Keaton and Aldridge
[2008] FMCAfam 939
•15 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KEATON & ALDRIGE | [2008] FMCAfam 939 |
| FAMILY LAW – Parenting – applicant and biological mother engaged in same sex relationship at time of conception – applicant not biological parent of the child – child conceived through assisted conception – best interests of child. |
| Family Law Act 1975 (Cth), Part VII |
| Goode & Goode (2006) 36 FamLR 422; FLC 93-286 |
| Applicant: | MS KEATON |
| Respondent: | MS ALDRIDGE |
| File Number: | SYC 3130 of 2008 |
| Judgment of: | Coakes FM |
| Hearing date: | 14 August 2008 |
| Date of Last Submission: | 14 August 2008 |
| Delivered at: | Parramatta |
| Delivered on: | 15 August 2008 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Boers |
| Solicitors for the Applicant: | Watts McCray Lawyers |
| Counsel for the Respondent: | Ms Cleary |
| Solicitors for the Respondent: | Dettmann Longworth |
ORDERS
THE COURT ORDERS PENDING FURTHER ORDER:
1. That the Child [X] Keaton Aldridge born in 2006 (“[X]”) spend time with Ms Keaton as follows:
(a)Each week for 4 weeks on a Saturday from 9.00am to 12.00noon commencing on Saturday 23 August 2008.
(b)Thereafter each week for 4 weeks on a Saturday from 9.00am to 2.00pm.
(c)Thereafter each week for 4 weeks on a Saturday from 9.00am to 4.00pm.
(d)Thereafter each week on a Saturday from 9.00am to 6.00pm.
(e)On such other occasions as the parties may agree.
That Ms Aldridge is to deliver the Child to the home of Ms Keaton at [omitted] at the commencement of the time [X] is to spend time with Ms Keaton 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 Ms Keaton during the period [X] is to spend time with Ms Keaton.
THE COURT ORDERS FURTHER:
The matter is adjourned to 9.30am 1 October 2008 for directions before Federal Magistrate Kemp.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by
15 December 2008.The Family Report to deal with the following matters:
(i) any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(ii) the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(iii) any other matters that the Family Consultant considers important to the welfare or best interests of the said child.
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 PARRAMATTA |
SYC 3130 of 2008
| MS KEATON |
Applicant
And
| MS ALDRIDGE |
Respondent
REASONS FOR JUDGMENT
Edited from the transcript
Introduction
On 3 February 2006, Ms Aldridge gave birth to a baby girl,
[X] Keaton Aldridge, now aged two and a half years. At that time,
Ms Aldridge and Ms Keaton lived together and they had known each other since 1998, began an intimate relationship in September 2001 and spent time with each other at their respective homes until January of 2006, when they lived together in Ms Keaton's home in [omitted]. Their relationship of living together ended in November of 2006, when [X] was nine months old, and Ms Aldridge left with [X].On the evidence before me, the relationship between Ms Keaton and Ms Aldridge, until November 2006, was characterised by love and affection, mutual support and intimacy, occasional questioning as to direction and commitment to each other and occasional conflict.
It was early in their relationship that they discussed and decided to have a child by artificial insemination, with Ms Aldridge to be the birth mother. Together, they went to the fertility clinic at [omitted] in about August of 2004, and were involved together in the acceptance and medical procedures conducted by the hospital.
Ms Aldridge fell pregnant in May of 2005, and [X] was born. [X]'s biological father is an anonymous donor, but with whom Ms Aldridge and Ms Keaton have corresponded once under hospital protocols and received a reply.
[X] has a biological half‑brother, whom she has met and played with, and whom Ms Keaton has also met.
[X]'s birth certificate records her given names as [X] Keaton, and her family name as Aldridge.
Following separation in November 2006, Ms Keaton spent time with [X] until the end of 2007 frequently, when there was a sudden deterioration in the adult's relationship, and Ms Keaton last saw [X] on 16 February 2008.
Background
Ms Keaton is 61 years of age. She is [employed] in the Sydney area. She lives in [omitted]. Ms Keaton has extended family living nearby.
