Failing agreement, time with the child will be between 10:00am and 1:00pm if it falls on a weekend and between 4:00pm and 7:00pm if it falls on a weekday.
Each year the child is to spend time with the applicant on the child’s birthday, for one hour as agreed between the parties, and failing that, between 10:00am to 11:00am if it falls on a weekend and between 4:00pm and 5:00pm if it falls on a weekday.
Each year the child is to spend time with the applicant on Boxing Day for three hours to be agreed between the parties. Failing agreement, time with the child will be between 10:00am and 1:00pm.
That the delivery of the child is to be agreed between the parties; and failing that, the respondent is to deliver the child to the home of the applicant at [omitted] at the commencement of the time with the child is to spend time with the applicant and is to collect her from the same place at the conclusion of the period, and after delivery is to absent herself and remain away from the home of the applicant during the period unless otherwise invited to stay.
The applicant has liberty to communicate with the child by way of telephone or any other electronic means on each Wednesday between 4:00pm and 7:00pm.
Both parties shall:
(a)Advise each other of any change of telephone numbers or residential address within 48 hours after such change occurring;
(b)
Notify the other as soon as possible and no later than within
24 hours, of any event in which [X] suffers any serious injury, illness or hospitalisation whilst in either parties’ respective care.
(c)Not discuss any parenting issues with the child or in the presence or of hearing distance of the child or allow any other person to do so.
(d)Not make any derogatory comments about the other party, or the other party’s partner or immediate family, in the presence or hearing distance of the child.
That all previous orders be discharged.
That pursuant to s.65DA (2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars form part of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Keaton & Aldridge is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 3130 of 2008
| MS KEATON |
Applicant
And
| MS ALDRIDGE |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to an application by Ms Keaton (the applicant) for equal shared parental responsibility and time with the child, [X] born in 2006. In addition, she seeks orders declaring that she is a parent of the child. The applicant was previously in a same-sex relationship with the respondent who is [X]’s biological and birth mother. The respondent, Ms Aldridge, seeks to dismiss the application thereby asserting sole parental responsibility and no order to be made in favour of the applicant.
On 29 May 2008 the applicant filed an application for parenting orders in this Court. On 15 August 2008 Federal Magistrate Coakes made interim orders that the applicant spend time with the child for 3 hours each Saturday and that this time be gradually increased to one full day each week. The first occasion on which the applicant resumed spending time with the child was on 23 August 2008. The respondent then filed an appeal in the Family Court and an application for stay of the interim orders. On 10 September 2008, the orders were partially stayed and the applicant given time with the child each week from 9.00am to noon on Saturday. These were the current arrangements when the matter came before me.
An application by the respondent to expedite the matter came before me and was granted on 22 September 2008 with orders listing the matter for final hearing over two days commencing 25 November 2008.
On 21 November 2008 the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (‘The Amending Act’) received the Royal Assent. Although many substantive provisions of the Amending Act are to commence this year, relevantly to this matter Schedule 3A (which amongst other things, repeals and substitutes a new s.60H) and items 5 and 21 of Schedule 1 (which insert the meaning of de facto relationship) commenced on the day of the Royal Assent. The hearing of this matter proceeded over two days on 25 and 26 November 2008. Counsel for both parties agreed that the threshold date for the operation of s.60H is date of hearing, and I find that the amendments to the Family Law Act 1975 (Cth) (‘the Act’) which commenced on 21 November 2008 apply to this matter.
The applicant’s case is that she is [X]’s parent pursuant to s.60H(1) of the Act, including that the parties were in a de facto relationship, and that the applicant should have equal shared parental responsibility in relation to the long term care, welfare and development of [X]. She seeks, amongst other things, that:
·[I]n accordance with section 69VA of the Family Law Act, the Applicant Co-Mother [the applicant] be declared a parent of [X].
·
In the alternative to order 2 hereof [above], the Applicant
Co-Mother and the Respondent Mother do all acts and things and sign all documents necessary to cause [X]’s birth registration details to be amended whereby the Applicant Co-Mother is named as a parent of [X] on her birth certificate.
Following on from this and/or as a person concerned with the care, welfare or development of the child pursuant to s.65C(c) of the Act, she seeks substantial time with the child.
The respondent’s case is that the parties do not fall within the provisions of the Amending Act and that s.65C(c) therefore is still the relevant provision. In particular, the respondent argues that the parties were not in a de facto relationship at the time of conception nor did the applicant consent to the procedure as required under the amendments. The respondent also argues that on the basis of all of the circumstances and evidence it would not be appropriate for an order of any kind to be made but particularly in relation to the allocation of parental responsibility. This is because, it was argued, the safety issues outweighed the advantages of the applicant having time with the child.
I note that the respondent’s case outline indicates that the biological father (the donor) has not been served with an application, to the knowledge of the respondent and her representatives. In Re J & M; Residence Application [2004] FMCAfam 656; (2004) 32 Fam LR 668 there was discussion as to the necessity of serving the donor if he can be found because he may be regarded as a biological parent (see Re Mark: An Application relating to Parental Responsibilities (2003) FamCA 822; (2003) FLC 93-173) or a person concerned with the care, welfare or development of the child. However the issue of service was not pressed at hearing or raised in submissions. Although the donor may be identifiable through the sperm donor program at the [omitted hospital], this matter is distinguishable because there was no contradictor in J & M (supra). I am of the view that in the circumstances of this case any non-service on the donor will not affect the Court’s ability to hear and determine the issue before it between the applicant and respondent.
Relevant background
The applicant is 61 years of age and is an [occupation omitted].
She has two adult children from two previous relationships. Her son, Mr S, is in a relationship with Ms C and they have two children together, ages 7 and 2, and also residing with them is Mr S’s daughter from a previous relationship, aged 17.
The applicant also has a daughter, Ms K. Ms K is in a relationship with Mr H and together they have two children, a daughter named [Y] aged 4 and a son aged 2.
The applicant resides in what she describes as a “warehouse apartment complex” located in [R] and which contains five apartments. Ms K, her partner and children reside in a section contained in the applicant’s apartment. Mr S, his partner, and children also live at the same warehouse complex but in a separate unit.
The respondent is 43 years old and is currently a full-time mother, although she trained as an [occupation omitted] and pursued that occupation until 2005. [X] is the only child of the respondent. The respondent resides in an apartment in [B]. Her parents Ms A and Mr A live in [D]. The respondent has one brother, Mr J who is married with twin four and half year old girls.
The parties met in 1998 and agree they commenced an intimate sexual relationship in September 2001 but the date of their separation is in dispute.
The child [X] was born as a result of artificial conception procedures undertaken by the respondent in 2005.
From August 2004 the applicant and respondent commenced attending the fertility clinic at the [omitted hospital] where they had initial interviews with Dr S and counselling with Ms L. The respondent underwent artificial insemination procedures in March and April 2005.
The applicant was involved in many aspects of the program, including signing consent forms for the respondent to undergo artificial insemination.
In May 2005 the respondent became pregnant as a result of the April procedure and subsequently gave birth to the child on 3 February 2006. The applicant was there for the birth of the child and stayed at the hospital for three nights with the respondent.
The parties moved in together in January 2006 in preparation for and following the child’s birth. After on-going argument and disagreement concerning parenting, these arrangements ended on 21 November 2006 when the respondent attended Tresillian training for the child, a parenting style the applicant opposed. The respondent did not return to the applicant’s home and went to live with the child at her parent’s house in [D] before returning to her own home in [B].
Following the respondent leaving the applicant’s home, the time the child spent with the applicant was limited. The applicant saw the child for one third of the school holidays before the parties agreed that the applicant spend time with the child from Tuesday afternoon until Wednesday evening and from Friday evening until Saturday evening.
On 2 September 2007 the respondent told the applicant that she could only spend time with the child in the respondent’s presence and there was to be no overnight time. The applicant thereafter saw the child on Wednesday and Sunday mornings.
On 13 January 2008, the respondent reduced the time the applicant spent with the child to once a month. The last occasion the applicant spent time with the child until the operation of interim orders came into effect was on 16 February 2008
The parties gave evidence as to their relationship with the child after separation including activities with the child. The evidence indicated that the parties were civil to each other at handover and that both parties were caring, engaging and loving towards the child.
The evidence
At the hearing the applicant relied upon the following material:
a)Her affidavit sworn 13 November 2008;
b)The affidavit of Ms K sworn 12 November 2008; and
c)The affidavit of Ms C sworn 13 November 2008.
The respondent relied upon the following material:
a)Her affidavit sworn 9 November 2008;
b)The affidavit of Ms A sworn 3 November 2008;
c)The affidavit of Mr A sworn 9 November 2008; and
d)The affidavit of Mr J sworn 3 November 2008.
The applicant, the respondent, Ms K, Ms A and Mr A attended the hearing and were examined and cross-examined. Ms C and Mr J were not called and were not required for cross-examination. The family report writer Mr O’Grady attended the hearing for cross-examination.
Issues
The issues for me are:
a)Whether the applicant is a parent of the child for the purposes of the Family Law Act 1975 (Cth), including consideration of:
i)Whether the parties were in a de facto relationship for the purposes of s.60H(1) of the Act; and
ii)Whether the parties gave the relevant consent for the purposes of s.60H(1) of the Act;
b)If the applicant is a parent of the child whether I should make orders effectively amending the child’s birth certificate to include the applicant;
c)The allocation of parental responsibility; and
d)How much time the applicant should have with the child and if the applicant is to have time with the child whether that time is to be supervised.
