MEYER & DARA - [2020] FamCA 1043

FAMILY COURT OF AUSTRALIA

MEYER & DARA

[2020] FamCA 1043

FAMILY LAW – CHILDREN – Application by biological father seeking parenting orders in relation to the child – mother opposes the father’s application – Independent Children’s lawyer supports the father’s application – parties met online on a co-parenting website – child conceived via artificial conception – where the parties have never been in a romantic relationship – where the mother asserts there was no agreement between herself and the father as to co-parenting – where the father asserts an agreement as to co-parenting prior to pregnancy – where the child had a relationship with the father for approximately 8 months – where the child has no relationship with the father and has not spent time with the father for five years – where the mother opposes any time spent with between the child and the father – consideration of best interests of the child – rebuttal of presumption under s 61DA of the Family Law Act 1975 (Cth) – where it is not in the best interests of the child for the parents to have equal shared parental responsibility – mother to have sole parental responsibility – where the father is a parent of the child – where it is in the best interests of the child for the child to spend time with the father – supervised time – therapeutic intervention – airport watch list order – mother’s application unsuccessful – not supported by law or evidence – application of each of the Independent Children’s Lawyer and father successful albeit time spent with to progress more slowly than father’s application sought.

Family Law Act 1975 (Cth) ss 11F, 60B, 60CA, 60CC, 60H, 61DA, 68L, 69R

Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334
Bell & Nahos [2016] FamCAFC 244
Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638
Deputy Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55
Masson & Parsons (2017) 58 Fam LR 1
Masson v Parsons (2019) FLC 93-904
R v Gee (2003) 212 CLR 230
Re Mark [2003] FamCA 822
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

APPLICANT:

Mr Meyer

RESPONDENT:

Ms Dara

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

1118

2016

DATE DELIVERED:

11 December 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Hartnett J

HEARING DATE:

22-24 July 2020
2 September 2020

WRITTEN SUBMISSIONS:

4 September 2020
10 September 2020
24 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lloyd SC (by video link)

SOLICITOR FOR THE APPLICANT:

Meredith Hatton & Associates

COUNSEL FOR THE RESPONDENT:

Ms Gillies SC (by video link)

SOLICITOR FOR THE RESPONDENT:

Dimocks Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Messner (by video link)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

All previous orders be discharged.
The Respondent mother (‘the mother’) have sole parental responsibility for the child X born … 2015 (‘the child’). In exercising that sole parental responsibility the mother shall inform the Applicant father (‘the father’) promptly by SMS or email of a decision that she has made relating to a major long-term issue for the child including but not limited to:-
(a) education; and
(b) medical issues.
The child live with the mother.
The parties shall both complete an initial session, and one further session (either separately or jointly) of family therapy and complete both sessions as soon as is practicable but by the end of February 2021. The costs of same be paid equally by the parties.
Commencing in the first week in March 2021 the child shall spend time with the father as follows:-
(a)for a period of 2 hours on a Saturday or Sunday, at the father’s election, once a month for a period of 6 months with such time to occur as supervised time at the B Contact Centre at V Town;
(b)commencing 1 September 2021, for a period of 3 months, once a month on a Saturday or Sunday at the father’s election from 10.00am to 2.00pm with changeover to be facilitated by the B Contact Centre. This time spent with shall not be supervised;
(c)commencing 1 December 2021, for a period of 2 months, once a month on a Saturday or Sunday at the father’s election, from 10.00am to 6.00pm, with changeover to be facilitated by the B Contact Centre. This time spent with shall not be supervised;
(d)commencing 1 February 2022, for a period of 2 months, twice a month on a Saturday or Sunday at the father’s election, from 10.00am to 6.00pm with the father to collect and return the child to the mother’s home or to such other location as agreed in writing between the parties;
(e)commencing 1 April 2022, during school terms, for the first weekend of each month from 10.00am Saturday until 5.00pm Sunday, and additionally commencing on 1 May 2022 and in the event the father has obtained accommodation in V Town and has given the mother at least 7 days’ notice in writing, from 3.00pm or afterschool Friday until 5.00pm Sunday, with the father to collect and return the child to the mother’s home or to such other location as agreed in writing between the parties;
(f)commencing in August 2022, during school terms, for any one weekend each month at the father’s election upon 7 days written notice to the mother, from 3.00pm or after school Friday until 6.00pm Sunday with the father to collect the child from school or the mother’s home at commencement of time spent with and the parties to meet at an agreed geographically half-way changeover location at conclusion of time spent with;
(g)commencing in June/July 2022, for the first week of each of the 1^st, 2^nd, and 3^rd term New South Wales school holiday periods commencing at 9.00am on the first Saturday until 1.00pm on the following Saturday. The father to collect the child from the mother’s home at the commencement of such time and the mother to collect the child from the father’s home at the conclusion of such time unless some other changeover locations are agreed in writing between the parties; and
(h)commencing in 2022, for 12 nights during the end of term 4 school holidays as agreed between the parties and failing agreement commencing 9.00am on the second Saturday in January and concluding at 5.00pm on the second Thursday thereafter. The father to collect the child from the mother’s home at the commencement of such time and the mother to collect the child from the father’s home at the conclusion of such time unless some other changeover locations are agreed in writing between the parties.
To facilitate the child’s time with the father at the B Contact Centre, the parties shall:-
(a)contact the B Contact Centre by telephone on … within 7 days and arrange an appointment for assessment for suitability for supervised contact;
(b)attend the assessment;
(c)comply with all reasonable requirements of the contact centre;
(d)comply with all reasonable rules of the contact centre; and
(e)comply with all reasonable requests or directions of the staff of the contact centre, including any referrals for parenting programs.
The father solely bear all costs associated with supervision of his time and supervised changeover through the B Contact Centre.
Additional to order 5 herein, the child spend time with the father as follows:-
(a)commencing in 2023, on Easter weekend each year from 4.00pm on Thursday, being the day before Good Friday, until 4.00pm on Easter Monday and any provision for time under these orders that is inconsistent with this sub-paragraph be suspended so as to facilitate time under this sub-paragraph;
(b)commencing in 2022 from 9.00am on 23 December through to 5.00pm on 27 December each year and any provision for time under these orders that is inconsistent with this sub-paragraph be suspended so as to facilitate time under this sub-paragraph;
(c)commencing in 2022 on the child’s birthday from 9.00am to 12 noon and any provision for time under these orders that is inconsistent with this sub-paragraph be suspended so as to facilitate time under this sub-paragraph; and
(d)commencing in 2022 on Father’s Day from 9.00am through to 5.00pm and that any provision for time under these orders that is inconsistent with this sub-paragraph be suspended so as to facilitate time under this sub-paragraph.
In the event that the child is due to spend time with the father on Mother’s Day or a religious holiday which is observed by the mother, then such time will be suspended and the mother will offer the father an equal amount of make-up time with the child on a weekend or during school holidays as close to the suspended time as possible.
For the purpose of order 9 herein, the mother provide the father with a written list of religious holidays and their dates as observed by the mother within 7 days of the date of these orders.
Commencing at the beginning of term 4 in 2021 the father and the child communicate with each other by telephone on Tuesdays and Fridays each week at 6.00pm and at such other times as may be agreed in writing between the parties.
Within 7 days of the date of these orders the parties contact Ms PP of XX Psychology, or if unavailable another therapist as nominated by the Independent Children’s Lawyer, to arrange family therapy for the parties and the child including that provided for in order 4 herein.
The parties participate in family therapy as follows:-
(a)at a frequency agreed between each party and the therapist but not less than once a month;
(b)if requested by the therapist, in a joint session with the child;
(c)the mother facilitate the child attending any therapy session solely between the therapist and the child;
(d)if requested by the therapist, the father will ask his partner to attend a therapy session/s with them; and
(e)the parties are to participate in family therapy for a maximum period of 12 months, unless otherwise agreed between the family therapist and the parties.
The parties follow any recommendation made by the therapist to promote and support the relationship between the parties and between each of the parties and the child.
If recommended by the therapist the parties do all things necessary for the child to spend time with the father for a short visit facilitated by the therapist.
The mother and father share equally in the costs of family therapy.
For the purpose of order 13, the parties take all such reasonable steps to enable such therapy to take place at a time which immediately precedes or follows the child’s time with the father pursuant to orders 5 and/or 8.
The therapist engaged by the parties to report to the Court on the progress of the parties should the therapist deem it necessary or appropriate to do so.
The Independent Children’s Lawyer be granted leave to provide a copy of these orders to the therapist.
Each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and advise the other party of any changes to these details within 7 days of such change occurring.
After the child commences primary school each party is hereby authorised to obtain from the child’s school all notices, letters, school reports and invitations and to attend parent teacher interviews or other activities to which parents are invited. Such interviews and/or other activities may occur at the school or at any other venue or premises as determined by the school and each of the parties is at liberty to attend such interviews and/or other activities as are connected to the school at any venue or premises at which such interviews and/or activities occur.
Within 7 days of the date of these orders the mother provide the father with details of all of the child’s treating health professionals in writing and keep the father informed of any changes to such professionals. The father is permitted to contact any medical providers engaged with the child and is authorised to obtain copies of any medical reports and updates in relation to the child.
Within 7 days of the date of these orders the mother provide the father with details of all of the child’s long day care and/or pre-school and after-school providers in writing and keep the father informed of any changes to such providers.
The parties each advise the other within 24 hours or as soon as reasonably practical, in the event that the child requires any emergency medical treatment and provide details of any such treatment required together with details of the medical professionals providing such treatment. The father is permitted to visit the child if the child is hospitalised.
Unless the parties otherwise agree in writing, the mother is restrained from moving the residence of the child more than a radius of 300 kilometre of M Town in the State of New South Wales prior to 1 January 2024.
The mother, Ms Dara born … 1973, and her servants or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of X born … 2015 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure by air or sea in the Commonwealth of Australia and maintain the child’s name on the Airport Watch List for a period of three years from the making of this order.
Each of the mother and father meet the total costs of Dr C, the single expert in this proceeding, on an equal basis. Each party shall pay to Dr C one half of all monies outstanding to her within 21 days of a request for same by Dr C. The mother shall reimburse the father as to one half of the sums already expended by him (being 100 percent of the total cost) in respect of the preparation and release of Dr C’s second report.
Each party be and is hereby restrained from:-
(a)       discussing these proceedings or any issue or allegation raised therein with the child;
(b)       allowing, causing or permitting the child to view any documents filed or to be filed in these proceedings;
(c)       denigrating the other parent or allowing, causing or permitting any other person to do so in the presence or hearing of the child; and
(d)       denigrating any member of the other parent’s family or household or allowing, causing or permitting any other person to do so in the presence or hearing of the child.
The order made 26 October 2016 appointing the Independent Children’s Lawyer be discharged 90 days after the making of these orders with the parties notifying the Court of an intention to seek costs and the quantum of such costs on or before 10 February 2021.
Any continuing application for costs be adjourned for mention on a date to be fixed.
Otherwise, all extant applications are dismissed.

AND THE COURT NOTES THAT:

A.The child shall be raised in the Religion W faith.
B.Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Annexure and these particulars are included in these orders.

