Mizushima & Crocetti (No 3) - [2024] FedCFamC1F 542

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mizushima & Crocetti (No 3) [2024] FedCFamC1F 542

File number(s): SYC 4694 of 2020

Judgment of: CURRAN J

Date of judgment: 15 August 2024

Catchwords: FAMILY LAW – PARENTING – Where the applicant seeks declarations as to parentage – Where neither party is biologically related to the children – Whether the applicant is a parent – Consideration of s 60H – Whether the parties were in a de facto relationship at the time of conception – Whether the applicant is a parent pursuant to s 69R- Where the respondent contends that the presumption of parentage is rebutted by the applicant’s coercive and controlling conduct – Consideration of coercive and controlling behaviour – Where the presumption under s 69R has not been rebutted – Where it is found that the applicant is a parent according to Masson v Parsons – Whether the respondent should be permitted to relocate with the children to the UK – Whether relocation in the best interests of the children – Where relocation not permitted

Legislation:
Family Law Act 1975 (Cth) ss 4AA, 4AB, 60CC, 60H, 61D, 61DAA, 61DAB, 65C, 69R, 69U, 102

Family Law Regulations 1984 (Cth) reg 12C

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.10

United Nations Convention on the Rights of the Child (1989) Art 7,8,9

Cases cited:
Baker & Landon (2010) 238 FLR 210

Bernieres & Anor v Dhopal & Anor (2017) 57 Fam LR 149

Carter & Wilson [2023] FedCFamC1A 9

Ellis & Murphy [2018] FamCA 468

Fairbairn v Radecki (2022) 275 CLR 400

Illgen & Yike [2018] Fam CA 17

Jones v Dunkel (1959) 101 CLR 298

Keaton & Aldridge [2009] FMCAfam 92

Lynam v Director-General of Social Security (1983) 52 ALR 138

Masson v Parsons (2019) 266 CLR 554

Olivier & Olivier [2020] FamCA639

Ramzi & Moussa [2022] FedCFamC2F 1473

Tinashe (2021) 62 Fam LR 561

U v U (2002) 211 CLR 238

Zahawi & Rayne [2016] FamCAFC 90

Division: Division 1 First Instance

Number of paragraphs: 468

Date of hearing: 15-24 May 2024 and 25 June 2024

Place: Sydney

Counsel for the Applicant: Ms Gillies SC with Ms Shea

Solicitor for the Applicant: Steiner Legal Pty Ltd

Counsel for the Respondent: Ms Wallace

Solicitor for the Respondent: Legal Aid NSW

Counsel for the Independent Children's Lawyer: Ms Bromberger

Solicitor for the Independent Children's Lawyer: Russell Kennedy Lawyers NSW
ORDERS

SYC 4694 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR MIZUSHIMA

Applicant

AND:
MS CROCETTI

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

15 AUGUST 2024

THE COURT ORDERS THAT:
Parentage
1.THE COURT DECLARES THAT Mr Mizushima, born 1962, and Ms Crocetti, born 1962, are the parents of Y and X, both born 2018 (“the children”).

Parental Responsibility
2.The respondent shall have sole decision making responsibility for all decisions concerning major long term issues as defined in Section 4(1) of the Act effecting the children, except in respect of the children’s names.
3.In making the decisions for the children the respondent will:
(a)Provide to the applicant, via email, details of any major long term decision she intends to make for the children, including any information provided by the school, or medical professional, or any other third party that the mother has used in considering the decision giving the applicant 14 days to consider and provide his view;
(b)Take into consideration any views expressed by the applicant, which will be expressed by the applicant in writing; and
(c)Inform the applicant of the decision that has been made within 14 days of making such decision.

4.Each party will be responsible for making day-to-day decisions concerning the care of the children when the children are living with them or spending time with them.

Live with
5.The children shall live with the respondent in Australia.

Time with
6.The children shall spend time with the applicant on a graduating basis as follows:
(a)For a period of 3 months following the making of these Orders in a two-week cycle as follows:
(i)Each Wednesday from the conclusion of school until 7.00pm with the applicant to provide the children dinner;
(ii)Each alternate weekend on Saturday and Sunday from 9.00am until 5.00pm;
(iii)Each alternate Friday from the conclusion of school until 7.00pm with the Applicant to provide the children dinner, and this Friday is to occur on the Friday of the fortnightly cycle that is not immediately before the children spend Saturday and Sunday with the applicant;
(iv)In the event any of this 3 month period takes place over a school holiday the time will remain the same however time on the Wednesday and Friday will be extended to commence at 9.00am on those school holiday days.

(b)For a further period of 6 months after the conclusion of the period set out at order 6(a) the children spend time with the applicant as follows:
(i)Each Wednesday from the conclusion of school (or if a non-school day then from 9.00am) until the commencement of school the following day (or 9.00am if not a school day);
(ii)Each alternate weekend from 9.00am on Saturday until 5.00pm on Sunday;
(iii)Each alternate Friday from the conclusion of school until 7.00pm with the Applicant to provide the children dinner, and this Friday is to occur on the Friday of the fortnightly cycle that is not immediately before the children spend the weekend with the applicant;
(iv)In the event any of this 6 month period takes place over a school holiday the time will remain the same however time on the Wednesday and Friday will be extended to commence at 9.00am on those school holiday days.

(c)On the conclusion of the period provided for in order 6(b) and continuing thereafter the children spend time with the applicant as follows:
(i)During school terms:
A.Each Wednesday from the conclusion of school (or if a non-school day then from 9.00am) until the commencement of school the following day (or 9.00am if not a school day);
B.Each alternate weekend from the conclusion of school on Friday (or if a non-school day then from 9.00am) until the commencement of school on Monday (or 9.00am if not a school day).

(ii)During shorter school holidays, noting the term time arrangements are to be paused over these periods;
A.For the first 3 shorter school holiday periods the children spend time with the applicant for a four night block in each school holiday period at times to be agreed and if not agreed then from the first Wednesday of the school holiday period at 9.00am until 5.00pm the following Sunday;
B.During the shorter school holiday periods that occur after the conclusion of the time set out in order 6(c)(ii)(A) and continuing thereafter for one period of seven nights in each of the shorter school holiday periods at times to be agreed and if not agreed then from 9.00am on the first Monday after the commencement of the school holiday period until 9.00am the following Monday;

(iii)During the Christmas school holiday periods, noting the term time arrangements are to be paused over these periods:
A.In 2024/2025 the children spend time with the applicant for three four-night block periods at times to be agreed but if not agreed then from 9.00am Wednesday to 5.00pm Sunday in weeks 2, 4 and 6 of the school holiday period;
B.In 2025/2026 and in each year thereafter the children spend block time with the each party for half of the school holidays at times to be agreed, and failing agreement with the respondent for the first half in even numbered years and for the second half in odd numbered years, and with the applicant in the second half of even numbered years and the first half of odd numbered years.

7.For the purposes of order 6(c)(iii)(B):
(a)All school holiday periods will be defined as commencing on the last day of the school term and concluding on the first day students are required to return to school the following term;
(b)The halfway point will be defined as 7.00pm on the last day of the first half if the school holiday period has an even number of nights, and 12.00pm on the middle day if the school holiday period has an odd number of nights; and

8.After the commencement of order 6(c)(iii)(B):
(a)The respondent is at liberty to make an election for the children to spend either the whole of the Term 1 or Term 2 holidays with her in any year, provided such an election is made in writing by no later than 1 February of that year AND in the event she makes such an election, the children will spend the whole of the Term 3 holidays with the applicant in the same year (ie. The year the election is made).

International travel
9.The respondent be permitted to take the children to the UK for two occasions in each calendar year at times to be agreed and if not agreed then:
(a)For a period of 21 nights which is to occur over the June/July school holiday period in Australia (the last week of term 2 in the event the school holiday period is less than 21 nights) provided that she elects to do so in writing and provides the applicant with such election in writing by not later than 1 February of the same year; and
(b)For a period of 21 nights in the Christmas school holiday period, provided that she elects to do so in writing and provides the applicant with such election in writing by not later than 1 July of the same year;
(i)In 2024, the respondent must elect to do so in writing and provide same to the respondent by not later than 1 September 2024, and this 21 night period will occur during the first three weeks of the school holiday period, and will include Christmas;
(ii)In 2025/2026 this 21 night period will occur during the last three weeks of the school holiday period;
(iii)Following the conclusion of order 9(b)(ii), the 21 night period is to take place during the first three weeks of the school holidays inclusive of Christmas every even numbered year thereafter, and during the last three weeks of the school holidays in every odd numbered year thereafter.

10.In respect of order 6(c)(iii)(A), in the event the respondent travels to the UK having elected to do so in accordance with order 9(b)(i) above, the applicant’s time with the children will be suspended but only in relation to those weeks where the children are overseas.

Interstate travel
11.That each of the Parties may travel with the Children interstate provided that:
(a)The travel occurs when the Children are living or spending time with that Party in accordance with these Orders, unless otherwise agreed in writing between the Parties;
(b)The Party intending to travel with the Children provides notice to the other Party prior to departure; and
(c)Prior to departure, the Party travelling with the Children is to provide the other Party with an itinerary of travel including the contact information and address of each place at which the Children will be staying, and confirmation that return flights to Sydney have been booked for both Children, including the airline, flight number and date and time of departure.

Communication orders
12.That each party encourage and facilitate telephone communication between the children and the other party whilst the children are in their care at all reasonable times and as requested by the children.
13.In the event that one party is travelling internationally with the children, the travelling party will facilitate telephone communication between the children and the non‑travelling party at all times as agreed, but no less than twice per week.

Special Occasions
14.If not already in the care of the respondent, the children shall spend time with the respondent on Mother’s day from 10.00am until 5.00pm unless otherwise agreed.
15.If not already in the care of the applicant, the children shall spend time with the applicant on Father’s day from 10.00am until 5.00pm unless otherwise agreed.
16.The children will spend time with each part at Christmas time, unless otherwise agreed, as follows:
(a)With the applicant in even years from 3.00pm on Christmas Eve until 12.00pm on Christmas day and in odd years from 12.00pm on Christmas Day until 3.00pm on Boxing Day;
(b)With the respondent in off years from 3.00pm on Christmas Even until 12.00pm on Christmas Day and in even years from 12.00pm on Christmas Day until 3.00pm on Boxing Day;

UNLESS the children are travelling overseas or interstate with either party, in which case that party will do all acts and things necessary to facilitate video communication between the children and the other party on Christmas Day.

