OVERTON & DYSON

[2019] FamCA 20

FAMILY COURT OF AUSTRALIA

OVERTON & DYSON [2019] FamCA 20

FAMILY LAW – CHILDREN – With whom a child lives – where the children are ordered to live with the mother – where the children have lived with the mother since separation – where the children are ordered to spend substantial and significant time with the father that incrementally increases as the children age – where conflict exists between the maternal and paternal families however the children have and continue to develop significant connections with both sides - where the mother has a history of prioritising male partners – where there have been police involvement between the mother and former partners – where there is a restraint preventing the mother from bringing the children into contact with a former partner.

FAMILY LAW – CHILDREN – SURROGACY - where the children are born through surrogacy – where the parties entered into a commercial surrogacy agreement overseas – where the children were artificially conceived - where the father provided the genetic material for the children to be conceived - where the children were issued Australian passports at birth – where the children are Australia Citizens through descent - where the mother is the psychological mother of the children and their primary caregiver – where the father made comments to the children about the egg donor and their heritage - where there is a restraint on both parties discussing the circumstances of their birth with the children until there is agreement between the parties – where there is a restraint on the children having any further or form of communication with either of the women who acted as the egg donor or gestational surrogate – where there is a declaration made under s 69VA that the father is a parent of the children.

FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – best interests of the child – where the presumption of equal shared parental responsibility remains – where both parties are committed and loving parents – where the parents have demonstrated their ability to co-parent together post separation - where there is a history of family violence reports – where there has been an apprehended domestic violence order between the parties – where the mother’s fears related to the father removing the children from her primary residence rather than fear of the father himself – where the mother acknowledges that there was no physical violence in the relationship.

Family Law Act 1975 (Cth) s 60CC, s 69VA

APPLICANT: Mr Overton

RESPONDENT: Ms Dyson

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 2739 of 2015

DATE DELIVERED: 23 January 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 31 May; 1 & 27 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bateman

SOLICITOR FOR THE APPLICANT: McNeilly Lawyers

COUNSEL FOR THE RESPONDENT: Ms Carty

SOLICITOR FOR THE RESPONDENT: Tony Cox

ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: Kim O’Rourke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. That all prior parenting orders in relation to X born … 2014 and Y born … 2014 (“the children”) are discharged.

Parentage

1. That pursuant to Section 69VA of the Family Law Act 1975 Mr Overton is declared to be a parent (the father) of X born … 2014 and Y born … 2014.

Parental responsibility

1. The parties shall have equal shared responsibility for the children.

Residence

1. The children shall live with the mother.

Time and Communication

1. The children shall spend time with the father as follows:

   5.1Until the children start school or turn five years whichever occurs first the children shall spend four nights per fortnight as agreed and failing agreement as follows;

   5.1.1In each alternate week from 8.00 am Monday to 8.00 am Tuesday commencing on a Monday agreed by the parties or failing agreement on  Monday 4 February 2019; AND

   5.1.2On each alternate weekend from 8.00 am Saturday to 8.00 am Tuesday;

   5.2From the time the children start school or turn five whichever occurs first the children shall spend time with the father during term time for five nights per fortnight:

   5.2.1Each alternate weekend from after school Friday to before school the following Tuesday;

   5.2.2Each alternate Monday from after school until before school Tuesday.

2. Once the children commence school the children shall spend time with their parents for school holiday periods as follows:

   a)Being the first half of the Autumn, Winter, Spring, and Summer school holidays in even numbered years with the father and in odd numbered years with the mother;

   b)The second half of the Autumn, Winter, Spring and Summer school holidays in odd numbered years with the father and in even numbered years with the mother;

   c)For the purpose of these orders, the school holiday time shall commence:

   i)When a parent’s time falls in the first half of the holidays from after school on the day the school term finishes and concludes at 5.00 pm on the day calculated to be half of the holidays;

   ii)When a parent’s time falls in the second half of the holidays from 5.00 pm on the day calculated to represent half of the holidays when contact shall end at 9.00 am on the day the school term commences;

   iii)School holidays shall be deemed to commence at close of school on the day the school term finishes and concludes at 9.00 am on the day the children return to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the applicant father shall retain the additional night.

