Masson & Parsons & Anor
[2017] FamCA 789
•3 October 2017
FAMILY COURT OF AUSTRALIA
| MASSON & PARSONS AND ANOR | [2017] FamCA 789 |
| FAMILY LAW – CHILDREN – Parental responsibility – Where the applicant is the biological father of the elder child and has a strong and secure attachment with the younger child – Where the younger child was conceived via artificial insemination program using an identifiable donor – Where the applicant sought shared parental responsibility between all three parties – Where the respondents sought that they share parental responsibility to exclusion of the applicant – Where communication between the applicant and respondents has deteriorated due to the conflict – Concluded shared parental responsibility between the three parties would expose the children to damaging conflict – Concluded the respondents will consult with the applicant and keep him advised in a scrupulous and accurate way – Ordered the respondents have equal shared parental responsibility for any major long term decisions and notify the applicant. FAMILY LAW – CHILDREN – Definitions – Who is a parent – Where the court was asked to determine who is a legal parent of the elder child – Where the term parent is not exhaustively defined by the legislation – Where the parties sought declarations of parenting under s 69VA of the Act – Concluded the applications made under s 69VA are misguided as the biological relationships are not in dispute – Where the applicant provided genetic material for the express purpose of fathering a child – Where the applicant believed he would take on the responsibilities of parenthood together with the respondent – Concluded the intention of a party to artificial insemination is a factor to be taken into account – Concluded the applicant is a legal parent of the eldest child – Whether the respondents were in a de facto relationship at the time of carrying out the artificial conception procedure – Where there was insufficient evidence to conclude the respondents were living together – Where there was no intermingling of finances or common assets – Where the applicant had no knowledge of the respondents’ relationship – Concluded the respondents were not in a de facto relationship – Concluded the legislative requirement for “other intended parent” pursuant to s 60H of the Act is not met FAMILY LAW – CHILDREN – Relocation – Where the respondents sought to relocate to New Zealand with the children – Where the children enjoy an extremely positive, close and secure relationship with the applicant – Where the children have a close and secure attachment with the applicant’s mother and partner – Where the respondents overlook that the applicant and his family are part of the children’s family – Where relocation would devalue, for the children, members of the family that have great emotional significance – Concluded the children’s relationship with the applicant, the applicant’s partner and the applicant’s mother would not be maintained at the present level if relocation occurs – Ordered the children live with the respondents in Australia |
| Family Law Act 1975 (Cth), ss 4, 4AA, 60CC, 60H, 64B, 65C, 69VA |
| Clarence and Crisp (2017) 55 FamLR 292 Groth & Banks [2013] FamCA 430 Re Mark [2003] FamCA 822 Re Patrick [2002] FamCA 193 |
| APPLICANT: | Robert Masson |
| RESPONDENTS: | Susan Parsons & Margaret Parsons |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Newcastle Family Law |
| FILE NUMBER: | SYC | 3963 | of | 2015 |
| DATE DELIVERED: | 3 October 2017 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 21, 22, 23, 24 March 2017 and 11 April 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Lawson |
| SOLICITOR FOR THE APPLICANT: | Steiner Legal |
| COUNSEL FOR THE RESPONDENTS: | Ms McMahon |
| SOLICITOR FOR THE RESPONDENTS: | McDonald Johnson Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms O’Rourke |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Newcastle Family Law |
Orders
That all prior parenting orders in relation to B born in 2007 and C born in 2008 (together referred to as “the children”) are discharged.
Parental Responsibility
That SUSAN PARSONS and MARGARET PARSONS (“the Respondents”) have equal shared parental responsibility for the children in respect to major long term issues.
That the Respondents, or either of them, shall, notify ROBERT MASSON (“the Applicant”) of any long term issue arising for decision making in respect to either or both of the children and thereafter shall:
3.1Advise the Applicant of their proposed decision;
3.2Invite the Applicant to express his views and any proposal he wishes to put forward to them, within a reasonable period of time (nominated by the Respondents), for response;
3.3Genuinely consider the response of the Applicant;
3.4Advise the Applicant in writing, as soon as practicable, of the decision taken.
The Respondents shall have responsibility for making day-to-day decisions concerning the care, welfare and supervision of the children and also about any issue that is not a major long term issue, without reference to the Applicant, when the children are in their care.
The Applicant shall have responsibility for making day-to-day decisions concerning the care welfare and supervision of the children and also about any issue that is not a major long term issue, without reference to the Respondents, when the children are in his care.
The Respondents and each of them are restrained from applying to amend B’s Birth Certificate without the prior written consent of the Applicant.
The Respondents shall not enrol the children in any extra-curricular activity that occurs during the time spent by the children, or either of them, with the Applicant, unless they have obtained his prior written consent.
Residence
The children shall live with the Respondents.
The Respondents are restrained from establishing a residence for the children in New Zealand without the prior written consent of the Applicant.
Time and Communication
The children shall spend time and communicate with the Applicant as agreed between the parties but failing agreement as follows:
10.1In 2017 the children spend time with the Applicant in a two weekly cycle as follows:
10.1.1In week 1 commencing in the first week of the fourth school term, from 9.00 am or the commencement of school on Monday until 9.00 am or the commencement of school on the following Tuesday;
10.1.2In week 2 from 9.00 am or the commencement of school on Friday until 9.00 am or the commencement of school on the following Monday and the Applicant shall deliver the children back to school on a school day or to the Respondents’ home if a non-school day.
10.2In 2018 the children spend time with the Applicant in a two weekly cycle as follows:
10.2.1In week 1 commencing in the first week of each term from 9.00 am or the commencement of school on Monday until 9.00 am or the commencement of school on the following Tuesday;
10.2.2In week 2 from 9.00 am or the commencement of school on Friday until 9.00 am or the commencement of school on the following Tuesday and the Applicant shall deliver the children back to school on a school day or to the Respondents’ home if a non-school day.
School Holidays
10.3 The children spend time with the Applicant for one half of the Term 1, 2 and 3 school holiday periods, being the first half of the school holidays in odd numbered years commencing in 2019 and in the second half of the holidays in each even numbered year commencing in 2018.