Changeover
17.For the purposes of any changeover required by these orders it will occur as agreed, and otherwise where possible it occur at school and if not at school, the applicant will collect the children from the respondent’s residence at the commencement of his time and the respondent will collect the children from the applicant’s residence at the conclusion of time.

International travel
18.Except as otherwise provided for in these orders, for the purposes of section 65Y(1)(c)(ii), each party is at liberty to travel overseas with the children provided that:
(a)The travel occurs when the children are living or spending time with that party in accordance with these orders, unless otherwise agreed in writing between the parties;
(b)The party intending to travel with the children provides notice to the other party at least 6 weeks prior to the travel; and
(c)At least three weeks prior to departure, the party travelling with the children is to provide the other party with an itinerary of travel including the contact information and address of each place at which the children will be staying, and confirmation that return flights to Australia have been booked for both children, including the airline, flight number, and date and time of departure.

19.That any order placing the children's name on the Airport Watchlist shall stand discharged immediately upon the making of these Orders, so that the children's names are no longer on the Airport Watchlist and the parties shall do all acts and things and sign all documents necessary and as required by him or her to ensure that the children's name are removed from the Airport Watchlist.
20.The parties will each do all acts and things necessary and sign all documents to ensure that the children maintain both current Australian and United Kingdom passports at all times and will share the costs of doing so equally.
21.The respondent shall hold the children’s passports and deliver all of the passports to the applicant within 48 hours of a request by him provided that order 18 above has been complied with, or if they are required for identification purposes for the children by the applicant.
22.During any period when the children are travelling overseas with either party, the travelling party will facilitate telephone or video calls between the children and the other party at least two times per week on days and times as agreed.

Exchange of information
23.That each Party keep the other informed of their current residential address, mobile and landline telephone numbers and an available email address and advise the other Party of any change thereto within 7 days of such change.
24.That in the event either of the Children suffers a major illness or injury, or is hospitalised or involved in a medical emergency, the Party with care of the Children at the time will contact the other Party immediately, but if that is not practicable then within no later than 24 hours.
25.That each Party shall provide the other with the names, addresses and telephone number of all medical and treating professionals who treat the Children and each Party is authorised to:
(a)Receive copies of any test results, report, letters or referrals from the treating professional; and
(b)Discuss any aspect of the Children’s health, treatment or therapy with the treating professional.

26.Each Party must notify the other of any medication prescribed for the Children from time to time and provide the medication and appropriate instructions for its administration at the time of changeover to the other Party.
27.Each Party must notify the other of any diagnosed medical condition, allergy, or injury of the Children and any appropriate medical information on treatment or follow ups required at the time of changeover to the other Party.
28.That both Parties are authorised to:
(a)Liaise directly with the Children's school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the Children’s progress; and
(b)Attend all parent teacher interviews, school events and concerts and any other educational/sporting or extracurricular engagements to which parents are invited to attend.

29.That the Parties have leave to provide a copy of these orders to:
(a)The Children’s school;
(b)The Children’s treating medical practitioners from time to time, including allied health practitioners.

Parenting after separation course
30.The parties will each do all acts and things within 21 days of the date of these orders to enrol in a Parenting After Separation course.
31.The parties will each do all acts and things required to complete the Parenting After Separation course they enrolled into pursuant to order 30.

Non-denigration
32.Each party be restrained by injunction from making critical or derogatory remarks about the other party or members of their family in the presence or within the hearing of the children and must do all things necessary to ensure that no other person makes any critical or derogatory remarks about the other party or the other party’s family in the presence or within the hearing of the children.

Injunction
33.Both parties are restrained from calling the applicant any title other than “Daddy”, “Dad”, or “Father” when communicating with either of the children.

ICL Costs
34.The applicant is to pay the costs of the independent children’s lawyer as sought in the amount of $15,330.30.

ICL to explain
35.Within 7 days of the date of these orders, the parties will make arrangements for the children to meet with the independent children’s lawyer, for the purposes of explaining to the orders to them and the Court will, if possible, request that a Court Child Expert be available to meet with the children and the independent children’s lawyer to discuss the orders that were made.
36.Following compliance with order 35 above, the independent children’s lawyer shall be discharged.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mizushima & Crocetti has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CURRAN J:

These proceedings concern the best interests of the twin children X and Y (“the children”), born 2018, who are currently 6 years old. Neither party is biologically related to the children, who were donor conceived and carried to term by the respondent, who is their birth mother.
The applicant seeks a declaration that he is a parent of the children and seeks orders under Part VII of the Family Law Act 1975 (Cth) (“the Act”) in respect of parental responsibility and time and communication orders in respect of the children. The respondent seeks a declaration that she is the sole parent of the children and seeks orders for school holiday time and communication orders and for her to be permitted to relocate the residence of the children to the UK. Until part way through the final hearing the respondent sought that that the applicant spend no time with the children
As raised with the parties, and contended by the Independent Children’s Lawyer (“ICL”), the question of parentage and whether the applicant is a parent is arguably an unnecessary determination, as the applicant was previously declared a person concerned with the children’s care, welfare and development so as to give him standing in these proceedings pursuant to s 65C(c) of the Act. Notwithstanding this declaration, both the applicant and respondent sought determination of the applicant’s status as a parent. Given both parties pressed the declaration sought, much of the trial was spent on examination of the evidence relevant to this exercise. For the reasons that follow, the applicant is declared to be a parent.
More importantly, orders were sought to be made in the best interests of the children and the main dispute was limited to what time the children should spend with the applicant and whether they live in the UK or Australia. There remained a dispute as to whether the mother should have sole parental responsibility for the children and sole decision making authority in respect of all decisions concerning major long term issues as defined in s 4(1) of the Act effecting the children, or whether both parties should have such responsibility and authority.
There was no dispute that the respondent was the children’s primary attachment figure and that they should continue to live with the respondent. There was dispute at the commencement of the trial as to whether their relationship with the applicant was an important one, and whether it should be maintained. After the conclusion of the first tranche of the hearing, after the evidence had concluded but before final submissions, the respondent amended her orders sought to include time with and communication orders in relation to the applicant but maintained her application to be permitted to live in the UK with the children.
For the reasons that follow the children will live with the respondent in Australia and spend time with the applicant as set out in the orders.
BACKGROUND AND LITIGATION HISTORY
The applicant was born in 1962 and is currently 61 years old. The respondent was born in 1962 and is currently 61 years old. The parties commenced their relationship in 2003, and commenced cohabitation in 2009, in the respondent’s rental apartment in Suburb F. The respondent contends that separation occurred on 1 January 2015, and that the parties remained friends thereafter. The applicant contends that although they had a period of separation they recommenced their relationship in October 2015 until around July 2019.
Between 2004 and 2010 the parties attempted multiple rounds of IVF in Australia. In 2011, the parties travelled to Country G and commenced IVF with the applicant’s genetic material and donor eggs. By way of this IVF, the respondent became pregnant. In 2011, the respondent miscarried.
In 2012, the respondent was diagnosed with an illness. In 2012, she underwent two operations, and in 2013 she underwent other treatments.
The respondent gave evidence that, at January 2015, there were five frozen embryos with the applicant’s genetic material remaining in Country G.
In 2016, the respondent underwent IVF procedures in Country H using the applicant’s genetic material. Both parties agree that the applicant gave his consent for this procedure. No viable pregnancies resulted from these procedures.
In 2017, the respondent underwent her last IVF procedure in Country H, using the respondent’s genetic material.
In 2017, the respondent underwent two IVF procedures in Country J using donor eggs and donor sperm. By way of the second 2017 procedure, the respondent became pregnant with the children.
The children were born in 2018 at K Hospital in Suburb L.
In 2018, the children’s birth certificates were completed. The applicant’s name was placed on the birth certificates of each child.
Between early 2019 and mid-2019, the applicant and respondent travelled to the United Kingdom together with the children.
The respondent gives evidence that in mid-2019, she contacted M Family Services to arrange a mediation, but that the applicant did not respond.
In late 2019, the respondent booked the children into a residential service to help families requiring intensive support as to the parenting of their children. The respondent submits that she did this as the children had not developed a consistent sleeping pattern. For a short period, the respondent and the children attended this service.
In late 2019, the parties participated in a mediation through Legal Aid NSW. They did not reach an agreement. The respondent said she was issued a s 60I certificate on that date.
In mid-2020, the respondent and the children attended an inpatient service for families experiencing significant parenting challenges.
The applicant commenced proceedings on 14 July 2020 in what was then the Federal Circuit Court of Australia. By way of a Response to an Initiating Application filed 14 September 2020, the respondent sought different orders as to the parenting of the children, including orders permitting her relocation with the children to the UK. At that stage, there was an issue in the proceeding as to the applicant being the biological father of the children.
An ICL was appointed pursuant to orders made on 22 September 2020.
By way of orders made on 20 October 2020, the respondent and the applicant were ordered to undertake a parentage testing procedure to ascertain whether the applicant is the biological father of the children, the parties were restrained by injunction from removing, or attempting to remove, the children from the Commonwealth of Australia, and the children were placed on the Airport Watch List. By way of those orders, the matter was transferred to what was then the Family Court of Australia.
In late 2020, the respondent and the children attended a clinic for DNA testing pursuant to the orders made on 20 October 2020. By way of those tests, the children were shown to not be biologically related to the applicant.
A Child Dispute Conference occurred on 20 January 2021 by way of Microsoft Teams. A memorandum as to that conference was produced on 22 January 2021.
By way of interlocutory orders made by a Senior Judicial Registrar on 12 February 2021, the children were to live with the respondent, and spend time with the applicant for a period of three hours, twice each week.
On 18 July 2022, the respondent filed an application to be permitted to travel to the United Kingdom with the children. Consent orders were made on 18 August 2022 permitting the proposed travel and removing the names of the children from the Airport Watch List for a period in mid to late 2022, at which time their names were to be reinstated on the list. Notations made on that day indicated that such travel occurred on compassionate grounds during the COVID-19 pandemic.
The matter came before me on 3 March 2023 for case management. Pursuant to Order 1 made that day, the single Court Child Expert Ms D produced a Family Report dated 16 August 2023.
On 23 October 2023, the matter was listed for final hearing over eight days commencing on 15 May 2024.
The parties attended a Family Dispute Resolution Conference with a Registrar and Court Child Expert on 22 November 2023, and reached an in principle interlocutory agreement as to parenting matters. Orders in the terms of that consent agreement were made by a Senior Judicial Registrar on 7 December 2023, providing for interlocutory orders as made on 12 February 2021 to continue with slight variation as to the hours that the children were to spend time with the applicant and where changeover was to occur.
On 15 February 2024, the applicant filed an Application in a Proceeding seeking the appointment of Mr N as a single exert report writer. Orders were made on 16 February 2024 for the Application in a Proceeding to be listed for an interim hearing on 21 March 2024 before a Senior Judicial Registrar.
On 16 February 2024, the applicant filed an Application for Review, seeking to review the date given for the hearing of the interim application and for orders to be made for the interim hearing to be heard before 21 March 2024.
On 4 March 2024, the Application for Review was heard by Austin J. Orders were made dismissing the Application for Review.
On 12 April 2024, orders were made by consent granting the applicant leave to provide copies of material from these proceedings to Ms C, a clinical psychologist.
Pursuant to those orders on 22 April 2024, the applicant’s solicitors instructed Ms C to prepare an expert report in relation to these proceedings. Ms C did not interview any of the parties in this proceeding, or either of the children. Ms C produced her report on 30 April 2024. The applicant sought to rely on the report of Ms C pursuant to r 7.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
The parties were advised on 29 April 2024 that Ms D was unavailable to give oral evidence at the final hearing. The matter was listed for case management before me on 2 May 2024, in which the parties were unable to agree as to how to proceed in such circumstances. The matter was then listed for an interim defended hearing, which occurred before Gill J on 3 May 2024. Orders were made for Mr B to be appointed as the single expert to prepare a report as to the best interests of the children, for the costs of the single expert to be met by the applicant, and for the single expert to be cross-examined at the final hearing.
ORDERS SOUGHT BY THE PARTIES
Applicant
By way of his Amended Initiating Application filed 7 May 2024, the applicant sought a declaration that both he and the respondent are the parents of the children. The parties were given the opportunity to provide written submissions, and both included an amended minute of the orders sought.
The applicant instead of a declaration sought that the court finds that he is a parent of the children. He sought orders as to joint responsibility between he and the respondent for major long-term decisions in relation to the children, and for each of them to be responsible for making day-to-day decisions concerning the care of the children when the children are in their respective care. He sought orders as to, during school terms, the children living with the respondent, and spending time with him on an increasing basis in five stages, whereby at stage five the children live with each parent on an equal basis on a fortnightly cycle. As to the school holidays, he sought orders for the children to live with each parent on an equal basis.
Implicitly, by way of his orders as sought, the applicant opposes that the respondent be permitted to relocate with the children to the United Kingdom (“the UK”).
Respondent
By way of her Amended Response to an Initiating Application filed 6 November 2023, the respondent sought a declaration that she is the sole parent of the children. She further sought orders as to her having sole parental responsibility for the children, for the children to live with her, for the applicant to be removed from the children’s birth certificate, to remove the children from the Airport Watch List, and to be permitted to relocated with the children to the UK.
By way of her amended minute of orders annexed to her written submissions filed on 7 June 2024, the respondent sought orders for the applicant to spend time with the children in the UK and in Australia during school holidays in the event he is not declared to be a parent. The respondent also sought a new suite of orders in the event that the applicant is declared to be a parent, and the relocation was not permitted, including a graduating schedule for him to spend time with the children culminating in Wednesday afternoons and each third weekend and block time during the school holidays.
The ICL
On the final day of hearing, the ICL proposed orders. The ICL made no submissions and sought no orders in respect of the parentage orders sought. The position was that whether declared a parent or not, the applicant was a person concerned with the care welfare and development of the children. The orders sought were for periods of time the children spent with the applicant to be gradually increased but that from 2025 the mother be permitted to move the residence of the children to the UK and the applicant spend time during the holidays.
MATERIAL RELIED UPON
The applicant relied upon the following documents:
(a)His Further Amended Initiating Application filed 7 May 2024;
(b)His affidavit filed 6 March 2024;
(c)The affidavit of Ms E filed 5 March 2024;
(d)The affidavit of Dr O filed 5 March 2024;
(e)The affidavit of Mr P filed 5 March 2024;
(f)The affidavit of Mr Q filed 5 March 2024,
(g)His Application in a Proceeding filed 2 May 2024;
(h)His affidavit filed 2 May 2024.
The applicant also sought to rely on a report prepared by Ms C. That application was refused.
The respondent relied upon the following documents:
(a)Her Amended Response to an Initiating Application filed 6 November 2023;
(b)Her affidavit filed 5 March 2024;
(c)The affidavit of Ms R filed 5 March 2024;
(d)The affidavit of Ms S filed 5 March 2024;
(e)The affidavit of Ms T filed 5 March 2024.
The respondent also sought to rely on the Family Report of Ms D dated 16 August 2023. That application was refused.
The ICL relied upon the single expert report of Mr B consultant psychologist (“the Single Expert”) dated 14 May 2024.
The ICL supported the applicant’s application to rely on the report of Ms C and the respondent’s application to tender into evidence the report of Ms D. Those applications were refused.
ISSUES FOR DETERMINATION
The issues canvassed at the final hearing, and those sought by the parties to be determined by me are as follows:
Parentage
(1)Whether the applicant is a parent pursuant to section 60H(1) of the Act, and in this regard:
(a)Whether, for the purposes of section 60H(1)(a), the parties were in a de facto relationship at the time of the carrying out of the artificial conception procedure which resulted in the birth of the subject children; and
(b)Whether, for the purposes of section 60H(1)(b)(i), the father consented to the carrying out of the artificial conception procedure (noting that consent is presumed under subsection (5) unless proven to the contrary); or
(c)Whether, for the purposes of section 60H(1)(b)(ii), the father is a parent under a prescribed law (noting that the section 11 of the Status of Children Act 1996 (NSW) is a prescribed law under regulation 12C of the Family Law Regulations 1984).
(2)Additionally, or if the Court finds that the parties were not in a de facto relationship and s 60H(1) does not apply, whether the applicant is a parent by virtue of the operation of ss 69R and 102 of the Act, and in this regard:
(a)Whether the applicant is presumed to be a parent because his name is entered as a parent of the children in the NSW Register of Births, Deaths & Marriages;
(b)Whether the presumption has been rebutted; and
(c)Whether the Court should exercise discretion to accept the children’s birth certificates as evidence of their parentage in the circumstances of this case.
(3)Whether the applicant is a parent within the ordinary, accepted English meaning of the word as intended by the High Court in Masson v Parsons (2019) 266 CLR 554 at [44], and in this regard:
(a)What is a parent according to the ordinary, contemporary Australian understanding of the word?
(b)What are the factors relevant to the Court’s determination of whether a person is a parent of a child born as a result of an artificial conception procedure?
Parental responsibility
(4)Whether it is in the best interests of the children for the parties to have joint responsibility for making decisions about major long-term issues concerning the children, or for the respondent to have sole responsibility.
(5)Whether the applicant perpetrated family violence against the respondent within the meaning of s 4AB.
Parenting orders sought
(6)What parenting orders are in the best interest of the children, and specifically:
(a)What time should the children spend with the applicant having regard to the best interests considerations as set out in s 60CC(2) including:
(i)What care and time arrangements would best promote the safety of the children; and each person who has care of the children;
(ii)What care and time arrangements best promote the developmental, psychological, emotional and cultural needs of the children;
(iii)Whether both parties have the necessary capacity to provide for the developmental, psychological, emotional and cultural needs of the children;
(iv)Is there a benefit to the children in being able to maintain a relationship with the applicant and his extended family?
(b)Whether it is in the best interests of the children for the respondent to be permitted to relocate their residence permanently to the UK and to spend time with the applicant during holidays as sought by the respondent.
(7)For the purposes of s 60B(b), what long term parenting arrangements best give effect to the Convention on the Rights of the Child, and in particular, Articles 7, 8 and 9.
SECTION 69VA – DECLARATIONS OF PARENTAGE
As set out in the applicant’s submissions s 69VA has no application in this case, as biological parentage is not an issue in these proceedings. The respondent sought a declaration that the respondent was the sole parent pursuant to s69VA. I decline to make the declaration sought because neither of the parties are biological parents.
CONSIDERATION OF S 60H(1)
The determination of whether or not the applicant is a parent of the children by reference to s 60H of the Act was in dispute.
If I am satisfied that the parties were in a de facto relationship at the time that artificial conception procedure was carried out; and the parties consented to the carrying out of the procedure then the applicant is the "other intended parent".
The legislation makes it clear that if those are my findings the applicant will be deemed the other intended parent notwithstanding neither parent is a biological parent of the children.
Were the parties in a defacto relationship at the time the artificial conception procedure was carried out?
The applicant bears the onus of proof of establishing the parties were in a de facto relationship at the relevant time. The existence or non-existence of any asserted circumstance is not determinative of this issue and no one finding of any fact is required to conclude that a relationship was a de facto relationship. A finding as to whether parties were in a de facto relationship the time of the artificial conception procedure does not involve the exercise of discretion, rather it is made on the findings of fact which form the basis for considering the composite picture of all the facts and circumstances.