Ms Aldridge is 43 years of age. She is an [omitted], and she lives in [omitted]. As I understand the evidence, [X] is her first child.
Ms Aldridge also has extended family in the Sydney district.
Applications
Ms Keaton seeks parenting orders pending further order as set out in exhibit A1, which broadly seek that [X] spend time with her by a gradual progression for the first two weeks each Wednesday and Saturday from 9.00 am until 1.00 pm and for the second two weeks each Wednesday and Saturday from 9.00 am until 6.00 pm, leading to twice a week overnight and then four days overnight during school holiday periods and special occasions and also by telephone.
Ms Keaton filed her own application on 29 May 2008, including an order for joint responsibility on a final basis for long‑term decisions concerning [X]'s care, welfare and development.Ms Aldridge filed her response on 29 July 2008 seeking only a dismissal of Ms Keaton's application ‑ in other words, proposing no parenting orders and, by inference, that [X] should have no relationship with Ms Keaton. Following Ms Keaton filing her original application, she then obtained the assistance of lawyers.
Evidence
I have read each of the affidavits filed by Ms Keaton, and there were three, and I read each of the affidavits filed by Ms Aldridge, and there were two. I was also greatly assisted by the outline of case documents filed by the lawyers acting for each of the parties, both of which became exhibits. I heard comprehensive and constructive submissions from Mr Boers for Ms Keaton and Ms Cleary, Counsel for
Ms Aldridge.
What is the legal status of Ms Keaton in these proceedings?
Section 65C prescribes who may apply for a parenting order, and
Ms Keaton clearly falls under sub‑section (c) as any other person concerned with the care, welfare or development of a child. The evidence establishes that Ms Keaton has had significant involvement from birth to separation and subsequently in both the care, welfare and development of [X]. This was not put as a serious issue for contention by Ms Cleary in Ms Aldridge’s case.
The Issues
As to the issues, it seems to me that these are they: first, what is and has been the nature and relationship between [X] and Ms Keaton. Second, what is the benefit, if any, to [X] in re-establishing her relationship with Ms Keaton. Third, is there a detriment to [X] if the relationship is not re-established. Fourthly, what is the likely effect on Ms Aldridge's parenting of [X], if any, if Ms Keaton spends time with [X]. Fifth, should the application by Ms Keaton be determined only at a final hearing.
The Relevant Law
As to the relevant law, I have regard to Part VII of the Act. Ms Keaton can apply for a parenting order, and the significant sections to which I must have regard are s.64B, which sets out the meaning of a parenting order, and it is a parenting order which Ms Keaton seeks.
Section 64B(2)(b) prescribes that a parenting order may deal with the time a child is to spend with another person or persons, and sub-section (e) of that section deals with the communication a child is to have with another person or persons.
Section 60B(2)(b) of the principles underlying the objects of Pt VII of the Act relating to children provides that children have a right to spend time on a regular basis with and communicate with both their parents and other people significant to their care, welfare and development, such as grandparents and other relatives. It is my view that Ms Keaton falls into this bracket.
Section 60CA requires that the Court must regard the best interests of the child as the paramount consideration in deciding whether to make a particular parenting order in relation to a child.
Section 60CC sets out the matters the Court must consider when determining what is in a child's best interests.
Section 61DA sets out a presumption of equal shared parental responsibility when a parenting order is made. Under s.61DA(3), when the Court is making an interim order, the presumption applies, unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making the parenting order.
These are interim proceedings. The Full Court in Goode & Goode [2006][1] prescribed a pathway to be followed in interim parenting proceedings, and which I will follow. When considering the compulsory matters, as it were, under section 60CC and the frequent reference to "parent", and whilst "parent" is not defined in the Act except in relation to adoptive parents, it is clear Ms Keaton, on the evidence before me, is not a parent of [X] but, rather, it seems to me, a person who has been significant to [X] in her care, welfare and development.
