McClelland and Rhodes
[2019] FCCA 357
•27 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCCLELLAND & RHODES | [2019] FCCA 357 |
| Catchwords: FAMILY LAW – PARENTING – Child aged 5 – where the parties were in a same sex relationship which ended prior to the child’s conception – where the parties remained living under one roof after their relationship ended and were both involved in efforts by the mother to achieve pregnancy by artificial insemination – where the parties agreed that they would both parent the child conceived by the mother – where after about eighteen months the mother sought to renege on this agreement and became resistant to the applicant spending time with the child – where the applicant has applied for an order that she be able to spend defined time with the child – where the applicant has standing to bring the application pursuant to s.65C (c) of the Family Law Act – where after proceedings were commenced the mother revealed that the child had not been conceived by artificial insemination but had been conceived as a result of a sexual relationship with a local man – where the local man has been confirmed by DNA testing to be the father of the child but has never wished to be a party to the proceedings and spends limited time with the child – where the child is developmentally delayed but has a fond relationship with the applicant – where the matter is finely balanced but where in the particular circumstances of this case including the mother’s hostility to the time occurring, the risk of conflict at changeovers, the mother’s mental health and the distance the parties live apart it is not considered to be in the child’s best interests for orders to be made for the applicant to spend time with the child. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 61DA, 65C |
| Cases cited: Aldridge & Keaton [2009] FamCAFC 229 Church & Overton & Anor [2008] FamCA 953 Mankiewicz & Anor & Swallow & Anor [2016] FamCAFC 153 |
| Applicant: | MS MCCLELLAND |
| Respondent: | MS RHODES |
| File Number: | NCC 616 of 2016 |
| Judgment of: | Judge Terry |
| Hearing dates: | 3 & 5 April 2018 |
| Date of Last Submission: | 5 April 2018 |
| Delivered at: | Newcastle |
| Delivered on: | 27 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Greenaway |
| Solicitors for the Applicant: | Burke & Mead Lawyers |
| Counsel for the Respondent: | Mr Betts |
| Solicitors for the Respondent: | The Family Law Firm |
| Counsel for the Independent Children’s Lawyer: | Ms Bridgett |
| Solicitors for the Independent Children’s Lawyer: | Denise Clark Solicitor & Advocate |
ORDERS
The child [X] born … 2014 shall spend time with the applicant on the next two occasions the child is due to spend time with him pursuant to the interim orders made on 9 June 2017.
Thereafter all outstanding orders concerning the child are discharged.
All outstanding applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym McClelland & Rhodes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 616 of 2016
| MS MCCLELLAND |
Applicant
And
| MS RHODES |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter involves a dispute over whether Ms McClelland (the applicant) should continue to have a role in the life of [X] aged 5.
The respondent Ms Rhodes is [X]’s biological mother. I will to refer to her as the mother in these reasons.
The applicant and the mother were in a same sex de facto relationship for 16 years. That ceased prior to [X]’s conception but they continued to live under one roof after the relationship ceased, they were both involved in efforts to achieve pregnancy for the mother through artificial insemination, they agreed that the applicant would have a parental role in [X]’s life after his birth and they continued to reside together and to each be involved in parenting [X] until he was about 14 months old.
In April 2015 the parties had to vacate their home because of a natural disaster in the area where they lived and they thereafter lived separately. [X] remained with the mother and by October 2015 the mother had become quite resistant to the idea of the applicant being involved with him although some time still occurred.
In June 2016 the applicant filed an application for parenting orders. Since then she has by court order has spent time with [X] for a number of hours on weekends.
The mother remains extremely resistant to the idea of applicant having any involvement with the child. She is fixated on the fact that she is [X]’s biological mother and that the applicant has no biological connection with him and expresses perplexity about why her ex-partner has a right to seek parenting orders about the child.
The mother proposed that all existing orders be discharged and all outstanding applications be dismissed. She did not ask the court to make any parenting orders about [X] for her benefit.
The applicant’s case was that the court should make orders which would allow her to continue to spend time with [X]. She said that she had a good relationship with the child and added value to his life and it would not be in the child’s best interests to terminate the relationship.
The applicant’s proposal at trial was that [X] spend time with her overnight from Saturday to Sunday each alternate weekend during school terms, for half of the three shorter school holidays and for two weeks during the Christmas school holidays. However during final submissions she said that she was prepared to accept time as proposed by the Independent Children’s Lawyer.
When the proceedings began the applicant was seeking an order that she and the mother have equal shared parental responsibility for [X] but at trial she did not seek an order for parental responsibility.
The Independent Children’s Lawyer proposed that [X] spend time with the applicant overnight from Saturday to Sunday one weekend per month during school terms and for lesser periods of time in the school holidays. She noted that the child had a relationship with the applicant and referred to the fact that the family report writer identified benefits to the child in continuing a relationship with the applicant and submitted that relationship should not be discarded.
She submitted that the mother might not like it but there was no evidence that her parenting capacity would be affected if time occurred as proposed by the Independent Children’s Lawyer.
After the applicant commenced proceedings the mother announced that she had had a sexual relationship with a man called Mr A in 2013 and that he was in fact the father of the child and the child had not been conceived by artificial insemination. It was subsequently established by a DNA test that Mr A was indeed the child’s biological father. In recent times the mother has facilitated him spending some time with the child but he presents as a very reluctant father. He is married with other children. He declined after being outed as the father to become a party to the proceedings although he filed an affidavit in the mother’s case and said that he supported her position that the applicant should not spend any time with the child.
Absent the complication of Mr A’s existence the facts in this case bear some similarity to the facts in Aldridge & Keaton[1]. That case involved an application for parenting orders by a person who was not a parent of a child but who had been involved in the care of the child while in a same-sex relationship with the child’s mother. The trial judge in that case made orders which permitted the applicant to spend regular time with the child and the decision was affirmed on appeal.
[1] Aldridge & Keaton [2009] FamCAFC 229
However every parenting case turns on its own facts. Persuasive arguments can be made either way in this case but for reasons now to be given I do not consider that it would be in [X]’s best interests for orders to be made for him to spend time with the applicant and other than ordering that two further visits take place in accordance with the interim orders so that time is tapered off and does not end abruptly I intend to dismiss the application.