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 Meyer & Dara 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 MELBOURNE

FILE NUMBER: SYC 1118 of 2016

Mr Meyer

Applicant

And

Ms Dara

Respondent

REASONS FOR JUDGMENT

Preliminary

This parenting orders proceeding was commenced by the Applicant biological father Mr Meyer (‘the Applicant’) on 29 February 2016 in the Sydney registry of the Federal Circuit Court of Australia. In his Initiating Application, the Applicant sought to spend incrementally increased periods of time (to include overnight time upon the child attaining three years of age) with his biological child, the subject of the proceeding, X born in 2015. X is now approaching six years of age. The Respondent biological and birth mother, and parent with whom X lives, Ms Dara (‘the Respondent’) filed a Response to the Initiating Application of the Applicant on 29 July 2016. In that Response the Respondent sought orders for sole parental responsibility; for X to live with her; and in the event an expert report supported X spending time with the Applicant, for supervised time occur three times each year for a period of two hours, with those times being being the day prior to X’s birthday; on the Thursday immediately preceding Good Friday; and on Father’s Day. From at least 2017 however, the Respondent’s position has been that the Applicant spend no face to face time nor have any communication with X. At the time of the filing of the Initiating Application, X was aged 13 months. The Applicant had not seen him for a period of approximately six months, last spending time with X when he was aged almost eight months.
This proceeding took an agonisingly long period of time to reach a final hearing. That hearing occurred in the Melbourne registry of the Court by video link in July and September of 2020. In the intervening years, some of the relevant orders that were made by both courts were as follows:-
a)on 2 August 2016 the parties were ordered to attend a s 11F of the Family Law Act 1975 (Cth) (‘the Act’) Child Dispute Conference and an order was made by consent placing X on the Airport Watch List until 31 October 2016. The proceeding was adjourned for a further directions hearing on 26 October 2016 for the consideration of the s 11F of the Act report;
b)on 26 October 2016 an Independent Children’s Lawyer was appointed pursuant to s 68L(2) of the Act; the Airport Watch List order was further extended until 30 April 2017; and the parties consented to the appointment of the single expert, Dr C, for the preparation of a report in relation to parenting arrangements;
c)on 20 July 2017 the proceeding was transferred from the Federal Circuit Court of Australia to the Sydney registry of the Family Court of Australia and listed for directions before a Registrar on 30 August 2017. The Airport Watch List order already in place was again extended until 30 August 2017;
d)on 30 August 2017 an order was made by consent to place X on the Airport Watch List until January 2033 and restraining the Applicant and Respondent and/or their agents from removing or attempting to remove X from the Commonwealth of Australia until January 2033. Procedural orders were also made to list the proceeding for a further directions before Registrar Aitken on 15 November 2017 and granting leave to the Independent Children’s Lawyer to issue any number of subpoenas considered necessary by the Independent Children’s Lawyer;
e)on 15 November 2017 the proceeding was placed in the list of cases awaiting allocation of a date before a Judge;
f)on 7 December 2017 orders were made for the Respondent to have sole parental responsibility and for X to live with the Respondent until further order;
g)on 16 October 2019 the proceeding was expedited following the Applicant’s Application in a Case filed 4 September 2019 wherein the Applicant sought expedition;
h)on 29 October 2019 Deputy Chief Justice McClelland made procedural orders which included listing the proceeding for final hearing on 1 April 2020; for the parties to arrange the preparation of an updated report from Dr C; and for the parties to file and serve updated trial affidavits as well as case outlines;
i)as a result of the onset of the COVID-19 pandemic in late March the final hearing was unable to proceed. The hearing was vacated and re-listed for a directions hearing on 20 April 2020 in the Melbourne registry of the Court. On the adjourned date the Court made orders listing the matter for final hearing via video link on 22 July 2020; permitting witnesses to swear an oath or make an affirmation by video link or audio link; providing for all documents in the proceeding to be electronically filed; and granting leave to the Independent Children’s Lawyer to photocopy subpoena documents for the provision of same to Dr C for the purposes of her updated expert report; and
j)on 2 July 2020 an order was made for a previously prepared affidavit of psychologist, Ms K, to be provided to Dr C by the Independent Children’s Lawyer. That affidavit was the subject of objection as to introduction of same into evidence by the Respondent and thereafter by the Independent Children’s Lawyer.

What is of note over the period between the institution of proceedings and the hearing of the matter at trial, is that no orders were made for the Applicant to spend any time with, and/or communicate in any way with, X. At trial, the respective position of the parties remained, namely the Applicant persisted in his application for X to spend time with him, and the Respondent persisted in her opposition to X spending any time with the Applicant. The Independent Children’s Lawyer supported the Applicant’s application to spend time with X. Each of those parties accepted that given the passage of time, time spent with between X and the Applicant would need to be supervised initially and occur in the context of a therapeutic counselling framework. They differed as to how frequently time spent with should occur and how quickly it should progress. The recommendations of Family Consultant Ms D in a Child Dispute Conference memorandum to the Court dated 19 September 2016, together with the recommendations contained in the expert report of Dr C dated 10 July 2017, and Dr C’s updated export report dated 16 July 2020, were that X spend time with the Applicant. Those recommendations were not accepted by the Respondent. Those recommendations provided for X to have an opportunity to know his biological father, and to have a relationship with him. Dr C’s recommendations were the platform for the formulation of the orders sought by the Applicant and the Independent Children’s Lawyer.
It is not necessary in these reasons for judgment to comment upon the entirety of the evidence of each witness nor to comment on every exhibit tendered, of which there were a number. However every piece of evidence relied upon by the parties has been read and carefully considered by me.[1]
[1]Bell & Nahos [2016] FamCAFC 244, [28]; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, [62].
Statements of fact in these reasons are findings of fact on the balance of probabilities.

Material relied upon

The Applicant relied upon the following material:-
a)a Further Amended Initiating Application filed on 2 July 2020;
b)a Notice of Risk (Federal Circuit Court) filed on 29 February 2016;
c)an Amended Financial Statement affirmed 15 July 2020;
d)affidavits affirmed on 18 February 2020 and 18 March 2020 and the exhibits to each of those affidavits sent to the Court on 17 July 2020;
e)an affidavit affirmed by Ms E on 18 February 2020;
f)an affidavit affirmed by Ms F on 19 February 2020;
g)an affidavit sworn by Ms G on 19 February 2020;
h)an affidavit sworn by Ms H on 18 February 2020;
i)an outline of case document filed on 14 July 2020;
j)a chronology of events document filed on 14 July 2020;
k)a minute of proposed orders sent to the Court on 2 September 2020; and
l)written submissions filed on 10 September 2020.
The evidence of Ms H was not challenged by the other parties and Ms H was not required for cross-examination. The Applicant and each of his remaining witnesses were cross-examined by the other parties.
The Respondent relied upon the following material:-
a)a Further Amended Response to Initiating Application filed on 18 February 2020;
b)a Financial Statement affirmed on 19 February 2020;
c)an affidavit affirmed on 18 February 2020;
d)an affidavit in reply affirmed on 17 March 2020;
e)an affidavit affirmed by Ms J on 18 February 2020;
f)an outline of case document filed on 16 July 2020;
g)additional pages sent to the Court on 1 September 2020 which were intended to be, and were, annexed to the tender bundle sent to the Court on 21 July 2020; and
h)written submissions filed on 24 September 2020.
The evidence of Ms J was not challenged by the other parties and Ms J was not required for cross-examination. The Respondent was cross-examined as to her evidence by each of senior counsel for the Applicant and counsel for the Independent Children’s Lawyer.
The Respondent also sought to rely upon affidavit evidence of Ms K sworn on 22 December and in particular ‘K4’ to Ms K’s affidavit which was a psychological report prepared by her dated 17 November 2017. It was not suggested that Ms K was another expert witness in relation to whom the Court had earlier granted permission for the provision of a further expert report.
On 24 July 2020, being the third day of trial, Ms K gave oral evidence by telephone link, with the leave of the Court. Following the giving of Ms K’s evidence, counsel for the Applicant and counsel for the Independent Children’s Lawyer maintained their opposition to the reliance by the Respondent upon any affidavit evidence sworn by Ms K. The Court upheld the objection of the Applicant and the Independent Children’s Lawyer and determined that the Respondent could not rely upon Ms K’s affidavit nor report, Ms K having never treated the Respondent in her professional capacity as a psychologist.[2] Nor was Ms K the single expert witness. As counsel for the Independent Children’s Lawyer submitted, Ms K’s first report dated 17 November 2017 at paragraph 7 stated that she had never treated the Respondent. Ms K confirmed this in her oral evidence, saying the Respondent only “came to me really just to write a report for her. For the case. There really wasn’t the question of treating.”[3] When asked by senior counsel for the Respondent how the situation arose in which she prepared a report, Ms K said:-
Well, because the first time [the Respondent] came to me, she presented to me the report that had been sent to her by the other psychologist, whose name I have forgotten, and she talked only about that report and how angry she was with the way it was written and everything about it. So, that took up a fair bit of our time together and we proceeded from there and then eventually I got the referral from Dr L and then I got the directions from [the Respondent’s solicitors] about writing a report on her. So most of our communication really was about reports and what was happening and how angry she was with the psychologist and that’s the way the situation happened.
[2] Transcript of proceeding (Auscript), 24 July 2020 at 11.12am.
[3] Transcript of proceeding (Auscript), 24 July 2020 at 11.02am.
Additional to the material already placed before the Court by the parties, the Independent Children’s Lawyer relied upon the following:-
a)the Child Dispute Conference Memorandum to Court by Family Consultant Ms D dated 19 September 2016;
b)an expert report by Dr C dated 10 July 2017;
c)an updated expert report by Dr C dated 16 July 2020, annexed to an affidavit sworn by Dr C on 17 July 2020;
d)a tender bundle sent to the Court on 21 July 2020;
e)an updated minute of orders sought sent to the Court on 2 September 2020;
f)correspondence addressed to the parties, enclosing an updated notice of costs and sent to the Court on 2 September 2020; and
g)written submissions filed on 4 September 2020.
Dr C was cross-examined by senior counsel for each of the Applicant and the Respondent. Ms D was not cross-examined by the parties.
During the cross-examination of the Respondent by senior counsel for the Applicant, the Respondent was taken to the following additional documents:-
a)the Birth Registration Statement for the child, annexure ‘B’ to the affidavit affirmed by the Applicant on 24 October 2016;[4] and
b)paragraph 66 of the affidavit affirmed by the Respondent on 26 July 2016, for the purposes of addressing the Respondent’s assertions in respect of the Birth Registration Statement.

The facts

[4] Transcript of proceedings (audio recording), 23 July 2020 at 3.24pm.