Whether the applicant is a parent of the child
Legal principles
Section 60H of the Family Law Act 1975 as amended by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 deals with the status of children born as a result of artificial conception procedures. Relevantly to these facts, sub-s.60H(1) provides that:
(1) If:
(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent); and
(b) either:
(i) the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or
(ii) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;
then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act:
(c) the child is the child of the woman and of the other intended parent; and
(d) if a person other than the woman and the other intended parent provided genetic material–the child is not the child of that person.
The applicant relies on this section in seeking orders that she be declared a parent of the child.
Time of de facto relationship
Counsel for the parties disagreed as to the relevant time a person must be in a de facto relationship with the birth mother to be ascribed parental status pursuant to s.60H(1). The respondent argued that the section requires the de facto relationship to be in existence at the time of the artificial conception procedure. The applicant argued that the language of the section is ambiguous as to whether the existence of the de facto relationship must be at the time of birth or at the time of the artificial conception procedure and stated:
Absent the commas, is it the born while the woman was a de facto partner, or a procedure while the woman was a de facto partner? I think it’s open to either interpretation. We would say, of course, it doesn’t matter because both apply. But I don’t think it would be correct to say to your Honour that the only interpretation that is available is that the relevant time is the time of the conception.
I cannot agree with this interpretation. On a plain reading of the words in s.60H(1)(a) it is quite clear that the phrase “while the woman was married to, or a de facto partner of, another person” and in particular the term ‘while’ qualifies the phrase immediately before it which is “the carrying out of an artificial conception procedure”. Therefore it is quite plain on the face of the statute that the relevant time ‘the woman’ must be a ‘de facto partner’ of another person is at the time the artificial insemination procedure is carried out. There is no comma which separates the clause and on a literal reading of the section I am not willing to impute any different meaning.
I am also of the opinion that the literal reading of the words yields no absurd results or any inconsistency with the rest of the instrument: Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337 at 371; [1937] ALR 221; (1937) 4 ATD 163 per Dixon J. In fact, the literal reading which requires the de facto relationship to be in effect at the time the artificial conception procedure is carried out is consistent with what the section sets out to achieve. The provisions aim is to establish a parent-child relationship between the child and the women who gave birth to that child and her husband or de facto partner, even though another man or women might be the biological parent of that child. Its overall purpose is to place those couples who intend to be parents of a child through artificial conception in the same position as parents who have children through more traditional means.
I note that in relation to the previous construction of s.60H, the authors of Butterworths’ Australian Family Law, Vol. 1 suggest at [s.60H.3]
Procedure while woman married. It is submitted that in para (a) the words “while … man” relate to the procedure, not to the time of the birth. Thus the procedure must be carried out while the woman was married to a man: it is not sufficient that the woman was married when the child was born.
Further, s.60H(1)(a) of the Act when read in conjunction with ss.(b)(i) makes consent a requirement between the ‘women’ and her ‘de facto partner’ to the carrying out of the artificial conception procedure. If consent is not provided then the only other way a child will be recognised as a child of the women and the other intended parent is if that child is recognised under a State or Territory law to be such; s.60H(1)(b)(ii).
The requirement of consent is important in this provision. It appears sensible that for the consent to be effective in ascribing parental responsibility, the de facto relationship should be in existence at the time consent is given. This would flow on from the nature of the consent as a decision made by would-be-parents who together make a joint decision to have a child. That decision to have the child together must be made before the child is conceived so that the responsibility (and the acceptance of responsibility) for that child is set well before the baby is born.
I note that in relation to s.60B of the Family Law Act 1975 the objects of the part of the Act relating to children are;
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are set in ss. 2.
In my view, the Act in sub-para.(b)(i) makes a sensible link between the decision to have a child and the imposition of responsibility in s.60H(1); s.60B(1)(d). If parentage was not ascribed at this time, a party who had jointly participated in the decision to create a child could change his or her mind before the child was born and walk from the responsibilities which flow from the decision of which he or she was part leaving the birth parent without any support for the care, welfare and development of that child. To place time for determination as to whether consent was provided and more importantly, whether a de facto relationship exists after conception, in my view would lead to irrational and socially undesirable results. The aim of these provisions, after all, is to ascribe rights and responsibilities to intended parents so that the child will be cared for and raised in a stable environment.
I note that in the decision of Ganter v Whalland (2001) 54 NSWLR 122; (2001) 28 Fam LR 260; [2001] NSWSC 1101, Justice Campbell found that the time for the marriage was at the time of pregnancy. However, I am of the view that the wording of s.14(1) of the Status of Children Act 1996 (NSW) at the time is sufficiently different to the wording of the Family Law Act 1975 which does not contain the word ‘pregnant’.
In my opinion, the legislation prescribes that the relevant time at which the de facto relationship must be found to exist is the time of the artificial conception procedure. In this case the procedure which led to the child being conceived was performed in April 2005 and I find that this is the relevant date at which a de facto relationship must be found to exist if the requirements of s.60H(1) are to be satisfied.
Meaning of de facto relationship
Section 60EA of the Act provides that a person is a de facto partner of another person if:
(a) a relationship between the person and the other person (whether of the same sex or a different sex) is registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section; or
(b) the person is in a de facto relationship with the other person.
As the relationship between the parties was not registered, s.60EA(b) applies to this matter.
The meaning of de facto relationship is provided by s.4AA of the Act:
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basisParagraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
The explanatory memorandum to the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 provides at p 80 that:
This item [item 21] inserts new section 4AA, which provides a new definition of ‘de facto relationship’ for the purposes of the Act. The new definition applies the pre-existing definition in subsection 4(1) of the Act of a couple living together on a genuine domestic basis although not legally married to each other. In addition, the new definition:
- encompasses both opposite-sex and same-sex de facto relationships, unlike the previous definition which was confined to opposite-sex de facto relationships,
and
- is derived from the definition of the term in the State reference Acts.
The State reference Acts [Commonwealth Powers (De Facto Relationships) Act 2003 (NSW); Commonwealth Powers (De Facto Relationships) Act 2003 (Qld); Commonwealth Powers (De Facto Relationships) Act 2004 (Vic); Commonwealth Powers (De Facto Relationships) Act 2006 (Tas)] provide that:
de facto relationship means a marriage-like relationship (other than a legal marriage) between two persons.
Ms Cleary in her submissions referred to a speech delivered by the Attorney-General on 21 November 2008 at the Family Law Forum Conference in Brisbane:
[50] Contrary to some suggestions, the legislation doesn’t impose rights and obligations on couples in casual relationship, and they won’t apply to just any relationship or a mere ‘affair’.
[51] A strict test would need to be satisfied before a relationship is considered a ‘de facto’ one. Broadly speaking, if you don’t share resources with your partner, don’t support your partner financially, don’t have a commitment to sharing your life together and/or don’t care for children it is unlikely that you will be bound by these new laws.
The Attorney-General made reference to the term ‘strict threshold test’ in a second reading speech in the House of Representatives for the Bill on 28 August 2008 but this was with reference to the situation were one party in the claimed de facto relationship is still formally married to another person.
Due to the conferral of jurisdiction by the state reference Acts, I give consideration to the definition that a de facto relationship is a ‘marriage-like’ relationship. I have noted the strict test suggested by the Attorney-General in extrinsic material but make no finding as to its application on these facts.
Section 60H(1)(a) and the de facto relationship
For clarity, I refer to each indicia under s.4AA(2), but ultimately the task before me is to decide whether the parties in April 2005 had ‘a relationship as a couple living together on a genuine domestic basis’. Therefore, I give less weight to evidence going to matters occurring after April 2005 except if such evidence reflects on some aspect of their relationship in April 2005. I also note that there is considerable overlap with respect to some evidence that may go to a number of separate indicia.
Duration of the relationship
The parties met in 1998 and agree that their relationship as a couple commenced in September 2001. The duration and nature of their relationship, however, was fiercely disputed.
The applicant provided evidence that from September 2001 the couple maintained an on-going relationship until the end of November 2006.
The respondent on the other hand stated that her ‘intimate sexual relationship’ with the applicant ceased in mid-2004, after which time the couple simply maintained a close friendship. She says that around mid-2004 she began feeling confused about the relationship and recalls a conversation where she said to the applicant: ‘I don’t know what this is. It’s not a relationship in the way I want and need a relationship. It’s been sort of [a] friendship for a long time…’. It was the respondent’s submission that the relationship had in fact come to an end in mid-2004 and that up until November 2006 the parties were simply close friends.
The evidence does not indicate that after mid-2004 the time the parties spent together was reduced, except for a short period after the applicant moved out of the respondent’s apartment in [B].
Further, it appears the parties made an on-going attempt to maintain a relationship because a few months into the respondent’s pregnancy in mid-2005 the couple commenced attending relationship counselling in hope of reconciling issues in their relationship at that time.
