MURPHY & GRAHAM
[2015] FCCA 1222
•19 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MURPHY & GRAHAM | [2015 ] FCCA 1222 |
| Catchwords: FAMILY LAW – Parenting proceedings – child age 3 years 8 months at the hearing – party to same-sex relationship becoming pregnant by artificial insemination – both parties looking after child until separation – non biological applicant seeking parenting orders in relation to the child – biological mother opposed to relationship between applicant and child – issue as to possible identity of genetic material donor – issue as to consent to artificial conception procedure – issue as to whether inclusion of non-biological applicant on birth certificate was obtained by coercion – whether presumption under section 69R is rebutted in those circumstances – whether there is a possibility of a meaningful relationship – best interests of child. |
| Legislation: Family Law Act 1975 (Cth), Part VII. |
| Aldridge v Keaton [2009] FamCAFC 229; (2010) 42 Fam LR 369 Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 In the Marriage of Cotton [1983] FLC 91-330 |
| Applicant: | MS MURPHY |
| Respondent: | MS GRAHAM |
| File Number: | NCC 758 of 2013 |
| Judgment of: | Judge Coakes |
| Hearing dates: | 17-18 December 2014 |
| Date of Last Submission: | 18 December 2014 |
| Delivered at: | Newcastle |
| Delivered on: | 19 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Beck |
| Solicitors for the Applicant: | Steven Young Lawyers |
| Counsel for the Respondent: Solicitors for the Respondent: | Ms Carty Walker Legal Taree |
ORDERS
It is declared pursuant to Section 60H(1) of the Family Law Act 1975 that [X] Murphy Graham born [omitted] 2011 (“[X]”) is the child of Ms Graham (a female) born [omitted] 1986 and Ms Murphy (a female) born [omitted] 1986;
That the child [X] Murphy Graham born [omitted] 2011 (“[X]”) live with Ms Graham (“Ms Graham”);
That Ms Graham has sole parental responsibility for the long term issues in relation to [X];
Before implementing any decision concerning a long term issue Ms Graham is to give Ms Murphy (“Ms Murphy”) at least 28 days prior notice in writing of such decision, to be sent to Ms Murphy at her last known residential address about issues concerning the care, welfare, and development of [X] of a long term nature which include (but are not limited to) issues of that nature about:
(a)Her education both current and future;
(b)Her religious and cultural upbringing;
(c)Her health;
(d)Her name;
(e)Changes to her living arrangements that make it significantly more difficult for her to spend time with either Ms Graham or Ms Murphy.
and Ms Graham is to invite Ms Murphy to inform her of any input she would like to have before she makes her final decision.
Each of Ms Graham and Ms Murphy have sole parental responsibility for making decisions concerning [X]’s day to day care, welfare and development whilst she is in the care of either of them respectively;
[X] spend time and communicate with Ms Murphy as follows:
(a)For one hour between 11.00am and 12.00 noon or at such other time as is determined by the Principal of [L] Kindergarten, to take place at the kindergarten on Thursday 21 May 2015, Friday 22 May 2015, Thursday 28 May 2015, Friday 29 May 2015, Thursday 4 June 2015 and Friday 5 June 2015, to be implemented by Ms Murphy remaining with [X] at the kindergarten in the absence of Ms Graham;
(b)Each Wednesday from 9.00am until 11.00am on 10, 17, 24 June 2015 and 1 July 2015, and each Saturday from 9.00am until 11.00am on 13, 20, 27 June 2015 and 4 July 2015;
(c)Each Wednesday and Saturday from 9.00am until 1.00pm on Wednesday 8, 15, 22 and 29 July 2015 and Saturday 11, 18 and 25 July 2015 and 1 August 2015;
(d)Each Wednesday and Saturday from 9.00am until 3.00pm on Wednesday 5, 12, 19 and 26 August 2015 and each Saturday 8, 15, 22 and 29 August 2015;
(e)Each Wednesday and Saturday from 9.00am until 5.00pm on each Wednesday from 2 September 2015 until Wednesday 7 October 2015 inclusive and each Saturday from 5 September 2015 until 10 October 2015 inclusive;
(f)From Wednesday 14 October 2015, from 9.00am until 5.00pm each Wednesday until the commencement of the first school term in 2016;
(g)From 9.00am on the Saturday until 5.00pm on the Sunday each alternate weekend commencing Saturday 17 October 2015 and continuing until the commencement of the first school term in 2016 except that:
(i)On the weekends of Friday 8 January 2016 until Monday 11 January 2016, and Monday 22 January 2016 until Monday 25 January 2016, time is to commence at 3.00pm on the Friday and conclude at 10.00am on Monday;
(h)From 3.00pm Christmas Day 25 December 2015 until 5.00pm Sunday 27 December 2015;
(i)For four (4) days and three (3) nights during the school holidays at the end of the first, second and third school terms in 2016, as agreed between Ms Graham and Ms Murphy, but in the absence of agreement from 10.00am on the first Thursday of the holiday period and concluding at 5.00pm on the following Monday;
(j)
For two (2) weeks during the Christmas school holidays 2016 and over the 2016/2017 period for such period as is agreed between
Ms Graham and Ms Murphy, but in the absence of agreement from 9.00am on 31 December 2016 until 5.00pm on 14 January 2017;
(k)From the commencement of the first school term in 2017, for each alternate weekend during school terms from the conclusion of school on the Friday until returning to school the following Monday morning, and to commence on the first weekend of the first school term in 2017 and thereafter on the first weekend of the new school term if [X] has spent time with Ms Murphy during the first half of the immediately preceding school holiday, and on the second weekend of the new school term if Ms Murphy has spent the second week of the immediately preceding school holiday with [X];
(l)From and including the school year 2017, one half of each school holiday period commencing with the school holidays at the end of the first school term and for the first half of all school holidays in even numbered years, and for the second half of all school holiday periods in odd numbered years with such half to be determined by calculating the number of days from 9.00am on the first day of the school holiday period until and including the day immediately preceding the new school term and dividing such number by two (2) and in the event that this results in an odd number then the extra day is to be spent with Ms Murphy;
(m)At such other times and places and for such periods as Ms Graham and Ms Murphy both agree;
(n)By telephone at any reasonable time and on not more than one occasion each week and in the absence of agreement each Wednesday at 6:30pm to be implemented by Ms Murphy telephoning Ms Graham’s mobile telephone number and by Ms Graham ensuring that [X] is present and able to receive such telephone call, that her mobile telephone service is not switched to a message bank or answering service, that the telephone is not otherwise engaged or being used and is situated in a position to receive telephone calls;
The time to be spent by [X] with Ms Murphy in Order 6(a), (b), (c), (d), (e) and (f) is to take place in the [T] and [F] districts, and to that extent Ms Murphy is restrained from removing [X] from those districts;
The Orders referred to above are varied or suspended as the case may be to ensure that:
(a)[X] spends time with Ms Murphy from 3.00pm Christmas Day until 3.00pm Boxing Day in each odd numbered year commencing 2015;
(b)[X] spends time with Ms Murphy from 4.00pm Christmas Eve until 3.00pm Christmas Day in each even numbered year commencing 2016;
(c)[X] spends time with Ms Graham from 3.00pm Christmas Day until 3.00pm Boxing Day in each even numbered year commencing 2016;
(d)[X] spends time with Ms Graham from 4.00pm Christmas Eve until 3.00pm Christmas Day in each odd numbered year commencing 2017;
(e)[X] spends the Mother’s Day weekend with Ms Graham from 6.00pm on the Saturday of such weekend and until return to school the following Monday morning in odd numbered years, commencing 2017;
(f)[X] spends the Mother’s Day weekend with Ms Murphy from 6.00pm on the Saturday of such weekend until return to school the following Monday morning in even numbered years, commencing 2016;
Implementation of [X]’s time with Ms Murphy is to take place at the McDonalds Family Restaurant in [T] and is to be effected by the party with whom [X] is then living or spending time or his or her nominee known to [X] delivering [X] to the other party or the nominee of that party also known to [X] provided that nothing in this order precludes [X] being collected or returned by Ms Murphy from or to her kindergarten or primary school when such order provides that the time with Ms Murphy commences at or concludes at kindergarten or primary school;
Each of Ms Murphy and Ms Graham are restrained from:
(a)Denigrating the other party and members of the other party’s families in the presence or hearing of [X] and by any means including text message or social media or any other electronic means including the making of rude comments, making insulting comments, swearing at, shouting at and making any obscene gesture or behaving in such a way that it is intended that [X] would have a poor opinion of the other party or think ill of the other party and each party is further restrained from causing or permitting any other person from engaging in such behaviour in the presence or hearing of [X];
(b)Discussing these proceedings with [X] other than to advise her of the effect of these orders and by way of brief description only;
(c)Showing [X] any affidavit or application or family report or any other report including these reasons for judgment;
That each party is to notify the other party urgently by the best available means including but not limited to telephone, text message, email or instructing another person to convey such notification in the event of any of the following occurring:
(a)[X] being seriously injured or falling seriously ill;
(b)[X] requiring urgent medical treatment from a doctor or ambulance crew;
(c)[X] being involved in an accident or being admitted to hospital;