Background

The Applicant was born in Australia in 1970 and is now aged 50 years. He has always lived in Australia and currently resides in M Town in New South Wales. The Applicant is self-employed. His primary role in the business is as business manager and project manager.[5] He is in receipt of income of approximately $2,001 gross per week.[6] The Applicant’s evidence is that he is “very close”[7] to his father and two brothers, both of whom are married with children. He sees members of his extended family, particularly his cousin’s from his maternal family (who live nearby) on a regular basis.[8] His mother is deceased and his father now resides in N Town in New South Wales, about a four hour drive away.[9] The Applicant is in a committed de facto relationship with Ms G, who at trial was aged approximately 55 years. Their relationship commenced in October 2009[10] and they live with Ms G’s two children from a previous relationship who were aged 16 years (Mr O) and 14 years (Mr P) at the time of their mother commencing to cohabitate with the Applicant.[11] Mr P and Mr O continue to live with their mother and the Applicant, and their relationship with the Applicant is a close one. Ms G, Mr P and Mr O have all met X with the Respondent’s prior knowledge and consent.[12]
[5] Affidavit of Mr Meyer affirmed 18 February 2020, [10].
[6] Amended Financial Statement of Mr Meyer filed 15 July 2020, Part B.
[7] Affidavit of Mr Meyer affirmed 18 February 2020, [8].
[8] Affidavit of Mr Meyer affirmed 18 February 2020, [9].
[9] Affidavit of Mr Meyer affirmed 18 February 2020, [8].
[10] Affidavit of Mr Meyer affirmed 18 February 2020, [5].
[11] Affidavit of Ms G affirmed 19 February 2020, [4].
[12] Affidavit of Mr Meyer affirmed 18 February 2020, [5]; Affidavit of Ms G affirmed 19 February 2020, [32].
The Applicant and Ms G do not have any children. Following the commencement of their cohabitation they attempted to have a child together. Ms G was unable to conceive naturally because she “carried insufficient eggs”.[13] The Applicant was however “very keen to have children of his own”[14] and, with the support of Ms G, looked into alternative ways to have a child. Together the Applicant and Ms G looked into the possibilities of surrogacy and adoption, however such options were not suitable given their ages. They subsequently had “long conversations about the prospect of [the Applicant] having a child and co-parenting with another person”.[15] Such conversations included “the option of [the Applicant] using artificial insemination for the purpose of conceiving a child with a like-minded woman, who also wanted to co-parent, but not be in a romantic relationship”.[16] Ms G understood the Applicant’s desire to be a parent, and “knew the joy of parenthood.”[17] All of the Applicant’s actions taken in pursuit of his desire to become an involved father were taken with the support and co-operation of Ms G.[18]
[13] Affidavit of Ms G affirmed 19 February 2020, [10].
[14] Affidavit of Ms G affirmed 19 February 2020, [10].
[15] Affidavit of Ms G affirmed 19 February 2020, [11].
[16] Affidavit of Ms G affirmed 19 February 2020, [11].
[17] Affidavit of Ms G affirmed 19 February 2020, [11].
[18] Affidavit of Ms G affirmed 19 February 2020, [11].
The Respondent was born on … 1973 and is now aged 47 years. In 2003, the Respondent moved to Australia from Country Q arriving in Australia on a student visa.[19] The Respondent became an Australian citizen on 26 June 2007.[20] Her evidence is that she considers Australia her home and that she intends to live in Australia for the rest of her life.[21] Although the Respondent’s parents are deceased, her one sibling, Mr R, resides with his wife and children in Country Q. The Respondent speaks to her brother each Friday over video link, and X refers to Mr R as “uncle”.[22] The Applicant met Mr R and his wife and daughter when they travelled to Australia to visit the Respondent and X, following X’s birth. The Applicant took the Respondent’s family on a driving tour of City YY,[23] such activity supported and encouraged by the Respondent. The Respondent is engaged in full-time employment with the S Organisation whom she has been employed with since 24 September 2018.[24] Her income from her employment is in the sum of $1,563 gross each week.[25] She is also in receipt of Centrelink payments in the sum of approximately $173.74 per fortnight.[26]
[19] Affidavit of Ms Dara affirmed on 18 February 2020, [68].
[20] Exhibit ‘D-16’ to the Affidavit of Ms Dara affirmed on 18 February 2020, [69].
[21] Affidavit of Ms Dara affirmed on 18 February 2020, [73].
[22] Affidavit of Ms Dara affirmed on 18 February 2020, [74].
[23] Affidavit of Mr Meyer affirmed on 18 March 2020, [82].
[24] Affidavit of Ms Dara sworn 18 February 2020, [28].
[25] Financial Statement of Ms Dara filed 19 February 2020, Part D.
[26] Affidavit of Ms Dara affirmed on 18 February 2020, [72].
The Applicant and the Respondent first met online as described in paragraph 21 hereafter. They discussed their relationship status whereby the Respondent informed the Applicant that she was not married and nor was she in a relationship, and the Applicant informed the Respondent that he was in a de facto relationship with Ms G. The Respondent had previously been married. She made a decision not to inform the Applicant of that fact. In 2015, the Applicant discovered this, during a conversation with the Respondent that was as follows:-[27]
[The Respondent]: When I moved to Australia, I agreed to marry a Country Q man that I already knew, he was a friend of mine from university in Country Q. However, I did not have a romantic relationship with him. By agreeing to marry him, I was able to enter Australia. I supported his loan application for his house in Melbourne. As I said we were not romantically involved, and I was always grateful that he did not approach me in that way at all. This friend of mine had someone in Country Q that he was arranged to marry, and he was trying to work out a way to bring her to Australia. To do that he needed to establish himself here by getting a house and a job and save money. I helped him with that, so we were really helping each other. We separated before I left Melbourne several years ago and we are now divorced. When I was still trying to work out how to leave Country Q, I was hoping to go to Country T. I would have preferred that because I had a friend of mine going there. However, the opportunity to come to Australia and marry this man was easier, meant I could leave Country Q sooner and it came up first.
[The Applicant]: I did not realise that you had been married.
[The Respondent]: I didn't tell you before because I did not want to be judged by you. I was worried that you might not have been open to having a child with me if you knew I had been married.
[The Applicant]: So why are you telling me now?
[The Respondent]: Because my ex-husband has been calling me harassing me for money. I have already given him two cars and I just want to get my name off the mortgage we have together, but he is refusing. I did get some advice about it, but I trust you and I would like to know what you think.
[The Applicant]: I suggest you get some legal advice about the problem.
The Respondent divorced her ex-husband in 2011, however continues to jointly own a property with him in the State of Victoria.[28]
[27] Affidavit of Mr Meyer affirmed on 18 March 2020, [76].
[28] Affidavit of Ms Dara sworn 18 February 2020, [71].
Until September 2018, the Respondent lived in U Town in New South Wales. She subsequently relocated with X to V Town in New South Wales, having obtained her employment with the S Organisation.[29] That relocation during the currency of the trial decreased the distance between the residence of the Applicant and the residence of Respondent from 273 kilometres (U Town to M Town) to 199 kilometres (V Town to M Town). The travelling time between the parties’ respective residences is thus approximately three hours by motor vehicle.
[29] Affidavit of Ms Dara sworn 18 February 2020, [22].
The Respondent does not receive child support payments in respect of X. She has never applied to the Child Support Agency for any child support payments from the Applicant and it is her evidence that she will not accept any monies provided by the Applicant to her for the support of X “via the Child Support Agency or otherwise.”[30] When the Respondent received a call from the Child Support Agency in February 2020 asking for her personal details to process a child support application then lodged by the Applicant, the Respondent refused to provide the caller with that information.[31] The Applicant is however well placed to be able to make a financial contribution toward the welfare of X and wishes to do so.
[30] Affidavit of Ms Dara affirmed on 18 February 2020, [91].
[31] Affidavit of Ms Dara affirmed on 18 February 2020, [91].

Decision to have a child and conception

The parties’ meeting in October 2013 was a meeting conducted through the website known as ... (‘the website’)[32] where they both had created a profile. The Respondent’s profile stated “I am a professional. Working full time and single. I would like to have a baby. I am happy to co-parent as well.”[33] The Respondent created her profile “in the hope of either meeting a man who would donate his sperm to [her], or a man with whom [she] might enter into a relationship and have children.” She was open to having a romantic relationship with someone she met on the website.[34]
[32] Affidavit of Mr Meyer affirmed on 18 February 2020, [17].
[33] Exhibit ‘M-1’ to the Affidavit of Mr Meyer affirmed on 18 February 2020, page 2.
[34] Affidavit of Ms Dara sworn on 18 February 2020, [4]; Affidavit of Ms Dara affirmed on 17 March 2020, [6].
The Applicant, who had previously been an anonymous sperm donor through the AB IVF Clinic (resulting in three other live births in 2015 and 2016)[35] stated he created a profile on the website because:-[36]
When I first donated sperm anonymously I did so primarily to assist couples who were not otherwise able to have children. Family has always been important to me. I expected that one day I would start a family of my own with my own partner. When I donated sperm anonymously, I did not intend to be involved in the life of the child that may have resulted from the use of my genetic material and I have no contact with those families who have used my sperm. It was not until after my de facto partner Ms G and I were unable to conceive a child together, that I first started to research other options for becoming a parent. My research led me to a website at .... This website facilitated individuals who were looking to co-parent with each other to realise their wish to become parents. In or about 2012 I registered my name on this website and posted a public profile that could be seen by other people registered with that site. ...In my profile I stated that I wished to co-parent with another person in Australia who also wished to become a parent.
[35] Affidavit of Ms Dara affirmed 18 February 2020, [10].
[36] Affidavit of Mr Meyer affirmed on 18 February 2020, [10].
After creating her own profile on the website, the Respondent emailed several people, [37] including the Applicant on or about 21 October 2013, and stated “I would like to have a baby. I am happy to be a co-parent as well”. [38] The Applicant responded that he “would love the opportunity to be a father and nurture a child or children in a co-parenting arrangement” and he “would like to be involved &/or recognised in the child’s life as a father in any possible way”.[39] As the parties continued to correspond, the Applicant also wrote:-[40]
I do want to know and somehow be part of any child’s life that may eventuate. It would be an impractical suggestion to say I can be a co-parent in terms of daily/weekly interaction and support…
(as per original)
[37] Affidavit of Ms Dara sworn on 18 February 2020, [5].
[38] Affidavit of Mr Meyer affirmed on 18 February 2020, [10].
[39] Exhibit ‘D-1’ to the Affidavit of Ms Dara sworn on 18 February 2020, page 39.
[40] Exhibit ‘D-1’ to the Affidavit of Ms Dara affirmed 18 February 2020, page 38.