Counsel for the applicant submitted that people do not attend relationship counselling for over a year with someone with whom they are not in a relationship and I accept this submission. The respondent herself stated in her affidavit evidence that she remained hopeful that through counselling things would improve. Although she may have wanted more than a platonic relationship with the applicant and even for things between them to change, I find that the parties were in a relationship until the date of actual separation in November 2006. This of course does not mean that it was a de facto relationship within the definition of the Act.
Nature and extent of common residence
The evidence indicates the parties had entirely separate dwellings and only shared a common residence on two occasions during their relationship.
On the first occasion, the parties dispute the duration of time they spent living together. The applicant claims she moved into the respondent’s apartment in [B] on or around November 2003 after the parties returned from a trip to Papua New Guinea and that she stayed there until the following September. The applicant’s passport was tendered into evidence and marked exhibit A1 and indicates that the parties returned from their holiday in November 2003.
The respondent disputes this and states that the applicant did not move into her apartment until mid-2004 but agrees that the respondent left in September that year. I note there are also inconsistencies between the applicant’s affidavit material and her evidence at hearing regarding the time she moved in with the respondent at [B].
I accept the respondent’s counsel’s submission that the number of months they stayed at the respondent’s apartment (whether that be a few months to 11 months) does not need to be resolved but rather the significance lies in the nature of the shared residence, such as the reasons for their common residence, whether they considered themselves to be ‘living together’, and how they conducted their daily life.
The respondent states in her affidavit that during the time the parties lived together in [B], the applicant offered to contribute to the rent. The respondent rejected this offer stating the applicant’s stay was temporary and that payment was not necessary. She also deposes that during this time:
a)The applicant received a key to the unit as she did not have one before;
b)The applicant only brought her clothes, her laptop and a few books.
c)The applicant was only ever at the unit without the respondent on one occasion;
d)The applicant made contributions to the gas, electricity and phone bills which arrived in September/October 2004.
e)The applicant only cooked one meal. On 3 or 4 occasions they cooked a meal together and on some occasions the respondent prepared the meals. Sometimes they prepared separate meals.
f)The respondent mostly did the food shopping with the applicant eating the groceries bought by the applicant. Each purchased their own personal items such as toiletries separately.
g)The respondent did her own washing and laundry and, after being told the applicant did not like others doing her washing, did not launder the applicant’s clothes.
h)The respondent did almost all the cleaning.
The applicant indicated in her affidavit that they shared household duties and shared meals. At hearing she indicated the respondent did the day to day cleaning, but that she did spring cleaning. The parties had separate post office boxes.
The second occasion of their common residence was in 2006 when the parties again moved in together to the applicant’s warehouse complex in [R] in preparation of and following the birth of the child. The time of shared residence during this period was around 10 or 11 months. The respondent concedes that at this time she sold everything and that she gave up the lease on her apartment in [B] to move in with the applicant.
During periods when the parties did not share a common residence they spent time together. The applicant indicates that the parties spent time with each other on average 4 to 5 times a week. The respondent indicates that the parties spent on average 3 to 4 times a week with each other, which always included seeing each other on the weekend, although in cross-examination she agreed that they had on occasion spent up to 4 to 5 times a week together.
The respondent deposes that the applicant did not visit her place until early 2005 after moving out of her apartment in [B] in September 2004. Further, when the respondent became pregnant in 2005 and had morning sickness for 3 months she indicated that she was ‘looking after’ herself and did not ask for help except two to three times when she was too weak to go downstairs to do the laundry.
The respondent indicated that other than during the two common residence periods, they each did their own shopping for food and household items. They did not do any common laundry or cleaning.
In considering the phrase “as a couple living together” I turn for assistance to the relevant state case law. There is a line of cases in the State Courts which indicate the phrase ‘living together’ requires consideration of the question whether the parties “so merged their lives that they were, for all practical purposes, living together as a married couple”: see for example Mao v Peddley [2001] NSWSC 254 at [57].
I note that the Property (Relationships) Act 1984 (NSW) phrases the term as two adults “who live together as a couple” rather than “living together on a genuine domestic basis”. However, the Queensland Property Law Act 1974 [which refers to s.32DA of the Acts Interpretation Act 1954 (Qld)] contains the latter formulation and there are Queensland cases that also indicate consideration should be had to the merging of lives: see for example KQ v HAE [2007] 2 Qd R 32; [2006] QCA 489. The phrase was recently considered by the New South Wales Court of Appeal in Hayes v Marquis [2008] NSWCA 10 where Einstein J at [166] stated that, “[t]o live together requires that the two adult persons be seen as regarding the place or places in which they live as ‘their home’”.
In relation to the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008, the Senate Committee on Legal and Constitutional Affairs received on 20 August 2008 answers to Questions on Notice prepared by the Attorney-General’s Department in relation to questions provided at a Senate Committee hearing on
7 August 2008 and additional questions later forwarded. Of relevance to the meaning of ‘living together’ was the information contained below in the answers:
(3) NSW Gay and Lesbian Rights Lobby suggest that the definition of 'de facto relationship' should be amended to clarify that two people may still be in a de facto relationship if they temporarily separate (sub 14, p. 10). What is your response? Is this situation covered by the definition in proposed s 4AA or associated provisions?
Answer: While the concept of two persons ‘living together’ or who ‘live together’ is contained within the definitions of the relationships to which the de facto property settlement legislation of five States (NSW, Qld, Victoria (Property Law Act 1958), WA and SA) applies, none of the definitions contain a provision stating that they may still be in a de facto relationship if they temporarily separate.
Two cases decided under the NSW legislation separations (Hibberson v George (1989) DFC 95-064 and Mao v Peddley (2002) DFC 95-249) indicate that courts have not had any particular difficulty with the issue of temporary separation, and that persons can continue to live together through occasional separations, for example, because of work responsibilities, holidays taken separately or periods in hospital.
I give weight to this extrinsic material as provided by the Attorney-General’s Department to the Senate Committee. As NSW case law indicates, the mere fact the parties did not have a common residence throughout the duration of their relationship does not preclude them from the phrase ‘living together’. The term ‘living together’ means a concept which is broader than just a common residence. However, a common residence is a good starting point in this endeavour.
In relation to the common residence at the respondent’s home I find the couple did not consider themselves to be living jointly and did not share the burden of maintaining a household. On the contrary, the applicant appeared to have moved into the respondent’s residence because her own warehouse complex was being renovated. I note the applicant at hearing disagreed that the move was because of the renovations, but I make this finding from evidence provided in the applicant’s witnesses’ affidavits and the respondent’s affidavit. It was circumstances, rather than any desire to live with each other under the same roof that bought the parties together for that period.
Additionally, on the basis of the evidence, I find it difficult to accept that the parties were living together over two separate residences. The parties did not have keys to each other’s residences until they moved in together for a short period. There was no easy informal access between each other’s place of residence. There is no evidence of joint furniture or other property.
I have had regard to the point raised by the respondent’s counsel that the parties were not living together at the time the respondent underwent the artificial insemination procedure and that the period in 2006 when the parties did live together was after the time of conception in April 2005. I give weight to this point. I also find on the evidence that at April 2005 neither party considered the others residence to be ‘their home’ and that the parties carried on their lives without either believing their relationship was such as to necessitate that they physically live together or that their separate residences were other than that.
Sexual relationship
The sexual relationship between the parties commenced in 2001. The respondent’s evidence was that physical and sexual intimacy between them gradually deteriorated and that there was no sexual relationship by mid-2004. The respondent stated that the last sexual interaction occurred in June 2004 during their holiday in Queensland.
In cross-examination the respondent stated her view of the relationship as follows:
“When the sexual relationship ended and there was no intimacy and a lot of problems in the relationship I didn’t know how to think of the relationship. Effectively it was a friendship and it is true I wanted more at that time, I did want it to be a partnership, but it was not a partnership in the way that I wanted and needed one and it never resumed to the level of partnership that I wanted”.
On the other hand, in relation to the reasons as to why they attempted counselling after the pregnancy, the respondent stated in cross-examination:
“Well, as I said it felt to me like it was a friendship. It wasn’t – I didn’t want just to have a platonic relationship with Ms Keaton. I did want it to be more, and nothing seemed to be changing in us doing that together, try to have any conversations, and that is one of the reasons that early on in the pregnancy I suggested counselling and the other reason was that the thought of moving into the Factory with Ms Keaton that there were issues that I did not feel confident about.
Although the applicant did not agree the sexual relationship ceased in 2004, I also have regard to the applicant’s concession that the lack of intimacy in the relationship was something the respondent regularly complained about. In cross-examination the applicant stated that the lack of intimacy was an issue and it was something they were working on with the counsellor.
The applicant did draw attention to one occasion of sexual intimacy between the couple. Ms Rees sought to show that the parties had engaged in sexual intimacy to assist in the conception process. In cross examination the respondent stated that the applicant stimulated her nipples, that she had to request the applicant to do so and that, with hesitation, the applicant agreed.
Ms Cleary argued that this was not a sexual act as it was at the direction of the hospital to assist in the conception process and, if the Court was to find that it were a sexual act, then it was a one-off incident that did not indicate the sexual relationship had been re-established.
Although the act referred to may have been of a sexual nature, I give little weight to it as it appears to have been at the suggestion of the hospital staff simply to assist in the conception process. It was hardly a spontaneous act of intimate affection between the parties.
Accordingly, I find on the basis of the evidence that there was no sexual intimacy between the parties at the time of conception.