The evidence
The applicant relied on her affidavits filed on 13 October 2017 and 26 March 2018 and the affidavits of Ms B, Ms C and Ms D filed on 13 October 2017.
Ms C and Ms D were not required for cross-examination.
The mother relied on her affidavits filed on 13 October and 7 November 2017 and the affidavits of the maternal grandfather Mr E, the maternal grandmother Ms F and the child’s father Mr A filed on 13 October 2017.
Only the mother was required for cross-examination.
The mother was a poor witness. The evidence in her affidavit was very general and at times inaccurate. She gave no evidence about things which she perhaps hoped would be overlooked (such as the applicant’s involvement in extensive efforts for her to become pregnant by artificial insemination).
The mother asserted that the applicant’s misuse of alcohol was a significant factor in the breakdown of her relationship with the applicant but there is no mention of her complaining about the applicant’s alcohol use in doctors notes created at the time or the notes of the psychologist to whom she was referred. She also made general assertions about the applicant’s aggression but made no reference to her own aggressive and intemperate behaviour.
My concerns about the mother’s credit will be relevant to findings I make about historical matters where the mother’s evidence conflicts with that of the applicant.
An s.11F child dispute conference memorandum was prepared in 2016 by Ms G, a family consultant and a family report was prepared in 2017 by Dr H, a Regulation 7 Family Consultant.
Both documents were relied on but while Dr H was required for cross-examination Ms G was not.
This matter was originally listed for trial on 9 & 10 October 2017. However when it was called on Counsel for the Independent Children’s Lawyer informed me that the parties had agreed that the matter should be adjourned until DNA testing was carried out to establish whether Mr A was the child’s biological father.
The matter was re-listed for hearing on 3, 4 & 5 April 2018 and the hearing took place at that time.
I apologise for the delay in delivery of this decision.
Background
The applicant is 52 and the mother 44. They were in a same sex de facto relationship from about … 1997 to November 2012. They purchased a home in Town J in 1997. They were living in that home when their de facto relationship ceased and they continued to do so thereafter.
The parties had talked about having a child prior to separation and the mother had attempted to fall pregnant by artificial insemination. Nothing came of that but after the relationship ended they took active steps to achieve pregnancy for the mother using donor sperm.
The applicant gave detailed evidence about the attempts made for the mother to fall pregnant by means of artificial insemination between … 2012 and … 2012 using donor sperm from a friend called Mr K. The applicant said that the parties agreed that the mother would be the child’s biological mother and that she would be the child’s other parent and that they would continue to live in the same house until the child was 12 months old so that the applicant could develop a bond with the child.
The efforts in 2012 did not result in the mother falling pregnant and in or about … 2013 the parties attended the Region 1 IVF Clinic for initial tests and arranged for another friend to deposit sperm there.
The IVF Clinic would not assist the parties as they said that tests indicated that the mother was in menopause. The applicant said that the parties then researched some fertility treatments which the mother underwent and that the mother also underwent artificial insemination at home using the donor sperm of a friend.
The mother was completely silent about these matters in her affidavit but some of the applicant’s evidence was corroborated by documents and I am satisfied that she accurately recounted what happened prior to [X]’s birth.
In … 2013 the mother fell pregnant and on … 2014 she gave birth to a son, [X]. The applicant was present at the child’s birth and she provided a copy of the child’s hospital birth card which showed his parents as “Ms Rhodes & Ms McClelland”.
The applicant said that the parties chose the name “[X]” together and that the mother agreed that she could choose the child’s middle name. She proposed [X] but the mother would not agree to that and she picked [X] which was her brother’s middle name. The mother did not contradict this evidence.
The applicant said that she had a suspicion prior to the date of [X]’s conception that the mother was seeing Mr A, a married man who lives in Town J. She said that she asked the mother about it but the mother denied it. The applicant said and I accept that the mother made no mention of Mr A being a possible father of the child either prior to or after the child’s birth and the applicant said and I accept that she never had any reason to doubt that [X] had been conceived by means of the artificial insemination which was ongoing in the period prior to the mother’s pregnancy being confirmed.
The mother was [X]’s primary carer after his birth but the applicant gave evidence about her involvement in his day to day care such as bathing him, changing his nappies and playing with him and the mother made some grudging admissions that this had occurred.
The applicant said that the mother was called “Mum” to [X] and she was called “Ms Rhodes”. She said and I accept that the parties celebrated Father’s Day as “Ms McClelland Day” in 2014 and that the mother’s family and her family all met at a party to celebrate [X]’s first birthday in … 2015.
At trial the mother was in denial about the history of the matter. She made no reference in her affidavit to the extensive efforts the parties made to achieve pregnancy by artificial insemination. She made no reference to what happened at the time of the child’s birth and she made minimal concessions about the applicant’s role in [X]’s day to day care. However confirmation of the applicant’s involvement with [X] and the fact the parties had an agreement about co-parenting the child is contained in a number of documents.
An Allied Health referral form dated 27 March 2014 states that [X]’s social situation is that he “lives with Mum and co-parent Ms McClelland.”
On 10 September 2014 the parties (referred to as “both mothers” in the records) took [X] to see an eye specialist.
On 11 November 2014 a document prepared either for or by Region 1 Prelude Early Intervention Centre referred to the child having two carers, the applicant and the mother, and noted that the child lived with both “parents”.
On 14 August 2014 the mother went to see her GP. The doctors’ notes refer to her having “Depression-bad” and the doctor referred the mother to a psychologist at … Clinic. The notes state that the mother had plans to move of the home she was sharing with the applicant when [X] was 12 months old but still share parenting.
The mother did not move out of the home when [X] was 12 months old but in April 2015 when [X] was 14 months old there were devastating floods in the Region 1. Town J was particularly hard hit and the home in which the mother and the applicant were living became uninhabitable. The parties moved to a hotel and then to the maternal grandmother’s home in Town K. However after about a week the applicant returned to the Town J home and the mother and [X] remained living with the maternal grandmother.
