LOVE & LUNDY

[2015] FCCA 2383

FEDERAL CIRCUIT COURT OF AUSTRALIA

LOVE & LUNDY [2015] FCCA 2383

Catchwords:
FAMILY LAW – Parenting – same sex relationship – child born as a result of artificial insemination – previous parenting orders made – applicant noted as being a person having an interest in the welfare of the child in consent orders – applicant now seeks legal recognition as a parent – applicant seeks spend time arrangements.

Legislation:

Family Law Act 1975, ss.60, 61, 69C

Rice and Asplund (1978) 6 Fam LR 570

Applicant: MS LOVE

Respondent: MS LUNDY

File Number: ADC 1867 of 2013

Judgment of: Judge Harland

Hearing dates: 15 & 16 June 2015

Date of Last Submission: 16 June 2015

Delivered at: Melbourne

Delivered on: 3 September 2015

REPRESENTATION

Counsel for the Applicant: Mr Peri

Solicitors for the Applicant: Aboriginal Legal Rights Movement

Counsel for the Respondent: Ms Smith

Solicitors for the Respondent: Eyre Lawyers

ORDERS

1. All previous orders are discharged.

2. The Court declares that the applicant Ms Love is a parent of X born on (omitted) 2011 for the purpose of s.60H of the Family Law Act 1975 (Cth).

3. That the respondent has sole parental responsibility for the child.

4. That the child lives with the respondent.

5. That the applicant spend time with the child as agreed between the parties.

IT IS NOTED that publication of this judgment under the pseudonym Love & Lundy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1867 of 2013

MS LOVE

Applicant

And

MS LUNDY

Respondent

REASONS FOR JUDGMENT

1. X was born on (omitted) 2011. She is 4 years old.

2. The applicant Ms Love was born on (omitted) 1990 and is 25 years old.

3. The respondent Ms Lundy was born on (omitted) 1987 and is 28 years old. She is X’s biological mother.

4. The parties were in a same-sex relationship from October 2007 until March 2012.

5. The parties met in October 2007 when they were both working at (employer omitted) in (omitted). They started a relationship soon after that and started living together in November 2008. The applicant says she was afraid of how her family would react so she did not tell her family the first year. Ms Love works at (employer omitted) in (omitted) as an (occupation omitted) dealing with (duties omitted).

6. Ms Lundy says they were in a same sex relationship from October 2007 until March 2012. She described the relationship as “fraught with violence and jealousy on the applicant’s part”. Ms Lundy says she was often afraid of Ms Love and her family.

7. X was conceived by way of artificial insemination. Mr S, who was in a relationship with the respondent’s sister Ms H, donated his sperm.

8. Ms Love is an Aboriginal woman of the (omitted) people.

9. Ms Love started the first round of legal proceedings on 20 May 2013. The parties entered into consent orders on 20 March 2014 which was the first day of the trial. Relevantly, those orders provided for Ms Love to spend time with X initially at the (omitted) children’s contact service for three occasions and then for other day time occasions.

10. The orders include a notation that if the parties could not reach agreement, neither party would plead to any further hearing proceeding with a view to the rule in Rice and Asplund (1978) 6 Fam LR 570 or otherwise. There was a further citation noting that the applicant is a person having interest in the welfare of X. Order 8 of those consent orders reads “that the applicant to be personally present during her time with X and is restrained from encouraging X to call her mum or any other such terms and she is to prevent any other person to do so.”. The notation is not an order and is not enforceable. It is clear on the face of these orders that the issue of whether or not the applicant was a legal parent of X was not determined by the Court.

11. Ms Love now wants to be recognised as a legal parent of X. Ms Lundy opposes this and says that Ms Love was opposed to her having a child and did not consent to the artificial conception procedure.