The indicia for making a finding of the existence of a de facto relationship is as set out in s 4AA of the Act:
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a)   the persons are not legally married to each other; and
(b)   the persons are not related by family (see subsection (6)); and
(c)   having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a)   the duration of the relationship;
(b)   the nature and extent of their common residence;
(c)   whether a sexual relationship exists;
(d)   the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)   the ownership, use and acquisition of their property;
(f)   the degree of mutual commitment to a shared life;
(g)   whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)   the care and support of children;
(i)    the reputation and public aspects of the relationship.
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
As adumbrated in Fairbairn v Radecki (2022) 275 CLR 400, it is a question of fact to be determined, having regard to all of the factors enumerated above. It is after consideration of those factors that the composite picture can be know. As said in the Federal Court in Lynam v Director-General of Social Security (1983) 52 ALR 138 at 131:
Each element of a relationship draws its colour and significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate the factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration.
As such, the task for the Court is to assess the factors as set out in s 4AA and form a composite picture of the relationship of the parties as at the time of the artificial conception procedure, being late 2017.
I must consider the nature of the relationship as at the time of the procedure in late 2017. For the purposes of this determination, it is not in dispute that the parties had previously been in a de facto relationship. There was also evidence that post-dated the conception procedure which has some relevance as it might inform the nature of the parties' relationship at the time of the procedure. In my view, the events leading up to and prior to the successful embryo transfer, and events that occurred shortly thereafter, should be given greater weight as they are temporal and are likely provide a more accurate picture of how the parties' relationship should be characterised at the relevant date, than events that are later in time.
The duration of the relationship
It is agreed that the parties first commenced a relationship in 2003.
The respondent contends that final separation occurred on 1 January 2015. The applicant agreed that there was a separation at this time but contended that he and the respondent began to slowly reconcile in late 2015, and they were again in a de facto relationship by early 2016 and at the very latest by the time the respondent was undergoing IVF treatment in mid-2016 in Country H.
The period of de facto relationship claimed by the applicant is from at least mid-2016 until mid-2019, being a period around three years. There is an agreed period of de facto relationship of approximately 12 years, up to January 2015, however whether or not there existed a de facto relationship at the relevant time for the purpose of the presumption in s 60H(1)(a) applying, will be informed by the findings of the relevant below indicia. The only relevant date is whether they were in a de facto relationship in late 2017.
The nature and extent of their common residence
It is agreed that the parties lived together from 2009 until January 2015 in the respondent’s rented accommodation in Suburb F. During this period the applicant maintained a separate residence in Suburb U. It is the respondent’s case that when she returned from the UK at the end of 2015, that most of the applicant’s belongings had been removed from the Suburb F apartment, save a few of his belongings that she put in a box and took to his home. She contended that she has not lived with the applicant since that date, and at all times since that date, she has considered them to be separated.
Ms R was a witness relied on by the respondent. Her evidence was that she lived with the respondent from early 2015 until late 2015 and she did not see the applicant stay over during that time.
The respondent’s evidence is that from early 2016 until mid-2017 she had a flatmate, Ms V. Ms V was not called as a witness.
The respondent’s witness, Ms T, is her relative. She lived with the respondent at her home in Suburb F from mid-2017 until late 2017 whilst she was in Australia on a working holiday visa from the UK. She gave evidence about seeing the applicant come to the house two or three times and spend time with the respondent, but that he did not stay overnight.
The applicant’s said he “gradually” moved back into the Suburb F property from late 2015. When asked to clarify this evidence in cross-examination he said he started staying nights there over a long period of time and those nights increased. His evidence, both in his filed affidavit and orally, was quite general and lacked specificity in respect of the frequency with which the parties stayed with each other, and lacked detailed evidence in respect of specific indicators of the parties residing together as he contended. His evidence was that he kept business clothes, a dressing gown and a shaver there. There is little evidence that there were other belongings or furniture or personal effects belonging to the applicant in the respondent’s home. This evidence supports that he stayed from time to time but does not support a significant extent of common residence.
Ms T’s account of not recalling him staying over is not inconsistent with the evidence of the applicant that he tended to spend less time at Suburb F when the respondent had guests or flatmates. He said he began to stay at his home in Suburb U more often during the period when the respondent was travelling overseas to have embryo transfers in 2016 and 2017, and at times when there were visitors and flatmates staying at Suburb F, as it became “quite squishy.”
The respondent travelled overseas in 2016, and in 2017, without the applicant.
The applicant was in another country for a sports event at the time of the children’s conception via IVF procedure in Country J. Mr P, the applicant’s friend who was a witness in his case was with the applicant in another country in late 2017, following the sports event, when he says the applicant told him he was about to become a father.
Mr P was cross-examined about whether he understood the parties to be living together at this time, and his evidence was unequivocally yes, that they were in a relationship at all times he has known them other than a six to eight month separation. He gave evidence of regularly hearing the “back end” of phone calls wherein the applicant would call the applicant “darling” and he would hear the applicant discussing the menial aspects of life such as “I’ll get some milk tonight, darling.” Evidence of overhearing part of a conversation is something to which I afford little weight as the full context is being assumed or inferred.
He gave evidence that there was a 10 year period where he travelled to Adelaide on a regular basis, at times weekly, and he saw the respondent regularly in the airport business lounge and often chatted to the respondent. He recollected clearly the six to eight month period when he says the parties were separated as distinct from when they had renewed their relationship, saying that he recalled during the period of separation that the parties used him as a “conduit” to swap information. His evidence was robustly given.
His impression and the basis upon which he was of the belief that the parties were in a relationship was what he was told, what he heard of part conversations, and what he inferred. He did not speak of visiting Suburb F until the children were born but recalled dropping the applicant to Suburb F after evenings out at times.
The applicant’s other witnesses, his relative Dr O and his mother Ms E were honest and credible witnesses who were both thoughtful and direct in their evidence which I accept. Both gave evidence that they believed the parties were in a relationship in 2017. Dr O did not have any discussion with the parties as to the status of the relationship, and Ms E accepted that she may not have been aware of the status of her son’s relationship at the time of the procedure.
I find that on the balance of probabilities it is likely the applicant spent some time at the respondent’s residence at Suburb F. He was observed there on several occasions by Ms T and was dropped home by Mr P. He may have had some belongings at that house around the time. However, given the state of the evidence, namely that the respondent had flatmates throughout 2017 including her relative Ms T, and that the parties were both travelling overseas throughout the year, I cannot find on the evidence that the parties were sharing a common residence at the Suburb F property in late 2017.
However, that of itself is not exclusive of a finding that the parties had a shared life, see Keaton & Aldridge [2009] FMCAfam 92 at [67]. Indeed, the evidence of both parties is that the applicant effectively maintained both residences at the earlier time when it is agreed that they were in a de facto relationship.
The applicant said he moved back in on a fulltime basis to the Suburb F property shortly before the birth of the children, and lived there until July 2019. The respondent’s evidence is that he stayed a few nights per week after the children were born. The evidence of both parties is that they alternated sleeping in the children’s room.
The parties’ shared a room during a trip to the UK with the children from early 2019 until mid‑2019.
The respondent’s evidence is that following July 2019 she continually asked the applicant to give her back the key to the unit at Suburb F, and that in late 2019 she had the locks changed. The applicant agrees that the parties were not in a relationship after July 2019.
The relevance of the periods of cohabitation well after the time of the artificial conception procedure are given little weight in the determination of whether the parties were in a de facto relationship at the time of the procedure. Although evidence of matters which occurred after the date of conception may still be relevant to an aspect(s) of the relationship at the time of conception, I do not place significant weight on the arrangements that were in place after the birth of the children because both parties agree that the arrangements and circumstances changed after their births.
Whether a sexual relationship exists
The parties give little evidence in relation to this factor. It is agreed that, at times the respondent contends the parties were not in a de facto relationship, they went away together and shared a room or tent or bed but she says they were merely friends. The respondent gave evidence that there was not a sexual relationship although on one occasion they attempted to have a sexual relationship but that it did not eventuate. She was certain it was not in some locations but could not recall where it was. The applicant gave evidence that was not in dispute that he recalled the respondent burning incense on an occasion when they were sexually intimate and this was not disputed. The applicant maintained his evidence that during the relevant period there was a sexual relationship.
There is not sufficient evidence before the court that would allow me to make a finding on the balance of probabilities that a sexual relationship did exist.
The degree of financial dependence or interdependence, and any arrangements for financial support, between them
The parties did not intermingle their finances.
The respondent paid for all of the costs of the IVF treatment, including that which was undertaken during the agreed period of relationship, although the applicant suggested he had repaid her and considered they were “square”. The parties did not share a joint bank account.
The applicant said he assisted the respondent with her rent on occasion, but the respondent states that rather than rent this was repayment of the money that she had expended on IVF. There is no evidence upon which I can find any funds were paid and nothing to persuade me that payments made should be characterised in a particular way as either repayment for IVF expenses or rent.
There is not sufficient evidence to find, nor was it pressed, that there was any notable degree of financial interdependence or arrangements between the parties. However, the parties’ financial independence was not a feature of their prior de facto relationship and accordingly I give little weight to this consideration as an indicator that the parties were or were not in a de facto relationship.
The ownership, use and acquisition of their property
The parties did not own or acquire any property together.
The degree of mutual commitment to a shared life
It is uncontroversial that, despite the status of their relationship, the parties were together committed to the endeavour of conceiving and raising a child together from 2003 until at least early 2017.
The respondent acknowledged that she continued to try to conceive a child with the applicant using embryos created using his genetic material until early 2017, that is, after her contended date of separation in January 2015.
There is evidence of the respondent’s commitment to a shared life together in declarations that she made to the applicant in correspondence as set out below.
In mid-2016, after the period she contended that they separated, the respondent wrote a letter to the applicant titled “Our child”. The letter details the history of the parties’ relationship including “our relationship spans over more than 12 ½ years” and “these past four years have been particularly challenging what with my health scare, your political aspirations, and then you being unfaithful to me, which hurt me deeply.” The letter also declares:
If I am blessed with the gift of a beautiful child, our child, then I want you to be a part of its life. Every child needs its mum and dad.
…
[The applicant] know that where ever I am in the world you will always have shared access to our child.
…we would share our child if our relationship was such that we were not together.
The applicant considered that this letter indicates a commitment to a shared life together in the future. He says this illustrates that there was an intention to raise a child with him at the time of undergoing IVF procedures in 2017 and throughout the course of her pregnancy in 2018.
In mid-2017 the respondent sent a message to the applicant which said: “Hello, I have tried calling you but you’re not online. I have a early tomorrow so will call you in morning later. Not sure what time you leave the resort for your ocean adventure. Love you [applicant]. Xxxx”
In mid-2017, the respondent sent a message to the applicant which said: “Hi, not sure what happened we got cut off. Good to talk to you [applicant]. Miss you too. Talk later. Nighty night. Xxxx”.
In mid-2017, the respondent sent a message to the applicant which said: “Hello, I’m here arrived last night after a long trip. Just going to clinic now for appointment. Won’t have wifi again until later. Enjoy your dinner, hope your enjoying the conference. Talk later. Xxx”.
On the following day, the respondent sent a message to the applicant which said: “Hello. OMG here now at clinic waiting. Fingers n toes crossed. Xxx talk later.”
On the following day, the applicant sent a message that said “How are you going”, to which the respondent replied “All done. Easy transfer. Just had acupuncture and now lying down at clinic for couple hours. Will talk tomorrow. Xxxx [lips].”
In late 2017, the respondent sent a text message to the applicant which read: “Hi, thank you for calling me earlier. I feel a better now. Will talk in the morning. Love you [applicant]. Xxxx”.
In late 2017, the following exchange of messages took place between the parties:
[Respondent]:
Give me a call when you’re back.
How are you. Hope you’re having a good day. It’s my big day tomorrow. Wish me luck. [kiss] [flower] [flower] [heart].
[Applicant]:
Good luck tomorrow [heart] [heart]
Talk soon [smiling face]
What time are you going there?
I’m thinking about you xx
Not much wifi here so txt me and I’ll find some to skype [smiling face]
It’s 5pm here now What time is it there?
[Respondent]:
Hello, there was a delay in me receiving your message just got it. I’m waiting at clinic now awaiting procedure. So can’t talk now. Will talk tonight. Hope your having a nice time. Xxx
Just waiting for procedure so can’t talk right now. Will try you in couple of hours. Xx
[Applicant]
Txt me on +………. Afterwards [smiling face]
In early 2018, the respondent sent the applicant a message which read:
Hi [applicant], just wanted to let you know this afternoon had more bleeding and feeling very unwell so came to […] emergency department now waiting to see Dr. PLEASE DO NOT trouble your parents as they have enough to worry about with themselves. [Ms W] is away at the moment. I will keep you posted. Xxxx
Later the same day, the respondent sent the applicant a message which read:
Yes your on holidays. Don’t stress yourself its not worth it […]. Xx
Enjoy as life will be very busy sooner than you think.
In early 2018, the respondent sent the applicant a message which read:
In hospital bad headache, vomiting high blood pressure. They are worried I may have had a bleed to brain. Sorry to trouble you. Just need to tell someone. My mum knows. Wkll have mri in morning. Xx
The respondent contended that:
affectionate text messages are not indicative, either in isolation or as part of a whole, of the parties being in a de facto relationship. The respondent’s explanation as to the nature, frequency and form of such communications is consistent with two people who have had a significant relationships history involving several IVF attempts and failures. It may also be indicative of two people who do feel quite deeply for each other. It is not inconsistent with the respondent’s evidence under cross-examination that she was unable to articulate the nature of her relationship with the applicant.
I reject the contention that the frequent and affectionate text messages at this time can simply be dismissed in the way suggested. They form contemporaneous evidence of communication that is both affectionate and regular at the time immediately prior to and after the procedure and this forms part of the composite picture.
The correspondence is a pattern of keeping the applicant informed and involved in her life and the progress of the embryo transfer. There is also communication around this time about the respondent’s health concerns after the transfer, including concerns about not causing worry to his parents, which points toward the parties being committed to a shared life as their families are intertwined.