The applicant said that the parties reached an agreement for the applicant to spend time with [X] each alternate weekend and one day each week. When confronted during cross-examination with the s.11F memorandum prepared by the Family Consultant on 7 September 2016 the mother conceded that she and the applicant had reached such an agreement.
I am satisfied that between April 2015 and October 2015 the applicant believed that she had an ongoing role in [X]’s life as his other parent and continued to spend regular time with him.
In or about October 2015 the mother returned to live in Town J with [X]. She commenced residing in rented accommodation and after an argument with the applicant began to significantly reduce the applicant’s time with [X].
In January 2016 the mother agreed to the applicant taking [X] for the day provided she did not take him outside the Town J area and she allowed her to give [X] a bottle and put him to bed when she returned home. She also permitted her to see [X] for short periods at his swimming lessons and at pre-school.
The mother conceded in cross-examination that when the family consultant asked her why she had not adhered to the agreement about [X] spending time with the applicant on alternate weekends she complained about the applicant being cranky and agro and said that she feared what the applicant might tell [X] about her and alleged that she had no common sense with him and showed him off.[2]
[2] Exhibit H
The applicant was not happy about the reduction in time and tried to arrange mediation but the mother would not attend and in June 2016 the applicant filed application seeking orders for equal shared parental responsibility and time with the child.
The mother sought dismissal of the application on the basis that the applicant had no standing to bring it.
It was at this point that the mother claimed for the first time that [X] had been conceived as a result of a sexual relationship with Mr A.
On 7 September 2016 a child inclusive child dispute conference was conducted by a family consultant. The family consultant observed a good relationship between applicant and [X] and recommended that the relationship be preserved pending further investigation. Interim orders were made for the applicant to spend time with the child for three hours on Saturday or Sunday alternating each week with changeover to take place at Town J Store.
The mother was most unhappy about this and there was conflict between the parties surrounding implementation of the time as a result of the mother’s intemperate behaviour.
In December 2016 a family report was ordered.
In January 2017 the mother ceased attending at the changeover point so that the child could spend time with the applicant and in February 2017 she filed an affidavit advising that she had relocated from Town J to Suburb L, a Sydney suburb, and had commenced living in a property owned by her father. This created a travel distance of many hours between the parties and the mother filed an application in a case seeking to vary the orders for [X] to spend time with the applicant. The applicant filed a contravention application.
The contravention application came before a Registrar in March 2017. However the parties agreed to vary the changeover location to the Suburb L Store and the contravention application was dismissed.
The family report was released on 31 May 2017. The recommendation in the report was that no order be made for the applicant to spend time with the child.
On 9 June 2017 the matter was listed for trial in November 2017 and an interim order was made varying the time the applicant was to spend with [X] from the three hours each weekend to six hours each alternate weekend being from 10.00am to 4.00pm each alternate Sunday. This was largely to accommodate the fact that the applicant was doing all of the travelling.
On 13 August 2017 the parties had an argument at changeover and the mother did not permit the applicant to spend time with the child for about a month. Other than that and for reasons of illness the applicant spent time with the child on alternate weekends between August and November 2017.
The parties were ready for the trial to commence on 8 November 2017 but the matter was adjourned at the instigation of Counsel for the Independent Children’s Lawyer who considered it imperative that a DNA test in proper form be conducted to establish if Mr A was the child’s father. A DNA test was ordered and the matter was relisted for hearing on 3, 4 & 5 April 2018.
The DNA test result which became available on 5 March 2018 confirmed that Mr A was [X]’s father.
On 24 March 2018 the applicant relocated from Town J to Suburb M on the Region 2 in New South Wales. She moved into a property owned by her brother who agreed to rent it to her at a reduced rent. This reduced the travel time between the parties to a little over two hours and the applicant said and I accept that she moved to this area to make it easier to spend time with [X].
At the time of trial the applicant was employed as a tradesperson and was working on weekdays finishing at 2.30pm. She had not re-partnered and she has no children of her own.
The mother was continuing to live in Suburb L with [X] and she also had not re-partnered. The maternal grandfather lives on a boat near to the Suburb L property during the week and in the Suburb L property on weekends.
The mother was not employed and said that she did not intend to look for employment until [X] started school. When that would be was unclear at trial as [X] has some significant developmental issues and/or is on the autism spectrum.
[X] is the mother’s only child.
The maternal grandmother lives in Town K and the mother travels up to Town K regularly to see her.
Mr A lives in Town J with his wife and children. It was not clear on the evidence whether they know about [X] and it is reasonable to infer from Mr A’s actions that he either does not want to or cannot introduce [X] to his family.
Mr A has never travelled to Sydney to see [X] nor was there any evidence of him instigating time with the child. The mother and Mr A said that Mr A saw [X] about once a month when the mother travelled to Town K. The last time Mr A saw [X] prior to trial was when the mother took [X] to a paddock near Mr A’s home and Mr A spent about three hours with him.
Whether the applicant has standing to apply for parenting orders
S.65C of the Family Law Act 1975 provides as follows:
A parenting order in relation to a child may be applied for by:
(a) either or both of the child’s parents; or
(b) the child; or
(ba) a grandparent of the child; or
(c) any other person concerned with the care, welfare or development of the child.
The applicant is not a parent of the child either biologically or by operation of law nor she is a grandparent but she maintained that she had standing to bring the application because she was a person concerned with the care welfare or development of the child.
I must determine before doing anything else whether the applicant does indeed have standing to bring the application. In Mankiewicz & Anor & Swallow & Anor the Full Court said as follows:
The effect of s 65C is that the only people who have an unconditional right to apply for parenting orders are those identified in ss 65C (a), (b) and (ba). Applicants who only fall within s 65C(c) have the right to do no more than bring an application to attempt to establish facts which would permit them to apply for a parenting order and have no right to seek substantive relief until they do so. The point being that they can only apply for a parenting order where a court determines they are such a person and thereby grants permission. Whether or not permission should be given is a question of fact and to be determined on the basis that an applicant can demonstrate he or she is concerned with the care, welfare or development of the child. It will be a matter for the judge to decide in the individual case whether this issue is addressed as a discrete issue early in the case or at some other stage.