[1] Goode & Goode (2006) 36 FamLR 422; FLC 93-286
Agreed or uncontested factual matters
The evidence establishes and I find:
a)from the time of [X]'s birth and until separation in November of 2006, Ms Keaton and Ms Aldridge were involved together and jointly in the day‑to‑day care of [X]. Ms Aldridge played the greater role, as she was the mother at home. Ms Keaton worked four days a week and sometimes other times, but was involved significantly and in a practical way with the care of [X] each day when at home and all aspects of her upbringing.
b)The parties had counselling during their relationship and after January of 2006 to assist in resolution of difficulties which had begun to appear in their relationship.
c)In July or August of 2006, there was an incident at the home when Ms Keaton threw and broke a plate following a heated discussion and argument and whilst [X] was in the vicinity. [X] was not injured. The mother left the home with [X] but returned after about three weeks.
d)[X] did not sleep well at night. Ms Keaton and Ms Aldridge were unable to agree as to how to address this problem, Ms Aldridge preferring the Tresillian method and Ms Keaton preferring more traditional comforting.
I was left with the impression from the affidavit evidence that this was probably a major contributing factor to subsequent disagreements as to style of parenting and their separation.
History
In November or December of 2006, [X] spent limited time with
Ms Keaton following separation from the end of December 2006 until February of 2007.From then until the end of August 2007, [X] spent time with
Ms Keaton each week, at least two nights overnight and for some additional nights and with other time by mutual agreement.From September to November 2007, [X] spent day time only with
Ms Keaton, usually Wednesdays and Saturdays for about three hours each time and with Ms Aldridge usually being present.From November 2007 to February 2008, [X] spent time with
Ms Keaton on Saturdays only for about three hours.Each change of time for [X] spending time with Ms Keaton was at the behest of Ms Aldridge and not with the consent of Ms Keaton.
Evidence as to safety issues at Ms Keaton's home and Ms Keaton's health leading to disputes
Ms Aldridge set out in her affidavit a number of concerns she had as to possible risks to [X] as to safety within the household. I will not refer to each in detail, suffice to say there were complaints about a sea chest, an industrial sink, Ms Keaton being in the proximity of the bathroom when [X] was having a bath, a phone cord on the floor, a dog, which was subsequently trained, an open stairway involving gates and netting, a casual visitor who came from the Northern Territory and perhaps represented a risk of assault consequent upon his behaviour towards his partner.
These are matters in respect of which I am unable to make findings because there is conflict on the evidence, but I find that no actual injury was caused to [X] as a consequence of any of those matters raised by Ms Aldridge, and none of these allegations, in my view, is sufficiently serious to warrant [X] not spending time with Ms Keaton.
Health
As to health, there is a history of Ms Keaton's psychological and psychiatric difficulties referred to in her affidavits and those of
Ms Aldridge. Also, the therapy and the treatment she has received and undergone. There is also the procedure of cutting bodily tissue from time to time for relieving tension and to which Ms Keaton refers.There is no evidence to suggest that Ms Keaton has or will permit any risk to [X] if she is able to spend time with her in respect of either the features of her household or her health.
Indeed, whilst Ms Aldridge raises these matters, it seems to me that the tenor of her evidence is not such that she seriously suggests that any of those factors by themselves would warrant [X] not spending time with Ms Keaton.
Relationship
As to the relationship between Ms Keaton and Ms Aldridge, there is none. Indeed, Ms Aldridge makes it clear she does not want any future relationship of any nature with Ms Keaton.
Section 60CC matters
The relevant s.60CC matters it seems to me are these:
Section 60CC refers in sub‑section (a) to the benefit to the child of having a meaningful relationship with both the child's parents.
That does not apply in this case, because Ms Keaton is not a parent within the definition of the act.