Finances
The weight of evidence indicates the parties were financially independent. The respondent’s counsel tendered as Exhibit R2 the respondent’s tax returns for the years ending 2003 to 2006 and these did not include the applicant. The applicant did not tender any tax returns but agreed at hearing that she would not have referred to the respondent in her tax returns. Both parties paid their own expenses during their holiday in 2004 to Gladstone and Heron Island. On one occasion in 2003 or 2004 the respondent lent the applicant money which she repaid.
Additionally, when the parties resided together in 2004 they did not pay rent to each other and divided the bills.
There was only limited intermingling of finances. On 1 March 2004 the respondent was included in the applicant’s health insurance policy as she needed to do some dental work. She indicated that she reimbursed the applicant for one half of the premiums. The applicant indicates in cross-examination there was an adjustment back to the applicant for services utilised by her under the policy. The respondent indicated that in late 2007 she took out her own policy to cover herself and the child without the applicant. Although she had wanted her own policy in late 2006, she stayed another year to absorb premiums which covered a debt owed by the applicant to her. Exhibit A3 indicates the respondent’s cover ended on 3 January 2008 and that she continued to make claims on that policy in 2007.
During cross-examination the respondent recalled the applicant telling the respondent’s father, “I may not earn much, but it comes in every fortnight. There will always be a roof over her head. There would always be food on the table”. This was not disputed by the respondent at hearing. However, there is no evidence the applicant actually provided for the respondent at any time during their relationship. The applicant indicated in cross-examination that the respondent is ‘fiercely’ independent and would not allow the applicant to be financially responsible for her.
I find on the evidence that the parties were financially independent. The respondent may have had concerns when she became pregnant about her ability to financially support the child alone and this may have constituted part of a conversation between the parties. However, the evidence clearly indicates that their finances were quite separate and that they did not rely on each other financially.
Ownership and use of property
The parties did not share property. I note the respondent paid for the construction of a wardrobe, a mattress and installation of an air condition, $7000 in total, which was agreed in lieu of rent in 2006 and that the applicant took only few of her belongings when she resided at the respondent’s place in 2004 which implies she used the respondent’s furniture. The applicant also indicated that the respondent made decisions relating to the purchasing of whitegoods for the applicant’s home after the renovations had occurred. Other than joint usage during common residence, their ownership and usage of property was independent. This further reinforces their financial independence.
Degree of mutual commitment to a shared life
The parties shared much of their social life together. They shared time together, including attendance at family functions, family birthdays, Pessah celebrations and Yom Kippur observances. They travelled on holiday together.
The respondent in her affidavit indicates that the parties did not specify each other as beneficiaries in their wills (although the respondent was of the view in December 2005 the applicant may leave a beneficial interest in her residence to the respondent and child). However, as found above, material belongings did not feature strongly in their relationship.
The parties sought counselling to address the issues between them in mid 2005 and I find this action to jointly improve their relationship indicates that around this time there was some degree of commitment to a shared life.
The majority of the evidence before me though related to their commitment to parenting. As this featured predominantly in their relationship I am of the opinion that the degree of mutual commitment to a shared life turns on a finding in this respect.
What makes ascertaining the degree of their mutual commitment to a shared life on these set of facts difficult is the juxtaposition between the parties’ actions, in particular the applicant’s commitment to help the respondent prior to and following the birth of the child, and the parties’ actual expressed intentions of how they saw the applicant’s role with the child once it was born.
The degree of commitment provided to the respondent by the applicant and the respondent’s acceptance of that support is, to a degree, persuasive of a degree of mutual commitment to each other. The evidence shows that there was certainly a mutual commitment to supporting each other at least during the time of the program at the clinic:
a)The respondent took part in the fertility program as part of a couple rather than as a single mother. The report by Dr S after the interview with the parties on 28 September 2004 states:
“Couple in a stable rel’nship [sic] for 3 yrs [sic], though known each other for 7 yrs [sic]. Ms Aldridge states that previously she had not felt a wish to raise a child but since her rel’nship [sic] with Ms Keaton [sic] possibility of raising a child has felt more real and as she has met with other lesbian couples who are parenting she has allowed herself to open up to this option and now feels an overwhelming desire to do so”
b)The applicant gave evidence that she attended the [omitted] Hospital Fertility Clinic with the respondent, including participating in intake meetings, interviews, counselling sessions, and attending the clinic for the respondent’s insemination procedure and follow up blood test. The applicant says she signed consent forms in relation to the respondent undergoing artificial insemination. She indicated that their attendance at the initial counselling sessions was about them being parents together.
Despite this involvement in each other’s lives and the applicant’s commitment to helping the Respondent during this period, the couple’s intentions as to the role the applicant would play in the child’s life remained ambiguous:
a)The respondent accepted that she could have joined the program as a single mother and that the applicant was her partner but said it was not about having a child together at that time. The respondent said in evidence that she didn’t know how to describe their relationship and didn’t know what she wanted to do in relation to their future together.
b)It is agreed by both parties that the respondent was to decide the role the applicant was to play in the child’s life. In her affidavit the applicant states that in the period 2002 to 2003 the parties had conversations relating to the possibility of the respondent having a child. The applicant asserts that she said to the respondent:
“I don’t want to push you into a [sic] being a mother, and I’m not suggesting that I want to have anymore children. Having children has to be your decision for yourself and for your life…I will be as much or as little in your child’s life as you want” .
c)The respondent stated that in making the decision to have a child one of the factors was her ability to decide how much or little involvement the applicant would have in the child’s life.
This evidence demonstrates a high degree of doubt as to the couple’s mutual commitment to raising a child together and, to a lesser extent, to each other. The applicant clearly places the responsibility for any decision to have a child on the respondent alone and also envisages the possibility having a very limited role in the child’s life – or in fact no role at all.
This ambiguity is complicated because the parties dispute whether a decision was even made as to the applicant’s role in the child’s life. The applicant believed from her discussions with the respondent that the applicant was to be a co-mother and co-parent to the child. The applicant’s counsel emphasised that discussions regarding the applicant’s role were always in the context that the applicant insisted to the respondent:
“I need to know how you want to be, so that my relationship with the child will be set from the beginning…”
The applicant maintains in her affidavit and at hearing that once a significant relationship with a child is formed, it is important for her to maintain that relationship.
The applicant’s affidavit evidence seems to imply this decision had been made prior to the artificial conception procedure but at hearing, her evidence indicated that the respondent had made the decision they were to be co-parents together before the child was born. Further, evidence at hearing indicates that the applicant sought the respondent’s clarification of her role by the time the child was born.
There are various pieces of evidence which go to their intentions regarding the applicant’s role with the child. However, in some circumstances the evidence conflicts and in other parts is ambiguous as to the time when the applicant’s role was determined:
a)The applicant gives evidence in her affidavit that during the interview session at the clinic she had told the interviewer that she already had a family and did “not need another child”. This was qualified however with the fact she would support the respondent in any way she could if the respondent became a mother. Additionally, the applicant had since 2001 encouraged the respondent to have a child in order for the respondent to experience the rewards of motherhood. The respondent indicated their conversations related to she herself having a child rather with the applicant as a couple, that the applicant did not seem interested in being a parent and that she had conversations where the applicant would speak to her about the respondent becoming a single parent.
b)The fertility clinic report of the initial interviews notes that if anything happened to the respondent, the respondent’s brother who had young children of his own, was to look after the child due to the applicant’s age. However, the applicant gave evidence that she had a conversation with the respondent’s parents wherein they responded positively to her suggestion that the child live with her if something happened to the respondent. The respondent’s parents’ during cross-examination denied this part of the conversation had taken place. I accept their evidence in this regard. Further, I find the fact that the applicant agreed that the respondent’s brother would look after the child reinforces the respondent’s evidence that the applicant was not to be a co-parent or that at the very least a decision had not been made at that time as to her role.
c)Exhibit A2 contains the [omitted hospital]’s medical records in relation to the respondent’s pregnancy includes a form titled “Characteristics Form” which states that “this form is used to match the physical characteristics of the donor to the characteristics of your choice”. The form contains the names of both parties and is signed by only the respondent. It also includes the recipient consent form requesting semen from an anonymous donor. The consent form is signed by both the applicant and the respondent, with the applicant named as the “partner” of the respondent.
d)The respondent indicates she did not want the applicant’s name on the birth certificate nor for the applicant to have any “role, rights or responsibility”. Additionally, the applicant understood that at the time that she would have “no legal responsibility or rights in relation to that child”. I find however, that this was a view as to formal recognition of the applicant rather than any informal responsibility she may have with the child.
e)In an email written by the respondent on 8 September 2007 (annexed to the applicant’s affidavit as ‘Annexure B’ and in the respondent’s affidavit as ‘Annexure E’), the respondent writes:
When I said I wanted to co-parent with you (despite your consistent protestations, I still chose to believe you wanted to raise a child with me), I hoped it would be a situation where….The impact of all these experiences with you, is that I have begun to question whether I consider and experience you as as co-parent, or rather someone who is strongly in [X]’s life as someone who loves her deeply and cares for her.
f)It appears the respondent at one stage wanted to co-parent but the applicant did not. The evidence does not indicate when the respondent stated that she wanted to co-parent with the applicant. The respondent’s e-mail would indicate that even though she wanted to co-parent there was no certainty that this was what the applicant wanted and no understanding between them as to the applicant’s role. This is evidence that there was no meeting of the minds on this issue.