The Full Court considered this issue in Aldridge v Keaton (2010) 42 Fam LR 369 and described the process thus:
28. Senior counsel for the applicant agreed in circumstances such as the instant case, where a person is not a parent or grandparent of a child, there is a threshold question to be determined as to whether or not an applicant is a “person concerned with the care, welfare or development of a child”. However, he submitted once that threshold is crossed, the only test in respect of any applicant is whether or not a parenting order will be in the best interests of a child. For reasons we will now explain, we agree with that submission.
We agree.[3]
[3] Mankiewicz & Anor & Swallow & Anor [2016] FamCAFC 153
In the response the mother filed in 2016 she submitted that the applicant did not have standing to bring an application for parenting orders and in her case outline document filed on 6 November 2017 it was also submitted that the applicant did not have standing.
During final submissions her counsel did not seek to argue this point. He submitted that the court had created the situation of the applicant being a person concerned with the care, welfare or development of the child by making orders in 2016 for her to spend time with him.
It would concern me if this was the only basis on which I could find that the applicant had standing because what the mother’s counsel is in effect saying is that the applicant did not have standing in 2016 and therefore the court exceeded its powers in making an order for [X] to spend time with her but she has standing now because the court made an order it did not have jurisdiction to make.
I do not accept that the only reason the applicant has standing is because of the time she has spent with [X] since interim orders were made. My findings about the parties efforts to achieve conception, the agreement they reached about parenting the child prior to his birth and the applicant’s involvement in the child’s life from the time of his birth until 2016 amply established that the respondent was a person concerned with the care welfare or development of the child. The court had the power to make the orders it did in 2016 and of course as a result of these orders she has continued to be involved in [X]’s care.
I am satisfied that the applicant has standing to bring her application.
[X]’s best interests
Any orders I make about [X] must be orders determined by treating his best interests as the paramount consideration and s. 60CC(2) and (3) of the Family Law Act 1975 contain the matters to which I must have regard in order to determine his best interests.
Not all of the s. 60CC (2) & (3) considerations are relevant in this case because a number of them refer only to parents and the applicant is not a parent of the child.
The primary considerations are the benefit to the child of having a meaningful relationship with both of his parents and the need to protect the child from being subjected to or exposed to abuse, neglect or family violence.
The first primary consideration does not assist me. The orders sought by the applicant will not impact on the child having a meaningful relationship with his mother. The father is at best a reluctant parent and the orders will not interfere with him developing a relationship with the child if he chooses to do so.
I must consider the need to protect the child from physical or psychological harm from being subjected to or exposed to, abuse, neglect or family violence.
It was not suggested that the child would be subjected to or exposed to abuse, neglect or family violence in the separate care of either the applicant or the mother.
The relationship between them has deteriorated to the point where there is a risk of an incident at changeover. This could be managed if a third party became involved in the handovers but it is a concern and is something I will need to take into account.
The mother raised some care issues in connection with the applicant but these are best dealt with when considering parenting capacity.
I must consider any views expressed by the child and the weight to be given to those views.
Neither party suggested that [X] had a view about future parenting arrangements.
I must consider the nature of the child’s relationship with each of his parents and other persons (including a grandparent or other relative of the child).
The mother has always been [X]’s primary carer and she is his primary attachment figure. The applicant did not dispute this and the family report writer said as follows:
It is noted that the mother and child’s interaction appeared warm and loving, they were clearly comfortable with each other and the mother was appropriately child focused. [4]
[4] Family Report paragraph 112
The family report writer also said as follows:
When the child saw the mother he dropped the family consultants hand and ran the distance to the mother. The mother bent down to his level and scooped him up as he threw himself into her arms. The mother and child were both laughing.[5]
[5] Family Report paragraph 110
It is unclear whether and if so to what extent [X] has a bond with his father. Mr A has never visited [X] in Sydney and the last time he saw him was in a paddock near his home for three hours. The mother said that she encouraged [X] to call the Mr A “Dad” when he saw him but his understanding of that concept given his developmental delay is unknown to me as is whether he actually does call Mr A “Dad”.
The child sees his maternal grandparents regularly. He was warmly responsive to and engaged with them at the family report interviews and I am satisfied that he has a good relationship with them.
[X] also has a bond with the applicant. The family consultant who conducted a child inclusive child dispute conference in 2016 said as follows:
Ms McClelland entered the room and crouched down to [X]’s level. He immediately approached her and put his arms out to her for a hug. He seemed very happy to see her and then grabbed her hand and dragged her towards the puppet theatre. Thereafter they engaged in play which was a delight to observe. Ms McClelland appeared to have a good knowledge of what [X] liked and how to engage with him. [X] giggled and laughed continuously with real joy when Ms McClelland was playing with him. She followed his lead and scaffolded his activities. He was proximity seeking with her, staying within arm’s reach and engaging in lots of affection and incidental touching with her. Ms McClelland didn’t appear to be overwhelming towards him as alleged by the mother. [X] responded to Ms McClelland’s cues (e.g. to pack up) and gave him positive reinforcement. Overall Ms McClelland appeared to be very attuned to [X] and he was very responsive to her. A mutually loving and attuned relationship was observed. It appeared to be very genuine and not superficial in any manner.[6]
[6] Child Inclusive Conference memorandum dated 7 September 2016.
The family report writer observed [X] and the applicant together in 2017 and said among other things as follows:
The interaction between the child and the applicant was similar to that of the child and mother although it did not appear to flow as naturally as the mother and child’s interaction. The applicant had a more abrupt way of interacting. The applicant noted that she was uncomfortable in such an enclosed space and she preferred to play with the child outdoors where they could run around. Despite these concerns the applicant and child engaged in a warm and caring child focused interaction.
………………….
At the end of the observation the child and the applicant cuddled, the applicant told the child that she loved him and the child waved goodbye and returned to the mother without incident.[7]
[7] Family Report 116, 118
I am satisfied that the applicant has a warm and fond relationship with [X]. The evidence she gave in her affidavit about the way [X] interacted with her during the time they spend together in Sydney and the pleasure he took in their activities is consistent with the observations of both the family consultant and the family report writer and I accept that it is accurate.
I must consider the extent to which each parent has fulfilled or failed to fulfil the parents’ obligations to maintain the child.