12. Inexplicably, particularly given that Ms Lundy has maintained the same legal representation, Ms Lundy initially sought to argue that the applicant did not have standing to commence the second proceedings. That argument had no merit, not just because of the consent orders and notations but because of the wording of s.69C of the Family Law Act 1975. A person who has an interest in the care, welfare and development of a child has standing to bring an application about children’s matters. It cannot be seriously argued that Ms Love does not have an interest in X. She does not need to have a biological connection to X to establish that interest.

13. With respect to the conduct of the proceedings it is necessary to make a further comment. Both counsel sought to take extensive evidence in chief from their clients. This was not based on there being new evidence not canvassed in affidavits but seeking to expand on evidence raised in the affidavits or omitted from affidavit material. To allow such evidence in chief is to defeat the purpose of ordering witnesses to give their evidence in chief by way of affidavit. It should be obvious that giving evidence in chief saves significant time in court as trials would be double in length if not longer if evidence in chief was given orally. The other mischief it would cause in civil proceedings is the potential for the other party to be taken by surprise. Family law hearings are not trials by ambush.  It is particularly important in parenting proceedings, where the focus should be on the best interests of the child, that the parties know the case they have to meet and focus on the issues relevant to the best interests of the child.

14. Ms Love says that initially she was seeking spend time with regime, what was probably too quick for X but says she cares deeply about X and is prepared to take a gradual approach to become part of her life again. She says she also seeks to be formally recognised as her parent. She says that was their original intention when they thought to start a family.

15. Ms Love says she was very upset during the day of the trial and only agreed to the notation that she was merely an interested party because she wanted to spend time with X. She says she did not understand the full extent of what she was agreeing to and thinks the respondent’s position is hypocritical.

16. Ms Lundy says that the applicant did not parent X “except when she was on display.” I do not accept that the applicant did no parenting tasks and only did so when on display. The respondent paints a stark picture which is somewhat implausible.

17. Ms Lundy says that Ms Love is not genuinely interested in X and said in the witness box that she thought that the respondent commenced and continued these proceedings to hurt her. I do not accept that. If that were the case, it is unlikely that she would have settled on the terms that she did in the first proceedings.

Conception and pregnancy

1. Ms Love says they discussed having children and discussed who would carry their first child. She says they agreed that the respondent would try to fall pregnant first as she suffered from endometriosis. She says they decided to try and if they were not successful by Christmas 2011 that she would try and fall pregnant instead. She says this conversation took place in August 2010. She says around this time Mr S volunteered to donate sperm for the first child and their planned second child which the applicant would carry about two years later. Mr S is Ms Lundy’s sister’s partner.

2. Ms Love says that there were specific conversations about her and Ms Lundy being the parents. She says Mr S’s involvement was not specifically addressed but was not excluded either.

3. Ms Love does not set out any of these conversations in her trial affidavit.

4. Ms Love says the insemination attempts took place at the respondent sister’s home on about 15 to 20 occasions over a three month period. She says she was involved in the procedure which involved her using a syringe to place the semen in the respondent and the respondent would keep her legs up in the air on the drive home. She refutes being against the pregnancy or not providing assistance to the respondent. She says she was present for most of the occasions but missed a few because of work and other commitments.

5. Ms Love says they were both very excited when they found out they were going to be parents. She says Ms Lundy suffered with illness throughout the pregnancy. The applicant says she was in the delivery room for the birth and that her mother was present as were the respondent’s mother and two sisters.

6. Ms Love says she contacted the Registry of Births, Deaths and Marriages shortly after X’s birth to enquire as to how they could put their names down on the birth certificate. She says both their surnames were used as part of X’s name. Ms Lundy later removed Ms Love’s name. This is consistent with Ms Lundy having a view that once the relationship was over she was entitled to sever the relationship between Ms Love and X. The inclusion of Ms Love’s name is consistent with the parties’ feeling that Ms Love was a parent. I do not accept that this was done merely to placate Ms Love.

7. Ms Lundy says that Ms Love was not committed to their relationship and was not committed to having children. She says that before X was born the applicant travelled to (country omitted) on her own and after returning, text messaged the respondent saying she wanted to end the relationship because she did not want to be tied down and wanted to continue to travel.