g)The respondent in cross-examination clarified her views on co-parenting:
At a particular point in time I considered that possibility [of co-parenting] but I did not ever consider it to the point that she would have equal or shared rights and responsibilities as me and in fact I’d set it up the opposite way, that she was clear that I would have the final decision making.
h)
Annexed to the respondent’s affidavit and marked ‘B’ is a letter dated 20 March 2006 whereby the parties jointly initiated communication to the sperm donor of the child via the hospital. The letter, written by the respondent, makes reference to ‘our beautiful baby daughter’, ‘we ponder our future conversations with her’, and makes on-going references to ‘we’ and ‘our’. The letter signs off ‘[initials of parties omitted] (Parents)’. In re-examination the respondent explained that it was the applicant’s suggestion to use the term ‘our daughter’. The respondent explained that she felt taken aback by this as it was the first time she had heard the applicant use this term. The respondent went on to state she did not feel confident at the time questioning the applicant about this because she was worried the applicant might react badly. She wanted to initiate communication with the donor and did not want this to ignite any conflict with the applicant. After receiving a letter from the donor, the respondent wrote to him on 15 January 2007 on behalf of both parties and the letter signs off ‘[initials of parties omitted]’. However, at this time she had moved out of the applicant’s apartment. Again the respondent in re-examination stated the reason for writing the letter in this style to the donor was that she had a fear of excluding the applicant and also did not want to explain to the donor why there was only one initial on the letter. From the evidence such as emails it is apparent the respondent was at times fearful of raising some issues with the applicant. There is no evidence she raised the content of the letter with the applicant at a time when she felt more confident. Regardless of her intentions, it is most likely that from those events the applicant considered herself to be a
co-parent to some extent, some time after the child’s birth. However, this does not resolve the issue of the nature of their relationship at the time of conception.
In the circumstances, I find that at the time the respondent underwent the artificial conception procedure the role of the applicant in relation to the child had not been mutually agreed between the parties. There is too much ambiguity to make a finding otherwise. Much of the evidence as to the applicant’s role relate to occasions after the respondent had become pregnant and particularly prior to her moving in with the applicant.
There is no doubt the applicant demonstrated commitment to the respondent both before and after conception and after the birth of the child as evidenced by the applicant’s attendance at various prenatal activities, her involvement on the day of birth, and sharing the care of the child at her residence. However, this is consistent with her encouragement of the respondent to have a child and support her through the process without any commitment to co-parenting.
I note in particular that the respondent had “sold everything at that point” and given up her lease when she moved in with the applicant in 2006. I note also the applicant’s evidence that she reduced her work hours and shared in the care of the child during the first ten months of her life. I note also that prior to the respondent moving in with the applicant, the applicant spoke to her daughter and her partner Mr H with a view of renovating the residence to accommodate the respondent and the baby. Additionally, the respondent indicated she was in the ‘habit of checking a lot of things with Ms Keaton’.
In cross-examination, the applicant’s counsel asked of the respondent:
You do accept, don't you, that whilst you may have been her birth mother and Ms Keaton was not, you and she were in this enterprise together, that was how you thought about it?
The respondent replied:
Not as parents together, but, yes, she was helping me…
Due to the context of this evidence, it is most likely this evidence related to their living arrangements in 2006. However, from the applicant’s involvement in the fertility program, I find that this understanding of embarking on some type of joint endeavour (although qualified) was shared by the respondent at the time of conception.
Certainly the applicant played a large role in the events surrounding conception of the child and supported the respondent in her endeavour. However, the lack of certainty and the ability of the respondent to determine the role the applicant would play – which I find had not been fixed at the time of conception and which could have been determined to be nil – undermines the notion of any strong mutual commitment to a shared life merely because of their involvement in the program as a couple.
On all the material before me, including evidence unrelated to parenting, I find there was a degree of mutual commitment to a shared life, but that in April 2005 this commitment was more one of support by the applicant to the respondent’s independent decision to have a child and to raise the child as she saw fit. This finding is further confirmed by the respondent’s evidence in cross-examination in relation to joining the fertility clinic, which I accept:
We were partners to a degree, but it was not about having a child together at that stage at all.
Whether it was registered
Although New South Wales does not have a state-wide registration program, I note that the City of Sydney Council, where the applicant resides, has a Relationships Declaration program[1] which allows two people to declare they are partners including to demonstrate the existence of a de facto relationship within the meaning of the Property (Relationships) Act 1984 (NSW).
[1] See K. Anthony & T. Drabsch, Legal Recognition of Same Sex Relationships (June 2006), Briefing Paper No. 9/06 to the NSW Parliamentary Library Research Service; referred to in the Respondent’s Case Outline Document.
There is no evidence that the applicant ever took advantage of this program. However, as the respondent lived in a different local government area, and there maybe reluctance by some same-sex couples to register their relationship[2], I give no weight to the lack of registration.
Care and support of children
[2] New South Wales Law Reform Commission, Report 113 – Relationships, Sydney 2006
As this aspect of their relationship occurred after the child’s conception, I have considered whether what occurred afterwards was a reflection of the parties’ mutual commitment to each other at the time of conception
In the matter of Houston v Butler [2007] QSC 284 on an application under the Succession Act 1981 (Qld) for proper maintenance and support out of the testator’s estate on the basis the applicant was the testator’s de facto spouse, both parties held separate residences and the applicant only moved into the testator’s home to care for him when he suffered a stroke. The applicant’s willingness to give up her own career and financial independence to care for the testator was found by the Queensland Supreme Court to be evidence of the quality of the relationship which existed at the time and preceding the applicant moving into the testator’s home. Consequently, his Honour found they had been in a de facto relationship prior to sharing one roof.
I find the facts in this case are distinguishable from Houston v Butler (supra). I am not of the view that the arrangements in 2006 were a reflection of the quality of the relationship as existed in April 2005. The applicant’s motivation to support the respondent in her apartment was due to the birth of the child. As discussed above, the applicant’s role with the child was unclear, in the process of being clarified and seemed to change from time to time. Additionally, the respondent has not conceded the parties were in a de facto relationship during 2006 nor have I made such a finding.
I note further that the applicant’s surname is one of the child’s middle names and that this was to reflect the applicant’s role in encouraging the respondent to have a child. When the child’s birth was registered in April 2006, the respondent states she did not want the applicant on the birth certificate in any capacity.
Reputation and public aspects
Both parties agree they socialised and attended outings togethers and referred to each other as ‘my partner’ to third parties including relatives, the respondent’s community at temple, and a wider community as indicated in the magazine article written by the respondent and introduced into evidence as Exhibit A4. They referred to each other as ‘partner’ until November 2006. The respondent gave evidence that even after mid-2004, when she considered they were friends rather than partners, she continued to refer to the applicant as her partner due to confusion and ambiguity as to just what her relationship with the applicant actually was.
Both of the applicant’s witnesses indicated that they assumed the applicant would take a role in the child’s life. The parties represented themselves as a couple to the fertility clinic. Their initial interview report states:
Ms Aldridge and Ms Keaton are a lesbian couple who have been in a stable relationship for 3 yrs [sic].
The respondent had been on the applicant’s health care policy since 2004. The applicant submits that the respondent was on her health care policy as her spouse and, further that the chid was on it as part of their family. The respondent submits that she was only on the policy to make use of the health care benefits which she required at the time and that she was not aware she was considered a spouse, although in cross-examination she did state that she was, “on that policy as Ms Keaton’s partner”. When it was put to the respondent in cross-examination that she was on the policy as the applicant’s spouse because she believe that to be true, the respondent replied, “For a time, but that changed”. I note that she was still on the health care policy in 2007 and only later took out her own health cover. Whether or not the applicant was aware that it was a ‘family policy’ and that she was considered by the health provider to be a spouse, I accept the respondent’s explanation that she was on the policy so that she could obtain benefits, regardless of the nature of their relationship. I therefore give limited weight to this evidence.
Conclusion regarding existence of de facto relationship
The possibility of the applicant becoming a legal parent of the respondent’s child under federal law was not a reality in April 2005. The parties discussed the possibility of the applicant taking on a parental role in the child’s life in a social and functional sense. In order to leave this opportunity open, the applicant sought from the respondent before the child was born clarification of her role in the child’s life. The parties conducted themselves in the lead up to and throughout their involvement in the fertility clinic without any awareness that legal parenthood for the applicant would become defined by the existence of a de facto relationship between them and that crucially, it must exist at the time of the respondent undergoing the artificial conception procedure.
Perhaps the most difficult task in this regard is determining the point at which relationships cross an invisible line to become one recognised by law. This idea was espoused in Houston v Bulter (supra) where Dutney J stated at [70]:
It is of the nature of many de facto relationships that they develop over a period of time and a precise moment crosses the line to become one recognised by legislation is often difficult to discern.
Without the ‘solemnities and formalities’ by which some hetero-sexual couples declare that relationship in marriage, same-sex relationships are fluid in the sense that it is difficult for them to discern what, if any, circumstances will carry them across an invisible threshold to be a relationship recognised by law.
One of the most important factors in determining whether the parties in this case crossed that threshold relates to their commitment to raising a child together.