Thereafter the parties commenced to discuss their mutual wish to be parents, with the Applicant including Ms G in those discussions.[41] At a face to face meeting in City YY in October 2013, some two weeks after the parties had met online,[42] the parties discussed the Applicant’s desire that his name be placed on any child’s birth certificate and that the parties co-parent together. Although Ms G’s presence during these discussions is disputed by the Respondent,[43] the Court prefers the evidence of the Applicant and Ms G that Ms G was in fact present, and that each of the attendants at this meeting were involved to varying extents in the conversation. Ms G’s evidence, which is accepted by the Court, is that she said to the Respondent words to the effect of “[i]t is very important that every child needs to know who their parents are and that needs to be on a birth certificate, so Mr Meyer’s name will have to be on the birth certificate of any child that the two of you might have together”[44] to which the Respondent nodded in agreement.[45] Ms G also recalled the following conversation between the parties:-[46]
[The Applicant]: I would like time once or twice a month so that my child and I get to know each other, but I’m happy to work with you and your needs too.
[The Respondent]: I would be happy with that and I would never stop you from seeing your child.
[41] Affidavit of Mr Meyer affirmed on 18 February 2020, [18].
[42] Affidavit of Ms Dara sworn 18 February 2020, [7].
[43] Affidavit of Ms Dara affirmed 17 March 2020, [10].
[44] Affidavit of Ms G sworn 19 February 2020, [15].
[45] Affidavit of Ms G sworn 19 February 2020, [15].
[46] Affidavit of Ms G sworn 19 February 2020, [15].
Both the Applicant and the Respondent agree that the Applicant was desirous of having his name placed on the birth certificate, although they disagree as to the time at which this discussion first occurred. The Applicant’s evidence was that it was a matter of central importance to him, and that he raised it well prior to the pregnancy and indeed on the first occasion of the parties meeting in October 2013.[47] The Respondent’s evidence was that such request was not made by the Applicant until about 13 weeks into the pregnancy.[48] The Court does not accept the Respondent’s evidence as to this matter.
[47] Affidavit of Mr Meyer affirmed 18 February 2020, [18].
[48] Affidavit of Ms Dara affirmed 18 February 2020, [75]
The Court accepts the Applicant’s evidence, as corroborated by Ms G, and consistent with the totality of the evidence, that the Respondent’s “agreement to put [the Applicant’s] name on the birth certification was crucial in assisting [him] to make a decision as to whether or not to proceed as a co-parent with [the Respondent]” and “[h]ad [the Respondent] not agreed at that point in time, or any time prior to conception to have [him] on the birth certificate, then [he] would have not proceeded with having a child with [the Respondent].”[49]
[49] Affidavit of Mr Meyer affirmed on 18 February 2020, [18].
The parties, having agreed that they would use the AB IVF Clinic for the artificial insemination process,[50] attended a counselling session on 21 November 2013, as part of that process.[51] The counselling notes taken by the AB IVF Clinic dated 21 November 2013 and 25 November 2013 stated relevantly:-[52]
21.11.13…Ms Dara has always wanted a child – very happy on her own but wanted the child to know it’s genetic father. She found her donor Mr Meyer on the website …. They have had many discussions…
…
25.11.13…session with her donor Mr Meyer and partner Ms G. Ms Dara stated she wants contact, if successful, with Mr Meyer and family. Ms Dara was very clear that it is not co-parent and it is not shared custody. The discussion on the birth certificate having both names on is open – I have asked them to seek legal advice re that. All parties very comfortable with this decision. Counselling completed. No contra indications evident.
(as per original)
[50] Affidavit of Mr Meyer affirmed on 18 February 2020, [74].
[51] Affidavit of Mr Meyer affirmed on 18 March 2020, [12].
[52] ‘ICL-1’ tendered in evidence on 21 July 2020 by the Independent Children’s Lawyer, pages 13-14.
On 21 November 2013, the Applicant signed a consent form with the AB IVF Clinic, wherein he was referred to as a “known donor”[53] acknowledging that he had read the “Sperm donation using a known donor” booklet (‘the booklet’) that was provided by the AB IVF Clinic.[54] The Respondent argued that by acknowledging he had read the booklet, the Applicant was aware of one of the paragraphs contained in the booklet, which stated that “sperm donors are only entitled to non-identifying information about the recipient families and any offspring born” and that as a known donor he was only entitled to be told about “the number, gender, and the year of birth of children born…using his donation” but not “any further information without the consent of the recipients of the donation”.[55]
[53] Exhibit ‘M-25’ to the Affidavit of Mr Meyer affirmed 18 February 2020, pages 75 and 76.
[54] Affidavit of Ms Dara sworn 18 February 2020, [9]; Exhibit ‘D2’ to the Affidavit of Ms Dara sworn on 18 February 2020, page 41.
[55] Affidavit of Ms Dara sworn 18 February 2020, [9]; Exhibit ‘D3’ to the Affidavit of Ms Dara sworn on 18 February 2020, page 53.
The Applicant’s evidence as to what occurred on 21 November 2013, and his understanding as to how he and the Respondent would proceed in the raising of any child born, notwithstanding his signing of the consent form, was as follows:-[56]
…I recall that one of the co-ordinators at the AB IVF Clinic said to Ms Dara and I before we signed any forms with the AB IVF Clinic, words to the following effect:
Co-ordinator: Unless you and Ms Dara are a couple, the only way for you to proceed using our services is for you to sign the form where you are referred to as a 'sperm donor'. We are only able to identify you, Mr Meyer, as a 'sperm donor' or as a member of a couple. There are no other options if you want to use our service. We know you are not a couple, you have already disclosed that to us and so this is the form you must sign.
I believed that using a service such as the AB IVF Clinic was the safest way to make sure that any child Ms Dara and I had together was going to be healthy and gave us the best chance of success which was especially important as Ms Dara was already 40 years of age at that point in time. As Ms Dara and I had already agreed to parent our child together, and believing that I could not change the procedure or the forms of the AB IVF Clinic I signed the forms which referred to me as a “sperm donor” on the understanding that there was no other way to conceived a child with Ms Dara that was safer for our child and Ms Dara. I also understood that Ms Dara and I were united in our wish to parent our child together. This was very different from the other occasions where I have been an anonymous sperm donor and did not intend to be involved in the life of any child conceived as a result. On none of those occasions did I ever meet with the women who were inseminated with my sperm. When Ms Dara and I attended at the AB IVF Clinic on 21 November 2013 we were advised by them at the time they were obliged to provide counselling prior to conception and their procedure could not go ahead unless we had both signed a document in the form that they prepared. I understood, notwithstanding the document, that Ms Dara and I would raise any resulting child together as co-parents. We discussed this before and after signing the forms. I was confident from my conversations with Ms Dara prior to conception that she agreed that we were going to parent any child conceived with our genetic material together and that the child would live with her and spend regular time in my care. It was also my observation that in all of these stages, Ms Dara encouraged me to believe that she also shared this wish to share the care of our child.
(as per original)
[56] Affidavit of Mr Meyer affirmed on 18 February 2020, [74].
Both the Applicant and Respondent were in contact with the AB IVF Clinic at various times to follow up on requirements and ensure their readiness for the artificial insemination procedure. They also kept one another informed of their communications with the AB IVF Clinic. The Applicant was available to help the Respondent in any way that he could during the process of conception, the resulting pregnancy, the birth itself and the period thereafter.
On or about 2 January 2014, the Respondent asked the Applicant to get some information for her from the AB IVF Clinic. The Applicant was encouraged by the fact that the parties were working well toward their common goal of having a child. In an email to the Applicant on that day, the Respondent stated:-[57]
Hi Mr Meyer,
How are you? very quiet last few days. very busy or had enough of Ms Dara?
When you go to the AB IVF Clinic, would you please ask them what is the procedure when I start the treatment, as they did not give me any treatment plan. Do I have to make an appointment with Dr. Y again or not? when I have to go to the Natural Killer body cell test? where in City YY I have to go for a blood test and ultrasound test during the ivf cycle? I would appreciate if you can get these information from Ms Z for me.
Many Thanks
Ms Dara
(as per original)
[57] Exhibit ‘M-3’ to the Affidavit of Mr Meyer affirmed 18 February 2020, page 7.
On 16 March 2014, the Applicant and Respondent attended the AB IVF Clinic in Suburb AA New South Wales so that the Respondent could undergo an intrauterine insemination procedure which they hoped would lead to a successful pregnancy. In the lead up to the procedure and on 15 March 2014, the parties had a conversation to the following effect:-[58]
[The Respondent]: The doctor tells me that after the procedure I shouldn't drive for 24 hours as it may put the procedure at risk of failing.
[The Applicant]: Well, if you're going to be driving from U Town to City YY, on the way up why don’t you stay the night in City YY after the procedure?
[The Respondent]: No, I’ll just drive back to U Town.
[The Applicant]: Well, why take that risk? This is very important to both of us and we don’t want to be taking any risks against doctor’s advice. I can book you into a hotel in City YY, that way I can take you to the airport in Sydney, you can get on the plane, arrive back in City YY and be at a hotel that’s close to the airport, then you will be minimising any risk.
[The Respondent]: Okay.
(as per original)
[58] Affidavit of Mr Meyer affirmed on 18 February 2020, [25].
The Applicant proceeded to contact a hotel in City YY on 15 March 2014 and booked a reservation for the Respondent for the night of 16 March 2014.
Ultimately, the intrauterine insemination procedure was unsuccessful and the parties agreed to use the in vitro fertilisation (‘IVF’) procedure to ensure that the sperm and egg were combined prior to implantation. This procedure was more complex and expensive however the Applicant and Respondent understood it to provide a greater chance of success.
On 7 April 2014, the Respondent wrote to the Applicant assuring him that she would not do anything to hurt his relationship with Ms G or destroy his life.[59] The Applicant trusted the Respondent and told her that he believed her.[60]
[59] Exhibit ‘M-6’ to the Affidavit of Mr Meyer affirmed 18 February 2020, page 16.
[60] Affidavit of Mr Meyer affirmed on 18 February 2020, [27].
On 14 April 2014, the Applicant and Respondent had another conversation as follows:-[61]
[The Respondent]: The AB IVF Clinic tell me that I need to go for a consultation with them and have a scan before we can do the actual IVF procedure. They need to assess whether or not we can proceed at this time. That is going to happen on 16 April 2014 and if we get the green light then we can go ahead with the IVF procedure quite quickly after that. The appointment I have with them is early in the morning on the 16th, so I’ll probably need to flight up the night before.
[The Applicant]: Okay, so it is all moving quickly. I will book you a flight for tomorrow afternoon and a hotel for tomorrow night.
[The Respondent]: Are you able to make it?
[The Applicant]: Yes of course. I will meet you at the clinic on the 16^th.
(as per original)
The Applicant booked and paid for a ticket for the Respondent to fly with BB Airline from City YY to Sydney and return from Sydney to City YY on 16 April 2014. The Applicant also made, and paid for, a reservation for the Respondent to stay at the CC Hotel in Suburb AA Sydney.
[61] Affidavit of Mr Meyer affirmed on 18 February 2020, [28].
On 16 April 2014, the Applicant met the Respondent at the AB IVF Clinic. The Applicant did not go in with the Respondent for the consultation with the doctor, however he waited until the Respondent was finished and then drove her to the airport.
On 18 April 2014, the parties again attended upon the AB IVF Clinic so that the Respondent’s eggs could be harvested for the IVF procedure.[62] They stayed in Sydney that night.
[62] Affidavit of Mr Meyer affirmed on 18 February 2020, [31].
On 19 April 2014, the Respondent telephoned the Applicant to tell him that “[o]nly one of the embryos [had] survived and [she would] have a procedure later in the morning to have it placed.”[63] The Respondent requested the Applicant meet her at the café downstairs from the clinic so they could attend the procedure together. The Applicant agreed. The insemination procedure occurred on 19 April 2014 and the Applicant was able to observe the process of embryo insemination via a special camera displaying the footage on a computer monitor.[64]
[63] Affidavit of Mr Meyer affirmed on 18 February 2020, [31].
[64] Affidavit of Mr Meyer affirmed on 18 February 2020, [32].
In about late April or early May 2014, the Respondent phoned the Applicant to advise that he was “a daddy”.[65] The Applicant was “ecstatic” about the news and spoke to the Respondent for a short period of time during which time the Respondent requested that the Applicant not tell anyone, including Ms G, until after the first trimester.[66] The Applicant did as requested.
[65] Affidavit of Mr Meyer affirmed on 18 February 2020, [33].
[66] Affidavit of Mr Meyer affirmed on 18 February 2020, [33].
The Respondent calculated that she spent approximately $17,216.52 in respect of the IVF and associated procedures undertaken by her.[67] She did not quantify or place in evidence the Medicare rebate received by her in respect of all or some part of this cost. Additionally, the Respondent gave evidence that the Applicant paid approximately $1,200 toward the costs of her ultrasounds only “under the agreement that [she] would reimburse him.” She later reimbursed him for such funds as were provided by him including an additional $500 “in case [she] owe[d] him extra”. The Applicant in fact returned the money reimbursed to him by the Respondent in the sum of $1,700.[68] The Applicant’s evidence, which is accepted by the Court, was “I wanted to make these contributions and I did not ask [the Respondent] to reimburse me.”[69] The Applicant calculated he paid approximately $2,040 toward the cost of the IVF treatment and an additional $900 in total for various flights taken by the Respondent between Sydney and City YY for IVF appointments and procedures, totalling to an amount of $2,940.[70] His evidence was also that he paid for a blood test, consultation fees and further ultrasounds, such that his expenditure was in the sum of approximately $4,129.[71] The Court is satisfied the Applicant made this financial contribution, or something approximating it, toward the conception of the child and other associated expenses of the IVF procedure and pregnancy.
[67] Affidavit of Ms Dara affirmed 18 February 2020, [14]
[68] Exhibit ‘MA4’ to the Affidavit of Ms Dara affirmed 18 February 2020.
[69] Affidavit of Mr Meyer affirmed 18 March 2020, [18].
[70] Affidavit of Mr Meyer affirmed 18 March 2020, [18].
[71] Affidavit of Mr Meyer affirmed 18 March 2020, [19]; Affidavit of Ms Dara affirmed 18 February 2020, [14].