(d)[X] requiring time off school due to an inability to attend school;
Each party is at liberty to obtain all relevant medical records including dental and hospital records and to consult with medical and dental practitioners and any specialists in order to obtain any information she may require concerning [X] and service of a sealed copy of these orders upon such medical practitioners, dentist, specialist, or hospital is sufficient authority for that purpose;
Each party is at liberty to obtain (at her own expense) and Ms Graham is to authorise the principal of the school attended by [X] at the time to supply to Ms Murphy (at her expense) copies of school reports, notices to parents relating to pupils, school newsletters, invitations to sporting or social events or functions, notices of and invitations to any parent/teacher interviews and any other notices directed to parents of pupils attending such school and service of a sealed copy of these orders on the principal of such school is sufficient authority for that purpose;
Each party is at liberty to attend any pre-school, kindergarten or school function involving [X] including sporting or social events, functions, parent/teacher interviews, and any other school event to which parents are normally invited by the school;
Each party is to provide the other party particulars of any change of residential address, landline telephone number, mobile telephone number and if applicable, any email address within 24 hours of such change occurring;
That Ms Murphy obtains a communication book and that Ms Murphy and Ms Graham establish and use the communication book and write in such book, for the information of the other, issues that are limited to [X]’s education, sporting activities and social commitments, care and health and that the communication book accompany [X] in a sealed envelope between the parents homes at times of changeover;
Ms Graham is restrained from enrolling [X] in any pre-school, kindergarten or school or other activity to occur on a weekday afternoon or evening and any school or extra-curricular activity to occur on a weekend or holiday period when [X] is due to spend time with Ms Murphy pursuant to these Orders, without first discussing the proposed activity and possible enrolment with Ms Murphy with a view to reaching an agreement and not to occur unless so agreed;
Ms Murphy is restrained from enrolling [X] in any pre-school, kindergarten or school extra-curricular activity or other activity to occur at a time when [X] is living with Ms Graham without first discussing the proposed activity and possible enrolment with Ms Graham with a view to reaching an agreement and not to occur unless so agreed;
Both parties are to enrol in, attend and complete a “Parenting after Separation” course or a “Parents not Partners” course conducted by Interrelate, Relationships Australia or Centacare in the [T] district by 31 October 2015 and each is to provide the other by post with a certificate of attendance at such course upon completion;
The solicitors for the applicant, Ms Murphy, are to serve by hand a sealed copy of these Orders upon the Principal of the [L] Kindergarten within seven (7) days of making these Orders;
To the extent that it is necessary, Ms Graham is to sign all necessary documents and give instructions to the Principal of the [L] Kindergarten to permit Ms Murphy to attend such kindergarten with [X], at prescribed or agreed times, in accordance with these Orders;
Both parties are to consult with a family dispute resolution practitioner at a Family Relationships Centre or elsewhere or such other family consultant upon whom they may agree between them to assist in:
(a)Resolving any dispute between them as to the terms and operation of these orders;
(b)Reaching agreement about any change to be made to these orders arising from any change to the needs or circumstances of [X] or Ms Graham or Ms Murphy in the event of any dispute or disagreement which arises concerning such changes.
IT IS NOTED that publication of this judgment under the pseudonym Murphy & Graham is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT NEWCASTLE |
NCC 758 of 2013
| MS MURPHY |
Applicant
And
| MS GRAHAM |
Respondent
REASONS FOR JUDGMENT
Introduction
[X] Murphy Graham (“[X]”) was born on [omitted] 2011 of her biological mother Ms Graham (“Ms Graham”) and during a same sex de-facto relationship enjoyed by Ms Graham with her former partner Ms Murphy (“Ms Murphy”).
[X] was born following Ms Graham becoming pregnant by artificial insemination in which both Ms Graham and Ms Murphy were involved.
The parties separated when [X] was 7 months of age.
There are a number of significant disputes between Ms Murphy and Ms Graham including but not limited to the decision to have a child, the donor of the genetic material, how it came to pass that Ms Murphy is shown on [X]’s birth certificate as a mother, whether or not the biological mother entered into a written agreement with Ms Murphy and the donor of the genetic material and a number of other matters.
It is common ground that Ms Murphy has spent no time with [X] or had any communication with her since February 2012, except for a brief occasion in early 2013, and that the parties do not talk to each other.
Respective applications at hearing
The final orders sought by Ms Murphy are set out in her Initiating Application filed on 5 April 2013 and confirmed in annexure “A” to her Case Outline filed on 28 November 2014.
Put simply Ms Murphy seeks equal shared parental responsibility for [X] with Ms Graham, that [X] live with Ms Graham and that Ms Murphy spend time with [X] for increasing periods of time over a total period of 12 months progressing incrementally at the end of 3 months from 2 hours on 3 days a week, for the next 3 months, for 4 hours a day on 3 days a week, and for the next 3 months for 8 hours a day on 3 days a week and for the final 3 months period for 8 hours on each Thursday and overnight on the Sunday from 9.00am until Monday at 5.00pm.
Following that Ms Murphy seeks time with [X] in a fortnightly period during the first week from 9.00am on the Sunday until the following Wednesday at 5.00pm and in the second week from after preschool or school on the Friday until resumption of school the following Monday and to continue once she begins to attend her formal primary education.
From the time [X] starts school, Ms Murphy seeks an order that she spends half of the school holidays at the end of terms 1, 2, and 3 and for half of the Christmas school holiday period but for alternating weeks.
Ms Murphy also asks for time on special occasions including Christmas, [X]’s birthday, Mother’s Day and Ms Murphy’s and Ms Graham’s birthdays as well as a number of other practical parenting orders.
The final orders sought by Ms Graham, the biological mother, are different from those set out in her Amended Response filed on 30 October 2014. The orders she proposes are set out in her Outline of Case document prepared by her counsel, Ms Carty and dated 14 November 2014.
In summary, Ms Graham proposes that she have sole parental responsibility for [X], that [X] live with her, that she be known by the name [X] Graham, and that the appropriate application be made to the Registrar of Births, Deaths and Marriages for the state of New South Wales to record such change and that the particulars of Ms Murphy shown as “mother” be struck off [X]’s Birth Certificate.
Ms Graham does not propose any Orders as to Ms Murphy spending time with or communicating with [X].
Background
Ms Murphy was born on [omitted] 1986, and was 28 years of age at the time of the hearing.
Ms Murphy lives in her rented home in [T], where she has lived for about two and a half years, had recently obtained work as a part-time [omitted] in [F] and holds a Certificate III in Business Administration which qualifies her to do reception and administrative work.
The biological mother, Ms Graham was born on [omitted] 1986 and was 28 years of age at the time of the hearing.
Ms Graham is employed part-time as a casual [omitted] and lives with [X] in her rented home in [T] where she has lived for about 2 years.
The parties met in 2003 and commenced an affectionate relationship in late 2003 or early 2004, and commenced co-habitation in early 2004 living at the home of Ms Murphy’s parents in Newcastle.
The parties lived in a number of places but at the time of conception were living together in a home rented by them from Ms Murphy’s parents in Property C, [W]. [X] was born on [omitted] 2011 in Newcastle and in July or August 2011 Ms Murphy and Ms Graham together with [X] returned to [T] to live.
In August of 2011 Ms Graham returned to employment with
Ms Murphy involved in the substantive day to day care of [X] whilst Ms Graham was at work until separation on 20 November 2011 when Ms Graham left their home taking [X] with her. Prior to separation,
Ms Graham was also involved in the care of [X] when she was not otherwise working.
On 25 May 2011, [X]’s birth was recorded at the Registry of Births, Deaths and Marriages, recording Ms Graham as the first mother and Ms Murphy as the second mother and with such certificate endorsed as follows:
“The birth mother is Ms Graham. Registrar, 25 May 2011.”[1]
[1] See Annexure “B” to affidavit of Ms Murphy sworn 6 November 2014 and e-Filed 7 November 2014.
[X] is in day care at [L] Kindergarten, [T] each Monday, Tuesday, Thursday and Friday from between 7.30am or 7.45am until 4.00pm or 4.30pm on each of those days.
During December 2011 and January 2012 the parties attempted shared care of [X] but with Ms Murphy’s time with her ending in early February 2012.
In January 2012, Ms Graham began cohabitation with Ms L, separating from her in about December 2013.
In June 2012, Ms Murphy spent some time with [X] under the supervision of Ms Graham but this arrangement was terminated by
Ms Graham in July 2012.
During November 2012, Ms Murphy spent some time during the day with [X] for about two weeks.
In December 2012, Ms Murphy commenced a relationship with Mr R and separates from him in September 2013.