3. That notwithstanding the previous orders, the children shall spend time with their parents on special occasions as follows:

   a)On the birthday of the children (with the parent they are not living with on the day);

   i)If a school day, from after school until 7.00 pm;

   ii)If a non-school day, from 1.00 pm until 7.00 pm;

   with that parent to be responsible to collect and return the children;

   b)With the applicant father on Father’s Day (if a non-contact weekend) from 9.00 am until 5.00 pm with the applicant father to be responsible to collect and return the children;

   c)With the respondent mother on Mother’s Day (if a non-contact weekend) from 9.00 am until 5.00 pm with the respondent mother to be responsible to collect and return the children;

   d)For the purposes of facilitating the orders the applicant will collect the children from the preschool, day care or the children’s school at the commencement of time and if a non-school day from the respondent at an agreed location in Suburb B and the respondent mother shall collect the children at the conclusion of the applicant father’s time from the applicant father at an agreed location in Suburb B.

Exchange of information

1. That the mother and father shall:

   a)Keep the other parent informed at all times of their residential address and landline contact telephone number;

   b)Keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the children and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children;

   c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children. This order authorises any treating medical practitioner to release the children’s medical information to the other parent.

2. That the parents authorise, by this order, the schools or day care centres attended by the children to give each parent information about the children’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at that parent’s cost).

3. That during the time the children are with either parent, that parent shall:

   a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;

   b)Speak of the other parent respectfully;

   c)Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.

Restraint

1. The Respondent mother is restrained by injunction from bringing the children, or either of them, into contact with her former partner Mr C.

Information about surrogacy for children

1. Unless agreed in writing in advance, both parents are restrained from:

   a.Causing or permitting the children to be brought into contact with or to have any form of communication with either of the women in Country D who were the egg donor and the gestational surrogate;

   b.Engaging in conversations with any person about the egg donor or gestational surrogate in the presence or in the hearing of the children;

   c.Encouraging the children to write or learn and speak the names of either the egg donor or the gestational surrogate.

2. Both parties shall take all necessary steps to contact and undertake any intake process with the E Group in F Town for the purposes of engaging with a family therapist at that service to engage in family therapy for the purposes of assisting the parties to come to a joint agreement regarding the future conversations with the children regarding the egg donor and the gestational surrogate and how best to have those conversations with the children and when those conversations with the children should commence.

International travel

1. The children’s names are to be removed from the Australian Federal Police Airport Watch List forthwith.

2. That when the children are spending time with a parent during school holidays, that parent shall be at liberty, during their school holiday time, to travel internationally and in relation to same:

   a.   The travelling parent shall provide the other parent with a copy of their itinerary for the trip including but not limited to departure and return times and dates; a contact telephone number for the travelling parent and the children and the address at which they will predominantly be based (provided that they will not be required to provide details of every address at which the children will stay) at least 28 days prior to scheduled departure;

   b.   Upon receipt of same the other parent shall forthwith release to the travelling parent the passport for the children;

   c.   The travelling parent shall then provide to the other parent a copy of the return air tickets for the children;

   d.   During the trip the travelling parent shall arrange for the children to telephone the other parent on at least one occasion in each week.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Overton & Dyson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2739 of 2015

Mr Overton

Applicant

And

Ms Dyson

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for parenting orders in respect of the twin children of the parties, X and Y, twin girls now aged four years.[1]

   [1] Exhibit 30, pages 12 and 13

2. The parties met in 2009 and began living together in late 2011.

3. In 2012 the parties married.

Surrogacy

1. The parties found, to their great sadness, that there were unable to have children together naturally. They engaged unsuccessfully with the IVF programme.

2. The parties then made a decision to arrange a commercial surrogacy overseas. Such agreements are illegal in Australia.

3. A Surrogacy Agreement was signed between the father and “the surrogate” in City G, Country D on 30 November 2013.[2]

   [2] Exhibit 30, pages 1-11 – Surrogacy Agreement

4. In late 2013 the subject children were artificially conceived in Country D. The surrogate mother was not the biological mother. The parties commissioned another woman in Country D to donate genetic material for the conception of the children.