It was submitted by counsel for the applicant by way of detailed written submissions that the applicant’s involvement during the pregnancy, the respondent sending the ultrasound to the applicant, his presence at the birth of the children at hospital as the respondent’s support person, the involvement of his family at the hospital at the time of their birth, and suggesting the surname of the children are indicia which support the parties continued to have a commitment to a shared life. I am in no doubt as to the significance of the identified factors in respect of supporting a finding that the parties had, at least at some stages, a commitment to having a child together and a commitment to be parents.
In some instances, a commitment to having a child together could be seen as a compelling indicator of a commitment to a shared life, but that is not necessarily the case. Indeed in the “Our child” letter, the respondent identifies a commitment to co-parenting even if the parties are not in a relationship.
I accept that many of these factors support a finding that the parties had a mutual commitment to parent a child together, and they lived out that mutual commitment for the first two years of the children’s lives. However, many of the arrangements and circumstances relied on to find that the parties were in a de facto relationship as at late 2017 arose well after the time of conception and do not persuade me that they are indicative of a finding that the parties had a mutual commitment to a shared life at the relevant time of conception in late 2017.
Although finely balanced I am not satisfied that the evidence supports a finding that the parties had a commitment to a shared life in the period leading up to and at the time of the procedure in late 2017 for the reasons that are subject to the analysis above.
Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship
This factor does not apply.
The care and support of children
There were no children of the relationship as at the time of the children’s conception via the successful IVF procedure.
It is agreed that the applicant assisted with the care of the children at the hospital and after their discharge. The respondent agrees that the applicant stayed at her home three to four nights each week and slept with the children overnight to enable her to rest. It is also not in contest that the applicant looked after X overnight while Y was in hospital with the respondent for her surgery in 2018.
This factor, like others, demonstrates a commitment to co-parenting and do not weigh in favour of a de facto relationship existing between the parties, although it goes to informing the composite picture of their relationship at the time of the children’s conception and just after birth.
The reputation and public aspects of the relationship.
The submission of the respondent was that the reputation and public aspects of the parties’ relationship was “at best, mixed.” I agree.
The submission of the applicant was the reputation and public aspects of the parties’ relationship show the extent of the parties’ mutual commitment to a shared life and in particular shared parenting at the time of conception.
Photographs were tendered and marked as Exhibit 33 which depicts the parties posing arm in arm together and with friends in March 2016. The parties are close together and holding one another. The respondent said that this photograph was taken at a time when they were considering rekindling their relationship but that they did not.
In early 2016, the parties spent the day together at the beach, after which the applicant went out to a local pub. The respondent says that the applicant told her that she could not come. The applicant said he went to the pub and that another woman called him whilst he was on his way there, and he invited her to join him. He says that he was socialising with a group of people, including the woman who had called him. At the time the respondent came to the pub he was having a private conversation with the woman who had called him but was still part of the larger group. The respondent upon arrival confronted the applicant for being with another woman, left the pub, then returned and slapped him across the face.
These facts were largely agreed however the respondent maintained there was no relationship at this time. Her response in confronting the applicant, leaving the venue then returning to slap him across the face, is a gesture supportive of the conclusion that the respondent considered she was in a relationship with the applicant. It, however, is not inconsistent with her evidence that they were considering reconciling at the time.
The following day, the applicant sent an email to the respondent’s close friend, Ms R, which said amongst other things: “I love [the respondent] very much and I worry about her all the time. She is a wonderful person and I want to make her happy if I can, she just misunderstands me.”
A few days later, Ms R replied to the applicant’s email and said:
You abused her trust. [Ms Z] told me you have taken her to [the pub] and that you said you were not in relationship with [the respondent] and everything else, its not about the women it’s your lying and deceit and keeping yr options open, and being totally disrespectful of her.
Ms R accepted that she was angry when she sent the email because she believed that the parties were, at the time of what she saw as his deception, in a relationship. There is no other explanation for the email from early 2016 which expressed anger at what she perceived as the applicant breaching the respondent’s trust. This supports the applicant’s case that the public reputation was that the parties were in a de facto relationship at that time.
However, when the applicant replied to Ms R two days later he said ‘it’ was one of the reasons he was not in a relationship with her stating:
It is probably one of the reasons I am not in a relationship with her. I haven’t been “in” a relationship with [the respondent] for a long time and have been her friend and been seeing her a lot more lately, I will always love her because she is a nice person and we have been through a lot together…
I don’t know if I can have a relationship with her for a few reasons that are quite personal between us. I have cut off a other options I have had (rather than leaving them open as you have said) over the last 6 months so I can concentrate on what I should do and it has been a difficult time for both of us.
An audio recording of an argument between the applicant and the respondent was tendered and marked as Exhibit 21. At 7:50 the following exchange occurs:
Respondent: I would have got to this point, because I was doing it on my own, [applicant].
Applicant: Look [respondent] you wouldn’t have done it on your own without my support.
Respondent: I didn’t have your support.
Applicant: You did.
Respondent: I wasn’t even in a relationship with you.
Applicant: [Respondent] you know…
Respondent: I wasn’t even in a relationship with you
Applicant: Yeah, that’s, that’s true, but you know we had them because we organised for 10 years to have them.
The email to Ms R by the in early 2016, together with his response during the audio recording both support the conclusion that the applicant did not consider the parties were in a relationship at the time.
The respondent gave evidence that she spent Christmas of 2016 with the applicant’s family. The applicant says they shared a bed and a room at a motel. There was a photo taken at this event where the respondent was sitting on the applicant’s lap. As to that occasion she gave the following evidence:
73.I am an affectionate person and I show affection to friends, including offering cuddles. I still saw [the applicant] as a friend, and I showed him affection that Christmas. I gave him some cuddles and I sat on his knee once or twice a couple of times. I sat on his knee for a photograph. I also sat on his knee while we were opening presents, because there was no where else to sit. I gave him some cuddles.
74.I recall one Christmas before 2015, when we were still together as a couple, we slept at his sister’s in in one of the children’s rooms. However, to the best of my recollection the 2016 Christmas visit was the occasion, [the applicant] and I stayed in a motel. [The applicant] and I did share a room. I think we slept in a queen size bed. We may have had a cuddle, but we did not kiss or have sex.
The respondent agreed that she attended the applicant’s mother’s 80^th birthday party sometime after her birthday in late 2017, and on that occasion, she shared a tent with the applicant. In cross examination she initially maintained that she had not been in a sexual relationship with the applicant but then gave evidence that on an occasion, the date of which she could not remember, “where we may have attempted to have a sexual relation. It-it just didn’t happen…like a moment, but that was, you know, just something that didn’t eventuate.”
The records from the hospital leading up to the time of the children’s birth provide contemporaneous records of the reports made by the respondent as to the status of the relationship at that time. The hospital notes pertaining to the applicant variously identify him both as “partner” and “ex-partner”.
Exhibit 70 are social work notes from the respondent’s social worker Ms AA from 22 March 2018 until 31 May 2018. The notes read:
[Respondent] was in a relationship with ex-partner [applicant] for many years, and they have gone through much of this fertility journey whilst in a relationship.
…
[Respondent] and [applicant] have been separated for 2 years now but have remained in contact.
…
Whilst [respondent] and [applicant] are not currently in a relationship, [respondent] reports that [applicant] is still part of her life, and they have an ongoing friendship as well as a level of dependability on each other.
The applicant’s mother, Ms E said that in 2018, she and her husband hosted a lunch at their home to celebrate the pregnancy of the respondent, at a time when the respondent was about five or six months pregnant. The respondent denied that the reason for the lunch was her pregnancy.
Ms E’s evidence is also that she and her husband hosted a family gathering at Christmas in 2018 for the children’s first Christmas. The respondent wrote a Christmas card to the applicant’s parents the same year which had a picture of the children on the front and signed off with the names of herself, the applicant, and the children. When suggested she was representing herself, the applicant, and the children, as a family she said that she simply signed it off as the people who were present at the gathering.
The applicant’s relative, Dr O, gave evidence that the respondent attended many family events over the years and it was assumed by him that she was attending as the partner of the applicant.
The applicant’s friend, Mr P, was a witness and gave evidence that whilst they were travelling overseas together, in late 2017 that while sitting on a chairlift that the applicant told him he said “I think I am going to become a Dad.” and that he was also was chuffed when “[the respondent] had a scan and found out they were having twins.” These conversations were part of the reason he considered that they were in a relationship.
Mr P gave evidence that he and his wife visited the parties and the children in hospital after their birth, and that they attended the Suburb F property to visit after the birth, where they gave the parties a gift as is customary in their culture. A picture of the gift was tendered as Exhibit 60, it is inscribed:
To [respondent] & [applicant]
Congratulation become father and mother.
From […] & [Mr P].
The applicant contends that because the parties shared parenting events such as the trip to the UK with the children from early 2019, and the event where the parties, their family and their friends met in a park in Suburb F and had a party to celebrate the children’s first birthday in 2019 it “reflects the extent of the parties’ mutual commitment to a shared life, and in particular, shared parenting, at the time of conception.” I do not accept that evidence of positive co‑parenting conduct well after conception can be given such weight. The facts are that from early 2019 there was tension between the parties in respect of the proposed overseas trip. I do not accept that events at and after that time support a finding of a mutual commitment to a shared life which supports a finding that the parties were in a de facto relationship at the time of conception.
The respondent’s friend, Ms S, gave evidence on her behalf. She described that her understanding of the relationship between the respondent and the applicant was that he was her “ex partner.”
Ms T, in her affidavit said that at no time during her time in Australia in 2017 did either the respondent or the applicant “say anything in my presence or hearing that suggested to me they were a couple.”
The evidence of the social worker, Ms AA, records the reports made by the respondent to her between March and May 2018 at a time that was somewhat close to the conception of the twins in late 2017. I give weight to the records at that time identifying the applicant as her ex-partner.
The evidence set out above is not inconsistent with the unique scenario pleaded by the respondent, that the parties were friends and former partners who had a long standing history together, particularly in circumstances where the respondent has no family in Australia. The evidence demonstrates that the close family and friends of the parties did not know what the status of the parties’ relationship was, and at times the parties themselves both said inconsistent things about the status of their relationship. When pressed in cross-examination that the parties could have just been friends, the evidence of the applicant’s mother was “I really don’t know.”
Conclusion as to de facto relationship
On the state of the evidence before me, looking at the composite picture, the matter is very finely balanced. There are some factors indicative of a de facto relationship at the relevant time and others not indicative of a de facto relationship. Evidence such as the email from Ms R and the incident where the respondent slapped the applicant across the face at the pub in the presence of the other patrons are inconsistent with the parties merely being friends and ex‑partners as contended by the respondent. Evidence such as the admission from the applicant in writing that the parties were not, at that time, in a relationship is similar to the recording of the applicant agreeing that the respondent was not in a relationship with him.
I give more weight to the independent evidence that is temporally close to the date of conception, including the email written by the applicant in early 2016 which states that he was not in a relationship at that time, the evidence of the minimal time he spent at Suburb F around the relevant time according to the respondent’s witnesses, and the report to Ms AA by the respondent that he was an ex-partner during the pregnancy.
The onus of proof is on the applicant to satisfy me that the parties were in a de facto relationship at the date of conception in late 2017. In considering the indicia and again noting the immutable nature of relationships, I must feel a degree of persuasion on balance. The evidence, although balanced, of the composite picture, does not so persuade me.
I cannot find on the balance of probabilities that the parties were in a de facto relationship at the time of the artificial conception procedure in late 2017. As such, the applicant’s claim of parentage pursuant to s 60H(1) fails.
Given the finding that the parties were not in a de facto relationship at the time of the carrying out of the artificial conception procedure it is unnecessary to consider the second consideration of consent to the procedure under s 60H(1(b)(i).
WHETHER THE APPLICANT IS A PARENT UNDER SS 69R AND 102
It is agreed that the applicant appears as the children’s father on each of their birth certificates registered in 2018, marked as Exhibit 53.
Section 69R of the Act provides that
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 State, the person is presumed to be a parent of the child.
This presumption is rebuttable by proof on the balance of probabilities.
Section 102 of the Act allows the Court to receive evidence of the facts contained within a certificate, entry or record of a birth, death or marriage.
The respondent seeks orders removing the applicant from the birth certificates and contends that she did not want the applicant on the birth certificates but that the applicant’s conduct coerced and controlled her to include his name on the birth certificates. She says evidence of this conduct, if found, would rebut the relevant presumption.
Her evidence was that she had “felt trapped because of all the years we had tried to conceive together through IVF and the history we had” as to why he was included on the birth certificate. Additionally, she advanced a case of coercive and controlling conduct as the reason she filled out his details on the birth registration form.
The claim of coercive and controlling conduct on the part of the applicant
The respondent advanced a case at trial that the applicant engaged in coercive and controlling behaviour by way of repeated derogatory taunts and by way of unreasonable, undue and persistent pressure for the sole purpose of the respondent acquiescing to the applicant’s demands, including the demand to include him on the children’s birth certificates.
The respondent identified the particulars of the conduct at paragraphs 35 to 53 of Annexure B of her written submissions.
The respondent advanced a case that she only signed the birth certificate as a direct result of the coercive and controlling conduct of the applicant. She cited a history of such conduct both before and after the signing of the registration of the birth certificate to support a finding that he engaged in a course of conduct that was coercive and controlling and was family violence as at late 2018. The respondent relies on a finding of such conduct which she contends rebuts the presumption that the applicant is a parent because his name was entered as a parent on the birth certificate.
Coercive or controlling behaviour has been examined by this Court. The majority of the Full Court in the matter of Carter & Wilson [2023] FedCFamC1A 9, McClelland DCJ and Campton J, cited Gill J’s definition contained in the decision of Illgen & Yike [2018] Fam CA 17 at [123]-[125] with approval:
123. Coerce is defined in the 7th Edition of the Macquarie Dictionary relevantly as
1. To restrain or constrain by force, law or authority; force or compel, as to do something.
2. To compel by forcible action
124. Control is defined in the 7th Edition of the Macquarie Dictionary relevantly as:
1. To exercise restraint or direction over; dominate; command
125. The phrase “coerces or controls” is expressed disjunctively. However, it may be seen that the two concepts are closely related. Together they form an expanded concept of the exercise of power, to restrain another or to cause another to act, by force, domination or command.
The majority also cited with approval Judge Beckhouse’s observation in Ramzi & Moussa [2022] FedCFamC2F 1473 at [45] that:
generally, coercive control is understood as a course of conduct aimed at dominating and controlling another person, including a family member” where it was emphasised that “in order to assess whether the applicant engaged in coercive and controlling behaviour, it is necessary to view his behaviour towards the respondent over the course of the entire relationship (as well as post-separation), and to consider the cultural context in which it arose.
(emphasis added)