Communications during the pregnancy

The parties communicated on an almost daily basis, via email and text message both during the pregnancy and after X’s birth. The Respondent claims now that she only responded to the Applicant’s messages because she “did not want to be rude”.[72] That sentiment is not borne out in the evidence before the Court and the Court prefers the Applicant’s evidence that he was “significantly involved and aware of the developments” during the course of the pregnancy,[73] and that it was the Respondent who frequently initiated conversations, becoming angry if she did not receive a quick response.[74]
[72] Affidavit of Ms Dara sworn 18 February 2020, [12].
[73] Affidavit of Mr Meyer affirmed on 18 February 2020, [70].
[74] Affidavit of Mr Meyer affirmed 18 March 2020, [17]; Affidavit of Ms G sworn 19 February 2020, [20].
The constant frequency of the parties’ communication was known to Ms G who was supportive of such communication.[75]
[75] Affidavit of Ms G sworn 19 February 2020, [20].
The conversations between the Applicant and Respondent included discussions about how the Respondent was feeling during the pregnancy; how she was dealing with morning sickness;[76] what food the Respondent could consume during pregnancy; medical appointments; baby names; their child’s future recreational sporting activities (the Applicant being involved in his local sports club for many years);[77] the practicalities of the Applicant’s involvement in their child’s life given the travel that would be required between the parties’ residences; and the Respondent’s concerns about how the parties’ relationship would work.[78] Some of these communications are detailed in the following paragraphs. It is clear the Applicant and the Respondent both had aspirations for their child and a desire to be involved in their child’s life. The Respondent wanted also, as she got to know the Applicant, a romantic and long-term relationship with him. Despite this, or perhaps because of it, through their communications over time, the Respondent oscillated between involving the Applicant in the pregnancy, and keeping him at arm’s length. It is clear she mostly relied on the Applicant for support, particularly when she had concerns for the baby. However at other times, such as on 13 June 2014, when the Respondent was one month pregnant, she was less certain about the Applicant’s involvement. On that occasion, she emailed the Applicant stating, relevantly:-[79]
… I dreamed we will do everything together – like going for Dr appointment, ultrasound, buying baby’s cot, pram, her clothes everything even going to birthing class…But I realised these will lead me to be emotionally vulnerable. after baby is born if I develop post natal depression it will contribute more. as I am alone without family and friend to support me, it will be very difficult for me to cope with everything. that’s why I am excluding you from lots of things…
(as per original)
[76] Exhibit ‘MA2’ to the Affidavit of Ms Dara sworn 17 March 2020, page 213.
[77] Exhibit ‘D2’ to the Affidavit of Ms Dara sworn 17 March 2020, page 234.
[78] Affidavit of Mr Meyer affirmed on 18 February 2020, [60], [61], [67], [70] and [82].
[79] Exhibit ‘M-8’ to the Affidavit of Mr Meyer affirmed 18 February 2020, page 23.
Despite the Respondent’s above statement of intent to exclude the Applicant, which was thereafter occasionally repeated, the Respondent was mostly inclusive of the Applicant during the pregnancy. This accorded with the Applicant’s desire to be involved in the pregnancy. That involvement included but was not limited to:-
a)attending medical appointments and prenatal classes with the Respondent. In July 2014, the Applicant attended an appointment with the Respondent in U Town at her invitation where the midwife spoke to the parties about future routine appointments for the Respondent during her pregnancy. The Applicant accompanied the Respondent to her ultrasound and to two private prenatal classes after which the Respondent commenced to refer to the baby as “little Meyer”.[80] In the lead up to the birth the Respondent advised the Applicant that she had nominated him as the contact person for her mid-wife. She told the Applicant, on 5 September 2014, that she hoped he would “be there when [she was] in labour, to support [her]”.[81] This request for the Applicant’s attendance at the birth was never retracted[82] and indeed, the Respondent sought further assurances from the Applicant that he would be present at the birth even if “something…more important [came] along”; [83]
b)assisting the Respondent (at her request) to complete the booking forms for the hospital and the ultrasound information;
c)researching prams for the baby and providing a summary of that research to the Respondent;[84] and
d)providing general support to the Respondent, including when she was being performance managed at her work, and finding that process difficult to cope with.[85] The Applicant’s support was continuous throughout the pregnancy of the Respondent.
[80] Affidavit of Mr Meyer affirmed on 18 March 2020, [58].
[81] Exhibit ‘M-26’ to the Affidavit of Mr Meyer affirmed 18 February 2020, page 78.
[82] Affidavit of Mr Meyer affirmed on 18 February 2020, [77].
[83] Exhibit ‘M-27’ to the Affidavit of Mr Meyer affirmed 18 February 2020, page 81; Affidavit of Mr Meyer affirmed 18 March 2020, [57].
[84] Affidavit of Mr Meyer affirmed on 18 February 2020, [49].
[85] Affidavit of Ms Dara sworn 18 February 2020, [12].

On 6 August 2014, the Respondent emailed the Applicant about the possibility of the Respondent relocating closer to the Applicant. The email exchange was relevantly as follows:-
[The Respondent]: …Will you be happy if I am closer to you? Will you come to see us every day? What if you have to stay at night at my place? Will it cause any problem in your personal life?
[The Applicant]: Hi Ms Dara, Of course I would be happier and I probably would see you both every day or at least as often as was comfortable for you both. And no, my social life would change around my responsibilities and time with our baby.
[The Respondent]: You know what I think? I think you will be obsessed with our baby. You not only come every day, you will come in the morning, lunch time and at night. You will say – I just wanted to kiss her good morning, at midday you will say – just checking how is she doing, as she will be with day-care, you will go there to see her. At night you will come around and say I just wanted to say good night or tuck her into the bed. Let me know if I am wrong. Ms Dara.[86]
[86] Exhibit ‘M-22’ to the Affidavit of Mr Meyer affirmed 18 February 2020, page 69.
A couple of days later, and on 8 August 2014, the Respondent appeared to be again distancing herself. That text message exchange was as follows:-[87]
[87] Exhibit ‘D2’ to the Affidavit of Ms Dara sworn 17 March 2020, page 157.
[The Respondent]: Mr Meyer, please try to understand I am not complaining. I just like to be independent. Cause so many times people let me down, I just simply don’t have a faith in people. For you, your partner is most important, than [sic] your social life. Yop [sic] of that you are far away from us. Combine all of these, you have limited availability to help me.
…But I will always appreciate whatever help you can give us.
[The Applicant]: Well I can only show you something different than what you believe.
[The Respondent]: It’s OK Mr Meyer. We all have limited availability to do something for others. I’m not asking anything from you or trying to put you in difficult position. Please whatever you do for us is bonus for me. I can take care my baby.
[The Applicant]: Well, I’ll be helping as often as I can or as often as you let me.
[The Respondent]: of course, that’s what I said. You have to juggle so many things, I feel bad even asking small favor. [sic] But I will never interfere with your bonding with my child. It’s up to you.
[The Applicant]: Please ask me for favour or help as often as you need.
[The Respondent]: I will, if it doesn’t take much time or you don’t have to travel to U Town. Otherwise I won’t ask. As I said, you need some times for yourself too. I will be always here (unless lose my job), and you will be always welcome whenever you can come. I’m sure when baby will understand who are you- she will be very happy when you come to see her. She will give you a bright smile, your whole world will be lightened up.
(as per original)
On 9 August 2014 the text message exchange between the parties was, relevantly, as follows:-[88]
[88] Exhibit ‘MA2’ to the Affidavit of Ms Dara sworn 17 March 2020, page 161.
[The Respondent]: How will you manage all these travelling? Just remember you are not invincible.
[The Applicant]: It’s not a trip I make often
[The Respondent]: I understand. I’m just saying that, I don’t have to exclude you from being responsible for our baby, you will do it yourself, by being unavailable for the time we need you most.
[The Applicant]: Well, hopefully we manage things so it doesn’t happen too often.
[The Respondent]: We??? What This we business? ??? It will be all your fault. And you will be drama queen You are taking away my dream to be a father.
…
[The Applicant]: Lol
[The Respondent]: baby is moving. This is the time usually she moves a lot.
[The Applicant]: She’s a night owl!
[The Respondent]: Like her father! I will kill you, if she keeps awake at night. Cause that trait will definitely come from you.
(as per original)
On 18 August 2014, when the Respondent tripped over a cord and fell, she attempted to contact the Applicant by phone to discuss her concerns for the baby.[89] He did not answer his phone. This offended the Respondent. When the Applicant was later advised of the Respondent’s fall in a text message sent by the Respondent, the following text message exchange occurred, relevantly:-[90]
[89] Exhibit ‘MA2’ to the Affidavit of Ms Dara sworn 17 March 2020, page 182.
[90] Exhibit ‘MA2’ to the Affidavit of Ms Dara sworn 17 March 2020, pages 183 to 185.
[The Applicant]: I’m glad to hear you’re ok. Please let me know next time by message or text. I didn’t know.
…
[The Respondent]: …you were busy with birthday. You didn’t even text me back or wanted to know if there is anything amiss, when you were free. So I thought you don’t care.
[The Applicant]: I do care. You said it wasn’t important though.
[The Respondent]: What I suppose to say. You ignored my phone because you were with friends. So I thought I will take care of myself. As I said people make promises and when times come they are not available. It’s the same all the time.
[The Applicant]: You could have instead said you need me to call or you’ve had a fall and need someone to talk to or advice. I assume you [sic] from your text that it was indeed ‘not important’.
[The Respondent]: It’s OK. I am fine. I’ll try not to bother you.
[The Applicant]: It would not have been a bother had I known you need to talk Ms Dara. Just let me know next time please.
[The Respondent]: Don’t know Mr Meyer, now a days you are so distance and don’t care attitude, I am not sure I will ask any help from you. I know you told me that you don’t have any obligations towards me. I know that too. I never expect anything from you. I call you only it’s necessary. Otherwise I try not to bother you.
…
[The Applicant]: It’s ok to contact me. I am wary of you as no matter what I say or do you tend to push me away and I feel very unwelcome to intrude in your solitude. I need to to [sic] let me be friends and trust me. I don’t know how to be a non-friend that is meant to contact you when you when you [sic] are free of needing me to contact you unless you help me understand what you are comfortable with. I can only take you on face value as I don’t understand you. I find myself second guessing myself with you and it is a very tough emotional roller coaster for me. I am trying very hard to be a friend and father of our baby and as much as I dream about how that could all work and be a comfortable trusting friendship that is never about money or who gave what to who and who has to repay a gift or not but rather about two people trying to make this unique situation work amicably and in harmony and with trust. I trust you completely and I know you want to be a great mother. … let me know how I can work with you to be supportive and a good father to our baby.
[The Respondent]: Mr Meyer, I don’t push you away. And I don’t want anything from you. I’m sure you will be a great father.
(as per original)
By 21 August 2014 (three days later) the Respondent was once again speaking to the Applicant, involving him:-
[The Respondent]: Actually I wanted to show you all the stuff midwife gave me. I wanted to go through all of them with you, as you are very interested in my pregnancy.
[The Applicant]: I would like to still do that.
[The Respondent]: …I also wanted you put your hands on my tummy, so that when baby kicks you can feel her. As she doesn’t follow exact pattern of kicking.
[The Applicant]: We will have heaps of time this evening and/or morning before Dr appt
[The Respondent]: Are you going to stay my place? If you do you have to change the bed sheet. Cause I haven’t changed it.
[The Applicant]: Thankyou. But I’m booked into a motel.[91]
(as per original)
[91] Exhibit ‘D2’ to the Affidavit of Ms Dara sworn 17 March 2020, page 199.
The Applicant’s evidence is that around August 2014, he began to notice a shift in the Respondent’s behaviour and her attitude towards the parties’ co-parenting arrangements saying things to him such as “[y]ou won’t be spending nearly as much time as you might be expecting with our children. There won’t be any overnight visits.”[92]
[92] Affidavit of Mr Meyer affirmed on 18 February 2020, [61].
The Respondent had told the Applicant on 4 August 2014, that the reason she was moving away from, and returning to the original agreement to actively involve the Applicant in the life of the child, was because the Respondent had feelings for the Applicant.[93] An email exchange around this time between the parties was, relevantly, as follows:-[94]
[The Respondent]:
Mr Meyer,
I am going to [sic] brutally honest with you. OK?
I have feelings for you. If I live closer to you and you live nearby me happily ever after, how I will feel? I will resent you and your relationship. Being far away from you will be like I see nothing I don’t feel anything. I know you only want opportunity to involve with my child, nothing more. And I am not asking anything from you either. I have long experience of being disappointment in life especially after coming to Australia. I will survive another disappointment and I am not blaming you for anything. I have accepted and respect your decision. But it does not mean I have completely overcome by my emotions. I am not like you, switch of my emotions or do something without emotions. I don’t and can’t. My emotion runs very deep, for anything and anyone. These emotions just does not disappear just because I am not capable of having it. You will see that for my child. I hope this explanation will make you understand. It’s not all about you. I would appreciate if you consider my side of view time to time.
Ms Dara
(as per original)
[93] Affidavit of Mr Meyer affirmed on 18 February 2020, [54].
[94] Exhibit ‘M-18’ to the Affidavit of Mr Meyer affirmed 18 February 2020, page 59.
The Respondent also told the Applicant, around this time, that she did not understand the meaning of co-parenting, although this had not been expressed to the Applicant in the previous ten months, and the parties had had many conversations about how they would parent their child together. The Respondent told the Applicant that she wished to be “responsible” for the parties’ child, but that the Applicant could spend as much time as he wished with the child.[95] The Applicant’s evidence was that he was “very confused by [the Respondent’s] thinking at this time and once again [he] thought if [he] gave her some space to process what she was feeling, that her attitude may change.”[96]
[95] Affidavit of Mr Meyer affirmed on 18 February 2020, [54].
[96] Affidavit of Mr Meyer affirmed on 18 February 2020, [54].
Notwithstanding the constantly changing position of the Respondent, the parties continued to have regular contact, often at the Respondent’s instigation. On 5 August 2014 the Respondent emailed the Applicant and stated, relevantly:-[97]
…Hope our last night conversation put you at ease. I don’t [sic] what you mean by being responsible. But I will NEVER NEVER NEVER exclude you from my child’s life. I want her know you as a father and a person who will take care of her in absence of me. I promise you my child/children will love you respect you unconditionally just like a normal father. because I will raise them to do that…
[97] Exhibit ‘M-19’ to the Affidavit of Mr Meyer affirmed 18 February 2020, page 62.