5. The father also provided genetic material for the children to be conceived.

6. In July 2014 the twin children were born in Country D. Both parties were present in that country ready to receive them. The father describes the parents’ reaction as follows “[Ms Dyson] and I were over the moon….we cried and laughed and our world just seemed perfect at that moment”.[3]

   [3] Affidavit of the father filed 4/05/2018, par 21

7. The parties were then caught up in a change of policy by the Country D government on permitting overseas surrogacy by Country D nationals for foreigners. The parties feared they would not be permitted to remove the children from Country D and bring them back to Australia.

8. In August 2014 DNA testing was undertaken by the father and the children. Thereafter Certificates of Australian Citizenship by Descent and Australian passports issued for the children and they were brought to Australia by the parties.

Separation

1. In 2015, within six months of return to Australia, the marital relationship fractured.

2. By April 2015 the mother was showing signs of emotional disturbance and severe distress. She repeatedly expressed the wish to see her late father.

3. In August 2015 the mother put the children to bed, left the house without letting the father know and was later found lying on the grave of her late father.

4. In August 2015 an Apprehended Violence Order (“AVO”) was put in place for the protection of the mother by consent of the father without admissions as to wrong doing. The mother alleged verbal abuse by the father. That AVO was the first of many referred to and is considered later in these reasons.

5. In October 2015 the parties separated finally when the mother left the matrimonial home with the children, then aged 15 months.

Considerations arising from surrogacy

The Applicant Father

1. On 13 August 2014, in Country D, the applicant father, together with the two subject children underwent DNA testing. That testing purported to confirm the paternity of the applicant father.[4]

   [4] Affidavit of the father filed 17/02/2017, Annexure C

2. The father now seeks a declaration pursuant to s 69VA of the Family Law Act 1975 (“the Act”) that he is the parent of each of the children.

3. The DNA testing was undertaken in an overall context of financial gain from a commercial surrogacy. The Surrogacy Agreement provides[5] that if “a blood test excludes the parent as being the biological father of the child(ren) (sic) then the parent is not in breach if he refuses to pay “expenses as agreed”.

   [5] Exhibit 30 pages 1-11, Surrogacy Agreement Clause 5.4.3 (ii)

4. There is therefore a theoretical risk that the testing was corrupted by the prospect of financial gain or at least loss of payment. There is no evidence to support corrupt actions actually having taken place.

5. I take into account that the respondent mother also asks that the declaration sought by the father be made. The mother, as is the father, is in no doubt about the paternity of the children.

6. The parties were married when the children were born. I consider it is generally in the best interests of the children for the declaration to be made as sought.

The Respondent Mother

1. The mother is undoubtedly a person who is concerned with the care, welfare and development of the children pursuant to s 65C(c) of the Act. Her standing to apply for orders was not put in issue.

The Country D Surrogate

1. The person named as “Mother” on the birth certificates of each of the children issued in Country D is the Country D woman [Ms H] who was the surrogate for the parties.

2. Accordingly, on 18 September 2017, Ms H was served with the parties’ documents, Application and Response, and Court brochures.[6]  An acknowledgement of Service was signed by her on that day and subsequently filed in the Court.

   [6] Affidavit of Service filed 25/09/2017

3. Ms H did not apply to become a party to proceedings nor did she file any document.

The Trial

1. The matter proceeded undefended by Ms H.

2. The parties were each represented by solicitor and counsel.

3. An Independent Children’s Lawyer (“ICL”) instructing a solicitor advocate represented the interests of the children.

4. The trial was heard over three days on 31 May; 1 and 27 June 2018.

5. The decision was reserved.

The Parties

The Applicant Father

1. The applicant is Mr Overton, (“the father”). He is aged 44 and is an employed tradesman by occupation. He works four days per week, when work is available, in order to be free to care for the children. His employer is open to flexible hours for the father.

2. The father has lived with his own mother, in her home in Suburb B, since the parties separated.

3. The father impressed as a committed parent with genuine respect for the love and affection of the children both for himself and the mother.