This applies only to parents. Only one parent is a party to the proceedings and she has fulfilled her obligations to maintain the child and this consideration does not assist me.
I must consider the extent to which each parent has taken or failed to take the opportunity to participate in making decisions about major long-term issues in the relation to the child, to spend time with the child and to communicate with the child.
This also applies only to parents. However it is relevant to note, given the mother’s insistence that room must be created for [X] to have a relationship with his father, that Mr A has never sought to be involved in decision making for the child save for expressing an opinion about whether he should spend time with the applicant, there was no evidence that he communicated with the child and the time he spends with the child is infrequent and of short duration and at the mother’s instigation.
I must consider the likely effect of any change in the child’s circumstances including the likely effect of his separation from either of his parents or any other child or person including any grandparent or other relative of the child with whom he or she has been living.
The change proposed by the applicant was the introduction of overnight and holiday time and she said that she could accept the proposal of the Independent Children’s Lawyer that the overnight times during school terms be once per month and that the holiday time be less than she proposed.
[X] is four and it is not age inappropriate time. He has a developmental delay but he has a bond with the applicant and there was no clear evidence that he would find spending one overnight per month with her or infrequent periods of five nights too challenging on account of his age or his special needs.
There is a real possibility however that this time (or indeed any time) may become stressful for [X] if the mother is strongly opposed to any time occurring or if there are incidents at changeover.
The change proposed by the mother was that the applicant be expunged from the child’s life. The child would thereby lose the different experiences and love and affection the applicant can offer him. However given his age, his close bond with the mother and members of her family, the fact that the mother also engages him in a range of pleasurable activities and the limited time he spends with the applicant it is a change that he is likely to weather without undue detriment. That was the opinion of the family report writer who is a clinical psychologist and I share that view.
Family report writers often refer to the loss children experience when they do not have a relationship with one of their biological parents. The biological connection means that children may miss out on having a relationship with someone who looks like them or talks like them or has similar interests to them. Children may try to find their biological parent when they are older, which is becoming increasingly easy because of the burgeoning of DNA testing sites such as Ancestry.com. That imperative will not exist for [X] in terms of the applicant.
I must consider the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
That is not relevant to the dispute between the mother and the applicant.
I must consider the capacity of each parent and any other relevant person including a grandparent of the child to provide for the needs of the child including his intellectual and emotional needs.
The mother is a good parent. [X] is strongly attached to her and no issues were raised about her care of [X]. She is arranging appropriate interventions for him.
The mother has longstanding issues with depression and anxiety. At one time during her relationship with the applicant her behaviour became aggressive and dysregulated. She sought medical assistance and was diagnosed with depression and prescribed medication and the issue resolved. She was also counselled about ceasing cannabis use.
In or about September 2014 when [X] was about eight months old the mother was referred to a psychologist by her GP after reporting symptoms of depression which had worsened considerably over the previous seven months. The psychologist proposed treating the mother using a “CBT approach”, stress management patterns and psychoeducation.
In a letter the psychologist wrote in January 2015 she reported that the mother said that she was feeling trapped in her relationship with the applicant and hesitated to make a decision which would cause upset in the home. She was not completely ready to break with the applicant as the notes of January 2015 have her expressing uncertainty about whether to invest in a business with the applicant but she was clearly unsettled and unhappy.
She continued to see this psychologist until 7 August 2015.
In 2017 the mother saw a doctor in Sydney and was prescribed anti-depressants. She reported to her doctor in July 2017 that she was feeling more teary (sic) and would lose her temper and raise her voice with [X].
The mother has been opposed to the applicant spending time with the child since late 2015 and the family report writer was concerned about the impact on the mother of an order that the applicant spend time with the child and the flow on impact of that on the child.
The mother has a history of depression and of behaving aggressively to others when her depression is not managed or she feels trapped. She intruded on the applicant’s time with [X] after orders were made by this court in September 2016. She confronted her at Town J shop when the applicant took [X] there and entered premises, parked the applicant’s car in, walked through a staff only sign, took photos, argued with neighbouring business owner and went to the police station seeking and asked them to take out an ADVO against the applicant.
It is difficult to avoid the conclusion that the mother relocated to Sydney at least in part to try and frustrate the applicant spending time with [X].
On 13 August 2017 she became angry at a changeover and removed [X] from the applicant’s car and took him away.
The mother did not provide any evidence from a psychologist or psychiatrist about the impact on her of an order for the applicant to spend time with [X] and I cannot find that her capacity to provide day to day care for [X] would be affected by an order for this to occur. However I cannot rule out the possibility that she would act out if I made orders she did not agree with resulting at the very least in stress for [X], breaches of orders and a decline in the mother’s mental health which could have an impact on [X].
There are no issues with the applicant’s capacity to provide day to day care for [X]. The mother was critical of her for occasionally allowing the child to have chips and ice-cream but she is as keen as the mother for the child to have a healthy diet which includes vegetables and there is no reason to suppose that because she has given the child treats during outings that she would not be capable to providing appropriate nutritious meals if the child stayed with her overnight.
I am satisfied that the applicant genuinely and deeply loves the child and wants the best for him. Nothing in the evidence supports a finding that the applicant would place the child at risk by failing to supervise him, allowing him to engage in risky activities or failing to look after his day to day needs.
The mother alleged that the applicant historically consumed alcohol heavily. The applicant said that she and the mother both drank most nights when they were in a relationship and sometimes drank to excess. She said that at present she drank socially but did not drink during the week and drank on the weekend only when she did not have [X].[8]
[8] Family Report paragraph 8
There is no basis for a finding that the applicant currently has an alcohol problem. The mother’s counsel did not challenge the evidence of the family report writer that the mother told her that the applicant’s high level of drinking ceased after the birth of the child.
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents and any other characteristics of the child that the court thinks are relevant.
[X] has developmental issues. A letter from a paediatrician dated 30 June 2017 stated that he was showing delays in his developmental progress and that his receptive, expressive and general language abilities “are on the 1st%”. The paediatrician noted that the mother said that [X] had a very set and strict routine when playing in the park and the paediatrician said that he was showing features suggestive of autism spectrum disorder.