In January 2013, Ms Murphy looked after [X] at Ms Graham’s home at the request of Ms Graham for four hours on several occasions whilst Ms Graham is working. This is the last occasion upon which
Ms Murphy spent any time with [X].
On 5 April 2013, Ms Murphy filed her Initiating Application for parenting Orders and on 18 July 2013, Ms Graham filed her response.
Existing Orders
There are no operative parenting Orders.
The Evidence
Ms Murphy relied upon the following affidavits in her case:
a)Her affidavit sworn 6 November 2014 and eFiled 7 November 2014;
b)The affidavit of Mr C sworn 4 January 2014 and filed 7 November 2014.
Ms Graham relied upon her affidavit sworn and filed 30 October 2014.
Ms Graham also relied upon a ‘Notice to Admit Facts’ dated 13 November 2013 and filed on 21 November 2013.
Admitted into evidence before me and with the consent of both parties was the Family Report of Mr P, a Regulation 7 Family Consultant, published on 23 May 2014 and following his interviews with
Ms Murphy, Ms Graham, the maternal grandmother and the maternal grandfather, and observation of [X] on 15 May 2014. I also had the benefit of listening to and observing Ms Murphy and Ms Graham give evidence together with Mr C, the donor of the genetic material.
I also had the benefit of listening to the evidence of Mr P, who was cross examined by both counsel.
I was assisted with able and carefully prepared submissions from both Ms Beck and Ms Carty of counsel and I was further assisted with written submissions which had been filed on 18 November 2013 in response to my earlier request that the threshold issue raised by
Ms Graham be addressed as to whether Ms Murphy is a parent for the purposes of Part VII of the Family Law Act.
At the conclusion of the whole of the evidence, I was left with the distinct impression that Ms Murphy was a witness of truth with an accurate recollection of historic events but also prepared to make concessions where appropriate. Equally, I found Mr C to be a witness of truth with an accurate recollection of pertinent matters and particularly the execution of an agreement which was a fairly critical part of the evidence.
I found Ms Graham, in comparison, to be a less reliable witness and with a poor recollection at times, or no recollection of historic matters which I found pertinent. That is not to say that she was not a witness of truth but rather a demonstrated reluctance to embrace the possibility of the benefit to [X] of Ms Murphy having a relationship with her such that at times I was left with the impression that Ms Graham gave answers in cross examination which she thought would assist her case.
For these reasons, and where there is conflict between the evidence of Ms Murphy and Ms Graham, I tend to prefer the evidence of
Ms Murphy unless in a particular instance I find otherwise.
There were the following exhibits:
a)R1 – Employment records of the respondent;
b)R2 – Pathology report from Symbion Laverty Pathology in relation to the respondent, specimen collected 14/8/2010;
c)A1 – documents produced in response to subpoena to Child Support Agency.
The Issues
It seems to me the issues are as follows, including the threshold issue:
a)Whether Ms Murphy is a parent pursuant to Section 60H of the Family Law Act, consequent upon a consensual carrying out of an artificial conception procedure during their de facto relationship;
b)Whether the applicant is a parent under Section 69R of the Family Law Act, consequent upon the registration of [X]’s birth and the inclusion of both Ms Murphy and Ms Graham;
c)Whether Ms Murphy coerced Ms Graham to agree to Ms Murphy being included on [X]’s birth certificate as her co-mother;
d)Whether the identity of the donor or the genetic material can be identified on the balance of probabilities based on the evidence;
e)Whether Ms Graham was a participant to a written agreement of 27 July 2010 between Ms Murphy, Ms Graham and Mr C;
f)Whether there is a possibility of a meaningful relationship being developed between Ms Murphy and [X] given the time they have not spent with each other, now approaching three years, and whether it is possible to establish a meaningful relationship between them for the benefit of [X];
g)If so, how, in what manner and over what period of time should [X] be enabled to spend time with Ms Murphy and communicate with her;
h)What is the likely detriment to [X], if any, if she is unable to have a relationship with Ms Murphy;
i)A consideration of whether there is likely to be any adverse effect for Ms Graham if [X] has a relationship with Ms Murphy and whether her parenting ability is likely to be impaired as a consequence of such relationship.
The Relevant Law as to Parenting Proceedings
Considering first the threshold issue of whether the applicant is a “parent” pursuant to Section 60H of the Family Law Act, Section 60H provides as follows:
Children born as a result of artificial conception procedures
(1)If:
(a)a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent ); and
(b)either:
(i)the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or
(ii)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;
then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act:
(c)the child is the child of the woman and of the other intended parent; and
(d)if a person other than the woman and the other intended parent provided genetic material--the child is not the child of that person.
(2)If:
(a)a child is born to a woman as a result of the carrying out of an artificial conception procedure; and
(b)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman;
then, whether or not the child is biologically a child of the woman, the child is her child for the purposes of this Act.
(3)If:
(a)a child is born to a woman as a result of the carrying out of an artificial conception procedure; and
(b)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of a man;
then, whether or not the child is biologically a child of the man, the child is his child for the purposes of this Act.
(5)For the purposes of subsection (1), a person is to be presumed to have consented to an artificial conception procedure being carried out unless it is proved, on the balance of probabilities, that the person did not consent.
(6)In this section:
"this Act" includes:
(a) the standard Rules of Court; and
(b) the related Federal Circuit Court Rules.
It is agreed that Ms Murphy and Ms Graham were in a de facto relationship when [X] was conceived, but there is an issue raised by
Ms Graham as to whether Ms Murphy consented to the artificial conception procedure.
Section 69R of the Family Law Act is as follows:
Presumption of parentage arising from registration of birth
If a person’s name is entered as a parent of a child in a register of births or parentage information kept under a law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, the person is presumed to be a parent of the child.
Given that Ms Murphy is entered on the birth certificate for [X] as the co-mother, the presumption created by this section is rebuttable by evidence[2] with the standard of proof being the balance of probabilities.
[2] See Section 69U of the Family Law Act.
Upon the presumption that Ms Murphy is enabled to bring her parenting application I must have regard to Part VII of the Family Law Act, and the significant sections are, and to which I must have regard, section 60CA, which provides:
“In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.”
I must then consider, in determining a child’s best interests, the matters set out in section 60CC, and there are two primary considerations:
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents.
(b) The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
There are a number of additional considerations in section 60CC(3) to which I must have regard insofar as they are relevant. I must also have regard to section 60B, which sets out the objects of Part VII and the principles underlying those objects, and I must have regard to section 61DA, which provides for a presumption of equal shared parental responsibility when a parenting order is made, save that the presumption does not apply when there are reasonable grounds to believe there has been abuse of the child or family violence. The presumption may also be rebutted if there is evidence to satisfy the Court that it would not be in the best interests of the child for the child’s parents to have equally shared parental responsibility for the child.
The relevance of the presumption of equal shared parental responsibility, when it does apply or is found to apply, is that the Court is then obliged to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the best interests of the child or reasonably practicable, the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents. (See subsection 65DAA of the Act).
It seems to me there is a shift toward the Court being required to consider in a much more practical manner how a child’s development can be nurtured and promoted by being exposed to and enjoying in a beneficial sense all the aspects of living with each parent, and it seems to me that this requires, where it is appropriate, an involvement in the whole of the ordinary household routine applicable in each parent’s home and if it is in the child’s best interests. (See the Full Court decision in Goode & Goode).
The Family Report
Mr P suggested it was critical in these proceedings as to the determination to be made by the Court as to whether Ms Murphy had placed overt pressure on Ms Graham to have Ms Murphy’s name placed on [X]’s birth certificate.[3] I do not find this issue is critical but rather pertinent only.
[3] Paragraph 14 of the Family Report.
Mr P expresses the opinion that if the Court finds Ms Murphy wanted to be a parent during the relationship with Ms Graham and did not place any pressure upon Ms Graham to be identified on the birth certificate, then there is clear rationale for Ms Murphy’s role as a parent to be recognised by the Court and for Ms Murphy to commence spending time with [X].[4] I do not accept this observation by Mr P to be critical in my determination.
[4] Paragraph 16 of the Family Report.
Mr P reports[5] that Ms Graham told him [X] was nine months of age when she commenced going to day care and that Ms Murphy wanted to continue spending time with [X] but that Ms Graham ceased
Ms Murphy’s time with [X] because she was allegedly legally advised to do so by her former lawyer.
[5] Paragraph 41 of the Family Report.
Mr P reports[6] that Ms Graham felt “hounded” by Ms Murphy to sign the birth certificate for [X] about 2 weeks following her birth, with
Ms Graham telling Mr P that she was feeling poorly and vulnerable at that time.
[6] Paragraph 42 of the Family Report.
Mr P commented[7] that it remains difficult to see how Ms Graham, despite not wanting Ms Murphy acknowledged on [X]’s birth certificate cannot recognise the significance that Ms Murphy was not only in a relationship with Ms Graham when the mother conceived [X], but also provided care for her, subsequent to [X]’s birth and whilst the mother was in employment.