4. The father has chosen to not to enter into any further domestic relationship at least while the children are young.

5. The father has a poor short term memory, probably due, as he asserted, to several minor head injuries during his life. He does not respond constructively to anything which could be categorised as “paper work”.

6. I conclude that the father tries not to be distracted by trivial irritations but is prepared to act and be steadfast about serious matters. I also conclude that there is nothing more important to him than the well-being of his children.

The Respondent Mother

1. The respondent is Ms Dyson, (“the mother”). The mother is aged 39 years.

2. The mother is engaged in the care and supervision of the children whom she lives with in the former family home.

3. The mother impressed as a committed and loving parent to the children.

4. She was not so impressive as a witness. She was defensive and untruthful at times.

5. The mother clearly does not enjoy being alone and without a partner. She has been hopeful of forming a long term relationship with a new partner for the security and benefit of herself but also for the creation of what she called “a family atmosphere” for the children.

6. In not quite three years the mother has had four partners, none of whom have proved to be satisfactory. The most recent relationship, which ended days before the trial, was marred by alcohol fuelled violence.

7. In the witness box the mother stated that her relationship with Mr J had ended the previous Saturday [26 May 2018]. The reason she gave was that Mr J had breached an AVO put in place for her protection.

8. I endorse the comment of the Family Consultant in her oral evidence that the mother is an adult, entitled to companionship, but that she introduced new partners to the children too early. By that, I mean before the mother could be confident that a new partner was not quick to anger, not dependent on drugs or alcohol and would be a kind and considerate presence in the lives of the children.

9. My impression of the mother is that she lacks self-confidence. I conclude that she felt undermined and stung by the stance taken by the father, after separation, that as he was a biological parent the children should be with him.

10. I consider it is at least probable that the complaints made by the mother about the father were driven more by fear of losing primary care of the children rather than by a genuine belief that he was not a good parent.

11. I am satisfied that the mother is devoted to the children.

History of Relevant Events

Proceedings commence

1. On 19 October 2015 the father filed, in the Federal Circuit Court, an Application for parenting orders. The father proposed, appropriately on an interim basis, that the children live with the mother and spend time with him on three mornings per week.

2. The application was made within days of separation. This must have been in response to the mother’s expressed fear of allowing the father to spend any time with the children absent court orders.

3. The mother in my view has never been insecure in her relationship with the children. She has however been insecure about her legal authority as a parent. She has been fearful that the father being a biological parent would give him exclusive “rights”. She may also have been affected by fear of the consequences of having entered into a commercial Surrogacy Agreement.

4. On 11 November 2015 the mother filed a Response which reflected her fears. The mother proposed exclusive occupation of the home, a restraint on the father coming near it and time for the father “as the court directs”.

Interim Orders - 23 December 2015 and Transfer to Family Court

1. On 23 December 2015 interim orders were made in the Federal Circuit Court prior to an order for transfer of the proceedings to this Court.

2. The orders provided for the children to live with the mother and spend time with the father on three mornings each week. There were various restraints including removal of the children from Australia. An order for exclusive occupation of the former matrimonial home was not made.

3. On 31 December 2015 the mother returned to the home with the children and caused the father, with the assistance of police, to move out of the matrimonial home. The father asserts, and I accept as likely, that he would have moved out of the home if the mother had asked him.

4. At around this time the mother entered into a new relationship, with Mr K, although she did not live with him.

5. Time between the father and the children took place in accordance with the orders.

Children and Parents Issues Assessment - 2016

1. In June 2016 the parties, the children and the mother’s partner Mr K, were interviewed and observed for a Children and Parents Issues Assessment (“CAPIA”). The children, then almost two years, were described as “happy, healthy and much loved children. They appear to have met age appropriate developmental milestones.”[7]

   [7] CAPIA dated 24/06/2016, par 17

2. The parties agreed to share parental responsibility. The conflict between them over residence was however unresolved.

3. The mother wanted the children to live with her and to spend increasing amounts of time with the father including overnight time by age three years.

4. The mother’s expressed fear was that the father would influence the children to believe that she was not the mother of the children because she has no biological connection.

5. The father wanted the children to live with him on the basis that he had been a primary carer, just as the mother had been, during the time before separation.