Although the parties participated in the fertility clinic program as a couple, and the applicant’s witnesses were of the view that they were having a child together, I do not regard this as evidence of a mutual commitment to a shared life together because of the evidence, which I accept, that the applicant’s role in the child’s life had not been determined and was, as she deposed a matter for the respondent to decide. The evidence demonstrates that one of the main motivations for having a child was so that the respondent would enjoy the experience of motherhood, and not because the parties wanted to have a child and raise it together. The applicant was there to support the respondent and it was up to the respondent to decide the applicant’s role in the child’s life. No decision had been made as to the role the applicant would have in the child’s life at the time the respondent underwent the procedure.
I also place weight on the fact that the parties did not live together, but had two separate residences. When the parties did move in together it was through circumstance and not a desire to live under the same roof. The evidence also made it clear that the parties did not consider each others home to be theirs jointly. I have had regard to the fact the parties spent most nights of the week together at one or the other’s residence and in a way that suited them; Greenwood v Merkel (2004) 31 Fam LR 571; [2004] NSWSC 43. However, the independent nature of their relationship carried through to other aspects including, finances, property and possessions and to basic chores around the house including cooking and cleaning.
I find that the relationship lasted from September 2001 through to November 2006 and although the relationship may have taken on different forms throughout this timeframe, the parties remained committed to a relationship of some nature throughout the whole time. Although the parties represented to the world that they were a couple, I find that it was not in April 2005 a de facto relationship as required by the legislation.
I find their living arrangements in April 2005, combined with all the other circumstances do not constitute ‘living together on a genuine domestic basis’. The parties demonstrated a large degree of independence in almost all aspects of their relationship. Accordingly, I find that the parties were not in a de facto relationship at the time of April 2005 and consequently that s.60H(1)(a) is not satisfied.
Section 60H(1)(b)
I note the respondent raises an issue as to whether the consent the applicant gave for the respondent to undergo the procedure was consent of the relevant kind as required by the legislation because at the time of the procedure the applicant could not legally be a parent. Ms Cleary submits that it could not be the case that, retrospectively, consent which was consent to something completely different now has a new meaning.
Additionally, the applicant’s counsel referred to s.14(1A) of the Status of Children Act 1996 (NSW) which provides parental status for the de facto partner of a woman who gives birth to a child the result of a fertilisation procedure.
As I have determined the parties were not in a de facto relationship at the time the respondent underwent the procedure, I do not need to make any findings as to whether the applicant gave consent as required by s.60H(1)(b)(i) or whether the state legislation is applicable under s.60H(1)(b)(ii).
Conclusion on whether the applicant is a parent
As the parties were not in a de facto relationship for the purposes of s.60H(1)(a), I find that the applicant is not a parent of the child under s.60H(1) of the Act. Consequently, I do not need to consider making any order in relation to the child’s birth certificate.
Parenting orders
Before addressing the legal principles, there are a number of relevant factual issues I need to outline which was raised on the evidence.
Safety concerns by the respondent
The respondent gave evidence that one of the reasons why she reduced the applicant’s time with the child after the parties separated was due to her concerns that the applicant failed to provide a safe environment for the child. The applicant responded to those concerns in her affidavit. I set the issues out as follows:
a)The respondent is concerned about the applicant’s aggression and shouting towards the respondent in front of the child;
b)In July 2006 whilst both parties and the child were in the kitchen, the respondent threw a plate in the kitchen whilst the child was in her high chair in the same room. The applicant indicates that this incident was ‘uncharacteristic behaviour’ which grew from frustration with the situation she was in. She indicates that the plate was thrown away from the direction of the child and further that she quickly cleaned up the plate after her outburst.
c)The applicant’s large sea chest with three rusted and torn iron hinges situated next to the baby’s change table and at a height the child could reach. The hinges were not replaced when the respondent was there even though the applicant agreed to find some safer matching hinges. However, the applicant indicated this was because no matching hinges had been found.
d)The applicant’s residence contained an industrial sink that had an edge with ‘curly stainless steel sharp splinters’. The applicant in 2007 placed a temporary foam material on this edge. The applicant indicates she has now fixed the edge with a coating of silicone. However, the respondent asserts the applicant was dismissive of such dangers.
e)When the child was 6 months old the applicant left her to bathe in the bath alone, although she was in the room next door. The applicant indicates that the child was never unattended in the bath and that she could see and access the child from the next room.
f)The applicant owns a dog named “[omitted]” who is very large and in the respondent’s opinion was uncontrolled. She claimed the child was apprehensive around the dog. The applicant indicates the dog is now trained.
g)The applicant’s unit is over three levels with an open stairway without a balustrade. The applicant indicates that it had a bottom and top gate and therefore the child did not have access to the stairs. She has also installed a safety mesh over the gaps in the stairs.
h)The applicant allowed acquaintances, Mr D, his wife Ms R and daughter [N] who was 6 years old to stay in the granny flat attached to her residence. Mr D confided that there had been allegations he had sexually abused [N]. Additionally, whilst staying near the applicant’s residence the police had been called due to the alcohol abuse and domestic violence between Mr D and his wife. The applicant indicated that she had later assisted them to relocate, to Adelaide and then later Brisbane.
Self-Cutting and Dissociative states
The respondent claims that the applicant engages in self-cutting and experiences dissociative states which affect the applicant’s parenting abilities. The respondent deposes that on a number of occasions the applicant has had these experiences without remembering such occurrences, for example not remembering she had crashed a car into a pillar causing damage to the side panel.
The applicant gave evidence that in 1986 she was hospitalised, with her consent, in the psychiatric ward at the [omitted hospital] for three weeks in relation to her experience of dissociative states described as “fugue-states”. The applicant indicates that she has no recollection of individual incidents whilst in the fugue states. The applicant then undertook psychiatric therapy for about 7 years. She gave evidence that after her discharge she has been employed at all times as a teacher without incident in the community.
The applicant indicates that she has engaged, since childhood, the practice of self-cutting as a way of releasing tension and not as an indication of suicidal tendencies. These are shallow cuts which usually appear on her upper thighs or stomach and she said she has never needed medical attention for this.
In her affidavit, she indicates that the last time she self cut was during a difficult period in her relationship with Ms Aldridge, in either late 2004 or early 2005. She indicates she has not self cut since [X]’s birth and currently employs meditation and physical exercise to deal with tension and stress and regularly sees a counsellor to assist with maintaining a stable position.
The respondent is fearful that the applicant’s psychological health may place the child at risk. This is especially because when the applicant is in her fugue state she is unaware of what is around her and additionally, the applicant does not remember what happens when she is in those states.
At hearing the respondent gave evidence that she was aware of the applicant’s psychological history during the early stages of their relationship but it was when she became a mother that her views on the applicant’s psychological states in relation to parenting changed.
At hearing in answer to the question, “I assume you’d accept that [X] shouldn’t be exposed to your doing that”, the applicant replied, “Absolutely”. However, she did not agree that she would not be able to supervise the child in the ‘ordinary way’ whilst in her states. She indicated that she had been able to function in her job and as a parent with no detriment. She also indicates she does not think they will occur again. However, she has never seen herself in the dissociative state but has been told by the respondent she has, for example, behaved as a small child. The applicant agreed that, “[i]f the scenarios occurred, as Ms Aldridge is – is imagining and what I’m hearing from you she might be imagining, then, yes, of course, she would be concerned, yes”.
The applicant indicated that in early 2007, the respondent attended a Yoga retreat and asked the applicant to care for the child for three days, which she did. The applicant also asserts that even after 2 September 2007 when the respondent decided to make her time with the child supervised, that she still cared for the child on 5 occasions when the respondent was not present, which was when the respondent had an appointment or was not well.
No medical records were produced in relation to the applicant’s psychiatric health.
Martin O’Grady – Family report
Mr O’Grady is a clinical psychologist appointed under Regulation 7 as a family consultant to prepare a family report pursuant to orders of Coakes FM on 15 August 2008. He prepared a report dated
10 November 2008in relation to these proceedings following interviews with the applicant and respondent on 5 November 2008 and observing the parties’ separate interactions with the child on the same day.
Mr O’Grady’s evaluations were that:
a)It seemed likely the child does have a warm and significant attachment to Ms. Keaton. This evidence was also given at hearing and that the benefit to the child would be that the applicant would provide an alternative parenting environment which included a strong sense of community. During cross-examination by Ms Cleary, Mr O’Grady clarified that this was not an attachment in the clinical sense but as a term for interaction or relationship or strength of bond and that there was a possibility she could have a similar attachment with a variety of people. However, he continued to emphasise that this attachment has been of ‘significance’.
b)Both parties appeared to have, “considerably different parenting styles and values, with Ms. Aldridge having derived benefit from more structured approaches (e.g. Tressillian practice), and with Ms. Keaton having subscribed to more ‘traditional’ and ‘child centred’ methodologies.”
c)It is likely the parties have very different personalities.
d)Irrespective of whether the applicant’s dissociative experiences and cutting behaviours are current, they were highly distressing experiences to both the applicant and the observer. At hearing he indicated he found the respondent’s concerns were ‘considerable’. However, Mr O’Grady was of the view that her behaviour was, “not only ‘treatable’ but that such sometimes dissipates naturally in accordance with the ageing process”. At hearing he confirmed that in a general sense dissipation of the condition could occur from the age of 60.