10.4During the long school holiday at the end of Term 4 in 2017 the children spend time with the Applicant as follows:
10.4.1From 12.00 pm on 25 December 2017 until 12.00 pm on 29 December 2017;
10.4.2From 12.00 pm on 8 January 2018 until 12.00 pm on 12 January 2018;
10.4.3From 12.00 pm on 22 January 2017 until 12.00 pm on 26 January 2018.
10.5Commencing in 2018, during the long school holiday at the end of Term 4 the children spend time with the Applicant for the second half of the holidays in even numbered years and for the first half of the holidays in each odd numbered year thereafter.
Special Occasions
10.6Except for 2017, the children spend time with the parties at Christmas as follows:
10.6.1With the Applicant from 12.00 pm on 24 December until 12.00 pm on 25 December in even numbered years commencing in 2018 and from 12.00 pm on 25 December until 12.00 pm on 26 December in odd numbered years commencing in 2019.
Notwithstanding any other order the children shall spend the weekend which includes Mother’s Day with the Respondents and the weekend including Father’s Day with the Applicant for a period not less than from 6.00 pm on the Saturday evening prior to the relevant day until 5.00 pm on that day.
Changeovers
Implementation of the Applicant’s time with the children shall as far as possible occur at their school but otherwise the Applicant shall collect them from the Respondents’ residence at the commencement of the period and the Respondents shall collect the children from the Applicant’s residence at the conclusion thereof, unless otherwise agreed.
Travel
That unless otherwise agreed, each of the parties may travel with the children interstate or overseas provided that:
(a)The travel occurs when the children are living or spending time with the that party unless otherwise agreed in writing;
(b)If the non-travelling party provides written consent to travel outside of the time that the children would be living/spending time with the travelling party, they may not revoke this consent unless in the case of an emergency;
(c)The party intending to travel with the children provides notice to the other party/parties at least six weeks prior to the travel; and
(d)The party intending to travel with the children provides an itinerary of travel including the contact information and address of each place at which the children will be staying and copies of return airline tickets if applicable.
The non-travelling party is permitted reasonable telephone contact with the children whilst the children are away but the telephone contact should not be so frequent that it interferes with the children’s holiday with the travelling party.
That the Respondents shall hold the children’s passports and deliver those passports to the Applicant upon request and within a period of 48 hours of that request provided that Order 13 has been complied with.
Specific Issues
The parties will inform each other as soon as practicable of any medication prescribed and the instructions for the use of this medication for the children.
The parties are to keep each other informed of any significant health issues concerning the children while in their care including when the children become ill, injured or require hospitalisation.
Each party is entitled to copies of the children’s school reports, bulletins, photographs, artworks or other information from the children’s schools and are able to obtain updates about the children’s progress by way of attendance at the school, by email or telephone communication.
Each party is entitled to attend the children’s school events, performance nights, award ceremonies, sporting events, parent/teacher interviews or other special events which allow for attendance of the children’s family whether or not the children are spending time with them when the event takes place.
Each party is permitted to be involved in the children’s school including but not limited to being a member of the Parents and Citizens Association, and attending the school for the purpose of being involved in meetings, working or volunteering in the school canteen or at school events.
That each party is at liberty to refer themselves in the presence of the children or other persons or in correspondence concerning the children in the manner in which they deem fit, including but not limited to, as a ‘parent’, a ‘mother’, or a ‘father’.
The parties shall refrain from making critical remarks about the other party or member of their family in the presence or the hearing of the children and the parties will use their best endeavours to ensure no third party makes any critical or derogatory remarks about the other party in the presence or hearing of the children.
That the Independent Children’s Lawyer (“ICL”) shall, at a time mutually convenient to the Respondents and the ICL, explain these orders to the children and answer any questions they, or either of them, have.
The Application for a Declaration pursuant to s 60H of the Family Law Act 1975 is dismissed.
The Application for a Declaration pursuant to s 69VA of the Family Law Act 1975 is dismissed.
NOTATION
(A)The Court notes that each of the Respondents, the Applicant and the Applicant’s partner expressed their willingness, during the course of oral evidence, to engage in family therapy with a view to restoring relationships between the parties for the benefit of the children.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Masson & Parsons and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: SYC3963/2015
| Robert Masson |
Applicant
And
| Susan Parsons & Margaret Parsons |
Respondents
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
TERMINOLOGY
In the particular circumstances of this case where terminology has been contentious and surnames alone are insufficient identity I have used the first name of each of the parties.
The applicant, Robert Masson is “Robert”.
The respondents, Susan Parsons and Margaret Parsons are two women married to each other since 2015 [in New Zealand], they are “Susan” and “Margaret”.
Introduction
These are competing applications by three parties for parenting orders in respect of two children, girls aged 10 (“B”) and almost nine (“C”). The children live with their mothers known to them as “Mummy” and “Margaret” and spend time with their father and his partner known to them as “Daddy” and “Greg”.
The relationship between those two households is under strain. The long standing friendship between Robert and Susan has been battered by these proceedings. There is interpersonal bitterness, there are accusations by the two woman of manipulative, overbearing conduct by Robert, accusations by Robert of ruthless exclusion by the two women of him from the lives of the children. There are mutual feelings of betrayal. Truth has been sacrificed at times to loyalty.
All this has been skilfully and sensitively concealed by the three parties and other involved adults to shield the two children and to preserve the loving feelings both of them have for all the important people in their lives.
These efforts speak of the impressive capacity of the adults to understand and meet the needs of the children, however the extent of ill feeling cannot be underestimated simply because hostilities have been conducted courteously.
The Parties
The Applicant – Robert Masson
Robert is the biological father of B. He is identified as the father on her birth certificate. B was conceived by artificial insemination conducted privately and informally by Robert and Susan in late 2006.
B calls Robert “Daddy” and always has.
Robert is not related by biology to the younger child C. C was conceived by artificial insemination using donor sperm through a donor program VARTA. Susan is the biological mother of C, and Margaret is by law the other intended parent.
C calls Robert “Daddy” and always has. She recently became aware that Robert is not her biological father.
It is not contentious that Robert has standing to make a parenting application whether or not he is a legal parent of B because he is a person concerned with the care, welfare or development of the child.[1]
[1] Section 65c of the Family Law Act1975 (Cth)
Robert is a business manager by occupation. He is aged 47 years. Robert has had a partner Mr Greg H for six years. Mr H is a service industry worker by occupation.