The ICL proposed that the children spend time with the applicant in three stages. For the first three months in a two-week cycle, the ICL proposed that the children spend time with the applicant each Wednesday afternoon from school until 7.00pm, each alternate Saturday and Sunday from 9.00am until 5.00pm, and each alternate Friday afternoon from school until 7.00pm, being the Friday not immediately before their Saturday and Sunday time.
After three months of the first stage, the second stage would commence. This stage would turn each Wednesday into an overnight stay with the applicant, from school to school on Thursday morning, each alternate Saturday from 9.00am until 5.00pm on Sunday, and each alternate Friday afternoon from school until 7.00pm.
After a further three months, the third stage would commence. This stage would see the children spending each Wednesday overnight with the applicant, and thereafter each alternate weekend from Friday after school until 5.00pm on Sunday. The third stage of time also provides for the children to spend extended blocks of time with the applicant during the school holidays. During the first three short school holidays that take place after the commencement of the third stage the children would spend a four night block with the applicant, and any short school holidays that occur after those first three, the children would spend seven nights with the applicant.
In my view, the time proposed by the ICL most appropriately takes into account the recommendations which I adopt of the Single Expert, it allows the children to spend significant time with the applicant, whilst respecting their time with the respondent who is their primary caregiver. As such, I make the orders in the terms set out by the ICL for term time, however, stage 2 wherein the children spend 3 nights per fortnight overnight with the applicant should be in place for six months rather than three months, before the commencement of the final stage. This is because of the young ages of the children and to give them an opportunity to adapt to the increase of time.
I am satisfied that is in the best interests of the children, as the Single Expert recommended that the single nights be in place for many months and noting that the children will be six years of age turning seven when this change is proposed to take place. In my view, six months adjustment period is more age appropriate, especially as these orders relate to term time, meaning their schooling routine will be less impacted by frequent changes to their routine.
It is also my view that given the poor trust and lack of co-parenting that the final stage should involve the children spending time with the applicant from Friday after school until Monday morning. This will reduce the interactions between the applicant and respondent, this reducing the children’s potential exposure or awareness of conflict and enable the applicant to have engagement with the school both on the Friday and the Monday return to school. It provides a full weekend for the children to enjoy the usual weekend activities with the paternal family.
I note that the children will be spending time in accordance with these orders until they reach the age of 18. I am satisfied that the arrangement is in the best interests of the children because the arrangement builds up to substantial and significant time, reduces change overs between the households thus reducing the opportunity for the children to experience conflict or tension between the parties, gives the opportunity for both parties to be meaningfully involved in the lives of the children including their schooling, free time and extracurricular activities as is their right under the CROC.
School Holidays
The applicant proposed that the children spend time with the applicant as agreed but failing agreement they spend half school holidays with each parent. It is proposed that these orders take effect immediately, despite the gradual increase in term time which is otherwise proposed by the applicant. I do not accept that such a stark change from the existing arrangements without any graduation to enable the children to adjust to the change is in the children’s best interests. I refuse to make the orders sought by him in those terms.
The respondent proposed that, during the first three months of time, in addition to daytime each third weekend, that in that same third week, the applicant shall spend time from 9.00am until 5.00pm on Wednesday, Thursday, and Friday. During the second stage, the time remains the same except that the children’s Wednesday time will commence at 9.00am, and that their weekend with the applicant will commence on Friday at 9.00am. The third stage of time that the respondent proposes is that the applicant spend time with the children from Wednesday until Sunday on that third weekend when his time would ordinarily occur if it falls during school holiday time. The final proposal is that the applicant spend half school holidays as agreed and failing agreement during the first half. As found above, for the children to spend each third weekend, or time every third week with the respondent, is not significant and substantial time which would be in their best interests. As such, the graduating proposal of the respondent is not in the children’s best interests.
The ICL proposed that the children’s time with the applicant during school holidays be the same as each stage of term time, but for an extension that time that occurs on a school day and normally commences after school should commence at 9.00am. The ICL also proposed graduating holiday time once the children reach the final stage, that is when they spend each alternate weekend and every Wednesday afternoon with the applicant. The ICL proposes for the first three short school holidays that occur after reaching the final stage, the children spend one four night block with the applicant. After the first three short school holidays, the children would spend one seven night block in each of the shorter school holidays. For the summer school holidays, the ICL proposes in 2024/2025 the children spend three four night blocks with the applicant, and in 2025/2026 and each year thereafter it be two seven night blocks.
It is important that the school holiday time is commensurate to the term time that the children are spending during whatever stage they are in. It is appropriate that they have the opportunity to spend multiple nights with the applicant during school holidays, as stated by the Single Expert in cross-examination. This would also allow them the opportunity to spend extended periods with the applicant’s family and have experiences such as weekends away and holidays.
The orders for school holiday time progress appropriately in line with the children’s increasing regular time with the applicant and their developmental needs. I find it is in their best interest for the children to spend increasing time with the applicant during the school holidays. At the final stage of their time I find it will be in their best interests to spend half school holidays with each party as a block period. This will allow them to take full advantage of the opportunity to travel and experience their different cultures and maximise their family events, which both parties identified as important for the children. This period will align with the orders which allow the respondent to travel overseas with the children for half of the holidays as explained below.
An additional factor for consideration of school holiday time is the respondent’s wish to travel to the UK. The respondent should have liberty to travel to the UK with the children as much as possible. The children are only 6 years of age and their maternal grandparents are elderly. The children will benefit from being able to spend time with their maternal family, and on the evidence the window of opportunity for that to occur may be slim. The applicant proposed that the respondent may elect to have block time during the school holidays for four weeks every even numbered year in the term 4 holidays. This, in my view, is not sufficient. There is no reason why the respondent and the children should not be permitted to travel each year to the UK during one of the three short school holiday periods, and during term 4 school holidays if the opportunity presents itself.
As such, I make the order as proposed by the respondent and the ICL that she be able to elect to spend the whole of the winter school holidays and a period of 21 nights during the Christmas school holidays with the children in the UK. The applicant proposes that there be a date by which the respondent must elect to do so and I consider that reasonable, in relation to the respondent’s election for the winter school holiday period, she must provide written notice to the applicant of her intention to do so by not later than 1 February of the same year. Those holidays should not take place over Christmas in consecutive years, such that, in 2024 and each alternate year the respondent may travel with the children to the UK during the first three weeks of the summer holidays, including Christmas, and in 2025 and each alternate year thereafter she may travel during the last three weeks of the summer holidays so that the children spend Christmas in Australia.
The applicant proposes that the respondent may elect to spend the whole of the relevant term holidays provided that the election is made in writing some months prior. I find that this is appropriate. Though I note the date for electing to spend the Christmas holidays is 1 March of that year. In my view, there is no need for the notice to be so advanced, rather an election by 1 July will provide the applicant with advanced notice as to his summer holidays, but not unnecessarily pressurise the respondent to make a decision about her travel some 9 months in advance.
For the purpose of 2024 Christmas holidays however, I order that the respondent must give notice of her election to travel on or before 1 September 2024, which will be more than 12 weeks notice.
Make up time is sought by the applicant for time missed during the school holidays and in my view that should occur. The respondent in her orders sought also sought an order for make up time in the event the children spent time with the respondent overseas during the winter school holidays. That is, should the respondent elect to spend the whole of the Term 1 or Term 3 school holiday period in any year with the children, the applicant should have make up time for the whole of the Term 2 holiday period. Seeing as I have found it will be appropriate for the children to spend half school holidays with each parent, I consider it is appropriate to make the orders as sought by the applicant but only in terms of Term 1 or Term 2 school holidays. It should be Term 2 holidays rather than Term 3, as I have ordered that the respondent may elect to travel with the children during the winter June/July school holidays and I make that change for consistency. I decline to make the order as sought for Term 4 as the orders permitting the respondent’s travel to the UK for half of the Christmas school holidays already provide for the applicant to spend time with the children in the other half. Accordingly, I order that once the school holidays are to be spent equally (being from around mid-2026 when the children are 8 years of age) the children will spend half of each school holiday period with each parent unless the respondent elects for the children to travel for the entirety of either Term 1 or Term 2 and in which case the children will spend the entirety of the Term 3 school holiday period in the care of the applicant. I note that this order when read in conjunction with order 9(a) which allows the respondent to elect to spend the whole of the winter holidays with the children, does not expand the respondent’s ability to take more school holiday time than otherwise reasoned. The respondent can elect to spend either Term 1 in whole or Term 2 in whole with the children. If she elects pursuant to order 9(a), to spend the whole of Term 2 winter holidays with the children and travel with them to the UK, she cannot also elect in the same year to spend the whole of Term 1 with the children. If she elects to spend the whole winter holiday with the children and travel to the UK, make up time will flow from that election and the applicant will spend time with the children for the whole of the Term 3 holidays.
International travel
As I find that it is in the children’s best interest to travel to the UK frequently, I will make orders that facilitate that travel to occur up to twice per year and at other times as agreed, for example in the case of a family emergency or for compassionate reasons. I note that the applicant should not unreasonably withhold his consent, particularly noting that the UK is a signatory of the Hague Convention on the Civil Aspects of International Child Abduction, and as such there would be significant consequences if the respondent was not to return to Australia. The applicant gave evidence to the effect that he would feel less anxious in the future about the respondent travelling to the UK with the children in circumstances where there are final orders in place.
The applicant sought an order that in the event the respondent is required to travel to the UK for an extended period of time due to the seriously ill health of one of her parents, if that time occurs during school holiday period and the children are with the respondent, the applicant will receive makeup time, but if it occurs during school term time, the children live with the applicant until the respondent’s return.
No submissions were made in support of such an order and no evidence was called about this issue. The single expert was not asked about the impact on the children of being separated from their mother in such circumstances.
I am not satisfied that it is appropriate for the respondent to in effect choose whether to spend time with her parents if they are seriously ill or live with the children. There is no basis to make such an order
Should the need arise to travel in unexpected circumstances where the parties cannot agree an application can be made in the usual way. I would be optimistic that given the finality of this litigation and the certainty that the children will remain living in Australia and where they are spending regular time with each party, that the parties could reach a resolution about a reasonable child focussed time for travel in the event any of the children’s grandparents become seriously ill.
Either parent should be permitted to travel overseas with the children, except as otherwise provided for, provided that the travel occurs during the time the children would already be spending time with that party unless otherwise agreed in writing. If the opportunity arises, it is in the children’s best interest to travel, be exposed to different cultures and new experiences, and do so with each of their parents. It is also appropriate that the party intending to travel with the children provides notice to the other party at least six weeks prior to the travel. The applicant proposed that at least three weeks prior to departure, the travelling party should provide the other with an itinerary of travel. It is in the children’s best interest that both parents know of their whereabouts and travelling plans, and I make the order as sought.
The applicant proposes that consent for international travel outside their ordinary time is irrevocable. It is not necessary to make such an order. The parties are free to vary times they spend with the children from time to time by agreement. I decline to make an order that purports to govern an agreement made outside of these orders where the parties have had such high conflict in the past.
To facilitate the children’s travel, I order that their names be removed from the airport watchlist. The respondent proposed an order that she be permitted to obtain/renew passports for the children without the signature of the applicant. No submissions were made in support of that order. It seems on a reading of the ICL’s and the applicant’s proposed minutes that it is accepted that these children require passports and it is likely they will travel regularly. As such I order that the parties are to do all acts and things and sign all documents to renew the children’s passports or to retain new passports for the children, and as proposed by the ICL the costs of same should be shared equally.
The respondent shall hold the children’s passport, as their primary caregiver and having sole responsibility for decision making in relation to major long term issues, and she shall provide the children’s passports to the applicant within 48 hours of a request by him provided he has indicated his intention to travel.
The applicant sought an order that, during any period that the children are travelling overseas with either party, the travelling party will facilitate telephone or video calls of at least 15 minutes between the children and the other party at least three times per week. It is in the children’s best interest that they maintain regular communication with both of their parents, however there is no basis and no submission as to why setting down a strict timeframe of not less than 15 minutes is in the best interests of the children. As such, I order that the travelling party facilitate communication between the children and the non-travelling party at least two times per week on days and times as agreed.
Changeover
For ease of convenience, and accepting to the opinion of the Single Expert, that school to school changeover generally allows the child to benefit from “having a neutral zone of six to seven hours between being in one parent’s care and being in another party’s care” I order that changeover where possible occur at school. It is in the children’s best interest for changeover to take place at the commencement and conclusion of school where possible and when not on a school day the applicant to collect the children from the respondent’s residence at the commencement of his time and the respondent shall collect the children from the applicant’s residence at the conclusion of time.
Special occasions
It is in the children’s best interest to spend time with both parties on special days, the orders I make will provide for that time to occur as agreed. It is necessary to determine what time is in the children’s best interest failing agreement which I set out herein.
Father’s and Mother’s Day
The children will spend graduating time with the applicant over the next 18 months, to avoid unnecessary changes in their routine, I find it is in the best interest of the children that the additional special time they spend with each parent on mother’s day and father’s day occur during the day from 10am until 5pm , unless otherwise agreed. It was identified that another special occasion is likely to coincide with father’s day at some point. In that event, orders for the children to spend time with the applicant during the day will allow for the respondent to celebrate the other special occasion with the children in the evening.
Birthdays
The applicant proposes that if the children are not spending time with one party on their birthday, then they are to spend a minimum of four hours with the parent they are not otherwise in the care of on a school day, and a minimum of three hours on a non-school day, and an additional four hours including time with the children together with the other party if either child express a wish for such time. In my view, to make such an order would be unnecessarily prescriptive, complex and not achieve the desired result. If the children’s birthday fell on a school day where they were in the care of the respondent for example, and the children were required to spend four hours with the applicant after school, that would give the respondent effectively no free time with the children on their birthday. I note that due to the children’s birthdate it is unlikely to fall outside of school holidays, however it could. As such I make no order for the children’s birthday.