[7] Paragraph 46 of the Family Report.
Mr P went on to comment that there was also little doubt that
Ms Graham consciously excluded Ms Murphy from having an ongoing relationship with [X] from about February 2012 but that it remains specifically unknown whether this was due to Ms Graham receiving legal advice. I make no finding as to whether such advice was given or not.
Mr P, during the observation session[8] said that Ms Murphy subsequently engaged [X] in play after an introduction by Ms Graham, and that it was evident that [X] became comfortable in the presence of Ms Murphy. Although [X] could not identify Ms Murphy by name, perhaps not surprisingly, she was seen to remain comfortable with
Ms Murphy throughout the entire observation. Mr P concluded that [X] had age appropriate language and whilst not seeking out her mother, at the same time elected not to cuddle Ms Murphy upon Ms Murphy’s departure from the observation room, again perhaps not surprisingly.
[8] Paragraph 52 of the Family Report.
Ms Graham was described by Mr P[9] to adopt an educational approach to her play with [X], that [X] was relaxed and happy to see and spend time with her mother and there were no overt child protection concerns during the observation, and similarly with the maternal grandparents.
[9] Paragraph 53 of the Family Report.
In his recommendations, Mr P suggested[10] that if the Court found that Ms Murphy was rightfully acknowledged on [X]’s birth certificate, and that no unreasonable circumstances led to this process then Ms Murphy should commence spending daytime periods with [X] on an incrementally increasing basis, until [X] has her third birthday, whereby she could then commence spending overnight time with Ms Murphy. On the other hand, if the Court found that Ms Murphy exerted undue pressure upon Ms Graham with regard to the signing of the birth certificate, then it remains open to the Court to make a range of other decisions.
[10] Paragraphs 57 and 58 of the Family Report.
Whilst the recommendations made by Mr P are of some assistance, they are not determinative and do not carry a great deal of weight in the matters which I am required to decide and ultimately the nature of the Parenting Orders to be made.
During cross examination by Ms Beck, Mr P unhesitatingly accepted a proposal put to him that the fact Ms Murphy is not biologically related to [X] does not in any way impinge on her developing a beneficial relationship with Ms Murphy. Mr P continued to say, correctly in my view that given the passage of time since [X] had spent any time with Ms Murphy then a graduated re-introduction with increasing periods of time was appropriate.
Mr P said there was no impediment to Ms Murphy eventually building a relationship with [X] beneficial to the child, but that an impediment may arise if the other parent attempted to alienate the relationship or denigrate it with the other parent of the child.
The evidence establishes that Ms Graham has displayed and continues to display a high degree of antipathy towards Ms Murphy but gave clear evidence in cross examination that if the Court came to the view it was in the child’s best interests to spend time with Ms Murphy then she would have to try and put aside her feelings of dislike for
Ms Murphy and that she would cooperate with any process required to reacquaint [X] with Ms Murphy if it was absolutely necessary and would have to agree if the Court thought that was in [X]’s best interests.
I was left with the distinct impression from this passage of evidence by Ms Graham that she would accept the findings of the Court and therefore comply with Orders.
Although Ms Graham had said that she was not prepared to enter into therapy with a Family Therapist with a view to improving the relationship between her and Ms Murphy to enable their communication to be re-established in [X]’s best interests, I find it is appropriate for both Ms Murphy and Ms Graham to attend a “Parenting after Separation” or a “Parents not Partners” program separately, but with a view to both benefiting from the topics of such program which include ways of focusing on being a parent, understanding developmental stages of children and the effect of separation, developing and understanding positive communications skills for parents, negotiating and managing conflict, maintaining an ongoing parental relationship and acknowledging change for adults and children.
Mr P considered that the graduated increase in time proposed by
Ms Murphy was age appropriate but thought a daytime period every weekend may be restrictive for Ms Graham and that later on, a period of 4 nights in a fortnight would not be excessive but that some kind of mediation would be appropriate given that in his opinion, Ms Graham had a great deal of intransigence and it was important to develop a cooperative co-parenting relationship.
It seems to me that to require the parties to attend mediation together may be counterproductive at this early stage. I am satisfied that the program to which I have referred ought to assist both Ms Murphy and Ms Graham to come to a better understanding if indeed there continues to be an impasse between them.
As to school holidays, Mr P thought that once [X] attended school, anticipated to be in 2016, periods of 4 nights would be appropriate to be increased to half of school holidays by the end of her first year at school.
In response to questions by Ms Carty, Mr P agreed it was likely [X] had no current memory of any significant relationship with Ms Murphy and that it was quite possible [X] would have no reason to think she was missing out on anything in relation to Ms Murphy if Ms Graham never spoke about Ms Murphy. Mr P said that it was very clear
Ms Graham did not want [X] to have any relationship with
Ms Murphy.
Mr P said that if Ms Murphy was excluded forever from having a relationship with [X], then at some stage [X] is likely to want to seek out the truth of what happened to her other parent. If shown her present birth certificate she will see all the particulars of Ms Murphy. If Ms Graham’s application succeeds there will be no entry at all as to her other parent, which, in my view, is not in [X]’s best interests.
When Ms Carty suggested it would be a big adjustment for [X] to have to start developing a relationship with Ms Murphy with whom she currently has no significant relationship, Mr P said unhesitatingly that he did not agree and that such a scenario is typical of many that come before the Court, adding that the reality is that with a child having a secure attachment to her mother and if the attachment is not broken then a relationship will evolve between the child and the other parent provided Ms Graham adopts an appropriate attitude and does not denigrate Ms Murphy to the child. Mr P continued to say that he did not think this was an extreme situation but can be addressed with an incremental increase to enable [X] to gain comfort and security with Ms Murphy over a period of time.
Although Mr P referred to a preference for the parties having mediation for assistance with an understanding of co-parenting and recognition of how a child’s psycho-social development can be maximised and without conflict and with communication developing whether it be by email or through a third party or a communication book, which are all significant matters, he emphasised it is for Ms Graham to recognise that Ms Murphy wants a relationship with [X] given that they were in a relationship together when Ms Graham fell pregnant.
Mr P agreed with the proposition that there would need to be some demonstrable benefit to the child having a relationship with
Ms Murphy and that there was nothing on the evidence before him to suggest that could not occur given in particular that Ms Murphy was involved in the process from the outset and has a desire to be a parental figure to [X].
When Ms Carty suggested to Mr P that it would not perhaps have been unreasonable for Ms Graham to have taken the view that she would like to have a child and be solely responsible for that child, Mr P responded that if she wanted that, then she should not have involved Ms Murphy at the outset.
As to the possibility that Ms Murphy may eventually find employment in Newcastle, Mr P was asked about possible disruption for [X] in travelling between [T] and Newcastle and suggested that daytime periods would not include travel away from [T] but overnight would not be arduous.
Given that [X] currently attends Pre-School 4 days per week with only Wednesday absent from Pre-School, Mr P did not think it was preferable for her to maintain such a routine if it was at the expense of spending time with Ms Murphy.
Discussion
Ms Murphy and Ms Graham met when they were about 17 years of age, were attracted to each other and started living together when they were 18 years of age. They lived in a number of places in Newcastle and the [T] district, sometimes with family and at other times in their home with people staying with them.
Whilst at times it was a loving relationship, and each felt it was worthwhile and happy, there were other times when there were arguments, accusations, distrust and with occasional physical confrontation.
Ultimately they decided to live in Newcastle, probably in 2008 or 2009, or possibly earlier, and were able to rent a home in Property C, [W], owned by Ms Murphy’s parents. It is the evidence of both
Ms Murphy and Ms Graham that they discussed having children.
Ms Murphy said that the overall plan was for her to fall pregnant and to have their first baby. Ms Graham asserts there was no agreement that Ms Murphy would have their first child, and that was a decision made by Ms Murphy herself.
The evidence does not enable me to decide which version is to be preferred but together they started the process of IVF, with Ms Murphy to be the birth mother. Whilst Ms Graham denies the extent of her involvement in such process, I am satisfied that she was fully aware of the procedure, went to the IVF clinic for consultation and that she was present for an internal ultrasound, which she could not recall, but which Ms Murphy said she attended and whose evidence I accept.
Ms Graham admitted that she was excited about the prospect of
Ms Murphy having a baby if the IVF procedure was successful, but which in fact did not proceed to fruition as a consequence of the donor declining to agree to his genetic material being used. Ms Graham agreed that she was very disappointed when this occurred.
The very clear inference to be drawn from these events is that
Ms Murphy and Ms Graham, whilst living together had set about consciously to give birth to a child and clearly by inference were supportive of each other with such prospect. Although Ms Graham gave evidence that she had said to Ms Murphy that it was her choice to have a baby, it is clear that it was to be a joint enterprise.
Not surprisingly, Ms Murphy was very disappointed and very upset when it became clear that the IVF procedure could not proceed any further.