Robert lives in the home of his mother in Suburb Y, a suburb of Newcastle. Mr H lives in Suburb J, also a suburb of Newcastle.
It is the present intention of Robert and Mr H to eventually live together.
The Respondents:
Susan Parsons
Susan is the first respondent. She is the biological mother of both children.
Susan has been a close friend of Robert’s for at least 25 years.
B was conceived by Susan with Robert by arrangement between themselves.
C was conceived by Susan with donor sperm, with Margaret becoming the other legal parent.
Susan is a technical officer by occupation. She is aged 51. She lives in Suburb D, a suburb of Newcastle with Margaret and both children.
Susan wishes to move with Margaret and the children to New Zealand. Susan was born in New Zealand.
As a young woman, probably in her very early twenties Susan travelled to live and work in Great Britain. Thereafter she travelled with her then partner to Australia and has remained living in this country in the almost thirty years since that move.
Margaret Parsons
Margaret Parsons is the second respondent.
Margaret is not biologically related to either of the children. She is the other intended parent of C and now appears on her amended birth certificate as “Parent”.[2]
[2] Affidavit of Margaret Parsons filed 6/03/2017, Annexure B
Margaret was present when B was conceived by Susan and Robert. She asserts that she was by that time in a de facto relationship with Susan.
Margaret is aged 61. She was born in Australia. She has been a public servant. She has an adult son aged in his mid-thirties from whom she was estranged for about 20 years.
Margaret changed her surname to that of Susan’s on 24 August 2007. She registered the change shortly before B’s birth.
Margaret shares Susan’s wish to move to live in New Zealand.
It is not contentious that Margaret has standing to make a parenting application about B, that she is a person concerned with the care, welfare or development of the child.[3]
Applications and Orders sought
Robert
[3] Section 65c of the Family Law Act1975 (Cth)
The orders sought by Robert by commencement of this trial was set out in two proposed Minutes of Order with alternate arrangements for residence of the children with him depending on the Court finding whether or not the respondents were capable of facilitating a meaningful relationship between himself and the children.[4]
[4] Exhibit 2
Summarising, Robert proposed the following:
a)Shared parental responsibility by all three parties for both children;
b)A restraint on relocation of the children from Australia and their current area of residence;
c)Residence with Susan and Margaret;
d)Time with him in a fortnightly cycle, five nights per fortnight, half school holidays and other special times; and
e)Specific issues including overseas travel and communication.
The alternate position put forward by Robert was a reversal, such that the children would live with him and spend five nights per fortnight with Susan and Margaret.
By the commencement of submissions at the conclusion of the hearing there was also an Amended Minute of Order, again with alternate proposals.
The alternate proposals were dependent on where the children were ordered to live, and related to amplifying methods of communication.
There was also for the first time a proposal that the respondents pay the applicant’s costs.
The alternate position of Robert that the children live primarily with him was described by his counsel as “a position of last resort and one that the applicant hopes does not come to fruition”.[5]
[5] Exhibit 2, page 5 point 7
I accept that Robert had become sufficiently concerned about being closed out of the lives of the children that he proposed residence with himself as a fall-back position.
I accept that his true preference was for the children to live with Susan and Margaret unless doing so was considered by the Court to be at the expense of losing their relationship with him. It was in my view a realistic position to take and not intended to be inflammatory.
Susan and Margaret
The orders proposed by the respondents were contained in a “Final Minute of Orders”.[6]
[6] Exhibit 3
The orders can be summarised as follows:
a)Declarations of parentage;
b)Removal of Robert’s name from B’s birth certificate and inclusion of Margaret’s name on that birth certificate;
c)Equal shared parental responsibility for the two respondents;
d)Residence with the respondents;
e)Permission to relocate the residence of the children to New Zealand; and
f)Restraints on Robert:
i)from holding himself or his partner out to be a parent of the children;
ii)Allowing his partner (and Mr H’s family) to refer to the children as “members of their family”;
iii)Taking photographs of the children in the bath, or partially or fully naked;
iv)Posting photographs of the children on social media;
v)Attending at the children’s school (with certain limited exceptions); and
vi)Taking the children out of Australia.
There was a proposal for time with Robert until the departure of the respondents and the children for New Zealand in 2018 were that to be permitted. That proposal was for alternate weekends, for periods of school holiday time to be spent in the home of Robert and the paternal grandmother.
Then after removal to New Zealand, school holiday periods, one weekend in each school term and other specific issues including counselling to assist the applicant in acknowledging that “he is not a parent of either of the children”.
The Independent Children’s Lawyer
The Independent Children’s Lawyer (“ICL”) proposed orders in an Amended Minute of Order.[7]
[7] Exhibit 1
The proposed orders can be summarised as follows:
a)The respondents Susan and Margaret have equal shared parental responsibility for both children;
b)The respondents keep the applicant advised of decisions relating to long term care and welfare of the children;
c)A restraint on the respondents changing the details of B’s birth certificate;
d)Time with the father five nights per fortnight, half school holidays and other special times;
e)Provision for overseas travel.
Implicit in the orders was the assumption that the children would remain living in Australia.
Three Main Issues for Determination
1.) Who is a parent?
The term parent is not exhaustively defined in the Family Law Act1975 (Cth) (“the Act”).
“Parent”, when used in Part VII [Children] in relation to a child who has been adopted, includes an adoptive parent of the child.[8]
[8] Section 4 of the Family Law Act1975 (Cth)
The reference to adoption is an amplification of common meaning not a definition.
The word parent is however used extensively throughout Part VII of the Act. Parental responsibility is defined as all the duties, powers, responsibilities and authority which by law parents have in relation to children.
By biology, or by law, or a combination of both, certain people, take on the rights and responsibilities of raising children, and are, or become parents.
In this case the relationships and differing beliefs of the three parties present for the procreation of B by an artificial conception procedure has given rise to a bitter argument over who are her legal parents.
There is no issue that Susan is her parent. The issue is whether either, neither, or both of Robert and Margaret are also parents by law.
The subject children define their family by feelings not by law. The adults however are seeking, as they are entitled to do, legal definition.
Section 69VA – Declarations of Parentage
As well as deciding, after receiving evidence, the issue of the parentage of a child for the purposes of proceedings, the court may also issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.[9]
[9] Section 69VA of the Family Law Act1975 (Cth)
The parties, misguidedly, sought declarations of parentage pursuant to section 69VA of the Act.