The respondent and the ICL proposed no orders for birthdays. I take from the omission that it is their view that the time the spent on the children’s birthday should fall where it may on the school holiday or term time schedule. In my view, this is in the best interest of the children.
Christmas
The applicant proposed that the children spend time with each parent at Christmas time from 3.00pm on Christmas Eve until 12.00pm on Christmas Day in even years and from 12.00pm on Christmas Day until 3.00pm on Boxing day in odd years on an alternating basis. He also proposed that there be video communication with the other party in the event the children are travelling overseas, interstate or more than 500kms from Sydney.
The respondent proposed the same order but the time to commence from 12.00pm until 12.00pm the next day.
The ICL proposed that the children spend time with the applicant on Christmas day between 9.00am and 3.00pm if the children are in Australia and the applicant is also in Australia.
It is an order which would be almost by consent as between the parties, and I consider it to be in the children’s best interest to have the opportunity to spend Christmas eve, Christmas day, and Boxing day with both of their parents, as such I make the orders as proposed by the applicant, noting that the proposed handover time of 3.00pm enables any family lunch to be enjoyed prior to the handover.
Communication
The applicant proposed that each party encourage and facilitate telephone communication between the children and the other party whilst the children are in their care as requested by the children but no less frequently than once a week on Mondays at 6.00pm.
Neither the ICL nor the respondent proposed any orders for telephone or video communication to occur when the children are not in the care of one party if both reside in Australia.
The orders ensure that the both parties see the children each week other than during school holiday periods. In circumstances where the children have not had regular telephone communication and where they will be seeing each parent each week I am not satisfied that it is in the children’s best interests to prescribe a frequency of mandatory telephone communication but will order they will facilitate telephone communication at all reasonable times as requested by the children
Ancillary orders
First option to care
The applicant sought an order that in the event either party is unable to care for the children, the other party should have the first option to care for the children. No submission was made to support such an order and no part of the evidence highlighted that such an order would be in the best interests of the children. There is little co-operation and communication between the parents, accordingly such an order is more likely to be a source of conflict. Each of the parents is able to decide if they are unable to personally care for the children whether to offer the other parent to do so, but equally to decide to leave the children in the care of a grandparent, trusted friend or babysitter. I do not propose to make orders to manage the parties day to day care decisions and decline to make such an order.
I decline to make an order in the event of incapacity or death. There was no submission made in support of such an order and there is no basis to presuppose the arrangements should a parent die. It is not possible to foresee the circumstances.
Restraint on moving
The applicant sought a restraint on either party moving more than 30km from the children’s school. There was no submission made in support of this order sought. There was no evidence of the intention of any party to move. I do not consider it necessary that there be a restraint on the parties moving more than 30 kilometres from the children’s current school in Suburb F.
Information sharing
While the respondent will hold sole responsibility for decision making in terms of major long term issues, both parties will have responsibility for decision making in the day to day care of the children, and they will be co-parents to these children for the rest of their lives. In those circumstances, it is in the best interests of the children that information is shared between the parties, that each is entitled to obtain information from the relevant authorities or third-parties, and attend events that parents are entitled to attend. I favour orders 24 to 29, 30 and 31 of the proposed orders of the applicant on account of their comprehensiveness, and I make them.
Interstate travel
The applicant sought orders that each of the parties be permitted to travel interstate with the children and notice be given of 4 weeks. It is reasonable that the parties be at liberty to travel interstate with the children freely during the time that the children would ordinarily be spending in their respective care. For the same reasons that it is appropriate to order that the parties keep each other informed per the paragraph above, it is appropriate to order that the travelling party provide written notice prior to departure and an itinerary and details of any interstate travel that occurs prior to departure. I decline to order four weeks notice as sought as the nature of domestic travel is that the opportunity may arise on short notice and such opportunities should not be impeded unnecessarily.
The applicant also proposed a mechanism for the parties to agree in writing in the event that a party wishes to travel interstate with the children outside of their ordinary time with the children and that once given that consent was irrevocable. As above, it is not necessary to make such an order. The parties are free to vary times they spend with the children from time to time by agreement. I decline to make an order that purports to govern an agreement made outside of these orders where the parties have had such high conflict in the past.
Non denigration
Having regard to the poor relationship between the parties and their poor level of communication, it is in the children’s best interest that they each be restrained from denigrating the other party in the presence or hearing of the children and that they do all acts and things to ensure that no third party does so.
Parenting after separation
The Single Expert recommended that the parties complete a parenting after separation course, and such an order was sought by the ICL and the applicant. In light of the parties’ historical issues with communication and in particular, the adjustment the respondent will have to make to embrace the applicant as a parent contrary to her previously held view, it would be in the children’s best interest for both parties to complete a parenting after separation course and I so order.
Injunction against calling the applicant by name
The applicant proposed that there be an injunction made against the respondent prohibiting her from referring to the applicant as anything other than “Daddy”, “Dad” or “Father” when communicating with the children. This order is not supported by the ICL or the respondent. The Single Expert was asked about this in cross-examination, and his evidence was that having the respondent call the applicant by his first name around the children is “not necessarily a monumental issue…it’s not so much the term used, but the emotion behind the term.” Ultimately, his evidence was that it is important that there is a consensus about what the applicant is referred to as in both households. As such, whilst his evidence is that it is not necessarily the wording that matters, I find it is in the children’s best interests for the respondent to refer to the applicant in the presence of the children as Daddy, Dad, or Father, as it would promote the relationship between the children and the applicant and create consensus about the role that he plays in their lives. As such, I order as sought by the applicant that both parties are restrained from calling the applicant any title other than “Daddy”, “Dad”, or “Father” when communicating with either of the children and I note the respondent’s evidence that she would be willing to comply with such an order.
Family Dispute Resolution
The applicant sought an order that in the event of a future dispute as to the implementation of the orders, or if the parties seek to vary the arrangements, the parties would undertake Family Dispute Resolution to attempt to resolve the issue by agreement without resorting to further Court proceedings. I decline to make this order for three reasons: firstly, there were no submissions made about it being an order in the best interests of the child; secondly, without knowing the context or detail of the future dispute I cannot be satisfied that it is in the best interests of the children; and thirdly, the effect of the order is already governed by s 60I of the Act in that prior to commencing proceedings in this Court there are pre-action procedures that require the parties to attend family dispute resolution unless they are exempt from doing so.
ICL Costs
The ICL made an application that each party shall pay the ICL’s costs, totalling $30,660.61 in equal shares, being $15,330.30 each. I understand that the respondent was represented throughout the hearing by legal aid. The evidence is that she receives Centrelink benefits and she has no assets of significance and her financial circumstances are at best modest and she also has the full-time care of the children and has sought no child support. I am satisfied that the provisions of s 117(4)(b) apply and that an order to pay the ICL’s costs would cause her hardship. I decline to make such an order.
There is little evidence about the applicant’s financial circumstances, other than that he owns a home in Suburb U, he is self employed and has not paid any child support The applicant was represented by private legal representation and retained both senior and junior counsel for nine days of final hearing. As such, I order that the applicant shall pay $15,330.30 to contribute to the ICL’s costs.
ICL and CCE to explain orders
The ICL sought an order that she and a court child expert meet with the children on the day that judgment is delivered to explain the orders to them. The amendments to the Act that occurred this year have created through s 68LA(5A) the obligation for ICLs to meet with the children and provide an opportunity to express their views. When and how often the meetings take place is at the discretion of the ICL. I infer from the fact that the order is being sought that the ICL wishes for a meeting to take place so that the order can be explained after judgment delivery. I will make orders to facilitate that, including that the ICL be discharged after such meeting has taken place.
It would be in the best interests of the children to have the orders explained to them by neutral adults, however I am concerned at requiring a court child expert who has no familiarity with the matter or the children to meet with them to explain the orders. However, on balance, it is in their best interests for the orders to be explained to them in the most child-focussed way possible which would be assisted by the attendance of a court child expert because, after all, the ICL is trained as a lawyer not a specialist court child expert.
For practical and logistical reasons, such as the children attending school and the availability of Court Child Experts at late notice, I will order that the meeting take place within 7 days of the date of the orders, not that it occur on the day of judgment delivery.