8. The important issue for the purpose of s.60H of the Family Law Act 1975 is the issue of consent. It is not an issue about whether or not Ms Love was present and actively involved in the insemination attempts or even how committed she was. The fact that Ms Love expressed some doubts does not take away from her consent. In fact it would be more unusual for someone so young not to express some doubts.

9. Ms Lundy says she became maternal and longed for her own child after her sister Ms J gave birth to her son. She says she did raise the issue with the applicant around August 2010. The applicant made it very clear that she did not want children because she felt she was too young and wanted to travel and not be tied down. She says the applicant became angry when she mentioned it, so she did not and had discussions in September with her sister Ms H and her partner Mr S without the applicant and that Mr S offered to be a sperm donor. The respondent says the applicant became angry when she told her about this.

10. Ms Lundy says they continued to argue about this. As with the applicant’s affidavit, the respondent does not set out the conversations. She says that Ms Love only attended 2 of the 13 inseminations at her sister’s home. She says she had to beg Ms Love to go to the doctors’ appointments with her and that Ms Love was resentful. She says that the applicant cannot provide any proof that she consented to conception and that she only became excited about the pregnancy late in the piece and then did so very publicly.

11. Ms Love says she took paternity leave from 9 to 26 August 2011 and says she was heavily involved in the day-to-day care of X.

12. The parties’ relationship broke down in March 2012 and on 14 April 2012 the applicant moved in with her mother. She says at that time she was hopeful that the relationship would continue and says she continued to see X daily and took care of X overnight on about five occasions at her mother’s home between March and June 2012.

13. She says on 15 September 2012 it was clear to her that they would not reconcile and she obtained independent accommodation and that she and the respondent agreed on a schedule for her to spend time with X which included day and overnight visits.

14. The applicant says Ms Lundy messaged her on 3 October 2012 and told her to stop contacting her and told her that she was not going to be seeing X anymore.

15. Ms Love has included DVD footage of her with X at various periods in 2011 and 2012. She says these evidence the attachment that she had with X prior to the respondent ending her time.

16. Ms Lundy says the applicant only became excited about the baby after she noticed the attention that the applicant was receiving. I do not accept this.

Newspaper articles

1. Ms Love also relies on a newspaper article about them which she says shows they were a couple and both parents of X. She says they were later contacted by the journalist to do an updated story because the law has changed to enable both names to appear on the birth certificate. The article certainly shows both parties holding themselves out to the world as parents of X. The second article is illegible for the most part but the heading reads “Here are my two mums: lesbian parents given equal rights on birth certificates”. The applicant also attaches email exchanges between her and the journalists, which indicates that the journalist was keen to speak to a local lesbian couple about the changes in the law to enable both parents to be on birth certificates.

2. Ms Lundy says Ms Love was the one involved in those articles. She has correspondence confirming this. Ms Love also has correspondence which is between the applicant and the journalist. Whilst Ms W may have been the main one involved, the respondent certainly participated at least in the first one as there is a photo of the parties holding X.

Allegations of family violence

1. Ms Love says that Ms Lundy has fabricated the allegations that she was a violent and abusive partner. She says there was one single incident on 20 April 2012 when the respondent had brought X for an overnight visit and there was a dispute between them about X. She says the respondent became angry when she told Ms Lundy that she had just as much right to X as she did. Ms Lundy asked the applicant to hand over X. She refused saying that she would only do so after she finished giving X the dinner she was making. The respondent called her mother and her mother and two friends attended the home. She says they were very aggressive and tried to grab X and that her stepfather told her to hand over X as there was a risk that X would get hurt. The applicant says in hindsight she acknowledges her actions inflamed the situation.

2. Ms Lundy says that the incident where she was bruised by the applicant occurred after X was born. The applicant denies this but admits punching holes in the wall. Ms Lundy annexes photos of the bruising and the holes in the wall. The holes in the wall are quite severe indicating there was some force behind it.