Sub‑section (b) and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
Ms Cleary submits that there is a need to protect [X] from the harm which may flow from the psychological health of Ms Keaton, but, more significantly, the conflict that now exists over Ms Keaton's wish to maintain an independent relationship with the child and in the context of the relationship between the parties having completely broken down. I listened to that submission with interest, but I find on the evidence that there is no likelihood in my view of the psychological health of the child being put at risk or suffering if [X] spends time with Ms Keaton, and there is no evidence before me, similarly, that there is a risk within the meaning of that sub‑section consequent upon
Ms Aldridge's reaction, if you like, or attitude if [X] does spend time with Ms Keaton.I referred to, during the course of the hearing, what had seemed to me to be flowing from correspondence between the parties a degree ‑ in fact, a high degree ‑ of sensitivity as to the role each other has played in the past in the care of [X], but also their relationship with each other. The correspondence was sensitive, it was frank, it was carefully worded, it was respectful and set out perceptions as to the relationship, particularly on Ms Aldridge's part, and the difficulties which she perceived in the relationship continuing. That correspondence flowed in September of 2007 or thereabouts. It was clear to me from the tenor of the correspondence that some of the difficulties which seemed to have arisen lie in a failure to communicate with each other constructively. The mother acknowledges in that correspondence
Ms Keaton's role and her love of and care for [X] in the past and someone whom she says is strongly part of [X]'s life and someone who loves her deeply and cares for her. It is against that background of the relationship between Ms Keaton and Ms Aldridge that I conclude that there is no risk of psychological harm to [X] if she spends time with Ms Keaton.Moving then to s.60CC(3), additional considerations:
Sub‑section (a) has no application for the reason that [X] is just not old enough.
Sub‑section (b), the nature of the relationship, clearly [X] has a close and loving relationship with Ms Aldridge and members of her family, to whom she refers in her affidavit. I find equally that [X] had, certainly until February of 2008, a close and loving relationship with Ms Keaton. It is significant in my view that [X] has had and up to May or early June of 2008, clearly, a memory and knowledge of Ms Keaton. This appears in the mother's evidence when she says that [X] has mentioned Ms Keaton's name perhaps three times and once or twice in a song, but also with the names of other persons. I do not accept the submission by Ms Cleary that there is no longer a relationship between [X] and Ms Keaton, for reasons to which I will refer later. Whilst it is true that Ms Aldridge does not wish [X] to have a relationship with
Ms Keaton, that is only one of the factors that I take into account.Sub‑section (c), the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship, the mother is the only parent within the meaning of that sub‑section, but it seems to me that it also extends to Ms Keaton in the sense that she is able to be the beneficiary of a parenting order which involves the child spending time with her. I will return to that later in my reasons as well.
Sub‑section (d), the likely effect of any changes in the child's circumstances, and that is in the context of [X] spending time with Ms Keaton, I am confident, for reasons to which I will refer, that [X] will be able to resume a relationship with Ms Keaton, if that is to occur.
Sub-section (e), practical difficulty and expense, that has no application. Sub‑s.(f), the capacity of each of the child's parents and any other person to provide for the needs of the child, clearly, the mother is able to do that, both in the sense of physical needs and emotional and intellectual needs. I am satisfied on the evidence that Ms Keaton is also able to certainly provide physical accommodation and is also able to meet emotional needs insofar as it is necessary if [X] spends time with her.
Sub‑section (g), [X] is a little girl. She is two and a half years of age. There is no other characteristic that I think is relevant at this time.
I take into account the that she has been born of a special relationship between Ms Aldridge and Ms Keaton and that she does not know and is unlikely to have any contact with her biological father at this stage.Sub‑section (h) has no application.
Sub‑section (i), the attitude to the child and the responsibilities of the parent demonstrated by each of the child's parents, that has limited application in this case, but I am satisfied that Ms Keaton, in a caring role, has demonstrated an appropriate attitude to her responsibilities when she has exercised those with [X].
Sub‑section (j) and (k) have no application.
Sub‑section (i) has no application for the reasons that these are interim proceedings. If I am to make an order as sought by Ms Keaton, then the matter will be adjourned for a final hearing.
Sub‑section (m), there is no other fact or circumstance which I think is relevant.
Section 60CC(4) has limited application in this case because it
also refers to "parents", although I do take into account the fact that
Ms Aldridge limited [X]'s time with Ms Keaton from February of this year.