I certify that the preceding four hundred and sixty-eight (468) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Curran.
Associate:
Dated: 15 August 2024

File number(s):	SYC 4694 of 2020
Judgment of:	CURRAN J
Date of judgment:	15 August 2024
Catchwords:	FAMILY LAW – PARENTING – Where the applicant seeks declarations as to parentage – Where neither party is biologically related to the children – Whether the applicant is a parent – Consideration of s 60H – Whether the parties were in a de facto relationship at the time of conception – Whether the applicant is a parent pursuant to s 69R- Where the respondent contends that the presumption of parentage is rebutted by the applicant’s coercive and controlling conduct – Consideration of coercive and controlling behaviour – Where the presumption under s 69R has not been rebutted – Where it is found that the applicant is a parent according to Masson v Parsons – Whether the respondent should be permitted to relocate with the children to the UK – Whether relocation in the best interests of the children – Where relocation not permitted
Legislation:	Family Law Act 1975 (Cth) ss 4AA, 4AB, 60CC, 60H, 61D, 61DAA, 61DAB, 65C, 69R, 69U, 102 Family Law Regulations 1984 (Cth) reg 12C Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.10 United Nations Convention on the Rights of the Child (1989) Art 7,8,9
Cases cited:	Baker & Landon (2010) 238 FLR 210 Bernieres & Anor v Dhopal & Anor (2017) 57 Fam LR 149 Carter & Wilson [2023] FedCFamC1A 9 Ellis & Murphy [2018] FamCA 468 Fairbairn v Radecki (2022) 275 CLR 400 Illgen & Yike [2018] Fam CA 17 Jones v Dunkel (1959) 101 CLR 298 Keaton & Aldridge [2009] FMCAfam 92 Lynam v Director-General of Social Security (1983) 52 ALR 138 Masson v Parsons (2019) 266 CLR 554 Olivier & Olivier [2020] FamCA639 Ramzi & Moussa [2022] FedCFamC2F 1473 Tinashe (2021) 62 Fam LR 561 U v U (2002) 211 CLR 238 Zahawi & Rayne [2016] FamCAFC 90
Division:	Division 1 First Instance
Number of paragraphs:	468
Date of hearing:	15-24 May 2024 and 25 June 2024
Place:	Sydney
Counsel for the Applicant:	Ms Gillies SC with Ms Shea
Solicitor for the Applicant:	Steiner Legal Pty Ltd
Counsel for the Respondent:	Ms Wallace
Solicitor for the Respondent:	Legal Aid NSW
Counsel for the Independent Children's Lawyer:	Ms Bromberger
Solicitor for the Independent Children's Lawyer:	Russell Kennedy Lawyers NSW

SYC 4694 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR MIZUSHIMA Applicant
AND:	MS CROCETTI Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	CURRAN J
DATE OF ORDER:	15 AUGUST 2024