Having another child

Throughout the parties’ discussions, the Respondent from time to time would indicate her desire for another child. On 18 and 19 July 2014 the conversation was, relevantly, as follows:-[98]
[98] Exhibit ‘M-14’ to the Affidavit of Mr Meyer affirmed 18 February 2020, pages 38-39; Exhibit ‘M-14’ to the Affidavit of Mr Meyer affirmed 18 February 2020, page 41.
[The Respondent]: …Mr Meyer, still now I can’t believe that I am pregnant. It’s miracle. I’m thankful to God for giving me this wonderful gift.
[The Applicant]: Expecting a baby is so incredibly profound and so special.
…
[The Respondent]: It is Mr Meyer, it is. Will you be happy if I have another child/children? I will.
[The Applicant]: Yes of course I will. More the merrier!
…
[The Respondent]: I would like a daughter first. It will be nice if my second child is a boy. If I don’t have a girl, it will be your fault.
[The Applicant]: Lol. Apologies in advance just in case then.
[The Respondent]: Yes, it will be all your fault, it will mean you don’t have X-Chromosm [sic] for making a girl.
[The Applicant]: Let’s hope our first baby is a girl then!
[The Respondent]: Ok. I’ll be happy. I will be ecstatic if I have twin next time.
[The Applicant]: That would be wonderful
[The Respondent]: I know. I am just praying I hope God will accept my prayers. Hope I don’t have to go through too many cycles.
[The Applicant]: No. Would be good to have kids close together I think. They will grow up good friends together.
(as per original)

Pregnancy announcement and expectations for parenthood

On 14 July 2014 the parties communicated via text message about their plans to announce the pregnancy to their families.[99] They agreed they would tell their family and friends they were expecting a child together and the conversation on 21 July 2014 was as follows:-[100]
[99] Affidavit of Mr Meyer affirmed on 18 February 2020, [44].
[100] Exhibit ‘M-14’ to the Affidavit of Mr Meyer affirmed 18 February 2020, pages 43 and 46.
[The Respondent]: Are you going to tell everyone when you have this experience?
[The Applicant]: Yes. Is that ok?
[The Respondent]: Yes it’s ok. I think you want to be proud, cause you are going to be a father. I guess it will be a wonderful experience for you. Did you tell your father about the baby?
…
[The Respondent]: Mr Meyer, would you please ask your father, if it is ok if I meet him before he moves to N Town? I loved my father so much, I just want to meet your father. I hope it will be ok, if I meet your father. If he doesn’t want to meet me I will understand.
[The Applicant]: I’m sure he will like to meet you.
…
[The Respondent]: Ok. Thank You. Are you at the gym? Do you sleep enough every day? Remember when baby is born, you will take care of her. In that case you have to awake most of the night.
[The Applicant]: I was at the gym. Don’t know of [sic] I sleep enough every day but I feel ok mostly. Yes, babies make the parents turn into zombies!!
…
[The Respondent]: You think! Hope she won’t be impatient like me! Hope she will be like her father, cool as cucumber. I will have a peaceful life.
[The Applicant]: Lol. She might like football and sling though!!
[The Applicant]: *sling should be skiing
[The Respondent]: Not when she is in my womb though. Otherwise she will be playing football in my tummy, kicking me all the time. I will be measurable. I will blame you for that.
[The Applicant]: Ok. Football and skiing training starts when she’s born! Lol
[The Respondent]: Yes after that. Otherwise I have to pray she is like me. Who does not like to move much.
[The Applicant]: Lol
(as per original)
The Applicant’s evidence is that the Respondent appeared to be engrossed by the idea of the parties’ families coming together through their child,[101] and that before and during the pregnancy the parties discussed the Applicant’s wish to have his extended family, who lived outside U Town, involved in X’s life.[102] The Applicant asserted the Respondent was supportive of this wish[103] and had told him that she wished they “had a situation where you and your father [could] see my child everyday”.[104]
[101] Affidavit of Mr Meyer affirmed on 18 February 2020, [58].
[102] Affidavit of Mr Meyer affirmed on 18 February 2020, [59] and [61].
[103] Affidavit of Mr Meyer affirmed on 18 February 2020, [59].
[104] Exhibit ‘M-15’ to the Affidavit of Mr Meyer affirmed 18 February 2020, page 50.
On 6 August 2014 during an email exchange between the parties, the Respondent told the Applicant he was welcome in her home anytime and she contemplated using the Applicant’s niece and nephew as babysitters.[105]
[105] Exhibit ‘M-22’ to the Affidavit of Mr Meyer affirmed 18 February 2020, page 68.
On 24 August 2014, the parties texted each other, relevantly, as follows:-[106]
[106] Exhibit ‘D2’ to the Affidavit of Ms Dara sworn 17 March 2020, pages 206 and 207.
[The Respondent]: …How was your reunion?
…
[The Applicant]: The reunion has been good. Everyone here knows about out [sic] baby now and everyone has been really happy for us.
…
[The Respondent]: Were you over the moon?
…
[The Applicant]: Yes. It felt so good to tell everyone and have them congratulate us.
[The Respondent]: I don’t need anything at the moment. How did you tell them? ‘hi all, I am going to be a father’
[The Applicant]: …I did kind if [sic] say, hello everyone, I’m going to be a father!
(as per original)
Following the announcement of the pregnancy to his extended family, the Applicant travelled with the Respondent to RR Town in New South Wales to introduce the Respondent to one of his brothers, Mr DD, and Mr DD’s family.[107] Mr DD and his wife, Ms F, offered the parties a car seat, change table and clothes for the baby, which they no longer required.[108] Following this introduction, the Respondent enquired about Mr DD and Ms F in a conversation with the Applicant on 28 September 2014:-[109]
[The Respondent]: How is Mr DD and Ms F and their children? Did they ask about our baby?
[The Applicant]: They’re good and we chatted about our baby. They’re very excited for us.
[The Respondent]: What did you chat about? Will they come to see our baby when he is born?
[The Applicant]: About progress to date, the scans, upcoming dr visit and general pregnancy topics. Ms F and her mother Ms EE recommended Bio-oil for your stretch marks. They use is [sic] for lots of different things including scars etc and they say it works well to reduce scarring etc. they say it can be bought in most pharmacies. Yes they would like to see our baby of course.
[107] Affidavit of Mr Meyer affirmed on 18 February 2020, [68].
[108] Affidavit of Mr Meyer affirmed on 18 February 2020, [69].
[109] Exhibit ‘M-27’ to the Affidavit of Mr Meyer affirmed 18 February 2020, page 80; Exhibit ‘M-30’ to the Affidavit of Mr Meyer affirmed 18 February 2020, pages 89 and 91.
Throughout October and November 2014, the Applicant and Respondent’s constant conversations about their unborn child, continued. The tenor was the Applicant’s expression of his intention to be a loving and supportive father and the Respondent’s acknowledgement of that.
In addition to their discussions surrounding the introduction of their baby to the Applicant’s family, the parties discussed parenthood and what they imagined would be their respective parenting styles. One such example was, relevantly, as follows:-[110]
[110] Exhibit ‘MA2’ to the Affidavit of Ms Dara sworn 17 March 2020, page 203 and 218.
[The Respondent]: …We both will teach her best things in life. I will pray God will help her to be a better person.
[The Applicant]: I’m sure we will be good influences in her life.
[The Respondent]: Yes we will. I’ll try to raise her as conservative as possible. But I am worried that you will cause some disturbance.
…
[The Respondent]: I just threw up today. This baby be good when he’s born. Otherwise I will beat the crap out of him.
[The Applicant]: Lol
[The Respondent]: I am serious
[The Applicant]: Well, I’m sure he’ll be good.
[The Respondent]: You are sure! !!! Did he tell you that - # dad I will be good’. Did he?
[The Applicant]: No. But with our genes and nurturing and guidance he will surely be good.
[The Respondent]: Thank you. I appreciate your positive view of our child. Do you imagine talking to him. Like when he is crying what you would say.
[The Applicant]: I’d console him, hug him, reassure him, ask him if he can tell me what is upsetting him.
(as per original)

The baby’s name

On 11 August 2014, the Respondent asked the Applicant whether he had thought of any names for a daughter. The Applicant responded:-[111]
To be honest, I’ve tried not to think of names because I’m not certain if you will want or like my input. It seems a tease to me if I start thinking of names and have no input. I’m not asking for it and in [sic] not trying to make you feel awkward about it. Just letting you know how and why I have this view. I would of course welcome an opportunity to suggest names but I’m not asking for that.
[111] Exhibit ‘MA2’ to the Affidavit of Ms Dara sworn 17 March 2020, page 172.