At trial in March 2018 the mother said that the thinking currently was that [X] had development delay rather than autism. I was not provided with a current paediatric report.
At the time of trial [X]’s speech was reported to be very limited. He was four years old but when he talked he would only use a few words or phrases, such as “go play” when referring to spending time with the applicant. He would ask to eat using gestures with his hands to indicate that he wanted a burger or a sandwich which he referred to as a slide. He was having speech therapy and occupational therapy.
The mother said that she would assess later in the year whether he should start school in 2019 or be held back a year.
The applicant spoke knowledgeably about [X]’s speech issues and had taken the trouble read up about autism. She has no wish to interfere in the management of [X]’s issues and did not criticise the mother’s handling of the situation. It speaks well of her capacity to provide for the emotional needs of the child that she has shown sensitivity to the situation the child finds himself in and has moderated her position about the time the child should spend with her as a result of the mother’s very strong opposition to any time occurring at all.
However the parties are not well placed to share information about [X] in order to ensure that the time he spends with the applicant goes well for him, indeed I suspect that the mother would be highly likely to refuse to inform the applicant about [X]’s issues.
I must consider any family violence involving the child or a member of the child’s family.
The mother alleged that the applicant assaulted her during the parties’ relationship which ended prior to [X]s conception. The applicant conceded to some pushing and shoving.[9]
[9] Family Report paragraph 8
The mother also suggested that the applicant bullied and financially controlled her and that this continued long after the relationship ended. However the mother was an unreliable witness and on the state of the evidence I cannot find that this sort of behaviour occurred.
The mother referred to a property settlement the parties agreed to after separation but there was no evidence that the property settlement was unfair and nothing to suggest that family violence in the form of financial control existed in this relationship.
The applicant alleged that the mother was aggressive during the relationship. She alleged that the mother punched her and would get knives and stab them into the kitchen bench near her hands. She said however that after the mother sought medical assistance for depression and was prescribed medication this behaviour ceased.
In conversation with the family consultant on 7 September 2016 and in conversation with the family report writer the mother conceded that she had assaulted the applicant and hit walls and that she had been the primary aggressor in the relationship but said that it was a long time ago and there had been no such incidents since she had been on her medication.
The family report writer said as follows in respect of the family violence issue:
Neither expressed any current concern about this and did not present it as an issue.[10]
[10] Family Report paragraph 9
The family violence issue is not relevant to the capacity of each of the parties to care for [X]. There was no evidence that either had been violent in other relationships or other family contexts. It is also not relevant to the kind of role model they each are for the child.
It is however relevant in two respects.
First, the fact that the parties historically had difficulties in their relationship which included some physical acting out is part of the reason why I am satisfied that there is no prospect of their currently very poor relationship improving in the future.
Second, the fact that the mother has a history of behaving aggressively when suffering from depression and anxiety is relevant to an assessment of the risk of the mother acting out or causing incidents if the court makes orders with which she disagrees.
I must consider if a family violence order which applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter.
There are no family violence orders.
I must consider the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents.
The mother has displayed a good attitude to the child in terms of providing him with very good care. It will not assist me to consider the matter through the prism of whether her attitude to the applicant shows a good attitude to the child and the responsibilities of parenthood.
The father is not a party to the proceedings and I cannot make any findings about his attitude to the child and the responsibilities of parenthood as such.
I must consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
It is always preferable to make the orders least likely to lead to the institution of further proceedings and the order least like to do so is an order which does not provide for the applicant to spend any further time with [X].
Such is the strength of the mother’s opposition to this occurring that an order for time could easily lead to further proceedings, either contravention proceedings or an application to vary as a result of some incident occurring.
I must consider any other fact or circumstance which the court thinks is relevant.
I intend first of all to return here to some of the s. 60CC (3) matters which in their wording only refer to parents but which are relevant considerations in respect of this dispute.
One is that the applicant has consistently sought time with the child. This is not case where she has stepped out of the child’s life and is now trying to step back in, and as a result of her persistence in maintaining a role in the child’s life she has built a good relationship with him.
The financial support of the child is a relevant issue between parents and the mother did not raise it as a determinative factor in this case but it is relevant to note that she could have had some financial assistance from the applicant if she had been willing to accept it. The applicant is not seeking rights without responsibilities. She cannot be assessed to pay child support but she has offered to make a financial contribution. The offers have been rejected by the mother who would no doubt see it as antithetical to her case that no time occur to accept such assistance.
Another relevant matter is the practical difficulty and expense involved in the applicant spending time with [X].
The parties live about two hours driving distance apart. It does not make time once a month or for block periods during the school holidays as now proposed very difficult to implement and the mother agreed that she could do a changeover at the Service Station on the Town J Freeway if ordered to do so. However this involves a reasonable amount of driving and if there are other reasons to be concerned about the mother’s compliance with orders then that added difficulty increases the likelihood of there being difficulty with the implementation of the orders.
I also intend to refer to three other matters in this section of the judgment.
The first is that the respondent is quite fixated on the idea that because the applicant is not biologically connected to the child she has no right to spend time with him. However neither this nor the fact that the applicant is not [X]’s parent by operation of law is by itself determinative of the matter.
Life is diverse and complex and in addition to cases such as Aldridge & Keaton where a non-parent was granted time with a child there are occasions when the court places children in the primary care of a non-parent. Two cases I have decided in the last eighteen months where this has happened involved a child being left in the care of his step-father after his mother’s death rather than placed with his father[11] and an older child being placed with her younger sister in the care of that child’s father.[12]
[11] Hearn & Sempers [2017] FCCA 3557
[12] McCreadie & Oram & Anor [2018] FCCA 2318
The Full Court in Aldridge & Keaton said that s. 65C did not create a hierarchy of applicants and said as follows:
Experience and common sense demonstrates that the vast majority of applications for parenting orders will be brought by one of a child’s biological parents, with the other parent the respondent to the application. But there are also situations where one or both parents are deceased or otherwise unavailable or unsuitable to fulfil the duties of parenthood. Often in the latter circumstances a relative of the child will appropriately seek parenting orders.