It seems that some weeks later, Ms Graham decided to become pregnant and whilst Ms Graham asserts it was her decision to have a child for herself, I am satisfied on the balance of probabilities that whilst that was her decision, she knew and accepted that Ms Murphy would co-parent with her, that Ms Murphy was very happy for her to plan to fall pregnant, and that there was an agreement that they would take the process into their own hands and do it at home themselves.[11] Whilst there was a degree of reticence on the part of Ms Murphy, I am satisfied that at all times she was supportive of Ms Graham and the event was planned together.
[11] See Paragraph 29 of Ms Murphy’s trial affidavit sworn 6 November 2014.
Ms Murphy conceded that when these discussions were taking place, Ms Graham had mentioned that she did not want Ms Murphy to appear on the birth certificate, one of her arguments being that Ms Murphy was not a blood relative of the baby to be born.
Whilst much was attempted to be made of the fact that she did not mention in her affidavit Mr B, the first donor of genetic material, I find that no significance attaches to such omission. The reason advised by Ms Murphy, which I find is believable and appropriate is that so far as she was aware, Mr C was the successful donor, followed later by the birth of [X].
Mr B did not give evidence in these proceedings. It is Ms Graham’s case that Mr B, a friend of hers came to her home in about late June or early July 2010 and provided genetic material which she inserted into her vagina with a syringe to which she had attached the top of a straw, and that the procedure took place only between her and Mr B.[12]
[12] Paragraphs 20-24 of the mother’s affidavit sworn and filed 30 October 2014.
Ms Murphy says however that she was present when Mr B came to their home, which I infer was at Property C, [W], and that she knew him as a very good friend of Ms Graham, and that she, Ms Murphy knew him from having worked together at [omitted].
Ms Murphy’s evidence in response to questions from me is that Mr B went into the third bedroom, gave a specimen, met Ms Murphy at the door and then left with Ms Murphy going to Ms Graham as she drew the genetic material into a syringe, remembering and commenting to Ms Graham about the fact she thought his specimen looked funny and stank and did not smell very nice.
It is the evidence of Ms Murphy that she put the rubber tubing on the syringe and inserted Ms Graham with the specimen. Ms Murphy denies vehemently that it was Ms Graham who inserted the genetic material herself and further denies Ms Graham’s assertion that the procedure took place only between Mr B and Ms Graham.
I have no hesitation in accepting the evidence of Ms Murphy as to what occurred on this occasion. It has a ring of truth about it. This was the first time Ms Murphy and Ms Graham had embarked upon the procedure at home and is unlikely to be something they might forget.
It is significant also that Ms Graham said in cross examination in relation to the second donor, Mr C that she did not recall when first asked whether Ms Murphy had performed the insemination procedure, but when asked whether someone else had done it, said:
“I inserted myself.”
This was followed by a question that that was not correct, and it was Ms Murphy that did the insemination to which she replied:
“I don’t agree.”
I find on the balance of probabilities that Ms Graham was deliberately untruthful in relation to these two incidents for the most likely reason that she considered it would not assist her case.
Ms Graham deposes to wanting to have a child of her own in or about mid-2010 and deposed to seeing the role of Ms Murphy as being a partner to and supporting her and that the child would be her child and not a child of the relationship with Ms Murphy.[13]
[13] Paragraph 14 and 16 of her trial affidavit filed 30 October 2014.
These two statements do not lie comfortably together and seem to be based on the premise that Ms Graham deposes to not seeing herself in a long term relationship with Ms Murphy.[14]
[14] Paragraph 17 of the her trial affidavit.
When Ms Graham asserted that she did not want to have a child with Ms Murphy where Ms Murphy would be a parent it belies the reality of being in a relationship as partners and one of mutual support. I am left with the impression that Ms Graham has reconstructed not only her intention but perception of the time as a consequence of her later decision to deny Ms Murphy a relationship with [X] for reasons to which I will refer later.
It is significant in my view that Ms Graham did not think her attempt at conceiving a child with Mr B was successful and she deposes to a conversation with her mother to that effect.[15]
[15] See Paragraph 26 of the mother’s trial affidavit.
Mr C was known to both Ms Graham and Ms Murphy from the times they had worked together at [omitted]. Ms Graham deposed to adopting the same method of inserting genetic material from Mr C into her vagina, said the procedure was performed sometime between 17 July 2010 and 24 July 2010 and that at no point was Ms Murphy involved in any of the discussions between her and Mr C and denied there was any agreement or that Ms Murphy provided her consent to the artificial procedure by which she became pregnant having made the decision herself. Ms Graham deposed further to at no time having a conversation about being co-parents.[16]
[16] See Paragraphs 28 – 35 inclusive of Ms Graham’s trial affidavit.
Ms Graham denies entering into any written agreement with Ms Murphy and Mr C, denies signing the document in evidence and recalls a simple written agreement between her, Mr C and Ms Murphy, but denies that the subject document is such written agreement.[17] I accept the evidence of Ms Murphy in cross examination that the agreement attached to Mr C affidavit is the only document of agreement that
Ms Graham has signed in relation to [X].
[17] Paragraphs 67 – 71 inclusive of Ms Graham’s trial affidavit.
Ms Graham advances a number of reasons as to why she believes the document in evidence is not the one she had signed which are largely conclusions.[18]
[18] See Paragraph 75 of Ms Graham’s trial affidavit.
Mr C swore an affidavit in these proceedings and was cross examined by Ms Carty. I found him to be an impressive witness and accept his evidence without any qualifications.
I have no hesitation in accepting the evidence of Mr C that the single specimen of genetic material he provided and used by Ms Graham was provided at least two nights after 27 July 2010, and therefore either 28 or 29 July 2010, that he visited Property C in the evening at about 6.00pm, that he was given a specimen cup by Ms Murphy and Ms Graham and that they were present together with him and that Ms Murphy handed him the cup, and that he then went into a room and produced a specimen which he gave to Ms Graham, and he then saw Ms Murphy and Ms Graham walk into the bathroom and then show him the empty vessel. He did not know what happened in the bathroom, but he was sure the procedure occurred in the bathroom.
Mr C said he learned of Ms Graham’s pregnancy subsequently by social media and that he denied the assertion by Ms Graham that Mr C was present when she found out she was pregnant using a home pregnancy test. I prefer the evidence of Mr C.
Mr C gave very clear evidence in cross examination that he signed the agreement,[19] that Ms Graham was present at the same time and that he saw Ms Graham sign the document and that Ms Murphy was also present at the same time and signed the document with him. It is his recollection that Ms Murphy dated the document at the top of the first page “27/7/10”.
[19] Annexure “A” to his affidavit sworn 4 January 2014.
In response to questions from me, Mr C could recall clearly where the document was signed within the home and that the whole document was explained to him by Ms Graham and Ms Murphy and that they both signed the document before he signed it.
Whilst it was suggested perhaps that Mr C had a vested interest in giving evidence about the agreement because he did not want to have any responsibility for the product of any conception which might occur, he agreed, adding that he remained impartial. I accept that evidence.
I have no hesitation in finding that Ms Graham signed the agreement and reject her assertion that she did not enter into the agreement, and reject her assertion that she did not sign the agreement, or that it is not her signature.
Further, although it is clear Ms Murphy read long documents to
Ms Graham, I reject the mother’s assertion that Ms Murphy would read long documents to her and then sign such documents on her behalf.
I accept the evidence of Ms Murphy that it was she who carried out the insemination procedure in relation to the genetic material from Mr C in the manner to which she deposes in her affidavit.[20] I do not accept
Ms Graham’s evidence in cross examination that she inseminated herself.
[20] See Paragraph 33 of Ms Murphy’s trial affidavit.
Whilst there is an inconsistency in the evidence of Mr C when he says Ms Murphy and Ms Graham went into the bathroom with the genetic material and Ms Murphy says she took the sample into the bedroom where Ms Graham was waiting, I find that no significance attaches to such inconsistency. It does not detract at all from the fact that insemination occurred.
Consequently, I have no hesitation in finding that it is abundantly clear on the evidence before me that [X] was born as a result of the carrying out of an artificial conception procedure, that the donor of such material, i.e. Mr C, consented to its use in an artificial conception procedure, that Ms Murphy and Ms Graham together consented to the carrying out of the artificial conception procedure and at the time [X] was born on [omitted] 2011, Ms Murphy was the de facto partner of Ms Graham, not only at that time but also at the time of conception. I find therefore that [X] Murphy Graham is the child of Ms Graham and Ms Murphy and will make a declaration accordingly.
Whilst it was suggested during the course of submissions that it was open to me to find the requisite consent had not been given by
Ms Graham, I do not accept such submission. I note also the provisions of Section 60H(5) and make the observation that Ms Graham has not brought any evidence to rebut the presumption.
There was a deal of evidence concerning the registration of [X]’s birth with Ms Graham asserting that she felt pressured to put Ms Murphy’s name on the birth certificate and that it was never her intention for
Ms Murphy to be a parent of [X] and that she was coerced by
Ms Murphy to place her name on [X]’s birth certificate.[21]
[21] See Paragraph 66 of Ms Graham’s trial affidavit.