Section 61DA of the Act requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Such presumption can be rebutted as provided for in s 61DA of the Act. Relevantly, in this proceeding, s 61DA(4) of the Act provides:-
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 69R of the Act is as follows:-
If a person's name is entered as a parent of a child in a register of births or parentage information kept under a law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, the person is presumed to be a parent of the child.
The term parent is not exhaustively defined in the Act. The term “parent”, when used in Part VII of the Act in relation to a child who has been adopted, includes an adoptive parent of the child.[321] Part VII of the Act “provides comprehensively for how the Family Court is to determine who is a parent.”[322] The reference to adoption is an amplification of common meaning not a definition.[323]
[321]Family Law Act1975 (Cth), s 4.
[322]Masson v Parsons [2019] HCA 21, [1].
[323]Masson & Parsons [2017] FamCA 789.
The evidence in this proceeding is that the Applicant provided his genetic material for the express purpose of fathering a child whom he wished and expected to parent.
As was said by Brown J in the case of Re Mark: an application relating to parental responsibilities (2003) FLC 93-173 at paragraph 59:-
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…
Whilst the Respondent challenges the legal parentage of the Applicant, a biological parent of X, as was said by Cleary J in Masson & Parsons [2017] FamCA 789 “biology is a part of the answer”.[324]
[324]Masson & Parsons [2017] FamCA 789, [94].
The Applicant took part in the artificial insemination process believing that he was fathering a child whom he would also parent. There is no legally disqualifying factor. He is a “parent” in the ordinary meaning of the word. The presumption of parentage as set out in s 69R of the Act applies in the facts and circumstances of this case.
In the decision of the High Court of Australia in Masson v Parsons [2019] HCA 21 (‘Masson’) the High Court considered s 60H of the Act which deals with children born as a result of artificial conception procedures. It was clear, as it is here, that the biological and birth mother of the child was a legal parent of the child. The issue in that case, was whether the biological father of the child, who had provided his semen to the biological and birth mother in order that she might artificially inseminate herself and in so doing conceive a child, was a legal parent of the child then born. That is also the issue here. Whilst the biological father did not qualify as a parent under s 60H of the Act, the High Court said in Masson at paragraph 24, relevantly:-
…it was contended that he qualifies as a parent otherwise than under that provision. The primary judge accepted that contention. Following the reasoning of Cronin J in Groth v Banks, her Honour held that s 60H is properly to be understood “as expanding rather than restricting the categories of people who can be parents”, and, in effect, that, in circumstances where s 60H is not engaged, a person may yet qualify as a parent of a child born as a result of an artificial conception procedure if the person is a parent of the child within “the ordinary meaning of the word”. Her Honour further held that, because the appellant is the biological father of the child and, unaware of any de facto relationship between the first and second respondents, provided his genetic material for the express purpose of fathering a child whom he expected to help parent by financial support and physical care, which he had since done, the appellant is a parent of the child within the ordinary meaning of the word “parent” and, therefore, a parent of the child for the purposes of the Family Law Act.
(citation omitted)
The High Court went on to say, relevantly, at paragraphs 26 and 45, the following:-[325]
26. The primary judge and the Full Court were correct in holding that s 60H is not exhaustive of the persons who may qualify as a parent of a child born as a result of an artificial conception procedure. Although the Family Law Act contains no definition of “parent” as such, a court will not construe a provision in a way that departs from its natural and ordinary meaning unless it is plain that Parliament intended it to have some different meaning. Here, there is no basis in the text, structure or purpose of the legislation to suppose that Parliament intended the word “parent” to have a meaning other than its natural and ordinary meaning. To the contrary, s 4(1) provides that, when used in Pt VII, “parent”, “in relation to a child who has been adopted, means an adoptive parent of the child”. That implies that there is an accepted meaning of “parent” which, but for the express inclusion of an adoptive parent, would or might not extend to an adoptive parent. Section 61B, which defines “parental responsibility” by reference to the legal duties, powers, responsibilities and authority of parents; s 69V, which provides for evidence of parentage; and s 69W, which provides for orders for carrying out parentage testing procedures, are also consistent with a statutory conception of parentage which accords to ordinary acceptation…
…
45. It is also necessary to appreciate, as is explained later in these reasons, that the evident purpose of s 60H and more generally of Div 1 of Pt VII of the Family Law Act is that the range of persons who may qualify as a parent of a child born of an artificial conception procedure should be no more restricted than is provided for in Div 1 of Pt VII. Consequently, although ss 60G and 60H are not exhaustive of the persons who may qualify as parents of children born of artificial conception procedures, if a person does qualify as a child’s parent either under s 60G by reason of adoption, or according to s 60H, or according to ordinary acceptation of the word “parent”, it is beside the point that a State or Territory provision like s 14(2) of the Status of Children Act otherwise provides. Section 79(1) of the Judiciary Act does not operate to insert provisions of State law into a Commonwealth legislative scheme which is “complete upon its face” or where, upon their proper construction, the provisions of the Commonwealth scheme can “be seen to have left no room” for the operation of State provisions.[326]…
(citations omitted)
[325]Masson v Parsons [2019] HCA 21, [26] – [27].
[326] R v Gee (2003) 212 CLR 230 at 254 [62] per McHugh and Gummow JJ; [2003] HCA 12, adopting, by analogy, the reasoning in Deputy Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55 at 64 per Mason CJ, Brennan, Deane, Dawson and Gaudron JJ; [1988] HCA 29, GPAO (1999) 196 CLR 553 at 576 [38] per Gleeson CJ and Gummow J, and Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 351 [30] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; [1999] HCA 9. See also Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638 at 652-653 [25] per French CJ, Gummow, Hayne, Kiefel and Bell JJ; [2012] HCA 1.
The High Court considered the position of sperm donors in Masson and said relevantly at paragraph 54, the following:-
…As has been explained, the ordinary, accepted English meaning of the word “parent” is a question of fact and degree to be determined according to the ordinary, contemporary understanding of the word “parent” and the relevant facts and circumstances of the case at hand. To characterise the biological father of a child as a “sperm donor” suggests that the man in question has relevantly done no more than provide his semen to facilitate an artificial conception procedure on the basis of an express or implied understanding that he is thereafter to have nothing to do with any child born as a result of the procedure. Those are not the facts of this case. Here, as has been found – and the finding is not disputed – the appellant provided his semen to facilitate the artificial conception of his daughter on the express or implied understanding that he would be the child's parent; that he would be registered on her birth certificate as her parent, as he is; and that he would, as her parent, support and care for her, as since her birth he has done. Accordingly, to characterise the appellant as a “sperm donor” is in effect to ignore all but one of the facts and circumstances which, in this case, have been held to be determinative.

Sole parental responsibility

The Court is satisfied that the presumption of equal shared parental responsibility as set out in s 61DA of the Act is rebutted by evidence, being the evidence set out in these reasons, that satisfies the Court that it would not be in the best interests of X for the Applicant and Respondent to have equal shared parental responsibility for him. That is a responsibility which has been exercised solely by the Respondent since the birth of X. The Applicant is presently unaware of the specific needs of X. The communication between the Applicant and the Respondent is non-existent and the Respondent has made very clear her objection to the Applicant’s presence in the life of X. She opposes any input from him albeit he is the child’s other parent. Whilst the Applicant would be well capable of communicating in a child-focused manner with the Respondent, the Respondent has no such capacity. She remains vindictive in her attitude toward him. His refusal to allow her to use his sperm to conceive another child enraged her, despite the difficulties the parties had by then experienced in their co-parenting of X. Those difficulties included, importantly, the Respondent’s desire to, from time to time, exclude the Applicant from a relationship with X and X a relationship with his father. Any equal shared parental responsibility order would simply not be capable of operating at the present time and into the immediately foreseeable future. It might lead to further litigation. Importantly, it would not advance the best interests of X because X would be caught in the conflict between his parents. There is a potential for there to be adverse emotional and psychological consequences to X from exposure to his parents conflict as was submitted by the Independent Children’s Lawyer.[327] That potential is very real when considering the Respondent’s current anger and disdain toward the Applicant.
[327] Written Submissions of the Independent Children’s Lawyer filed 10 September 2020, [32].

Primary considerations

Pursuant to ss 60CC(2) and 60CC(2A) of the Act:-
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The consideration set out in s 60CC(2)(a) of the Act is an important one in this case given the considerable benefit to X in being able to have a meaningful relationship with not just his mother, but also with his father. There are no issues of risk of the type set out in s 60CC(2)(b) of the Act.

Additional considerations

Pursuant to s 60CC(3) of the Act, the additional considerations required to be considered by the Court, as far as they are relevant to this proceeding, are discussed hereafter and in some instances more extensively elsewhere in these reasons.

Section 60CC(3)(a) of the Act - any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

The wishes of X have not been ascertained. Given his young age and immaturity; his lack of understanding of the issues in this case; and the complete absence of any relationship with the Applicant, X’s wishes are given no weight.

Section 60CC(3)(b) of the Act - the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

The Applicant is the biological father and parent of the child X. X is now 5 years and 10 months of age. X has no current relationship with his father.
The Respondent and X share a very close bond with the Respondent describing X as “affectionate” and a “very intelligent and observant little boy”.[328] The Respondent’s evidence is that when she collects X from day care he greets her with a “big smile on his face” and gives her a kiss.[329] The Respondent has provided for X emotionally, physically and financially since his birth.

Section 60CC(3)(c) of the Act - the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; to spend time with the child; and to communicate with the child

[328] Affidavit of Ms Dara sworn 18 February 2020, [41].

[329] Affidavit of Ms Dara sworn 18 February 2020, [36.4].

The Respondent and X reside in a rented three bedroom home in V Town where X has his own bedroom. On Sundays they regularly spend the day together cooking and doing household chores which X observes and tries to assists with.[330] The Respondent has friends in the community and is involved in various groups such as the TT Charity, the UU Community Group and the VV Community Group.[331] She has also maintained friendships in U Town.[332]The Respondent encourages X to play with the neighbouring children that are his age.[333] The Respondent has made all long-term and day to day decisions in respect of X since she unilaterally ceased all time spent with between X and the Applicant.
[330] Affidavit of Ms Dara affirmed 18 February 2020, [38].
[331] Affidavit of Ms Dara sworn 18 February 2020, [22].
[332] Affidavit of Ms Dara affirmed 18 February 2020, [24].
[333] Affidavit of Ms Dara sworn 18 February 2020, [22].
When X was an infant the Applicant saw him by agreement with the Respondent. The periods of time he spent with X were short periods of time mostly in the presence of the Respondent, but occasionally not in the presence of the Respondent or any other person. Since X was approximately 8 months of age, the Applicant has been denied an opportunity to spend time and/or communicate with X and to participate in any decision-making in respect of the child.
The Applicant sought to be involved in making parenting decisions with the Respondent prior to X being approximately 8 months of age but was mindful to respect the Respondent’s decisions - she was very clearly the primary care giver of the child. The Applicant has been attempting to spend time with X for a number of years, and as set out in these reasons it was not, and is not his position, that he will be involved in the day to day care of X save to spend firstly supervised time and thereafter gradually increasing periods of time to include substantial and significant time.

Section 60CC(3)(ca) of the Act - the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child

X attends day care at OO Childcare five days per week at a cost of $143.03 per week.[334] The Respondent delivers X to the centre around 7.50am each morning and collects him around 5.10pm in the evening.[335] X is given morning tea and lunch at the day care centre.[336]
[334] Affidavit of Ms Dara sworn 18 February 2020, [34].
[335] Affidavit of Ms Dara sworn 18 February 2020, [36.4].
[336] Affidavit of Ms Dara sworn 18 February 2020, [36.3].
The Applicant did not financially support X save as set out elsewhere in these reasons, prior to the cessation of his time with X. The Applicant only submitted a child support application prior to the hearing and obtained a very low assessment from the Child Support Agency. The Respondent has in the past rejected the Applicant’s offer of financial support for X. The Respondent has almost solely maintained X since his birth. She has denied the Applicant an opportunity to fulfil his obligation to contribute to X’s support.