His recommendations in his report were that if the court were to endorse the applicant spending time with the child, then it should be increased gradually. Additionally, he recommended that the applicant submit a ‘care and safety plan’ to the respondent on a fortnightly basis outlining proposed activities with the child. Counsel for both parties indicated at hearing that they had difficulty understanding the nature of a ‘care and safety plan’ and how it would be implemented. Neither party sought this option.
During cross-examination by Ms Rees, Mr O’Grady indicated that if, hypothetically, the respondent knew of all of the applicant’s psychological history prior to conception of the child, then he would have expected her to raise her concerns earlier or perhaps not continue with the relationship. However, during cross-examination by
Ms Cleary, he also indicated that it was possible that the respondent had changed her views due to motherhood.
Mr O’Grady in cross-examination by Ms Cleary indicated that he did have an assumption that both parties were parents, and that it may possibly change his view if this were not the case.
I give weight to Mr O’Grady’s observations as to the attachment between the applicant and the child and that the parties had different parenting styles.
In relation to his professional view of the applicant’s psychiatric history, I give it some weight as evidence of possible difficulties in the future, in light of the lack of other evidence provided in relation to this issue.
Legal principles
The legal principles which govern the application for parenting orders are set out in Part VII of the Family Law Act. Most importantly, s.60CA provides that the best interests of the child are the paramount consideration. However, of importance in this case is s.65C which recognises other significant persons who can apply for a parenting order.
Although I have found the applicant is not a parent of the child, I find that she is a person concerned with the care, welfare or development of the child as provided by s.65C(c). This finding has been made with regard to the applicant’s involvement in the care of the child and the attachment between her and the child as evidenced in the family report.
Allocation of parental responsibility
The applicant seeks an order for equal shared parental responsibility. This is opposed by the respondent who seeks that the application be dismissed.
In Re C and D (1998) 147 FLR 120; (1998) 23 Fam LR 375; (1998) FLC 92-815; [1998] FamCA 98 it was stated that at [10.10]:
“This court made it clear in Rice and Miller (1993) 16 Fam LR 970; (1994) FLC 92-415 and more recently in Re Evelyn (1998) (1998) 23 Fam LR 53; FLC 92-807 that the biological parent does not stand in any preferred position and that fact does not in any way impinge upon the principle that the best interests of the child are paramount.
I do not accept the respondent’s submission that the child should spend no time with the applicant. Clearly, the applicant has played a major role in the child’s life. She was actively involved in caring for the child after birth and has continued to be a significant figure in the child’s life. The evidence from Mr O’Grady the family report writer was that the child had an attachment to the applicant (although not in the clinical sense) which was described in the report as ‘warm and significant’ and at hearing as ‘strong’. Further, the child has on-going attachments to other members of the applicant’s family and the evidence supports the importance of these attachments.
There is no presumption in this case in favour of the applicant being allocated equal shared parental responsibility or in fact any parental responsibility. This will be determined by reference to the relevant provisions of the Act and of paramount importance the best interests of the child.
The evidence demonstrates quite clearly that the parties have completely different parenting styles and that this has the potential to cause significant conflict between them and has in fact done so in the past.
The parties’ affidavits annex correspondence between them from 2007 to 2008. The content of the letters indicate a difficulty communicating between them. For example, Annexure A to the applicant’s affidavit includes an email by the applicant to the respondent dated 6 September 2007 stating:
Ms Aldridge I am aware this is probably not the better way of communicating and at present I am a bit fragile for anything more interactive.
This inability to communicate is also shared by the respondent. In the email of 8 September 2007 (‘Annexure B’ of the applicant’s affidavit and ‘Annexure E’ of the respondent’s affidavit), the respondent wrote that she did not raise a safety issue regarding a mattress the child was jumping on being close to kitchen stools because:
I didn’t say anything, because I didn’t want to have to deal with your dismissive or aggressive reaction.
The evidence including that of the family report writer, especially in relation to how to handle the child’s sleeping patterns, indicate different parenting styles by the parties. The email of 8 September 2007 indicates the different styles in parenting adversely affect the respondent:
Because of my experiences in trying to discuss these concerns with you, and also being at times even being ridiculed by you for expressing my concerns, I ended up silent, but vigilantly guarding and trying to build in protection for [X] from these things (e.g. putting nappy cloths over the sharp rusted bits on the chest) constantly. This has added a huge stress to my life on top of everything else and I have been very upset, frustrated and angry about it.
It is partly the fact that the above things have happened, and also, perhaps more importantly, that these things do not seem to concern you, and that you are not aware of them, that you seem oblivious, or don’t care. I wonder about the future and what else would you not notice or not seem to care about…”.
The same email indicates these issues will continue to affect the respondent in the future:
“You might think this is all merely past history and should be left out of this. However, for me, that history and its patterns have pervaded most of our dealings with each other in our attempts at negotiating our way through difficult issues. That history is why I left. That history continues to live on in our dealings over [X] and my concerns over the last few months”.
In cross-examination the applicant stated that in her base beliefs on raising children she would not change her views much. She indicated that she has strong views and she will argue them, but if she is disagreed with she would step back. However when asked about whether she would allow enrolment of the child in the schools attended by the respondent, she stated, “I know both schools, I guess less comfortably than perhaps some other schools”. When asked if she would want to discuss the issue of schooling with the respondent, she stated: “Look, in most open traditional type schools probably not. If Ms Aldridge were, for instance, looking at something a little bit more left of centre I would probably want to have a say”. She would also find relocation interstate/overseas by the respondent with the child very difficult although this depended on whether there was good reason.
I find that communication between the parties and their inability to
co-operate in relation to the child’s upbringing means that it is not in the best interests of the child for me to allocate equal shared parental responsibility. Most of the child’s time has been spent with the respondent who should have sole parental responsibility.
I must now determine the amount of time it is in the child’s best interests to spend with the applicant and whether that time be supervised.
The primary considerations
Subject to sub-s.(5), in determining what is the children’s best interest the Court must have regard to the matters set out in ss.60CC(2) and (3). Section 60CC(2)(a) provides that the Court must consider the benefit to the child of having a meaningful relationship with both parents. Section 60CC(2)(b) requires that the Court ensure that the child is protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In deciding what is in the best interests of the child the Court must take into account the primary and additional considerations by virtue of ss.60CC(2) and (3) of the Act. Notably, these primary considerations are consistent with the objects set out in ss.60B(1)(a) and (b) of the Act.
The benefits to the child of having a meaningful relationship with both the child’s parents
I find that the child has a loving relationship with the respondent mother who has been her primary caregiver.
I note that there had been discussions between the respondent and applicant prior to the child’s birth and during the pregnancy, regarding the applicant’s role with the child and that there is dispute as to whether the applicant was a co-parent of the child. I have found that the applicant is not a parent of the child under the Act and consequently this section does not apply to the applicant. Certainly the applicant has played an important role in the child’s life and I have considered her a person of significance to the child’s welfare.
The need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence
The respondent refers to the incident in which the applicant smashed a plate in the child’s presence in 2006. I accept the applicant’s submission that this was uncharacteristic of her and an isolated incident. I agree that the circumstances at that time were difficult for both parties and that the incident arose from those isolated circumstances. There is no evidence of any lasting harm to the child.
From the evidence regarding the parties’ interaction after 2006, I do not believe the parties would negatively interact with each other in front of the child to a level which may constitute psychological harm.
Additional considerations
I now propose to have regard to the additional considerations insofar as they are relevant by virtue of s.60CC(3), including sub-s.(4).
The child expressed views and the weight those views should be given
The child turned three last week and due to her young age this section is not relevant.
The nature of the relationship of the child with each of the child’s parents; and other persons
The child was actively cared for by both the applicant and respondent during the first nine months of her life and the applicant continued to spend time with her after separation until time with her was gradually reduced. As evidenced by the family report, the child has a warm and loving relationship with both parties.
The parties in their affidavits gave evidence as to the child’s interactions with the applicant after interim orders were in place. The applicant’s evidence indicates the child remembers and enjoys her time with the applicant who cares and interacts with the child. The respondent’s evidence was that the child appeared to be more withdrawn with the applicant. However, overall the evidence indicates the child’s time with the applicant has been positive.
Although the applicant is not a parent for the purposes of the Act, I note that there had been discussions after the respondent’s pregnancy and/or childbirth for the respondent to possibly be a co-parent functionally in the child’s life. This is particularly apparent in the emails between the parties annexed to their affidavits and their parenting and living arrangements in 2006. In considering the nature of the relationship between the applicant and child I find however, there is no evidence the applicant currently stands as a parental figure to the child. This finding is particularly heightened where both parties dispute the nature of the role of the applicant with the child and there is no support by the respondent for the applicant to stand in a parental role. The family report writer at hearing indicated that the applicant’s attachment observed was not in the clinical sense of that between child and mother/father.
Additionally, the affidavit of both parties indicate that the child is close to many of the parties’ relatives.
The applicant describes her extended family as a ‘close family network’ who see each other regularly. She indicated that whilst living in the warehouse complex, the child spent a lot of time with the applicant’s grandchildren, especially [Y] who is close in age to the child.