The birth certificate for [X][22] records both Ms Graham and Ms Murphy as a mother, with endorsement to which I have referred earlier identifying Ms Graham as the birth mother and apparently noted as being made on 25 May 2011.
[22] See Annexure “B” to Ms Murphy’s trial affidavit.
On the balance of probabilities I find that is about the time the parties went to the registry.
I accept the evidence of Ms Murphy that some of the documents relating to the registration of [X]’s birth were signed at home, that both Ms Murphy and Ms Graham went together to the registry, probably about 25 May 2011, some [omitted] weeks after the birth and that another document may have been completed at the registry.
I accept the evidence of Ms Murphy that she intended to be registered as [X]’s mother and insisted that Ms Graham permit that to occur. This was in the knowledge that Ms Murphy knew Ms Graham was reluctant to agree to that entry.
I find also that Ms Graham has subsequently requested that Ms Murphy remove her name from the birth certificate and that Ms Murphy has refused for the reason that she wishes to remain identified and involved with [X].
When it was suggested to Ms Graham in cross examination that she was not put under any form of duress to agree to Ms Murphy being included on the registration forms for the birth certificate, she said:
“I felt very pressured.”
When it was suggested to her that Ms Murphy had not put that pressure upon her, she said:
“Yes, she did.”
The evidence establishes that Ms Murphy accompanied Ms Graham during the pregnancy to appointments, ensured that Ms Graham ate well and had everything she needed to remain healthy to, as
Ms Murphy put it “Grow our little miracle”.
When this was put to Ms Graham in cross examination she said that
Ms Murphy only attended the appointments because she made the appointments to suit her work schedule and that she was not allowed to ring and make her own appointments. I reject such assertions.
Ms Graham agreed that Ms Murphy wanted to be present for the various appointments.
Ms Graham said that she did not really have a choice about that and could not go alone and felt pressured to allow Ms Murphy to come.
I find on the evidence before me, on the balance of probabilities that Ms Graham, whilst reluctant, consented to Ms Murphy being included as a mother on the birth registration papers and consented to the name “Murphy” being included in [X]’s registered name.
It is significant in my view that when it was put to Ms Graham that the inclusion of such name was done to reflect Ms Murphy’s status as a co-parent, she said in response:
“Could be.”
I conclude on the evidence before me that the evidence adduced by Ms Graham does not establish that she was coerced or subject to undue pressure, or was under duress to such an extent that her signed consent on the birth registration forms and the inclusion of Ms Murphy was not a true consent. At any time Ms Graham could have refused to sign such forms and could have refused to go to the Registry of Births, Deaths and Marriages. Her evidence that she did because she was afraid
Ms Murphy might abscond with [X] has no basis whatsoever.
I find therefore that the presumption arising from the registration of [X]’s birth is not rebutted.[23]
[23] See Sections 69R and 69U of the Family Law Act.
I find on the evidence that Ms Murphy had significant involvement with [X] until the time of final separation. Whilst there is some dispute as to the extent to which she was involved with her care, I find that perhaps it was not quite as much as Ms Murphy asserted on some occasions, and which she conceded during cross examination.
It is clear also that Ms Murphy had some continuing but limited involvement with [X] until late February 2012. In all probability, the shared arrangement which existed during that month was not conducive to [X]’s best interests and it is not surprising that [X] became confused as described by Ms Graham and perhaps a little distressed at times. I accept Ms Murphy’s evidence that she was not necessarily distressed with her.
It seems to me that by January 2013, Ms Graham was doubting her decision to exclude Ms Murphy from having any relationship with [X]. It is clear that Ms Murphy’s short relationship with Mr R from early 2012 until September 2013 had precipitated her resolve during 2012 to prohibit [X] from spending any time with Ms Murphy, but by mid-January 2013, Ms Murphy spent at least two evenings looking after [X] whilst Ms Graham delivered some papers. During this time Ms Murphy bathed, fed and played with [X] at the home of the maternal grandparents but they were not involved. Whilst Ms Murphy asserts this occurred at the request of Ms Graham, Ms Graham denies such assertion and accepted Ms Murphy’s offer to come to her home to look after [X] for a short while. It matters not which version is correct. The fact is it took place.
There is no doubt that from this time Ms Graham consciously chose to prevent [X] from having a relationship with or spending any time with Ms Murphy.
The identity of the father has not been established by a parentage testing procedure, but the evidence given by Ms Graham in cross examination by Ms Beck in relation to a pathology report for a sample given by Ms Graham on 14 August 2010 leads me to find, on the balance of probabilities, that Mr C provided the genetic material which succeeded in Ms Graham ultimately becoming pregnant and giving birth to [X].
The evidence given by Ms Graham during that part of the cross examination was compelling and I accept such evidence, particularly as to the timing of her falling pregnant, and thereby excluding the possibility of Mr B being the father.
It was put to Ms Graham, given the results of the pathology test and the timing that there was absolutely no reason that she would come to the conclusion that Mr B was the provider of the genetic material to which Ms Graham responded:
“True”.
It was then put to Ms Graham whether she accepted it was unlikely
Mr B was the provider of the genetic material (which gave rise to the pregnancy) and she said:
“It could be, yes.”
Further, I find on the balance of probabilities that Mr B is excluded from the possibility of being the provider of the genetic material which gave rise to the pregnancy. My reasoning is that there is no evidence at all from the chronology of Ms Graham’s pregnancy or otherwise which could lead to the conclusion he was the donor.
As to [X]’s given names, the evidence establishes that [X] is commonly known as or “[X] Graham”, and that she does not use the name “Murphy”.
Ms Graham gave evidence that [X]’s name for registration purposes is “[X] Graham” and that she is enrolled in those names at her kindergarten school, the doctor, Medicare and that no query has been raised as to the exclusion of the name “Murphy” when her birth certificate has been produced.
Ms Murphy pays child support pursuant to an assessment and Ms Graham named Ms Murphy as a parent to the child support agency, and it seems also produced [X]’s birth certificate.[24]
[24] See Annexure “B” to the mother’s trial affidavit filed 7 November 2014.
Documents produced in response to a subpoena to the child support agency are exhibited.[25] It is noted on page 4 of the exhibit that a decision was made to accept a new registration for child support and as a private collect case, with some other information followed by an entry:
“Proof of parentage satisfied by verbal information from both parents that they are registered in the B, D and M Registrar as the parent of child [X] (legislative reference S29(2)(b) of the Child Support (Assessment) Act 1989.”
[25] See Exhibit A1.
Whilst that of course is not conclusive, it denotes an intention by both Ms Graham and Ms Murphy to notify both as parents to the Child Support Agency.
I find on the whole of the evidence that there is no valid reason to accede to the application by Ms Graham that the name “Murphy” be removed from [X]’s birth certificate and birth registration particulars. My reasoning is that first, it is not a name that she uses. Second, it is not a name essential for any registration purposes and more significantly, is not used as a surname or part of a double barrelled surname for [X].
Over the years, the issue of a surname to be used by a child has fallen for determination a number of times, and the common thread running through those cases is whether such a change of name is in the child’s best interests and in particular, whether it causes the child confusion for all practical purposes. Another issue often raised is whether there is a loss of identity with the parent whose surname it is sought to extinguish or use alongside a different name.
The question of changing surnames of infant children was considered in Chapman and Palmer [1978] 4 FamLR 462.[26] The Full Court summarised a number of factors to be taken into account in determining whether a surname should be changed including whether any confusion of identity may arise for the child if his or her name is changed or is not changed and the effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage.
[26] Chapman and Palmer [1978] 4 FamLR 462;FLC 90-510.
Neither Ms Murphy nor Ms Graham contend that the name “Murphy” is intended as a surname for [X], but given it is her third given name and appears immediately before her surname, it seems to me it is of greater benefit to [X] for that name to be retained.
If it is my decision that [X] is to have a relationship with Ms Murphy and such relationship blossoms and flourishes, [X] will come to realise when she is older that a part of her identity in such name lies with her non-biological parent. I find on the balance of probabilities that that realisation later on is likely to be of significance for her. Equally, she is likely to find out when she is older that if it has been removed it may give rise to an adverse effect when she realises that Ms Graham had made an application for such name to be removed.
I apply the same rationale to the removal of all particulars concerning Ms Murphy from the birth certificate and refuse such application, irrespective of whether Ms Murphy’s application succeeds. If that were to occur it is not difficult to imagine the confusion and doubt and distress she will experience when she learns there is no other parent. The further risk which can arise is that she is not told the truth by
Ms Graham when inevitably she asks questions, and I could not be satisfied Ms Graham would be truthful with her.
When I weigh these competing factors, I find on the balance of probabilities that there is no likely embarrassment or confusion of identity or adverse effect if such name is retained and whether or not [X] develops a relationship with Ms Murphy.