The section permits the Court to decide the issue of parentage, usually, but not always, by DNA testing, and to issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.
The section has no relevance here because the trigger for the operation of the section is not present. There is no issue in question over the parentage of either child. The biological relationships are not in dispute.
Susan is the biological mother of both children. Robert is the biological father of B. The biological father of C is an anonymous sperm donor in America.
Section 60H - Children born as a result of artificial conception procedures
There is an issue, which the Court is asked to determine, as to whether Robert or Margaret is a legal parent of B.
Robert provided the biological material for the conception of B. He did so in a private consensual arrangement between himself and Susan. Margaret was present and assisted with the artificial insemination procedure in December 2006.
Pursuant to s 60H of the Act, children born as a result of artificial conception procedures
(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.
There are related considerations for each claimant for legal parenthood.
Margaret
For Margaret to be a legal parent the evidence must support findings that:
(i)She and Susan were in a de facto relationship at the time of conception of B;[10] and
(ii)Susan and Margaret consented to the carrying out of the procedure and Robert consented to the use of his genetic material in the artificial conception procedure.
[10] Clarence and Crisp (2017) 55 FamLR 292
To determine whether or not there was a de facto relationship between Susan and Margaret at the relevant date (December 2006) I must consider the definition of “De Facto Relationships” as set out below:[11]
(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 basis.
[11] Section 4AA(1) and (2) of the Family Law Act 1975 (Cth)
Paragraph (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.
There being no relevant disqualifying factors the Court, must have regard to all the circumstances of their relationship and determine whether or not they had a relationship as a couple living together on a genuine domestic basis.
To work out if they did have such a relationship I will consider those matters included in the legislation which appear to be relevant.
If I simply accepted the evidence of Susan and Margaret their relationship would neatly meet all the circumstances raised in the Act. The material in Susan’s affidavit is set out in that order.[12]
[12] Affidavit of Susan Parsons filed 6/03/2017, pars 51-57
However I have reservations about such acceptance. The two women are united in a strong desire to achieve the orders they seek and were well aware of the legal test for legal parenthood under the Act namely that they needed to be in a de facto relationship when B was conceived.
I consider that Susan was a truthful witness by preference but concealed some critical matters about her agreement with Robert to have a child. For instance she insisted in her affidavit that she had never discussed anything with Robert except his being a sperm donor and an occasional visitor of the child who might come into existence.
It is not controversial that Robert was involved with B from birth and keenly interested in her care. It is improbable that if Susan had wanted only an uninvolved sperm donor but had been forced in some way to accept Robert’s involvement, that she would have asked him, as she later did, to father a second child.
I consider that Margaret was so determined to prevail in the litigation that she was not always straightforward in her evidence. There is also a possibility that her memory is genuinely faulty at times.
I accept that the two women met in May 2006 at which time both were involved with other women. Also that by 29 August 2006 they had left those previous partners with a view to getting together with each other.
Accordingly by December 2006 they may have been together in a romantic relationship for as long as 3 to 4 months.
By October 2006 Margaret was staying at Susan’s house in Suburb D although there is insufficient evidence to conclude that she lived there permanently from that date. The relationship was new although probably developing quickly.
Financially, the two women were both employed and self-supporting and so they have continued. Was there a de facto relationship?
Margaret asserted that she began a de facto relationship in her own view on 29 August 2006. Robert disputes the existence of a de facto relationship prior to Susan’s pregnancy with B.
Margaret was challenged with the fact that she did not attend on the first attempt of Robert and Susan to conceive a child. Her explanation was that she was busy at work. She asserts an agreement between herself, Susan and Robert. It is not supported by the evidence. During cross examination Margaret conceded that she could have gone down for the conception attempt but did not.
She also conceded that she had not met anyone in Susan’s family by August 2006. She conceded that there were no joint bank accounts, common bills at Susan’s property at N Street, no change of driver’s licence and no evidence of transfer of joint funds. There was reliance on a photocopy of a card[13] given by Margaret to Susan. The card specified the date and place but the original had been lost. Margaret conceded that the card had been in the house for nine years, that she had found it, copied it, lost it again, it was in the house somewhere. The proposition was put that Margaret did not want the card to be found because she did not want the writing to be analysed. This was a reference to a suggestion that date and time or some elements of the words might have been added subsequently.
[13] Affidavit of Margaret filed 15/10/2015, Annexure B
There were no common assets, there is no evidence of them being socially known as a committed couple; what they had was a rapidly developing intimate relationship. The settled domestic relationship came later.
In relation to conceiving a child the evidence suggests that Susan did not take Margaret fully into her confidence in those first three or four months. Margaret asserts[14] that Susan said to her “I know this gay guy Robert. He has offered to be a sperm donor and I have had a couple of conversations with him about it”.
[14] Affidavit of Margaret Parsons filed 6/03/2017, par 19
If that is what Susan said to Margaret, then that statement was at best gross minimisation of the friendship between Susan and Robert over 25 years and a concealment of the extent of conversations between the two since 2004 about conceiving a child together, with Robert to take an active role with the child growing up.
In October 2006 Susan and Robert made their first attempt to conceive a child. They did so alone together, Susan travelling to Robert’s apartment in Sydney. Whether or not Susan suggested they try sexual intercourse as Robert asserts and Susan denies she did, they did carry out an artificial insemination.
It is uncontentious that Margaret was not present. In her oral evidence she asserted that she was aware of the attempt at conception but was too busy at work to be present. It is inconsistent with several things, the significance of the event, her attendance on the next attempt and with her assertions as to commitment between herself and Susan to start a family.
Robert asserts and I accept that at the first conception attempt in October 2006 he “had no knowledge of Margaret whatsoever.”[15]
[15] Affidavit of Robert Masson filed 6/03/2017, par 52
He learned about Margaret as a presence in Susan’s life in November 2006. He says and I accept that Susan spoke about her in a casual offhand way. I consider it highly likely that Susan was dissembling so as not to lose the opportunity to conceive.
In early December 2006 Robert met Margaret for the first time when he travelled to Susan’s home for the second conception attempt. He felt surprised and uncomfortable about her presence but proceeded and the atmosphere was apparently light hearted.
Susan in my view was acting independently of Margaret at that time, keeping faith with what she and Robert had discussed.