The respondent indicates that the child has a close relationship with the respondent’s parents, brother, cousins and neighbours who live in close proximity to the respondent. The respondent’s parents who assisted her with the child between November and February 2007, usually see the child three times a week, which includes the child having overnight stay on Mondays. She indicates her brother and his family see the child two to three times a week (including when the child is with the grandparents).
The willingness and ability of each parent to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The applicant has given evidence that she would encourage a relationship between the child and the respondent mother.
The respondent on the other hand evinces an intention to remove the applicant from the child’s life. This has been manifest in many different aspects of her evidence, for example the orders sought before me by the respondent are that the application should be dismissed and that in the past had she had intentionally introduced a gradual regime to reduce the time the applicant spent with the child. She indicated that this was based on her view that the applicant was a security risk to the child. Contact between the applicant and child had ceased in February 2008 and was only recommenced due to interim orders.
The respondent’s affidavit states that:
I do not wish there to be any orders whereby there are any arrangements involving time between [X] and Ms Keaton. I do not want any future relationship of any nature with Ms Keaton. I see no prospect of my ever having any ongoing involvement with Ms Keaton in my life.
I note that, both parties have complied with interim orders. Although the evidence of the respondent has been that there has been reluctance on her part and miscommunication between the parties, the relationship has been civil. I do not think that there would be any difficulties with prescribing a contact regime between the child and the applicant so far as contact between the parties is necessary.
I note that at hearing the respondent stated she had been concerned the child would miss her relationships with the other children at the applicant’s residence and, although not agreeing the applicant was the second most important person in the child’s life (as submitted by the applicant’s counsel), did agree there was a “strong relationship” between the applicant and child by February 2008. Although the respondent may not want a relationship with the child, I am of the view that she will comply with orders and appreciate advantages to time with the applicant.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person with whom he or she has been living
I am of the view that contact with the applicant would be beneficial to the child. However, the child has spent the last year in the sole care of the respondent and there has been no evidence to lead me to the conclusion that substantially increasing the time with the applicant would have any benefit to the child.
Although there has been some evidence that exposure to a different parenting style maybe beneficial to the child, this does not mean that the exposure to a different parenting style need be substantial. Due to the difficulty between the parties communicating, their different parenting styles and the respondent’s role as the primary carer, it would be in the best interests of the child not to be in a position where she is confused by different parenting styles or unwittingly causes conflict with the respondent mother as a result. Time with the applicant is in my view beneficial for the child but only to the extent that different parenting styles do not cause problems for the child.
The practical difficulty and expense of a child spending time with and communicating with a parent
There has been no submissions relating to difficulties in this respect and I find on the evidence that there would be no difficulty in the child spending time with and communicating with the respondent or the applicant as a significant person in her life.
The capacity of each of the child’s parents; and any other person to provide for the needs of the child, including emotional and intellectual needs
The respondent in her affidavit indicates that she suffers from Chronic Fatigue Syndrome which she has had on and off for around 20 years. The condition is exacerbated when she is feeling stressed. No submissions were made as to whether this would affect her parenting, although in affidavits the applicant indicates that the respondent was very tired during [X]’s first year and that she and Ms K would provide respite baby-sitting.
Evidence provided to the family report writer indicates the respondent mother’s residence is comfortable, provides and is near facilities which allow the child to pursue indoor and outdoor activities. She attends day care for three days a week and has attended music and swimming lessons. The child has contact with family members and friends in the district.
The respondent relies on the applicant’s psychological health including her experience of fugue states to indicate that the applicant would not be able to care for the child. The respondent indicated that she was aware of the applicant’s past mental health and history at length and detail and only changed her views as to its importance after the child was born.
The evidence indicates that the applicant had been able to care for the child during 2006 and during the times she has had care of the child. There has been no evidence tendered which indicated that her psychiatric health has adversely affected her care of the child. I note the situation where she voluntarily entered hospital and left Ms K, as a child, to be cared for by others, which indicates the applicant had been able to identify her inability to care for Ms K at the time and made appropriate arrangements. The applicant gave evidence that she regularly sees a counsellor and has maintained stability over the last two years, without any incidents. Additionally, the family report writer indicated there was a possibility that the applicant’s condition may reduce with age. I see nothing in the applicant’s mental history which would be potentially harmful to the child if she were to have care of the child for a period.
The applicant in cross-examination conceded that she would be concerned if her children were cared for by someone in whom she did not have confidence. However, the respondent allowed the applicant to care for the child unsupervised on occasions even after she imposed supervised time.
As the applicant has demonstrated in the past her ability to care for the child, I decline to make orders that the applicant’s time with the child should be supervised. There is no reason to do so on the basis of the evidence before me.
The evidence also indicates the applicant is able to provide for the child through her planning of various activities, both indoors and outdoors and allowing the child to experience interaction with other children in a community setting.
I find both parties have the capacity to provide for the needs of the child, including emotional and intellectual needs.
The maturity, sex, lifestyle and background of the child and of either of the child’s parents and any other characteristic of the child the Court thinks relevant
As indicated above, the child was conceived via artificial insemination using the respondent’s ovum and sperm from an anonymous donor. Annexures to the respondent’s affidavit indicate that the parties have sent correspondence to the donor. The respondent has allowed the child to meet a half sibling from her genetic connection with the sperm donor on around 6 occasions.
There is no evidence to suggest both parties will not deal with this issue in a manner that is sensitive and in the best interests of the child. The respondent has been very open about her previous relationship with the applicant and her role in encouraging the applicant to have a child. This includes discussing the background to the child’s second middle name, which is the applicant’s surname. The respondent indicates it was out of gratitude and respect for the applicant motivating her to have a child, whilst the applicant indicated she suggested it to allow the child to feel part of the family with the other children at the warehouse. There is no evidence the applicant would discuss the child’s background without first discussing the issue with the respondent.
I do note that the respondent continued to misrepresent to the donor (although the letter was never sent) that the parties were a couple when they had ceased living together. However, I do not think this will generally affect the way the respondent will deal with the child’s background with her.
The attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents
As discussed above I find the respondent has generally satisfied her responsibilities and shown positive attitudes to parenting.
In relation to the applicant, I also find she has generally shown positive attitudes to parenting. The applicant appeared dedicated to caring for the child in 2006 and after that time established patterns of play for the child, such as going to the park, painting, visiting the applicant’s sister’s bead shop, riding a bike or playing dress up.
I do note that there was evidence the applicant agreed with the respondent’s evidence that the applicant had stated: “If you don’t like it, don’t bring her here anymore”. However, I accept the applicant said this on the spur of the moment and in the context of the relationship between the parties at the time.
The evidence of both parties indicates they have tried to look after the child well according to their own values. I understand the respondent mother has safety concerns for the child in relation to the applicant’s care of her, but I note that the applicant has tried to meet the respondent’s concerns (such as the silicone for the sink and the safety issues with the stairs). Although at times her response to the respondent’s concern may have taken some time to be implemented, there is no evidence of any wilful neglect or lack of concern for the child’s safety.
The extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent, including spending time with the child, participating in decision making about his or her welfare, and facilitating the other parent to do the same, and the extent to which each parent and party has fulfilled his or her obligation to maintain the child
The applicant is not a parent of the child and this consideration is not relevant on these facts, especially since I make findings that the respondent should have sole responsibility for the child.
I note that the respondent had gradually reduced time the child spent with the applicant so that the child would have no relationship with the applicant. This is particularly unfortunate as the respondent agreed the child had a strong attachment to the applicant and was concerned about the child’s relationship with the children in the applicant’s extended family. The respondent indicated it was due to the safety risks to the child and that she had deliberated over the matter for some time.
Any family violence involving the child or a member of the child’s family; any family violence order that applies to the child or a member of the child’s family if the order is a final order or the making of the order was contested
I have dealt with this issue under the primary considerations.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
I am of the view that the making of final orders is in the best interests of the child as it may assist the parties to find stability in their lives and contribute to a long term stable environment for the child.
Conclusion
I find that the applicant is a person who is significant to the care, welfare and development of the child. The relationship between the child and the applicant is warm and they have a close attachment. The evidence of the family report writer is that it would be beneficial if the child had other significant attachments in her life besides her mother. Additionally, both the family report writer and respondent herself agreed it would be of some benefit to the child be exposed to a different parenting style.
I have not granted as much time to the applicant as sought. I believe the time with the applicant is sufficient for the child to benefit from her on-going relationship with the applicant whilst at the same time not blurring the respondent’s role as her primary carer, and allowing the respondent to exercise sole parental responsibility. I note that the child also has other people in her life such as her grandparents, uncle, cousins and day care group and the weekend monthly time will not take away her attachments to other persons. I have graduated the time spent in accordance with recommendations of Mr O’Grady the family report writer. I have made orders giving the child limited time with the applicant on special occasions such as birthdays but for limited periods so as not to exacerbate conflict between the parties or cause undue disruption to the child’s routine which is important for young children. The parties are of course at liberty to agree on the child having additional time with the applicant or to make other arrangements by mutual agreement.
I make the above orders to reflect these findings.
I certify that the preceding one hundred and ninety-six (196) paragraphs are a true copy of the reasons for judgment of Pascoe CFM
Associate: Thu-Ha Nguyen
Date: 9 February 2009
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