There remains the issue of whether the applicant is a “parent” for the purposes of Part VII of the Act. In particular, I note the written submissions filed 18 November 2013 by the solicitors for the respondent mother. I note also a written submission from Ms Beck in the applicant’s case outline.
As it is submitted correctly, the Full Court considered the effect of Section 60H in Aldridge v Keaton[27] when it was said:
“Although not directly raised in this appeal, the question of whether an “other intended parent” is a “parent” for the purposes of Part VII is not without some doubt. This fact is of significance when considering Section 60B(1) and (2) and Section 60CC(2) and (3). We would, consistent with principles of statutory interpretation, give a purposive construction to the section and regard both the birth mother and other intended parent as parents of the child. But we note other provisions of the Act appear inconsistent with this interpretation.”
[27] Aldridge v Keaton [2009] Fam CAFC 229; (2010) 42 Fam LR 369
As I understand it, this remains the current status and I was not taken to any other Full Court decision following Aldridge v Keaton to suggest otherwise.
I find therefore that the applicant falls within the definition of “the other intended parent” and find further that the applicant is a parent under Section 69R and conclude therefore that the applicant is a parent for the purposes of Part VII of the Family Law Act.
Application of Section 60CC and the Legal Principles
Section 60CC (1)(2)(2A) provide as follows:
(1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
I have no hesitation in finding on the whole of the evidence before me that there is a very significant benefit for [X] to continue to have the meaningful relationship with her biological mother, Ms Graham, which clearly she has.
It is a vexed question as to whether there can be a benefit to [X] in having a meaningful relationship with Ms Murphy, given the time which has elapsed since their relationship came to an end, and it is clear on the evidence that there is currently no relationship between them. The fact that there is no biological relationship between [X] and Ms Murphy is entirely irrelevant.
The evidence before me is that [X] has been able to meet and engage with a number of other persons who initially were strangers to her whether it be at day care, or elsewhere. Further, it is of significance that in the observation by Mr P, [X] was comfortable in the presence of Ms Murphy[28] and was not distressed and did not seek out her mother.
[28] See Paragraph 52 of the Family Report.
I find on this evidence that there is every prospect that if [X] spends increasing and graduated periods of time with Ms Murphy then a relationship will be established between them which will be meaningful and therefore of benefit to [X].
It is of significance that Section 60B provides that the objects of Part VII are to ensure the best interests of children are met by a number of things but specifically to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child and that the children have the right to know and be cared for by both of their parents, regardless of whether their parents are married, separated, have never married or have never lived together.
I am satisfied on the evidence that Ms Graham and Ms Murphy intended to give birth to [X] and co-parent her. The intention to have a child flowed from the time Ms Murphy underwent the IVF procedure and following discussions between them to have a child. The subsequent birth of [X] and the parents living together and caring for her jointly until separation some 7 months after her birth gives [X] the right to enjoy a relationship with both of her parents.
It seems to me that unless there are compelling reasons to the contrary, she is not to be denied that right.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There is clearly a need to protect [X] from risks of this nature, but the only risk which is likely to arise now in my view may arise from psychological harm if [X] is exposed to conflict between Ms Graham and Ms Murphy, or Ms Graham undermines the relationship between [X] and Ms Murphy if that is to occur.
Such risk can be addressed by avoiding at this stage the possibility, of Ms Graham and Ms Murphy meeting, for example, at implementation, with the hope that if time is to occur and Ms Graham sees that [X] is benefiting from the relationship with Ms Murphy and trust is re-established then they can engage with each other in time in a civil and proper manner.
I was left with the distinct impression from the tenor of the evidence given by Ms Graham that while she is opposed to [X] having any form of relationship with Ms Murphy that if it is to occur, she will give it her support and comply with Orders. That is not to say that she comes as a willing participant in the first instance, but at least compliance and acquiescence is a very significant step forward for Ms Graham.
There is no suggestion on the evidence before me that [X] was exposed to any form of family violence during or after the relationship. I note also that the exhibited documents from the child support agency refer to both advising specifically that there was no family violence.
Note:Making these considerations the primary ones is consistent with objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the considerations set out in paragraph (2)(b)
a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
[X] is not of an age where she could express a wish to which any weight could be attached.
It is significant, and to the credit of Ms Graham that it seems she has not talked to [X] about Ms Murphy, thereby avoiding any possibility of an adverse wish being expressed.
b)the nature of the relationship of the child with:
(i)each of the child's parents; and
The evidence establishes that [X] has no relationship with Ms Murphy, but for reasons to which I have referred, there is no bar by itself to such relationship being developed.
I am satisfied on the evidence that [X] very clearly has a fond, close and loving relationship with her mother, Ms Graham.
(ii)other persons (including any grandparent or other relative of the child);
It is clear that [X] has a close, loving and fond relationship with members of Ms Graham’s extended family.
[X] does not have any relationship with members of Ms Murphy’s extended family.
c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(i)to communicate with the child;
Ms Murphy has been excluded from the possibility in taking up any of these opportunities as a consequence of Ms Graham preventing [X] from having a relationship with her.
Ms Graham has had the sole responsibility for making major decisions and caring for [X], certainly since early 2012.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
I infer from the evidence before me that Ms Graham is able to provide necessary financial support for [X].
Ms Murphy pays child support in accordance with the child support assessment, which at the time of the hearing was $33.80 per month and with Ms Murphy paying $35 as agreed by Ms Graham.
d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
If [X] is to spend progressively increasing time with Ms Murphy there is a distinct possibility that she could become distressed upon being separated from her mother, especially given that Ms Murphy is a stranger, but that can be overcome by Ms Murphy spending time with [X] initially in surroundings which are familiar to her, including [L] Kindergarten, progressing to short periods of time away from kindergarten, and then progressing to longer periods of time on a day when she is not due to be in kindergarten or at a weekend.
There is nothing on the evidence before me to suggest that [X] is likely to react adversely to Ms Murphy once she is familiar with her and knows who she is. The observation by Mr P of [X] and Ms Murphy in that context suggests that [X] is well able to be comfortable in Ms Murphy’s presence.
Given the evidence of Ms Graham, it is likely she will be resistant initially to [X] spending time with Ms Murphy, and perhaps not surprisingly be concerned for the emotional welfare of [X]. It was submitted by Ms Carty that Ms Graham’s wellbeing will be impacted if she is forced to facilitate time for Ms Murphy and that it would follow, logically, that if Ms Graham’s wellbeing was impacted then that is likely to flow to [X] with a likelihood of an adverse effect on [X].
Ms Carty referred me to the Full Court decision of Verner & Vine[29] and the decision by the trial Judge in a parenting case arising from a same sex female relationship which had broken down when the trial Judge determined on page 34:[30]
“The state of the relationship between these former friends exists today and makes it clear that it will be extremely unpleasant for the mother to be in a position where she was required to have any further contact with the applicant. I am satisfied that it would impinge on her and her families need for peace and tranquillity and cause upset in the child’s home which would not be in the child’s interest.”
[29] Verner & Vine [2007] FamCA 354
[30] Paragraph 17 of the Full Court Judgment.
There are several features of that case which are different from the case presently before me and for the reasons I have given I am not compelled to the view this is a likely outcome in this case.
The submission is made appropriately, but I do not find on the whole of the evidence before me that such an effect upon Ms Graham will follow. For reasons which I have given, it seems to me likely
Ms Graham will comply with Orders if [X] is to spend time with
Ms Murphy. But more importantly, it is for Ms Graham to accept that if such Orders are made, it is a decision made by the Court in [X]’s best interests, and not the best interests of either Ms Graham or Ms Murphy.
It is certainly clear from Ms Graham’s trial affidavit that she does not like Ms Murphy or her personality and cannot stand being around her, and that Ms Murphy makes her extremely angry and, as she deposed:[31]
“The thought of having to talk to Ms Murphy, expose my daughter to her and see her on a regular basis causes me to feel highly stressed and emotional.”
[31] Paragraph 178 of Ms Graham’s trial affidavit.
Ms Graham continues to depose[32] that [X] is a highly perceptive child and if she feels that Ms Graham is stressed or emotional, that will upset her.
[32] Paragraph 179 of Ms Graham’s trial affidavit.
The evidence in that context put forward by Ms Graham is subjective for the perhaps obvious reason that [X] has not spent any time with
Ms Murphy.
If time is to take place, it will be for Ms Graham to conceal any distress she may feel from [X] and assume the responsibility she has as a parent to perform that role. Ms Graham can protect [X] from risks of that nature. Further, this is about [X]’s relationship with both Ms Murphy and Ms Graham, not the relationship between Ms Graham and
Ms Murphy.
Further, I have some confidence that if [X] spends time with
Ms Murphy and it is seen to be successful for [X] and a relationship is established, Ms Graham may well feel less hostile towards Ms Murphy and more accepting of [X]’s relationship with her.