In December 2006 the relationship between the two women was new, affectionate and still developing. I conclude that the relationship between the two women had not reached the nature and quality of a couple living together on a genuine domestic basis.
It follows that Margaret does not meet the legislative requirement to be the other intended parent.
Robert
For Robert to be a legal parent, I conclude that the evidence must at least support findings that he provided his genetic material for the express purpose of fathering a child he expected to parent, and was unaware of the de facto relationship now asserted to have been in existence at the time of conception.
I draw this conclusion from the following decisions commencing with Re Patrick[16]. The facts of this case were that a lesbian couple and their gay male friend had all agreed in advance on an artificial insemination procedure and further, that the man would be involved in the life of the child. Soon after the child was born contact ceased.
[16] [2002] FamCA 193
In that decision Guest J held that the biological father of a child conceived in such circumstances would only be regarded as a parent if there was a specific state or territory law which expressly conferred that status on a ‘sperm donor’ for the purposes of the Act.
In that case there being no such law in Victoria the father was found not to be a parent.
As other judges of this Court at first instance have done, I respectfully disagree with that conclusion. “The meaning of the word “parent” ranges across biology, law and factual reality. It is open to assume that a biological progenitor is a parent unless an order of a Court says otherwise, as for example when there is a legal adoption or surrogacy.
One such decision is that of Brown J in the case of Re Mark.[17] The facts were that a gay male couple entered into an overseas surrogacy agreement with a surrogate mother who carried the pregnancy. One of the men, Mr X, provided his sperm and together with an anonymous donor egg an embryo was created and implanted in the surrogate mother.
[17] [2003] FamCA 822
In that decision Brown J found that the ordinary meaning of the word parent encompassed a person in the father’s position. Her Honour said this:
Mr X provided his genetic material with the express intention of fathering (begetting) a child he would parent. He is not a sperm donor, (known or anonymous), as that term is commonly understood. The fact that the ovum was fertilised by a medical procedure, as opposed to fertilisation in utero through sexual intercourse, is irrelevant to either his parental role or the genetic make-up of Mark.
With respect I agree that the intention and belief of a party to an artificial insemination process is a factor to be taken into account.
Being a biological parent is not the whole answer to the question who is a parent. Donors of eggs or sperm very often make express disclaimers (for instance in surrogacy agreements) of future involvement in the life of a child. They do so in order to disclaim the rights, obligations and benefits of being a parent.
However where there is a challenge to a biological parent being a legal parent, as there is here, biology is a part of the answer.
In this case if the evidence supports a finding, as I have found that it does, that Robert took part in the artificial insemination process believing that he was fathering a child whom he would help to parent, by financial support and physical care, then absent other legally disqualifying factors, he is a parent in the ordinary meaning of the word.
In Groth & Banks[18] Cronin J, with whom I respectfully agree, stated that s 60H of the Act should be interpreted as expanding rather than restricting the categories of people who can be parents. In my view it is a proposition consistent with the absence of an exhaustive definition of the term “parent” in s 4 of the Act.
[18] [2013] FamCA 430
The facts of that case were that a man and a woman who had separated as a couple agreed to undergo IVF and raise the child as separated parents.
The biology of the situation was that the father provided sperm for the IVF procedure. The mother argued that pursuant to the relevant state legislation an irrebuttable presumption of law applied that if a woman becomes pregnant as a result of an IVF procedure and a child is born, the man who produced the semen used in the procedure is not the father of the child.
Referring to “the fact that a child has two parents who are his or her biological progenitors permeates the language of the Act” his Honour concluded that “biology is the determining factor unless specifically excluded by law”. Hence, the child having been created by his two biological parents had significance.
In this case, biology is of course a factor but the belief of Robert that he would take on the responsibilities of parenthood, together with Susan, as friends raising a child is equally significant.
Conclusion
I have concluded that:
(i)Susan and Margaret were not partners in a de facto relationship when B was conceived in December 2006. That condition not being satisfied, the second limb of the test (being consent), is not activated for consideration;
(ii)Robert believed that he would take on parental responsibilities as a parent as would Susan and he provided his sperm for that purpose. Further I find that he had not been told and did not consider that Susan and Margaret were in a relationship with the character of a de facto relationship.
Accordingly for those reasons and taking into account that Robert is the biological father of B I conclude that Robert is a legal parent of B.
2) Who should have parental responsibility for the subject children
The second issue is who should exercise parental responsibility for the subject children, both for long term issues and day-to-day decision making.
Parental responsibility of course can be allocated to biological parents, legal parents, grandparents, foster carers, informal caretakers and people with relevant interests in the care and welfare of subject children.
Allocation of parental responsibility can be to one or more people with separate consideration of long term and day-to-day decision making.
This matter is considered later in these reasons.
3) What Parenting Arrangements will be in the best interests of the children
The children have lived with the respondents all their lives.
The proposal of the respondents is for that arrangement to continue but in New Zealand. They wish to establish a residence for the children in New Zealand and remove them from Australia to commence that new residence in 2018.
The applicant is content for the children to live with the respondents unless the Court considers that there is a risk, whether or not they live in New Zealand, that their relationship with him and his family will be devalued and attenuated.
How much time the children should spend with each of the parties and what orders should be made for communication is also considered later in these reasons.
Short History of Relevant Events
In or around 1990 Susan and Robert were introduced to each other in Australia by Susan’s then partner Ms E, who was a witness for Susan in these proceedings. Susan has, since arriving in Australia, lived in Newcastle.
I accept that Susan and Robert began a friendship which has endured for about 25 years. Things changed when Robert made his parenting application.
Robert lived and worked in the United Kingdom for a few years in the mid-1990s. He then returned to live in Australia, in Sydney.
It is uncontentious that Susan approached Robert on the subject of her wish to have a child. There is a difference between them which has some significance in the language used. Robert asserts[19] that in or about 2004 Susan approached him and said “Are you interested in co-parenting a child?” Whilst agreeing with the year that the conversation took place, Susan says that her opening to the conversation was[20] “I am looking for possible sperm donors as I am interested in having a child and I was wondering whether or not Stephen [a reference to Robert’s then long term partner] might be interested in being a sperm donor for me.” Susan denies that she asked either Robert or his partner to “co-parent” a child with her.