Further, just as in 1976 Stephen J in Gronow v Gronow (1979) 144 CLR 513 recognised changing societal “norms” in rejecting the notion of a presumption in favour, or any preferred role, of a mother to have custody of a child, particularly of a female child, the Act in its present form enables a court dealing with a parenting application the flexibility to recognise and accommodate “new” forms of family, including families with same-sex parents, when making orders which are in the best interests of a child who is part of such a family.
Children who have been brought up in these new forms of family may be children who fall within s 60H. There will also be children who, while not conceived with the consent of the co-parent (or as described in the legislation the “other intended parent”), have effectively been treated as a child of the relationship of a same-sex couple. Such children may be the biological child of one parent born, before the same-sex relationship commenced, but whose substantial parenting experience has been from each of the same-sex “parents”. More commonly, they may have been conceived as the result of a private agreement with a known donor and without formal consent documentation. These children’s best interests are the paramount consideration to be taken into account, not the circumstances of their conception or the sex of their parents.
In summary, in dealing with any parenting application by a person interested in the care, welfare or development of a child, a court will determine that application applying the relevant provisions of Part VII to determine whether making (or not making) a parenting order would be in the child’s best interests. [13]
[13] Aldridge & Keaton (2009) FLC 93-421
The applicant is in [X]’s life because the mother and the applicant agreed that they would parent [X] together and for the first fourteen months they followed that plan. Even after the parties ceased to live under one roof following the April 2015 storms the applicant continued to spend time with [X]. He has formed a bond with her and they have a relationship which delivers benefits to [X]. I am required to determine whether it is in [X]’s best interests for this to continue and I cannot dismiss the application simply because the applicant has no biological connection to the child.
The second additional matter I will refer to is that the mother’s counsel submitted that the court should place weight on the fact that the mother and Mr A had a common position about what was right for the child. He submitted that their decision as parents that the applicant should not have a role in the child’s life should be respected and the court should not make an order for [X] to spend time with the applicant in the face of their opposition.
In support of this submission the mother’s counsel referred me to a number of decided cases in which various judicial officers had expressed the view that the decision of parents or a parent about whether grandparents or other person’s should have a role in children’s lives should be respected.
An immediately difficulty with this submission is that it is somewhat doubtful that Mr A has a strong view about the matter as opposed to having being roped in to bolster up the mother’s position.
A greater difficulty is that a blanket statement that parents’ views determine whether children spend time with someone other than their parents cannot be correct as a matter of law; otherwise irrational opposition by parents would determine a matter even if the best interests factors otherwise suggested that the children should be spending time with other people including a grandparent and perhaps even living with them for safety reasons, and to put this proposition forward as some sort of guiding principal or factor to be taken into account is dangerous. It risks the court the court overlooking the need to have proper regard to the matters in s. 60B, 60CA, 60CC and 65C or the discussion of the law in cases such as Aldridge & Keaton.
In reality, the outcome in cases where statements of this kind have been have always been based on something more than mere opposition by the parents to the children spending time with a third party.
To give an example, in Church & Overton & Anor, a decision of Benjamin J to which the mother’s counsel referred me, a maternal grandfather had filed an application seeking to spend time with the children of each of his three daughters, two of whom were in an intact relationship.[14] The family had been involved in litigation of one sort or another for over a decade and none of the daughters had a relationship with the grandfather or wished to do so. They all put forward reasons why they did not wish the grandfather to spend time with their children and the partners in the two intact relationships supported them.
[14] Church & Overton & Anor [2008] FamCA 953
However the trial judge did not decide the matter simply on the basis of the parents’ opposition to time occurring. He made a number of findings adverse to the grandfather’s case including that he lacked insight into the impact of some of his past choices on his daughters, that the parents were genuinely concerned for the welfare of their children in the grandfather’s care and that an order for the grandfather to spend time with the children would have a negative impact on the parenting capacity of each of his daughters.
The unspoken additional part of the conclusion that the decision of the parents about whether the children should spend time with their grandfather should prevail was that the grandfather’s own issues and his lack of respect for his daughter’s meant that it would not be in the children’s best interests for time to occur.
A final relevant matter is that the applicant and the mother have a very poor and conflicted relationship and that it is not likely to change.
Sometimes once orders are made the heat goes out of a matter. The parties accept the outcome and manage to communicate civilly for the sake of the child. There is no prospect of that occurring in this case. The mother is implacably opposed to the applicant spending time with the child and no orders this court makes are going to change her belief that as a parent she has the right to decide who her child spends time with.
The applicant’s behaviour toward the respondent has largely been peaceful and accommodating since 2015 but she caused considerable upset to the mother by revealing to people in Town J after the mother raised it during the court proceedings that the mother had been having an affair with Mr A and it is unlikely that the mother will forgive her for that.
The fact that the parties have such a poor relationship has many implications including the risk of an incident at changeover, the risk of something minor being blown out of proportion resulting in non-compliance with orders and the risk of information about [X] not being passed on by the mother to the applicant.
The family report writer’s recommendations
The family report writer produced a thorough and balanced report. As with most family reports it is an important piece of evidence for a variety of reasons, including the information it provides about [X] and his relationships with the various people in his life and the information it provides about the parties and the way they presented to the report writer.
The report also contains an evaluation of the competing proposals and a recommendation following upon that evaluation.
The report writer said as follows about the proposals as they then stood:
If the mother’s proposal is accepted by the Court the impact on the child will be:
·The child will grow up living with the mother within an appropriately developed mother/child relationship. The mother has the capacity to meet the child’s needs, the child is not at risk of harm in the mother’s care, and the child will continue to be a part of a loving and supportive extended maternal family.
·The child will not have time with the applicant and therefore will not maintain a familiar and friendly relationship with her. The child will also not develop a more important and meaningful relationship with the applicant. He will be not benefit from any of the positive opportunities that a relationship with the applicant may provide him; such as unconditional love and ongoing commitment to his wellbeing and development.
·The child will not be exposed to ongoing conflict between the mother and the applicant.
·The mother will avoid further anxiety and distress as a result of having to maintain an ongoing relationship with the applicant. This will support her parenting capacity and will ultimately be beneficial to the child.