Child support

1. Ms Love says she paid child support starting on 1 February 2012. She says she is no longer paying child support and that Ms Lundy had insisted on returning the money to her. She denies that these payments were loan repayments as suggested by Ms Lundy.

2. Ms Lundy says the payments Ms Love was making to the respondent after the relationship broke down commenced before separation and were for new furniture and the holiday they went on to Queensland. She says once she realised the applicant was referring to those payments as child support she closed the account. Ms Lundy says that during the relationship the applicant often used her credit card.

3. The child support issue is not relevant to the issue of whether or not Ms Love is X’s legal parent. I am not satisfied that the payments Ms Love made were to repay old loans. The documentary evidence does not establish this.

Time spent after the relationship ended

1. The parties separated when X was about 8 months old. Ms Love continued to see X for a period until those arrangements broke down in October 2012. There was a gap of five months before Ms Love started court proceedings. Ms Love explains this saying she was reluctant to start proceedings. It is unfortunate that there was that gap as that is a long period for X’s age and stage of development at that time.

2. Ms Love says she was reluctant to bring the matter to court and had made several attempts to negotiate with the respondent. She then sought the assistance of the Aboriginal Legal Rights Movement of South Australia as she could not afford a private solicitor. They agreed to take on the case but because of a substantial backlog of work, there were delays in them being able to assist her.

3. Ms Love feels that the respondent engaged in a deliberate strategy to exclude her from X’s life and that this included involving Mr S in X’s life as some sort of replacement. She does not believe that she will be able to have a relationship with X at all unless court orders are in place.

4. The first supervised visit at the (omitted) contact centre took place on

   
   

   9 May 2014. Ms Love says that visit went well. The next three visits were cancelled and Ms Love says the staff told her that X was afraid to enter the playroom. Ms Love says she is puzzled by this because there were no negative events during the first visit that should have triggered that fear. Ms Love says that she is not being given the opportunity to rebuild her relationship with X because Ms Lundy refused all alternatives she suggested.

5. Ms Lundy denies stopping the applicant’s time with X. She says the respondent did not contact her after 3 October 2012 to arrange to spend time with X. In the first family report the writer states that the respondent claimed that the applicant had not sought access and she would have denied it anyway.

6. Ms Lundy removed the name Love as the child’s middle name in December 2013. The inclusion of her name is indicative of the parties’ intention that Ms Love was also a parent.

Supervised contact visit reports

1. The report of the supervised visit on 9 May 2014 is quite positive noting that the applicant gave X a lot of verbal praise and affirmations and that X smiled frequently and began starting conversations with the applicant. X did need reassurance on four occasions about her mother when X first asked about where her mother was. Ms Love said she did not know where mum was. The worker assured X that her mum would be back later.

2. The next session was due to occur on Friday, 16 May 2014. The worker noted that X was smiling and chatty when she arrived. X refused to go into the toy room without her mother. The workers showed X items that the applicant had, hoping that that would encourage her to engage and whilst X showed interest in the items, she still refused to participate in the visit and it did not go ahead.

3. On Friday 23 May 2014 the workers observed that X sat close to her mother and did not speak to them. X again refused to go into the playroom.

4. On 30 May 2014 the workers observed that X was quiet and staying close to her mother. The workers again showed X toys and activities that the applicant had prepared. X was very interested in the Dora Explorer activities but again refused to go in the room, saying “I’m not scared”. The mother clarified with X if she was scared or not and X said “I’m scared”. Again, the session was cancelled.

5. The report from the Centre notes that the mother arrived well prepared to the sessions, having explained to X what would happen and having snacks and drinks for her. The applicant also came well prepared with age appropriate toys. There was evidence of a basic attachment forming through X via contact conversation interactions with the applicant at the first session. The Centre decided against rescheduling further sessions because of X’s ongoing refusal to engage with the process and noted “this decision was based on the interests of the child and at no fault of either caregivers. There could be value in observing X’s engagement with the less formal arrangement.”