[19] Affidavit of Robert Masson filed 6/03/2017, par 23
[20] Affidavit of Susan Parsons filed 6/03/2017, par 21
It is not contentious that, however it was phrased, Robert’s initial response was to say “no”. He provides his thinking at the time that he was in a difficult relationship with his then partner and “knew it wasn’t the right time to be a parent. Shortly thereafter I broke up with [K].”[21]
[21] Affidavit of Robert Masson filed 6/03/2017, par 23
Susan and Robert maintained their friendship.
In June 2006 Robert attended Susan’s 40th birthday party.
Susan asserts that one month later she “needed someone to travel with me to New Zealand. (“the New Zealand trip”).”[22] The “someone” she asked was Robert.
[22] Affidavit of Robert Masson filed 6/03/2017, par 27
Susan also invited Robert to attend her mother’s 70th birthday party in New Zealand.
Susan was inclined to play down the significance of these trips however I accept that Susan and Robert had long shared an interest in motoring which was a feature of their friendship and that when he was invited to go to New Zealand both for the birthday party for Susan’s mother and to drive from Town X to Town Z in New Zealand, he responded with enthusiasm “I would love to”.
Given that Susan and Robert entered into their first attempt to conceive a child three months later, I have no trouble accepting that during the course of the holiday in New Zealand there was considerable conversation between the two about their respective interest in having a child. Each discussed the reasons why they had not yet done so.
Robert recalls that one day in New Zealand he said to Susan “Now that I am out of my relationship, it is a better time for me to reconsider having a child together”.[23] The response from Susan is said by him to have been “That is great, I would still be interested in having a child together, we would need to discuss how we would co-parent given you are living in Sydney and I am in Newcastle”.
[23] Affidavit of Robert Masson filed 6/03/2017, pars 35-47
Significantly, Robert went on to say that he had made a statement to Susan about the conception of a child:
I would only be interested in co-parenting children if I was able to play an active role in their lives as a father. You know that I did not have a relationship with my father due to his abuse and alcoholism and his general lack of interest in his children. I do not want to be an absent parent. If we do this I’d always want to have a significant role in the child or children’s lives as their dad.
Robert firmly stated in his affidavit that as a result of his childhood experience he would never have considered fathering children and not having a relationship with them.
Given his commitment to these two children and his initiation of this application I accept that that was his position.
Susan’s version is rather different. She says that Robert raised the topic with her in a café in New Zealand and said:
Since you asked me to be a sperm donor a couple of years ago I have been thinking about it some more and I am now wondering whether you would reconsider using me as the donor.
Susan:Oh I don’t know about that now.
Robert:I like the idea now. Of course I’d like to know the child and I’d like the child to know that I am their biological father.
Susan:I think I might be past that idea. I’m now 40 years old and I am focusing on getting [a] business set up and moving back to New Zealand to live, so no, I don’t think so, not now.
Robert:Oh I would never stop you from coming back to New Zealand. I understand you are planning to at some stage. As your parents get older you’ll probably want to come back too. Just have another think about it and let me know.
Susan denies that there was any reference to co-parenting the child. I do not entirely accept her evidence. The fact that within three months of this conversation she was attempting to conceive a child with Robert is inconsistent with a general loss of interest in having a child or a feeling that she was too old for a pregnancy.
I consider that Susan was playing down Robert’s role and minimising the significance of the conversations around what their respective roles would be in order to suit her current application.
Robert also went on to say that there had been a further conversation about their respective roles:
Robert:I want our children to call me Dad and you Mum. We also need to discuss what happens if either of us meet partners in the future.
Susan:Yes that is important to think about. The child would be ours and if they are going to call us Mum and Dad, then partners should be called by their names.
Robert:I agree. I imagine our partners would be involved in our children’s life but they will be our child.
I note that this in fact is exactly what happened; both children refer to Susan as “Mum” or “Mummy” and Robert as “Dad” or “Daddy”. Both children call Susan’s partner “[Margaret]” and Robert’s partner “[Greg]”.
In September 2006 Robert travelled to Newcastle and the two had a further conversation. Susan’s evidence is that Robert asked her whether she was still considering “the baby thing”[24] and that she agreed that she had been thinking about it and would like him to get his sperm tested to ensure that he was not “shooting blanks”.
[24] Affidavit of Robert Masson filed 6/03/2017, par 41
The discussions went on and included reference to schools and to the baby’s surname; Robert expressing his preference for the baby to have the surname Masson and Susan responding that she could perhaps change her surname to Masson as well.
The evidence is that there was some discussion subsequently between Susan and Margaret about a change of surname and initially an application was made not only for B to be known by the surname Masson but for Margaret to adopt that surname as well.
Margaret’s evidence was to dismiss the significance of that application as simply a misunderstanding on her part as to what Susan wanted. However I do not accept that was so, especially as she had denied doing so at all until confronted with the documentary evidence.
It is not contentious that Susan and Robert had a meal together with Robert’s mother, a breakfast, when Robert said to his mother “Susan and I are considering having a child together, what do you think?” Ms F is reported by her son to have been visibly shocked,
Having children is a very serious thing and a lifelong commitment, not only to the children but to each other, you need to be very certain that this is really what you both want. Never trivialise what you are considering.
Robert replied with,
We’ve known each other a long time and we’ve given it a lot of thought. We have discussed how it would work and I’ll be moving back to Newcastle as soon as I’ve found the right job. We’ll be able to make co-parenting work.
The legal significance of this conversation is that Susan asserts that her relationship with Margaret by October 2006 was “We were living together in a common residence and we held ourselves out to the world as a de facto couple.”[25]
[25] Affidavit of Susan Parsons filed 6/03/2017, par 57
It is agreed that the first attempt at conception was in October 2006. Robert asserts that Susan had suggested that they conceived naturally; that Susan came down from Newcastle to Robert’s apartment in Sydney; they attempted sexual intercourse but that did not occur; they then walked down to the chemist and purchased a syringe; artificial insemination was used by Susan on herself in Robert’s home. It is an agreed fact that Margaret was not present on this occasion.
I accept Robert’s assertion that he had no knowledge of Susan’s relationship with Margaret in October 2006.