Conclusions
On the evidence, there is very little dispute between the parties except as to why it is the mother decided bring to an end to [X]'s relationship with Ms Keaton. Ms Aldridge sets out a number of reasons in the correspondence between the parties, but that, ultimately, is a matter to be tested at the final hearing if I am to make some interim orders.
I have not had the benefit of hearing or observing either of the parties give evidence in the witness box, and, for that reason, I am not able to make any findings of fact where there is a dispute between them. There is no expert's report.
It is, however, inescapable for me to conclude that [X] had a very significant relationship with Ms Keaton over the whole of the first two years of her life. On the balance of probabilities, I find there was a strong attachment between [X] and Ms Keaton built on the foundation of Ms Keaton's involvement with her upbringing until November of 2006 and then her frequent time with her subsequently, albeit diminishing by the end of 2007.
It is significant in my view that [X] continues to mention Ms Keaton's first name and clearly has knowledge and memory of her. That evidence is found in the mother's case. It is to be hoped that irreparable harm has not been done to their relationship.
It seems to me Ms Aldridge has lacked some insight as to the likely effect upon [X] of the loss of the relationship. Ms Aldridge's attitude towards Ms Keaton is, no doubt, coloured by her reasons for deciding to discontinue her relationship with Ms Keaton, but that is quite a separate issue from [X]'s relationship with Ms Keaton.
I find it is not in [X]'s best interests at this time to deny her a relationship with Ms Keaton, and one which has already been established. That relationship was terminated unilaterally by
Ms Aldridge in mid‑February this year, and it is to be restored as soon as possible. That, I find, is in [X]’s best interests.As to the issues which I identified earlier in these reasons, I make the following findings and observations: one, the relationship has been one of love and, on the balance of probabilities, quite close and strong attachment. Second, the benefit lies in restoring the relationship which has been lost and one which was of and is of significance to [X] on the evidence before me. Third, there is a detriment to [X]‑ namely, the loss of an adult from the first years of her life and who played a significant role in her upbringing and of whom she has both memory and knowledge. Fourth, there is a low risk of an adverse effect, but I conclude from the sensitive manner in which Ms Keaton and
Ms Aldridge have both conducted their relationship during that relationship and since separation that Ms Aldridge will be respectful of my decision and accept [X] spending time, but limited, with
Ms Keaton. Fifth, the relationship needs to be restored as soon as possible.It is not appropriate for [X] to spend time with Ms Keaton overnight pending the final hearing. I am satisfied that not too great a period of time has elapsed between February and now to destroy the relationship between [X] and Ms Keaton. It may be otherwise if no time is spent between now and a final hearing in May of next year.
The purpose of the orders I propose to make is to enable [X] to spend a period of time each week with Ms Keaton. During that time, [X] will, no doubt, be able to spend time with members of Ms Keaton's family whom she used to see and as she had before.
Whilst Ms Aldridge opposes any relationship between [X] and
Ms Keaton, I trust she will accept my decision and that it flows from a consideration of [X]'s best interests, which is something quite separate from the relationship between the parties.I add to my reasons that, in my view, the time to be spent by [X] with Ms Keaton enables the relationship to be continued and in such a way that if, at a final hearing, it is determined that [X] should have no relationship with Ms Keaton or a limited relationship, then, more likely than not, her interests will not be adversely effected to such an extent that it will be detrimental to her. That was a fine balancing for me in all the circumstances of this case, but, for the reasons which I have given, I find that is appropriate for [X] and in her best interests.
I have heard further submissions from each of you about the day upon which [X] should spend time with Ms Keaton and implementation. I propose to make an order that the time for [X] to spend time with
Ms Keaton commence on Saturday 23 August 2008. I do so having heard Mr Longworth's submission that it is anticipated Ms Aldridge will appeal my decision and ask for a stay of operation of these orders. In all the circumstances, I find in the absence of agreement that it is better to be consistent for [X], therefore, Saturday will be the appropriate day.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Coakes FM
Associate: J Manners
Date: 29 August 2008
0
0
1