6. To his credit the father accepted the opinion of the Family Consultant that equal shared care met the needs of parents but would be detrimental for the children.

7. The Family Consultant recommended a progression of time for the children with the father. She also predicted that if the conflict between the parents continued the children could become highly anxious, unsettled and regress in their development.[8]

   [8] CAPIA dated 24/06/2016, par 54

8. On 31 August 2016 the matter came before a registrar of this Court. The Court was advised there were good prospects of settlement. Self-evidently the matter did not resolve.

9. In October 2016 the relationship between the mother and Mr K ended. A second relationship, with Mr L, followed soon after.

10. On 8 November 2016 the father filed an Amended Initiating Application. True to his acceptance of information provided by the Family Consultant the father proposed equal shared responsibility and that the children live with the mother.

Interim Orders - November 2016

1. On 25 November 2016 further orders were made by consent. Time for the children with the father expanded to three whole days per week and special times. Changeover was to be by the father at the home of the mother or maternal grandmother.

2. The orders referred to the inconsistency between the state protective order [AVO] and confirmed that the parties were legally represented and understood that an inconsistent order had been made.

3. The father probably thought that the orders represented a less rigid approach to contact. The mother probably thought that her agreement to have changeovers from the home led to the father feeling free to come there at times other than specified. Not unreasonable responses by either party. To the extent that the parties still had the intention to reach an agreement, the next event must have put an end to it.

4. In January and February 2017 the father once contacted the mother by telephone, went to the house to ask if he could see the children and once returned a lost toy to the home. He was arrested, charged with breaches and held for two days before bail was granted. Bail conditions prevented the father from approaching the home of the mother.

5. On 17 March 2017 a further set of orders were made by consent.

   -Further time with the father was allowed.

   -There was a restraint on both parties telling or showing the children information about the two [Country D] women who had respectively been the surrogate and egg donor for the parties. That provision arose from the father telling the children something about their life story and the mother learning of that from the children.

   -Alternative arrangements were made for changeover until charges were withdrawn.

6. In mid-2017 the mother broke up with Mr L. Police had been called to the home.

7. In June 2017 the parties and children attended for interview for a Family Report. The parents were reported to be highly critical of each other.

8. On 11 July 2017 the Report was released. The observations of the children were, as before, of happy, well-developed children who loved both parents and delighted in their company.

9. On 17 October 2017 the matter was set down for hearing overlisted.

10. The mother began her relationship with Mr C at this time. The mother conceded that she introduced this man to the children immediately.

11. On 6 November 2017 X was observed to have a bruise on her bottom. The child complained to her father that her maternal grandmother had hurt her.

12. On 19 January 2018 the mother swore her trial affidavit in which she mentioned the new relationship of three months and stated “[Mr C] and I do not live together”. Within days the mother moved in with Mr C. This represents a lack of candour by the mother by not disclosing her intentions.

13. In January 2018 the maternal grandmother threatened the father. Soon after an AVO issued for the protection of the father from the maternal grandmother.

14. The children had told their father about the violent incident in their home involving Mr C. They had been frightened quite naturally. The mother told the father nothing about it.

15. The children also complained to the father about hard smacking by their grandmother. The mother was defensive of the maternal grandmother, her mother.

Conduct of mother’s partner in 2018

1. By 22 February 2018 the new relationship was in trouble. Mr C returned home from drinking at a hotel, resumed drinking at home and became intoxicated. The mother told him to leave and put his belongings on the veranda.

2. Mr C protested aggressively over a period of two hours. He knocked, rattled windows and banged on the door.

3. The mother was sufficiently worried to go into the girls’ bedroom and stay there.

4. The mother chose not to call police. I accept the mother thought that Mr C would probably leave before police arrived.

5. In fact Mr C slept outside, entered the house next morning and physically assaulted the mother in her bed. The mother screamed out to a neighbour and the children came running in. Police were called by the neighbour and attended.

6. Despite that violent event, the relationship continued. The mother previously had attended to support Mr C at a Local Court for an alleged assault on his former partner. She conceded not asking him, or any other partner, about his criminal history but she did know of that event.