6. Ms Lundy says she was anxious about X attending the supervised contact sessions but was reassured after seeing the professionalism of the staff and after hearing that the first visit went well.

7. She says she was less anxious about the second visit. She says she was surprised when X refused to go. She says she did not say anything negative to X about these visits and positively engaged in the process including agreeing to a fourth attempt which was not court ordered.

Ms W

1. Ms W is Ms Love’s mother. She swore an affidavit in support of her daughter and was cross-examined. She hasn’t seen X since a few months after the parties separated.

Mr S

1. Mr S swore an affidavit in support of Ms Lundy and was cross-examined.

Ms H

1. Ms H is Ms Lundy’s sister. She gave evidence in support of her sister’s case. Ms Love attaches text messages from Ms H including a series of text messages dated 7 May 2012 where Ms H was asking the applicant if she could come help Mr S with their computer.  There are further text exchanges on 17 June 2012 which are friendly and indicate that they are on good terms.

2. There are also text messages from Ms Lundy’s mother in April, May and August 2012 which are again supportive of Ms Love. In the first message on 21 April 2012, there is that Ms Love is part of their family no matter if she is with Ms Lundy or not.

3. Ms H and Mr S moved to Queensland in December 2012 and returned to (omitted) in January 2015. Ms Lundy says Mr S kept in touch with X via Skype at least once a week. She significantly also says in her affidavit that Ms H and Mr S have no plans to relocate currently, partly so Mr S spend more time with X and so that the whole family can be together. “X now has her father, all of her aunts, uncles, grandparents and cousins close by. We are an extremely tightly knight [sic] group.” She says X sees Mr S several times a week, called him ‘uncle Mr S’ and that he is a good role model for her. She is planning to have another child with Mr S once the proceedings are finalised.

4. It is interesting that at the time of the first family report, she resiled form her position and did not support Ms Lundy. Now her position has changed dramatically and she became very emotional when giving evidence. The strength of feeling was apparent but hard to fathom.

5. I am satisfied that to some extent, at least both Mr S and Ms H, like Ms Lundy, have rewritten history to suit the position the family takes now.

Family reports

1. Mr B prepared two family reports, the first dated 23 April 2013 and the second dated 23 April 2015. In the first report at paragraph 3 he refers to the parties “deciding to have a child together”. The family report writer identified the primary dispute being whether the applicant meets the criteria of being a parent under the Family Law Act 1975 and “flowing on from this” parental responsibility spending time arrangements. He summarises the respondent’s discussion with him saying that they made a mutual decision to get pregnant using Mr S’s sperm and that the respondent was not actively involved in the pregnancy attempts but was supportive once she conceived.

2. It is also interesting to note that he spoke with Ms H who told him she could not stand by her filed affidavit and did not believe she could support her sister’s actions. In his evaluation he said:

   “The insinuation of Ms Love not being supportive or involved in the decision making process [to have a child] appears unlikely given it is a major life choice and would have long lasting impacts on their relationship. It would also be understandable for Ms Love to have some anxieties about this given she was then aged 20 and it was her first same sex relationship. Notwithstanding this it would appear that she was involved with the pregnancy and the child’s care until separation when the child was aged 7 months.”

3. He opined that an attachment between Ms Love and the child would have been established. This attachment could be “easily be re-instated providing acrimony was contained and timing spending of sufficient amounts to allow for this to occur.”

4. The family report writer makes an error in the second report stating that the court determined at trial that Ms Love was not a parent. There was no trial in 2014 as the parties entered into consent orders. It is somewhat concerning that both Ms Lundy and Mr S are reported to have said that the Court found that Ms Love was not a parent.