On the second occasion conception was attempted, November 2006, it is agreed that Susan rang Robert and asked him to come up to Newcastle to try again. He says, and I accept, that it was around this time that he first learned that Susan had met Margaret. He describes Susan’s comments about her as “off-handed and casual, like she [Margaret] was a casual fling. I recall thinking that Margaret was simply another person Susan was seeing”.[26]
[26] Affidavit of Robert Masson filed 6/03/2017, par 54
Susan on the other hand asserts that she first met Margaret in May 2006 at a time when they were each “dating other women”. By August 2006 they had become committed to each other. Susan asserts that Margaret moved into her home in Suburb D in October 2006 and says this “We were already looking forward to raising children together by the time she moved in”.[27]
[27] Affidavit of Susan Parsons filed 6/03/2017, par 53
Susan said she confided in Margaret that she had undergone multiple IVF inseminations in 2004 and had begun to fear that she was unlikely to conceive. Susan also said and I have no reason not to accept that she told Margaret that “Robert had indicated that he was keen to be a sperm donor.” She sets out the following conversation:
Margaret:Well, if we were to use this Robert, what sort of a role would he expect to have in the life of the child? I wouldn’t want to have to spend too much time with a gay man.
Susan:No, really you don’t have to worry about that. Robert only wants to be the sperm donor. He lives in Sydney and he has told me he won’t really be around much at all for the first five years because he plans on living [overseas] and then he wants the child to know who he is and to be able to pop in and visit bub when he comes up to visit his mother who lives in [Suburb Y] and anyway, that may not even happen if we don’t end up living here.[28]
[28] Affidavit of Susan Parsons filed 6/03/2017, par 65
If it is the case that that is what Susan said to Margaret she was at least minimising, but probably misrepresenting, Robert’s interest in conceiving a child and helping Susan to raise it and that he wanted to be a parent known as “Daddy” and to have a real role in the child’s life.
It seems likely that the relationship between Susan and Margaret was developing right at the time of the second conception attempt.
The evidence of Robert is that in late 2006 he went to Susan’s house and when he arrived Margaret was there. It was the first time he had ever met her and he felt uncomfortable to undergo the conception process with a “complete stranger”[29] present. Robert says, and I accept, that Margaret became involved in the insemination process using a syringe to inseminate Susan. At that time Robert believed that Margaret was there as a support person.
[29] Affidavit of Robert Masson filed 6/03/2017, par 55
The second conception attempt was successful, Susan was pregnant and the child was born early in September the following year.
There was regular contact between Robert and Susan in the early stages of the pregnancy. Robert attended the first ultrasound scan as did Margaret. Robert attended the second scan. Margaret was not present on that occasion.
Robert stated that despite often visiting Susan in her home, “I never observed Margaret either visiting at the house or living at the house.” This is consistent with a decision by the two women for Margaret not to be present when Robert was around. It is also consistent with the relationship not being so far advanced as Susan asserts.
Robert became aware in March or April 2007 that Margaret had moved into Susan’s home. He describes himself as apprehensive about how Margaret was going to be involved with “Susan and my co-parenting plans.”[30]
[30] Affidavit of Robert Masson filed 6/03/2017, par 74
Subsequently, in August Robert became aware that Margaret had changed her surname to his. He was shocked and not particularly pleased; anxious about how events were developing. Robert describes a three way conversation where Margaret asserts that she felt frozen out of the family constituted by Susan, Robert and herself.
In May 2007 Robert moved to live in Newcastle and has remained living here since that time.
Photographs were tendered into evidence[31] of a baby shower showing Susan (heavily pregnant) sitting side by side with Robert, both opening gifts for the baby surrounded by friends and food. Margaret is in the background taking photographs.
[31] Exhibit 4
Robert was present at the birth of B and commenced paying child support through private agreement from the time of her birth.
Without any formal agreement there was regular time between the child and Robert.
The relationship between the two women was sustained and came to be understood by Robert as a permanent one.
Despite evidence of a friendly, warm and entertaining relationship between all parties, I consider that there is and was an historical underlying uneasiness between Susan, Margaret and Robert over the legal position for B.
However, within months of the birth of B, Susan and Margaret were contemplating another child and asked Robert if he would agree. There is tremendous significance in this request. Whatever her reservations about him really were, Susan knew that Robert was actively interested in B, was living in Newcastle and had every intention of involving himself and his mother in the life of the child.
The discussions went on for some time. Robert says he initially told Susan and Margaret that he would consider a second child. Discussions then turned to an increase in child support, the size of which caused Robert some hesitation based on his financial capacity. Robert also had reservations based on what Susan had said to him when B was a new born. Margaret had commented to Robert, “You are a natural with [B]”, he responded, being as he said “flattered”, “It must be natural when it’s your own child”.[32]
[32] Affidavit of Robert Masson filed 6/03/2017, pars 99-100
Robert noted that the relationship between himself and Margaret became strained and difficult after this moment. He considered that she had taken his comment as a criticism of her being a non-biological parent.
Difficulties and strain grew. Robert declined to conceive a second child with Susan.
Susan and Margaret thereafter pursued other options and Susan became pregnant a second time.
Robert learned of her pregnancy by observing it in due course.
At first, after the birth of C, Robert spent time with B including overnight time which began when B was about 17 months old. Robert’s mother regularly spent time with B also, taking her for walks and to a music appreciation course.
Robert considered that the time he spent with B was helpful to the two women in that it gave them a break and they knew that B enjoyed the time with him.
However, the relationship between Robert and Susan deteriorated sharply after C’s birth. One unexpected consequence of this was that the relationship between Robert and Margaret did what Robert describes as “improved dramatically”.[33] They began to communicate directly.
[33] Affidavit of Robert Masson filed 6/03/2017, par 129
Robert began to feel that it was unfair to C that B spent time with him and called him “Daddy” when there was no father figure in C’s life. Margaret explained that she had been conceived from an American sperm donor program. Robert suggested and Margaret agreed that there should be some consideration of both children spending time with Robert.
At the end of 2009 Robert asserts, and I have no hesitation in accepting, that the two women agreed that he should take both children in future and spend time with them. I am supported in this conclusion by the fact that is what has happened ever since and that C not only calls Robert “Daddy” but enjoys a close, fun-filled and loving relationship with him.
In April 2011 Robert began a relationship with his current partner Mr Greg H. In the following months both children met Mr H and his extended family.
In December 2011 Mr H met Margaret’s adult son.