7. Finally, in May 2018 after the father saw the mother in a car with Mr C the mother filed an affidavit [24 May 2018] revealing the events of the three months prior.

8. I conclude that the judgment of the mother about the safety of the children has been adversely affected by her feelings for male partners.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Applicant Father

   (a)Amended Initiating Application filed 14/11/2017;

   (b)Affidavit of the father filed 17/02/2017;

   (c)Affidavit of the father filed 4/05/2018;

   (d)Notice of Risk filed 19/10/2015;

   The Respondent Mother

   (e)Further Amended Response filed 19/01/2018;

   (f)Affidavit of the mother filed 19/01/2018;

   (g)Affidavit of the mother filed 24/05/2018;

   Reports

   (h)Family Report dated 7/07/2017;

   (i)Children and Parents Issues Assessment dated 24/06/2016.

The Law

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

Parental Responsibility

1. The presumption of equal shared parental responsibility is easily rebutted by evidence of family violence. To read through all the orders made and breached (in the case of the father) could easily lead to the conclusion that it would not be safe or appropriate for the order to be made.

2. However I have concluded that the mother was, in the special circumstances of these children, fearful of losing her role as mother rather than being fearful of the father himself. It was on that basis that she relied on police and protective state orders to keep the father at a distance from herself and the children.

3. The parties themselves want to share parental responsibility and always have. They have a demonstrated ability to communicate about issues affecting the health and welfare of the children[9] although the mother has at times told the father what she arranged after the event rather than consulting him in advance. A particular example is the mother arranging an assessment of one of the children for autism without prior consultation with, and even more importantly, input from, the father.

Primary Considerations

[9] Exhibits 6-10 and 17

The benefit to the child of having a meaningful relationship with both of the child’s parents

1. It is essential that the children continue to maintain and develop their relationships with both parents. The relationships are meaningful and deliver real benefits.

The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

1. The children have been exposed to family violence in the household of the mother. Her last partner assaulted her in the home when the children were present. He was intoxicated and angry.

   102.The children were fearful for their mother’s safety.

Additional Considerations

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

1. The children are four years only. They displayed love and affection for both their parents, laughter and enthusiasm in the company of each.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. The children have their most important relationship with their parents. They are well loved by extended family on both sides.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

105.Both parents have wanted to spend time with each child whenever possible.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

1. Financially, the father is content for the mother and children to continue to live in the family home. The mother makes mortgage payments, on an interest only basis, which makes staying in the home more affordable for her than renting.

2. In addition, the father has made cash payments, although not consistently, as child support. There were two periods, of ten months and of 14 months, of no payments at all. In recent months he has been providing Coles gift cards of $100 per week, more on two occasions.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. The certainty and security of an order for residence in favour of the mother is likely to have a positive impact on her mental health and psychological function. The children will benefit from that change, from having a mother who is less defensive of her position and more secure.

   109.The children will also benefit from more time with their father.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

110.Each parent has sufficient capacity to meet the needs of the children.

1. The father was initially over invested in the significance for the children of biology. He did come to realise that from their perspective, biology was irrelevant. Who loved and cared for them was what mattered. When they are older, perhaps entering adolescence, the biology issue will likely be a matter of factual interest.

2. The mother was too willing to push the father away through the use of police and court intervention. I do not consider that she was fearful for her safety in relation to the father. I do consider she was fearful that he would take the children away from her. By doing so, she failed to meet the needs of the children for a stable relationship between themselves and their father.

3. The mother’s willingness to quickly introduce successive new partners into the lives of her very young children represents impaired capacity to meet their emotional needs and to be protective.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. The children are four year old twin girls. The parents of the children are Australian. The genetic material [eggs] used for their conception came from a Country D woman. Photographs of the children reflect that genetic heritage. As they grow older they are likely to express interest in their Country D heritage and the circumstances of their birth.

2. Both parents now appear to understand that they should be united in the way that they provide information on that topic to the children. Further, that they themselves will benefit from expert guidance on when and how to tell the children about how they came to be. Until there is a common position the parties must be restrained from engaging the children on that topic.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

1. The parties wanted passionately to become parents. That passion drove their decision to go overseas for a commercial surrogacy unavailable legally in this country. They were willing to do whatever it took and whatever it cost to have a child.