Section 60CC(3)(d) of the Act - 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 (including any grandparent or other relative of the child), with whom he or she has been living

It is the Respondent’s evidence that X spending time with the Applicant will have a significant adverse impact on her. The Respondent’s evidence is that there was never any definition placed on what ‘co-parent’ would mean or look like, and that had the Applicant expressed what he meant she would not have accepted his donation.[337] This was not evidence accepted by the Court. The Court finds the Applicant was very clear in his expression of desire to spend time with, and be involved with, any child born to the Respondent as a result of his sperm donation. The Respondent acknowledged the expression of that desire, and accepted that the Applicant would be involved as one of the matters which lead to their agreement to try and conceive a child. The level of antipathy and mistrust felt by the Respondent toward the Applicant needs to be addressed by the Respondent and lessened, in order to promote X’s best interests. Those are promoted by X being able to spend time with his father away from the Respondent’s care, and experience that part of his culture.
[337] Written Submissions of the Respondent filed 24 September 2020, [37].
X’s response or how he will cope with the introduction of the Applicant to him is unknown. X will be assisted in that regard by his parents’ attendance on a family therapist and by the parent’s and child’s involvement in ongoing therapy as and when necessary. The evidence of Dr C is that X’s best interests will be served by knowing his heritage and his father. He will have the presence of a supervisor at the initial reintroduction phase to assist him in coping with the reintroduction of the Applicant into his life. This is occurring when X is six years of age. He has adapted to a change of residence with the Respondent; a change in his community and a change in his day care and early learning. He is about to commence school where there will be more changes for him. The positive benefits to X of the changes in his life that will occur as a result of being reintroduced to his father are as set out in the evidence of Dr C and by an examination of a totality of the evidence in the proceeding. Those benefits are significant and overwhelmingly in the child’s best interests.

Section 60CC(3)(e) of the Act - the practical difficulty and expense of a 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

The parties do not live close to one another. Mid-week time that is not close to X’s home will not be practicable. The limited time that X will spend with the Applicant will not intrude upon X’s right to maintain personal relations, and nor will it intrude in any significant way on his living time with the Respondent. The Court accepts the submission of senior counsel for the Respondent that it should be the Applicant who is committed to the travel during the initial stage of time spent with between the child and the Applicant in order to facilitate that time and to ensure the Respondent is not further pressured financially.[338]

Section 60CC(3)(f) of the Act - the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

[338] Written Submissions of the Respondent filed 24 September 2020, [57].

The Applicant has throughout this very difficult period of time for him, sought out advice from his psychologist, Ms HH. He has taken on board the observations and recommendation of Dr C and has completed a Triple P Certificate (Positive Parenting Program). His certificate as to that completion is dated 23 November 2017. He also in November 2017, completed a course conducted by the WW Family Services known as Circle of Security. The Respondent too has undertaken and completed, on 15 August 2017, a parenting program being the LL Family Service’s ‘Group Triple P – Positive Parenting Program.[339]
[339] Affidavit of Ms Dara sworn 18 February 2020, [40]; Updated expert report by Dr C dated 17 July 2020, paragraph 43.
The Respondent has accessed social services through support groups, counselling and her area health services to help her fulfil her role as a single parent to X.[340]
[340] Written Submissions of the Respondent filed 24 September 2020, [58].
Both parties are able to assist X in his academic progress and in the psychological and emotional development of his intellectual needs. The Respondent shows no insight into the needs of X which are promoted by knowing his father, and being afforded an opportunity to spend time with him and to develop a meaningful relationship with him. The Applicant understands the importance of establishing this bond for X’s psychological and emotional development.

Section 60CC(3)(g) of the Act - 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

The Respondent is religious and X is being raised within that faith. The Respondent submitted it should be of some concern to the Court that neither the Applicant nor his partner made reference as to how they intended to ensure X’s faith. The Applicant accepts that X is religious and the Court is satisfied that he will do that which it is necessary to enable X to observe his faith, as he has done before to the limited extent possible.

Section 60CC(3)(i) of the Act - the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

The Respondent will continue to fulfil her responsibilities as a parent. The Applicant will support the Respondent in her role as X’s primary caregiver and make contributions to X’s welfare which he has long sought to make. His attitude to X is one of a father who desires to provide support being emotional, physical and financial, to advance the best interests of X.

Section 60CC(3)(l) of the Act - 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

The Applicant understands that initially it will be necessary for him to spend time with X in a supervised setting and at a location as close to X’s home as possible. He indicated in his evidence that he was prepared to travel to V Town and secure rental accommodation for the purpose of spending time with X should the Court make such order. He has made enquiries of various community centres including the B Contact Centre which provides a supervision contact service.
An order for X to spend any time with the Applicant is opposed by the Respondent. The Applicant has not wavered as the years have passed in seeking orders to allow X to know his father and spend time with him. The orders shall include support structures in the form of family therapy; supervision; supervised changeover; and a slow reintroduction of X to his father which should avoid the institution of further proceedings and which promote the best interests of X.

Conclusion

The Applicant was a credible and impressive witness. His evidence was given accurately. He was a generous man who approached the issues raised by the litigation with a calm and thoughtful demeanour in circumstances where, through no fault of his own, a lengthy period has passed wherein his son has not had the opportunity to have a loving relationship with him, indeed any relationship. The Applicant was respectful toward the Respondent, despite the Respondent’s poor conduct toward him.
The Respondent was not always credible in the giving of her evidence. Rigid and dictatorial in her approach, she did not hesitate to be untruthful where it served her purposes - her evidence as to the Applicant and her signing of the birth registration being one example. The Respondent had a number of reasons for her ceasing of time spent with between the Applicant and X. She wished at various times during the course of the pregnancy, and following the birth of X, for the Applicant to leave his committed de facto relationship with Ms G and to enter a permanent relationship with her. He gently, politely and without causing any embarrassment to the Respondent, indicated that he loved Ms G and had always made that very clear. He was open about it when the parties first communicated with, and then met, each other. The Applicant never deviated from that position. That was difficult for the Respondent, as she developed feelings for the Applicant, and was upset by the situation. But without insight into the advancement of X’s best interests, she then sought to exclude the Applicant from the life of she and X. The catalyst however, for the Respondent’s ultimate cessation of X’s time with the Applicant, was the Applicant’s refusal to allow the Respondent to use his sperm to achieve a second pregnancy. That action of the Applicant, which was a considered one by him, and not a surprising one given the volatility in the relationship between X’s parents, incensed the Respondent. It signalled the end of any earlier agreements, earlier statements and conduct which promoted X’s relationship with his father. Without Court order, X will never know the Applicant, never have the benefit of all that his father can offer him in his life.
Ms G was also a credible and impressive witness. Sensitive to the situation in which the parties and she found themselves, she supported the Applicant throughout. She still does. She was not critical of the Respondent. Ms G understood the responsibility of parenthood having two sons of her own. She impressed as practical, warm and capable of being involved and/or standing back as the circumstances required. She bore no ill will toward the Respondent. X would come into contact with her through any opportunity for him to develop his relationship with his parent and biological father. Ms G would be a positive influence during those times.
Dr C is an experienced and well-known clinical psychologist having set out her curriculum vitae and relevant employment history in both of her reports, the first dated 10 July 2017 and the second on 16 July 2020. In both instances, her recommendations were not dissimilar, that is to say, X should spend time with the Applicant in a structured way the particulars of which are clear from the recommendations contained in those reports, and essentially subsequently found in the orders sought by the Independent Children’s Lawyer in a document provided to the Court on the last day of the hearing. On 29 October 2019, an order was made that the Applicant pay the costs of Dr C’s second report in the first instance. The Applicant did so, allowing the release of the report to the parties and its subsequent introduction into evidence before the Court. The Respondent has never been prepared to accept the recommendations of the expert witness. The Respondent had the benefit of both reports from Dr C, the first since July 2017 and the second prior to the hearing. Despite the Respondent appearing to assert that her psychological state would be adversely affected by X having an opportunity to know and spend time with his father, no attempt was made by her to challenge the reports by the making of an application for an adversarial expert and nor did she adduce evidence of her own psychological state (if one existed). There was no evidence by an expert and/or treating doctor or like independent evidence as part of the Respondent’s case that supported that assertion as submitted by senior counsel for the Applicant. The Court has found Dr C’s evidence to be evidence on which it can rely, as given by an impressive single expert witness. Dr C will no doubt issue a fee note for her attendance at Court. The parties should now be responsible for her total costs on an equal basis, and accordingly, an order to that effect will be made. The evidence as contained in the parties’ respective Financial Statements is evidence of each parties’ ability to meet this payment. Neither party is in receipt of legal aid.
The Applicant seeks for X’s name to remain on the Airport Watch List pending further order of the Court, in particular given the Respondent’s comments to him that she would take X and go back to Country Q and not return to Australia. Country Q is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (1980). As submitted by senior counsel for the Applicant, the Respondent has a profession which could be exercised in any jurisdiction in the world. She has no other family in Australia and might seek to depart the jurisdiction without notice to the Applicant. The Independent Children’s Lawyer did not seek an Airport Watch List order but rather sought a discharge of the current order. The Court is of the view that the Applicant’s application for such an order should succeed. The Respondent is a determined person. She may act to deny X a relationship with his father despite the Court’s orders and despite her evidence that she will comply with orders of the Court. She has denied X a relationship with his father for many years. It is in X’s best interests that the relationship is allowed to re-commence and develop. That requires some geographical proximity of the parties and an ability of the Court to exercise its jurisdiction. A period of at least three years shall ensure that occurs. It may be necessary thereafter to extend such an order, but there may be some positive progress in the parties’ communications in that time. They both love and wish the best for X. It is a matter to be re-visited, but at the present time the promotion of X’s best interests requires that the Respondent be restrained from removing X from the Commonwealth of Australia.
The Respondent has also threatened to remove X from New South Wales in previous conversations had with the Applicant, and her antipathy toward the Applicant is such that she may act to X’s detriment and relocate her and X’s residence to a place in Australia where it is not practicable for X and his father to re-establish and promote their relationship. It is in the best interests of X that the Respondent be restrained from unilaterally removing X from not only the jurisdiction of the Commonwealth, but also to a place beyond a radius of 300 kilometres from the geographical location of the Applicant. Certainly such restraint is necessary during the period of time when a re-introduction between the Applicant and X is occurring, and during the further period of time when there is an establishing of that relationship, which is so important to the advancement of the welfare of X.
The Independent Children’s Lawyer did not seek that the Applicant have telephone communication with X on the basis that such communication may be too disruptive to the Respondent in her household. Whilst that means of communication should not occur immediately, it is a necessary means of communication for frequent connection between X and his father, given their geographical distance apart, and one that will promote X’s best interests in the future. It is a matter for the Applicant and Respondent to work out the logistics in respect of those calls, such that they will not present as too disruptive to the Respondent.
The Independent Children’s Lawyer and the Applicant sought costs in this proceeding. Ordinarily each party shall pay their own costs. Costs are a discretionary matter for the Court. The Court is not inclined to make a costs order for one party against another but is open to hearing submissions as to this matter. The Court suggests the parties consider this aspect of the proceeding, and notify the Court as to their ongoing respective positions in due course.

I certify that the preceding two hundred and eight (208) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hartnett delivered on 11 December 2020.

Associate:

Date: 11 December 2020