·It is clear that the applicant loves the child a great deal. However, given that she is not his primary carer, the limited time that she and the child have had together, in conjunction with the child’s young age, it is unlikely that discontinuing this relationship will have a significant detrimental impact on the child.
·It is unknown if the child will or will not have an ongoing relationship with the father.
If the applicants proposal is accepted by the Court the impact on the child will be:
·He will grow up living with the mother and spend alternative weekends with the applicant. This will provide the child with the opportunity to maintain a positive and loving relationship with another adult who loves him as a son.
·In addition, the child will experience a rural and agricultural lifestyle with the applicant. She has a lot to offer the child with regards to engaging him in an active outdoor lifestyle.
·The child will be required to divide his time between two homes. If his relationship with the applicant continues to be an important and significant one then this may be a positive outcome for him, however if their relationship is not, then this outcome would cause unnecessary disruption for the child.
·If the applicant remains living in Town J and the child in Sydney, the child will be required to travel 3 - 4 hours each way every second weekend. He will likely find the travel challenging and he may become oppositional to the arrangement. As he progresses in age he may resent the mother and applicant for enforcing such an arrangement. The travel time will also prevent the child from engaging in more age-appropriate activities.
·If the applicant moves to Town N and the child remains in Sydney, the child will be required to travel 1.5 - 2 hours each alternative weekend which is a far more manageable expectation. In addition, the applicant will also be able to travel to Sydney to see the child which would reduce the child’s travel time further.
·The mother will continue to feel that her parental rights are being threatened and that the applicant is not prioritizing the child. As long as the mother maintains this strong and highly emotive view she will likely remain in a heightened state of distress and anxiety which will ultimately reduce her parenting capacity and the child will be exposed to this.
·It could impact on the available time remaining for the child to engage in a relationship with the father and other relatives.
The family report writer went on to say as follows:
It is the view of the family consultant that the child would benefit from an ongoing relationship with the applicant and it is a great pity that the mother and applicant were unable to negotiate this without Court involvement. However the mother feels threatened and unfortunately Court involvement has inflamed the situation. As a result the mother’s distrust and resentment of the applicant has increased and the ensuing conflict in unlikely to be easily resolved. The mother’s heightened anxiety is likely undermining her parenting capacity and this will have a negative impact on the child. Placing the child in a position where he has to negotiate the difficult relationship between the applicant and the mother does not appear to be in his best interest.
It is noted that Orders that include no time for the applicant and child will be a distressing outcome for the applicant and will be a significant loss to her. The family consultant would like to acknowledge that this recommendation is not a reflection of her inability to care adequately for the child nor is it an indication that the relationship with the child is not significant and important to her. It is based on the impact on the child of having to effectively negotiate the challenges that he will likely be exposed to if time with the applicant is formally Ordered by the Court.
Recommendations
It is recommended that the child live with the mother and the mother have sole parental responsibility.
It is recommended that the applicant does not have Court Ordered time with the child.[15]
[15] Family Report paragraphs 138-142
Some of the matters the family report writer took into account are no longer relevant or are not of the same nature as they were. For example the applicant no longer lives in a rural area and she has moved much closer to the mother so that they are now only two hours apart. It is tolerably likely that the child will have an ongoing relationship with Mr A because the mother will try to facilitate it although exactly what the nature of that relationship will be is impossible to say.
However most of the matters referred to the family report writer’s summary remain relevant including the mother’s resentment about the applicant’s perceived intrusion on her life and the distress and anxiety this causes her which manifests itself in occasional acting out.
The family report writer also reiterated in cross-examination her opinion that it was unlikely that cessation of the relationship between [X] and the applicant would have a significant detrimental impact on [X] so the necessary underpinning to support her opinion remains.
Nevertheless, however, sound the reasoning behind the recommendation of the family report writer the family report is only a piece of evidence in the case and I must decide what to do based on all of the evidence including but not limited to the family report.
Conclusion
The family report writer recommended against time continuing and the mother strongly opposed it continuing. The applicant and the Independent Children’s Lawyer urged me however to have regard to be benefits the family report writer identified for [X] in spending time with the applicant and to make orders which provided for [X] to continue to do so.
There are undoubtedly benefits to [X] in continuing a relationship with an adult who loves him, who is well able to care for him and who engages him in pleasurable activities and I have agonised about what I should do. However every time I reflect on it I come back to thinking how unfair it is for the applicant to be cut out of [X]’s life when the mother agreed to her being a co-parent prior to his birth and when she was a co-parent and had a significant role in his life for the first fourteen months of his life.
These thoughts contain the solution to the matter, because the task of this court is to make orders which are in the best interests of children, not orders which are designed to look after adults.
What I am being asked to do is to make orders that [X] continue to spend time with the applicant, and fairly limited time at that, in circumstances where she will not have any parental responsibility for him and where the mother is doing a perfectly adequate job of caring for him and is implacably hostile to the applicant spending time with the child.
Having regard to the nature of the relationship between [X] and the applicant and my finding that ceasing the time is unlikely to be detrimental to [X] in the longer term I cannot conclude that it is in [X]’s best interests to make orders which may expose him to conflict, which may stress the mother to the point where she fails to comply with orders and which may impact on her mental health, and especially so when [X] has special needs.
I could deal with some issues which might cause the mother resentment by making orders different to what the applicant proposed, such as requiring the applicant to do all the driving but even then there is a considerable risk of the mother’s resentment leading to incidents at changeover and/or to considerable stress for [X].
I feel considerable sympathy for the applicant as did the family report writer but I cannot conclude that it would be in [X]’s best interests to make ongoing orders for time.
I intend to order that two further visits occur in accordance with the interim orders so that time does not cease abruptly. After that the application will be dismissed.
It could be argued that even this is looking after the applicant’s interests and not [X]’s, but on the other hand it will give the applicant the opportunity to say goodbye to the child insofar as he is able to understand it so he does not think he has simply been abandoned, and knowing that the end is in the sight it is reasonable to hope that the mother will be gracious and allow the visits to happen smoothly.
For all of the above reasons the orders will be as set out at the beginning of this judgment.
I certify that the preceding one hundred and ninety one (191) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 27 February 2019
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