2. They stood together through the disappointment of infertility and the even greater disappointment of nine unproductive cycles of IVF interventions. The cost emotionally and financially was high.

3. They were in my view unprepared for the possibility that their marriage would break down after they achieved their goal. When it did, they began to compete mightily with each other for fear of losing their place in the lives of the children.

4. In November 2015 police reported their own fears to be “a continuation of DV reports and possible offences may occur if further police intervention does not take place”.[10]  Those fears were prescient, as were the predictions of the Family Consultant that the children would become anxious and unsettled if conflict continued. In May 2017 one of the children, aged almost three years, was referred to a paediatrician for opinion and management of “aggression; anxiety attacks”.[11]

   [10] Exhibit 11, report dated 4/11/2015

   [11] Exhibit 25

5. By the end of the trial both parties appeared to understand at least to some extent the damage that had been done.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

121.There have been quite a few protective orders made in the state courts.

1. In June 2013, during the period when the parties were undergoing IVF procedures, and before the surrogacy agreement was entered into, the mother reported to police that the father had assaulted her. In particular, that he had dragged her into the house, pinned her down on the bed, punched her in the legs and made threats.

2. The father denies that he did any of those things. His evidence in this trial was that the allegations were false and that the mother admitted to him soon after that she had made them up.

3. That assertion is supported by evidence in the form of a Statutory Declaration declared in the presence of a solicitor, by the mother on 7 August 2013. The declaration is a detailed and thorough retraction of all allegations raised with police two months prior.[12]

   [12] Exhibit 30, pages 16 & 17

4. The original complaint may have given rise to an AVO[13] although no order was produced to this Court.

   [13] CAPIA dated 24/06/2016, par 15

5. In the witness box the mother was evasive about both the complaint and its withdrawal, stating that she did execute the Statutory Declaration but that it was a mystery how it came into existence. The mother was unable to remember whether the document was given to police “I didn’t deliver it myself”. The mother did not to any extent allege coercion.

6. If, as seems probable, the mother made a false complaint to police intending to punish the father, that tends to suggest that the mother was then, and could be again, dishonest and manipulative.

7. The mother did concede lying to the father about another matter, later occurring, involving the children. She falsely told the father that the children were in Queensland when she knew they were with the maternal grandmother in New South Wales.

1. It could be the case that the father did physically assault the mother in 2013 in the manner she alleged. However it is less likely. I am supported in that conclusion by the responses of the mother to the Family Consultant during interviews:

   ·In mid-June 2016 when asked about family violence the mother said:

   There was only verbal and emotional abuse by the father. She was asked specifically if there was any physical abuse, including punching holes in walls. She said no. She was asked about financial abuse and she said she was the one who had control of the finances to ensure all their bills were paid.[14]

   [14] CAPIA dated 24/06/2016, par 13

   ·In mid-July 2017 the Family Consultant reports:

   The mother states episodes of physical violence have never occurred.

2. I note that in a Mental Health Assessment of the mother in July 2013[15] she referred to herself as having broken up with the father. At that time she was suffering the effects of eight unsuccessful IVF cycles, the unexpected death of her own father and bitter criticism from her sister (married to the father’s brother) for having ended the relationship. Police were called in relation to the conflict between the sisters.[16]

   [15] Exhibit 20

   [16] Exhibit 24

3. The assessment was that the mother was suffering situational stress, depression and adjustment disorder.

4. Soon afterwards, in November 2013, the parties began the journey to parenthood. There were no police reports for almost two years thereafter.

5. In the context of relationship breakdown and ultimately separation of the parties,  many protective orders were sought, granted and varied, as follows:

6. On 3 August 2015 the mother was granted a Final Apprehended Domestic Violence Order by consent without admissions for protection from the father for 12 months (2 August 2016).

7. On 29 October 2015 the mother, the maternal grandmother and a DV support worker attended the police station to make a report[17] about the father’s conduct around the children.

   [17] Exhibit 11

8. Having heard all the evidence I am confident that the report was at best exaggerated, at worst tactical, with a view to limiting time between the children and the father.