5. It seems clear from several comments in the family report that the family report writer places biological connections above non-biological ones. This is not an approach endorsed by the Family Law Act 1975 or by the case authorities. The fact that this was a same sex relationship does not alter this. He refers to the biological parents (referring to Ms Lundy and Mr S) as having a co-parenting framework. He refers to Mr S now seeking to be recognised as a parent and that importantly he is spending time with the child by agreement. Ms Lundy nor Mr S supports Ms Love having anything to do with X.

6. The family report writer concluded that a “softly, softly” approach rather than a legal approach was more likely to have a positive outcome for Ms Love, as he thought if the issue of contact was forced it was likely that the biological parents would have increased anxiety and resentment. It is concerning that the family report writer refers to biological parents in this way as that is not the role Mr S plays nor was he ever meant to.

7. There is nothing in the evidence to suggest that Ms Lundy and her family will do anything to support X having a relationship with Ms Love. Whilst I find Ms Lundy would comply with orders, more than this is needed. I have real doubts that she is capable of providing positive encouragement to X which would be needed to re-establish a relationship between X and Ms Love. This is a great shame for X as she is missing out on having a relationship with one of her parents. I am not satisfied that Ms Love presents any risk to X at all. Ms Lundy and her family have demonised Ms Love somewhat unfairly.

8. This case raises difficult issues. Many parents are equivocal about the prospect of being parents and express mixed feelings or doubts about wanting to be a parent. If that parent is not a biological parent, that does not have an impact on the matter moving forward after the child is born if that parent has been involved with the child. Should it make any difference if the parent is not a biological parent?

9. There are very sound public policy reasons behind the 2008 amendments to s.60H of the Family Law Act 1975. The 2007 Same Sex Entitlements  The report highlighted the negative impact on parents but most importantly, children when one parent is legally invisible, which was the case for same sex parents prior to the 2008 amendments. It is still the case for some parents. Here Ms Lundy and her family have treated Ms Love as a temporary parent. It is telling that Ms Lundy acted quickly to remove Ms Love’s name from X’s name.

The legislation

1. The provisions in s.60H are technical. The important issue in s.60H is the issue of consent of the non-biological parent to the artificial conception procedure. Where a couple uses IVF services that issue is a simple one because the IVF centres require people to sign consent forms. In this instance, the parties engaged in an informal arrangement at home. Section 60H does not refer to consent being in writing. There is no definition of consent in the Act. The ordinary meaning of consent should be applied.

2. In cases about children under Part VII of the Family Law Act 1975, the court must regard the best interests of the child as the paramount consideration: s.60CA.  What this actually means in an individual case is informed by a number of statutory provisions which I will briefly discuss below.

3. There are objects set out in s.60B that help to clarify what Part VII aims to achieve when it talks about best interests: s.60B(1).  There are also principles that underlie these statutory objects: s.60B(2).

4. The concept of best interests is explained in s.60CC.  The primary considerations are set out in s.60CC(2) and include the benefit to the child of having a meaningful relationship with both parents, and protecting the child from harm arising from abuse, neglect or family violence.

5. There are additional considerations set out in s.60CC(3).  These include: the views of the child, the nature of the child’s relationship with parents and other persons; the willingness and ability of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent; the likely effect of  change on the child; issues of practical difficulty and expense associated with contact; the parents’ capacity to provide for the child’s needs; the maturity, sex, lifestyle and background of the child and parents; special considerations if the child is of Aboriginal or Torres Strait Islander culture; attitudes to the child and to the responsibilities of parenthood; and family violence or family violence order; issues of finality; and any other fact or circumstance that the court thinks relevant.

6. At the core of Part VII of the Family Law Act 1975 is a presumption of equal shared parental responsibility. Thus s.61DA creates a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. This presumption may be negated in certain circumstances (s.61DA(2)), or rebutted (s.61DA(4)).