In my view, the greatest gift both Ms Graham and Ms Murphy can give [X] is to permit her to know and encourage her to know that they both love her and want to spend time with her and enjoy different activities with her, which will lead to her being able to move between their respective homes easily and without tension and look forward to that occurring.
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
I do not know what the likely effect is to be, but it is to be hoped that if time is to occur, Ms Graham’s extended family will be supportive and Ms Murphy’s extended family will not overwhelm [X] until their relationship with her is well established and on a sound footing.
e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
There is no practical difficulty or expense whilst both Ms Graham and Ms Murphy are living in [T].
Whilst there was evidence that Ms Murphy hoped to obtain employment away from [T], possibly Newcastle or elsewhere, she had not made that decision and had not secured any such employment. It follows that Ms Murphy will remain in [T] for the foreseeable future.
If Ms Murphy moves away from [T], and the concession before me is that a journey by road between Newcastle and [T] is over a distance of about 175kms and would take about 2 hours. It would not be appropriate in my view for Ms Murphy to spend any time with [X] during the day travelling to and from Newcastle, but it is something which could be entertained if she moves, if overnight time is to occur.
f) the capacity of:
(i)each of the child's parents;
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
I am satisfied on the whole of the evidence before me that Ms Graham is presently able to provide not only for [X]’s physical needs, but also for her emotional and intellectual needs.
I am satisfied that Ms Murphy, if she is to have a relationship with [X] is also able to provide for her day to day physical needs, and emotional and intellectual needs. I was left with a distinct impression from the tenor of Ms Murphy’s evidence that she wants to be an effective parent to [X] and has the capacity and ability to do so.
Whilst it was suggested in submissions that Ms Murphy had given no evidence about her proposals for spending time with [X], nor how she would care for her, that is not an issue which prohibits the relationship from being developed.
Ms Murphy was clear to say that she would not permit [X] to stay or visit some friends of hers with whom she would stay overnight, and for reasons which she agreed were appropriate.
There is evidence from Ms Graham[33] of [X]’s favourite activities at pre-school being painting and dancing and music times. If Ms Murphy spends some time with [X] in the first instance at her pre-school, she will also gain a working knowledge of other activities which [X] enjoys, which she can then pursue with her. It is likely also that [X] now being 4 years of age will be able to tell Ms Murphy the sort of things she enjoys doing.
g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
[33] Paragraph 147 of Ms Graham’s trial affidavit.
No particular observation or finding is necessary in relation to [X]. She appears to be a well-adjusted child enjoying childhood and in good health.
Ms Graham deposes to having been diagnosed with depression, anxiety and a borderline personality disorder[34] for which she takes prescribed medication for anti-depression and mood stabilisers. She describes her mood as currently good, and she also sees a counsellor and has check-ups every 3 weeks with her GP.
[34] Paragraph 131 of Ms Graham’s trial affidavit.
h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
This has no application on the evidence before me.
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
There is no useful purpose in repeating the findings I have made earlier in these Reasons for Judgment, save to say that Ms Graham has adopted a poor attitude to her responsibility to ensure [X] has a relationship with her other parent, and by ignoring the reality and significance of the joint intention which I have found they had to bring a child into the world and care for her and then exclude Ms Murphy for no valid reason.
j)any family violence involving the child or a member of the child's family;
This was not an issue raised at any length during the hearing, save for the arguments which the parties had and some personal difficulties they had with each other as the relationship progressed. Ms Graham denied the various assertions made by Ms Murphy as to any form of physical violence which on any interpretation may have been mild. It is not necessary for me to make any findings in that respect.
This is not a case where there is any suggestion that [X] has been involved or exposed to family violence or that it is likely that she is to be so exposed.
Doing the best I can, it seems to me most unlikely there will be any possibility of family violence and especially if there is no or very limited possibility of the parties confronting each other or meeting each other at any time of implementation.
k)any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
There is none on the evidence before me.
l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
I will do the best I can to put in place Orders which meet this criteria.
m)any other fact or circumstance that the court thinks is relevant.
There is none on the evidence before me.
Section 61DA
Section 61DA provides as follows:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for this in subsections is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
I find that the presumption is rebutted by the dysfunctional relationship which exists between Ms Murphy and Ms Graham in the sense that they have no communication with each other whatsoever. They haven’t spoken to each other for about 2 years.
Whilst it is to be hoped that their ability to communicate about [X] will improve after each has attended the “Parenting after Separation” course, I find that it is appropriate that Ms Graham have sole parental responsibility but that she be required to inform Ms Murphy before making major decisions and give her an opportunity to have some input.
Section 65DAA
Given my finding in relation to parental responsibility, this has no application.
Conclusion
When I come to weigh the whole of the evidence before me, and especially the submissions made by Ms Carty on behalf of Ms Graham, I find it is appropriate and in [X]’s best interests to begin and develop a relationship with Ms Murphy, her other parent.
It seems to me, and I find that this can best be done by [X] seeing
Ms Murphy in an environment familiar with her, namely her kindergarten school, and which on the first few occasions can take place there to enable Ms Murphy to see [X] with her friends and speak to her teachers or carers. It will be necessary for a copy of these Orders to be served upon the Principal of [L] Kindergarten and I will make an Order accordingly, and further that to the extent that it is necessary
Ms Graham give any consents which the kindergarten may require for Ms Murphy to attend the kindergarten.
My reasoning as to preferring the kindergarten is that whilst introductory periods could take place in playgrounds at a McDonalds Family Restaurant or Hungry Jack’s or similar, it is not appropriate in my view for Ms Graham to be present at such times since that will probably lead to the risk of anxiety for Ms Graham which could transfer to [X]. If that were to occur, and I find it likely it would, that is not in [X]’s best interests.
The benefit of Ms Murphy being present at the kindergarten is that it is a familiar environment for [X] and Ms Murphy can be introduced as a person who will be beginning a significant relationship with her. It is quite possible she will remember Ms Murphy from the Family Report interview some 12 months ago.
Whilst I am at large as to the Orders I make, and this was not a matter I raised with counsel at the hearing, it seems to me that to require
Ms Murphy to attend the kindergarten falls within my purview. There may need to be some flexibility at the kindergarten, but I propose to define the period of time at the kindergarten as between 11.00am and 12.00pm noon, on the premise that that is not a time when the children are likely to be resting or absent. If that time is not suitable to the kindergarten for some reason, then it is for Ms Murphy and
Ms Graham to negotiate with the kindergarten and agree upon a different time. It will occur on six occasions only.
Whilst conscious of recommendations made by Mr P as to time with Ms Murphy perhaps taking precedence over kindergarten time, I do not know the financial arrangements which Ms Graham has with the kindergarten, and it would not be appropriate to put those at risk particularly if Ms Graham receives a subsidy. It is for that reason also that Ms Murphy is to spend time with [X] at the kindergarten.
After the introductory period, time can take place away from the kindergarten for increasing periods each Wednesday and Saturday until mid-October, at which time the Wednesdays will continue and alternate weekends from Saturday until Sunday will come into place.
Doing the best I can, this will provide an appropriate period of introduction and increasing periods of time for [X] to spend with
Ms Murphy before she attends school next year.
There is a period of approximately eight months before that occurs and [X] will spend time with Ms Murphy progressing from single overnights prior to Christmas, to some short block periods during the traditional Christmas school holiday period, progressing to fortnightly weekends during school terms in 2016 and portions of school holidays and provision for telephone communication.
I have not made a provision for implementation if Ms Murphy moves away from [T] since there is no indication at all as to when she may move or to which place. The evidence was in general terms only. If
Ms Murphy moves away from [T], and depending upon the distance, it is appropriate for the parents to negotiate a resolution on the premise that Ms Murphy would collect [X] from [T] at the beginning of her time and Ms Graham would then collect [X] from Ms Murphy in the district where Ms Murphy is living at the end, save that nothing precludes the parents from agreeing on a changeover approximately halfway between their places of residence if they prefer and which was raised as a possibility during the hearing.
Ms Murphy will be restrained from spending time with [X] away from the [T] and [F] districts during the initial introductory period, but from the time weekends and holiday periods commence, she will be entitled to take [X] away from [T] if she so wishes and irrespective of whether she is living in the [T] district or elsewhere. It is appropriate for the initial district to be extended to include [F], a place familiar to both
Ms Murphy, Ms Graham and no doubt [X] and which has coastal benefits.
Ms Graham may very well be disappointed with my decision, but I would ask her to bear in mind and accept that I am required to make a decision in [X]’s best interests and not the parent’s best interests.
I propose to make a number of practical parenting Orders to ensure primarily that Ms Murphy is properly informed about [X], together with a reciprocal non-denigration Order, which I find cannot be the subject of any reasonable opposition.
For these reasons, I make the following Orders which I find are in [X]’s best interests.
I certify that the preceding two hundred and twenty-three (223) paragraphs are a true copy of the reasons for judgment of Judge Coakes
Associate:
Date: 19 May 2015
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