In 2013 B started school and there was a reasonable period of friendly cooperation between the households.
In February 2014 Margaret was diagnosed with cancer, had appropriate surgery and was off work for four or five months. Around that time the two women raised with Robert the possibility of moving with the children to New Zealand. Robert was opposed to the idea. His opposition was regarded as insensitive in circumstances where Margaret was ill and tensions heightened.
In March 2014 the three parties met to discuss a potential parenting plan. Thereafter both children spent time with Robert every second weekend from Friday to Sunday at the home of the paternal grandmother.
In July 2014 all three parties attended a mediation and agreed on a parenting plan which was amended a few weeks later. It provided for alternate weekends and mid-week time.
Whilst these preparations were put in place the children went away on holidays with Robert and his partner on a trip to the snow.
The mediation unfortunately heightened ill-feeling between the adults. Susan describes it as having felt like “an ambush”.[34]
[34] Affidavit of Susan Parsons filed 6/03/2017, par 466
By July 2014 Susan describes herself, and Margaret who was still recovering from her illness, as having been “taken off guard and blind-sided.”
The last straw was when documents were passed between the lawyers for the parties after the mediation. Robert and his partner Mr H were named as “parents” for B and C. Susan describes their joint reaction as follows, “We of course were appalled when we saw this and refused to sign any such document with that assertion on it”.
There has been no occasion when any of the adults has failed to take the opportunity to spend time with the children and communicate with them and in the case of Robert, to participate in making decisions when invited to do so in the past by Susan and Margaret.
The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child
Robert arranged to pay money into an account in Susan’s name from the time B was born. He paid approximately $150 per week.
At the time when Susan and Margaret asked Robert about having a second child with them, Susan raised the issue of increase in child support which led to considerable discussion about relative costs. In any event Robert did not agree to a second child and child support continued at the previous level.
During the course of the trial Susan indicated that the money that she had accumulated from Robert’s payments had been used for legal costs. However the respondents have not wanted financial support for either of the children from Robert.
It is apparent that the greater share of the financial cost of raising the children has fallen on Susan and Margaret but that Robert has both contributed for as long as his money was welcome and by providing for the children when they are in his care and away on holidays.
As they are entitled to, the respondents may in future apply for an assessment of Child Support.
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
There would likely be a very significant effect on the children of a relocation to live in New Zealand with Susan and Margaret.
They would experience a new and interesting life in New Zealand with which they are already somewhat familiar. They would have access to their Aunt Q, and members of her family. Whether or not those family members all return to live in New Zealand as anticipated, they would be regular visitors.
They are happy in their school in Newcastle and doing well but a change of school could be readily adjusted to, with support.
There would likely be an adverse impact of the loss of their regular relationship with Robert, Mr H and Ms F.
Both children understand Ms F as their grandmother and love her in the uncomplicated way that children love grandparents because they are not responsible for their discipline in the same way as parents. Ms F is now their only living grandparent and is, I accept, important to them independently of Robert.
One outcome may well be that the respondents Susan and Margaret feel a sense of relief that they have put distance between themselves and Robert in order to achieve the family group of four they want “without interference”. The evidence supports that there would be such a reaction.
This attitude would have the most adverse effect on the children. It would represent a devaluation for the children of members of their family who have great emotional significance for them.
I am not confident that the children’s relationship with Robert, Mr H and Ms F would be maintained at its present level if the children go to live in New Zealand.
The practical difficulty and expense of a child spending time with and communicating with a parent
Geographical distance, would create some practical problems for spending time with Robert and Mr H.
The three parties are all in full time employment and in a financial position to fund air travel and the electronic means of communication, telephone, internet and Skype.
The children are old enough to travel although not unaccompanied. There is no doubt that one of the parties or a family member would be able to travel with the children on most occasions.
The proposal of the respondents for six nights in each school holiday period, two holiday periods in New Zealand and two in Australia would be workable enough.
There is also a proposal of one weekend a term for Robert to fly to New Zealand to spend time with the children.
It would be a significant reduction in their time together even if there was a very high level of goodwill and support for the relationships of the children with Robert, Mr H and Ms F.
The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
There is no doubt at all that each of the parties has the capacity to meet the needs of the children, emotionally, intellectually, physically and financially at a high level.
There is reference in the Single Expert Report that Robert is able to support the children in some appropriate risk taking,[58] especially on holidays such as skiing and swimming.
[58]Above at 445
The only limit on capacity in my view is that Susan and Margaret have allowed themselves to overlook the fact that Robert, Mr H and Ms F are part of the children’s family and that although they would like to define their family one way – two adults, two children – the children have not experienced life that way and delight in their relationships with Mum and Margaret, Dad and Greg and Nana.
The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents
Susan and Margaret decided that C should be told that Robert was not her biological father and further, that someone else “an identifiable sperm donor” was her father.
They did so in a careful way using a qualified therapist to explain the situation to C and to answer any questions as they arose.
The decision itself, taking into account C’s age and stage of development was unexceptional, however, the fact that they did not let Robert know that that was their intention so that he could be ready to answer questions from C and indeed also from B, was not entirely responsible.
Any other fact or circumstance that the court thinks is relevant
Susan and Margaret have their reasons for wanting to live in New Zealand which Susan was born there but has lived in Australia for almost all her adult life. She has family there, there are retirement plans to acquire acreage and set up a certain kind of business there.
However there is no suggestion that their life in Newcastle is unsatisfactory in any way other than as arising from these proceedings.
Conclusion
The Court must consider the best interests of children when making a parenting order.
I have reached the conclusion that the children will do best if Susan and Margaret make the long term decisions about their future in consultation with Robert. That will be a perpetuation of the arrangement that has been in place in the past until the relationship deteriorated commencing in about 2014.
I have also concluded that the children should live with Susan and Margaret in Australia, not New Zealand, to enable them to spend regular week day, weekend and holiday time with Robert.
Decisions made when the children are living in each household about day-to-day matters can be made without prior consultation.
I have concluded that the risks of devaluation of the children’s relationship with Robert and his extended family is a risk that should not be taken when the children have thrived and done well in the arrangements which all three parties have put in place for them over the years since the birth of each child.
Orders are made accordingly.
I certify that the preceding four hundred and eighty (480) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 3 October 2017.
Associate:
Date: 3 October 2017
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