7. If the presumption applies, the court is required to consider certain time arrangements as between parents and children: s.65DAA.  Thus the court is required to consider equal time, or substantial and significant time, but only if this would be in the best interests of the child, and is reasonably practicable: s.65DAA (1) and (2).  Equal time means what it says, and substantial and significant time is explained in s.65DAA(3):

8. Another important concept used in s.65DAA is that of reasonable practicality.  That is explained in s.65DAA(5).

Application of s60H of the Family Law Act

1. The 2008 amendments[1] to s.60H were part of a package of reforms to various Commonwealth laws to remove discrimination against same-sex couples and provide legal recognition for same-sex couples and same-sex parents. The amendment introduced the concept of “other intended parent” and provides for legal recognition of a non-biological parent when the following conditions are met:

   a)A child is born as a result of an artificial conception procedure while the woman was married to or a de facto partner of the other intended parent;

   b)The woman and the other intended parent consented to the artificial conception procedure being carried out;

   c)Any other person whose genetic material was used in that procedure consented to it being used in that procedure.

   [1] Family Law Amendment (De Facto Matters and Other Measures) Act 2008 (Cth)

2. There is no dispute that the parties were in a de facto relationship at the time of the artificial conception procedure.  There is also no dispute that Mr S consented to his genetic material being used.

3. The issue in dispute is whether or not the respondent consented to procedure. All three elements referred to above are required in order for the respondent to be recognised as one of X’s parents.

4. It should also be noted that Mr S is not X’s parent by reason of s.60H(1)(d). The purpose of that provision was to avoid sperm donors being a legal parent.

5. As the artificial conception procedures were arranged privately between the parties and not through a clinic, there are no documents with respect to it. If the parties had used a clinic the issue of consent would be much simpler as clinics require their clients to sign consent forms.

   It is important to note that there is no requirement for the consent to be in writing. Section 60H(5) is also important as it states that a person is presumed to have consented unless it is proved on the balance of probabilities that the person did not consent. This means that the respondent has the burden of showing that this presumption does not apply in this case

Application of law to the circumstances of the case

1. In this case the issues of family violence are peripheral to the issues in dispute. Ms Love did punch walls and that falls within the definition of family violence and is unacceptable behaviour. However, I am not satisfied that it was a major feature of the parties’ relationship.

2. X is too young to express any views.

3. It is clear that X has a close and loving relationship with Ms Lundy and her extended family and this will continue. I am also satisfied that X did have a close and loving relationship with Ms Love but that has been erased. Biological connection to a child is not a necessary part of parenthood. I think Ms Lundy has rewritten history to erase any notion of Ms Love as X’s parent. This is akin to temporary parenthood but a person is not a parent only whilst their relationship with the other parent is intact and not a parent once that relationship is over. Ms Love will always be X’s parent even if X does not know it. It will be a shame if X does not know Ms Love as this will mean X will not know the reality of her early life.

4. The real issue here is whether or not it is in X’s best interests to reintroduce Ms Love into her life. It is troubling to the Court to have to conclude that in light of Ms Lundy’s staunch opposition and the fact that the attempted reintroduction at the contact centre did not work, any specific orders compelling Ms Lundy to facilitate time is not in X’s best interests. This is because Ms Lundy will not be able to contain her anxiety and negativity towards Ms Love which will in turn negatively impact on X.

5. Ms Lundy has provided for and will continue to provide for X’s physical, emotional and intellectual needs.

6. X has two mothers but unfortunately she no longer has any relationship with one of them. She does not have a meaningful relationship with Ms Love because her relationship has been severed. I have to consider whether or not it is in X’s best interests for her to have the opportunity to reconnect with Ms Love. In considering this it is necessary to consider Ms Lundy’s attitude towards X having a relationship with Ms Love. The attitude of Ms Lundy’s family is also relevant here. Unfortunately, I have reached the conclusion that making specific orders forcing Ms Lundy to make X available to spend regular time with Ms Love would not be in X’s best interests. In order for it to work and for it to be a positive experience for X, particularly given that she does not have a current attachment to X, Ms Lundy would need to support and encourage X. For these reasons, I make the orders set out at the beginning of these reasons.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  3 September 2015