9. The mother described the father as “a chronic alcoholic, yelling abusively at the children, force feeding them if they do not eat causing one child to vomit; shoving a cloth into the mouth of the other child when she would not stop crying with blood on cloth as a result of force”.

10. The mother was “unable to recall times and dates”, just wanted to make a report. In fact the mother wanted more than a record of events.

11. The mother requested the AVO be varied to restrain the father from approaching her or the children other than through lawyers or the Court.

12. On 18 January 2016 the AVO made for the protection of the mother from the father was extended for a further 12 months (18 January 2017).

13. On 30 July 2016 the father was charged with breach of AVO for attending the home of the mother. There was no associated incident.

14. On 13 February 2017 the father was arrested at home. The children were present there with him. They were removed from his care. He was taken to the police station and charged with contravening the AVO. The contraventions were as follows:

    1.On 26 January 2017 the father came to the house and asked the mother whether the children were awake and if he could see them. The mother said no and closed the door. The father left. The mother rang police and later gave a statement.

    2.On 6 February 2017 at changeover of the children to the mother, the mother enquired about a missing comfort toy. Later that afternoon the father attended the home with the missing toy. The mother called police.

    143.On 15 February 2017 the father was released on bail.

15. On 27 July 2017 an order was made varying the January 2016 AVO, extending it to 26 July 2018.

16. On 6 October 2017 an application to vary the AVO due to expire in July 2018 was made.

17. The grounds for the application reveal no incident of violence or abuse. The father placed a bag of the children’s clothing on the porch of the mother’s home. The father visited the children when maternal relatives were caring for them in the home. The father returned the children’s bikes by placing them on the front veranda.

18. The mother stated that she felt “unnerved and scared as I’m unsure what his intentions are.” This statement is consistent with the mother’s fear that she would lose primary care of the children not that that she feared violence from the father.

19. On 13 November 2017 an order was made for interim variation of the AVO in place.

20. On 12 February 2018 the father was granted a Final Apprehended Domestic Violence order for six months for his protection from the maternal grandmother Ms M Dyson (11 August 2018).[18]

    [18] Exhibit 19

21. On 5 March 2018 the order of 26 July 2017 was extended for 12 months (25 July 2018).[19]

    [19] Exhibit 4

22. On 22 May 2018 a Final Apprehended Domestic Violence Order was made for the protection of the mother against her most recent partner Mr C. (21 May 2019).[20]

    [20] Exhibit 5

23. The mother continued her relationship with Mr C at least to the extent of being a passenger in his car until at least 11 June 2018. The father witnessed her in the car on that day. Through the lawyers, the mother gave an undertaking not to allow the children to come in contact with Mr C.[21]

    [21] Exhibit 21

24. Considering all of this material I conclude that the mother relied heavily on police when she was fearful of losing primary care of the children. She did not appear to consider the impact on the children of approaching the dispute between the parents in that way.

25. When the most recent former partner of the mother, Mr C, assaulted her in her home she was reluctant to call on the assistance of police because she wished to maintain the relationship, “I wanted to give him a second chance.” The mother did not at the time of those events, when the children were present, make their safety and welfare her priority.

26. I accept that the father holds a genuine concern about the safety of the children in the household of the mother due to the actions of the mother’s most recent partner, Mr C. The children have told him about Mr C’s violence. They were affected by it.

Conclusion

1. The orders provide for the parents to equally share parental responsibility. That means that each can be fully involved in making important decisions involving the care and welfare of the children. It will require communication which the parties can do.

2. Crucially each parent must consult with the other before taking any long term  decision. Telling the other parent of a long term decision after it is made and implemented does not comply with an order for shared parental responsibility. For instance, one parent telling the other where the children are enrolled at school is not sufficient. Discussion about which school to enrol them in and when they should start must take place first.

3. Nothing will please and stabilise these children more than knowing that both their parents know about and are involved in their education, their health and medical treatment and their interests outside school.

4. Orders are made accordingly.

I certify that the preceding one hundred and fifty-nine (159) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 23 January 2019.

Associate: 

Date:  23 January 2019