PICCOLO and PICCOLO

[2017] FCWA 167

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: PICCOLO and PICCOLO [2017] FCWA 167

CORAM: O'BRIEN J

HEARD: 19 - 23 JUNE 2017 AND WRITTEN SUBMISSIONS

FINAL SUBMISSIONS RECEIVED 7 AUGUST 2017

DELIVERED : 28 NOVEMBER 2017

FILE NO/S: PTW 2638 of 2014

BETWEEN: MS PICCOLO

Applicant

AND

MR PICCOLO
Respondent

Catchwords:

PARENTING PROCEEDINGS - Consideration of the presumption of equal shared parental responsibility - Where the child has lived in approximately equal care of the parties, but neither proposes that continue - Where an equal time arrangement would in any event be impracticable - Where there is conflict between the parties arising to a significant degree from the wife's anger and her reaction to the husband's new relationship - Where the child has been exposed to that conflict - Where the husband will support the child's relationship with the wife, but the wife will not support the child's relationship with the husband - Turns on own facts.

DISPUTE AS TO EMBRYOS - Jurisdiction to make orders - When the embryos were created and remain stored in Canada - Where the parties entered into an agreement binding under Canadian law which contemplated that upon separation one of them would assume sole ownership of any remaining embryos - Where the embryos contain the husband's genetic material but not the wife's - Where the husband seeks to assume sole ownership of the embryos and the wife does not.

Legislation:

Family Law Act 1975 (Cth) s 4, s 60CC, s 61B, s 61DA, s 65DAA
Artificial Conception Act 1985 (WA) s 6
Evidence Act 1906 (WA) s 7
Interpretation Act 1984 (WA) s 5, s 114

Category: Reportable

Representation:

Counsel:

Applicant: Mr Hynes

Respondent: Mr Hedges

Solicitors:

Applicant: Martin Hynes Lawyers

Respondent: Kim Wilson & Co

Case(s) referred to in judgment(s):

Badawi & Badawi (Costs) [2017] FamCAFC 196

Banks & Banks (2015) FLC 93-637

Bondelmonte & Bondelmonte (2016) 91 ALJR 402

G and G [2007] FCWA 80

Insurance Australia Ltd (t/a NRMA Insurance) v Milton (No 2) [2016] NSWCA 173

Re C and D (1988) FLC 92-815

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Introduction

1[Ms Piccolo] (“the wife”) and [Mr Piccolo] (“the husband”) met in 2006. They were married in 2010. After their attempts to start a family were unsuccessful, they sought to proceed by way of a surrogacy process in Canada.

2Arrangements were made for eggs donated by [Ms B], a Canadian resident, to be fertilised with the husband’s sperm. By that process, six embryos were created. In October 2011 two of those embryos were transferred to [Ms L], also a Canadian resident, who was the gestational carrier chosen by the parties. Those embryos succumbed, and in January 2012 two further embryos were transferred to Ms L.

3While one of those embryos succumbed, the other embryo thrived, resulting in a successful pregnancy. [In] 2012 [Child A] was born.

4The remaining two embryos presently remain in cryopreservation storage in Canada.

5The parties separated in February 2014 and were divorced [in] 2015. Proceedings in this court were commenced by the wife on 12 May 2014 when she filed an application for alteration of property interests. Her application did not specify the final relief sought. The husband responded in June 2014. His response did not particularise the relief sought by him in relation to financial matters, but sought detailed parenting orders, and orders for the remaining embryos to be maintained in storage for his use in the future. The mother’s reply filed on 21 July 2014, while still not particularising the financial relief sought, also sought detailed parenting orders.

6The parties were able to resolve their financial dispute and consent orders were made in relation to that aspect of the matter on 29 March 2016.

7The parties were not able to resolve their disagreement as to the appropriate parenting orders to be made and the future of the remaining embryos. Those matters fell to be determined at trial.

Further factual background and events since separation

8Immediately prior to their separation the parties lived with on a farming property, purchased by the husband prior to the relationship, in [Country Suburb F] (“the farm”). When they separated, the wife left the farm and moved initially into a unit owned by her brother in [Coastal Town A]. On her case, she returned to the farm to look after Child A every day while the husband worked on the farm; on the husband’s case, the wife spent time with Child A everyday but the demands of work on the farm were modest. It is common ground that Child A initially stayed at night at the farm in the husband’s care, with certain limited exceptions when he stayed with the wife by agreement.

9In April 2014, after mediation, the parties entered into a parenting plan. That plan recorded arrangements that were made “reluctantly by both parties” and were intended to be “short term only”. The recorded arrangements provided for Child A to spend time with the wife every Tuesday and Friday night, and with the husband during the day every Wednesday and Saturday. Otherwise, Child A was to be in the wife’s care every day from 7.00 am to 5.00 pm, and in the father’s care every day from 5.00 pm until 7.00 am the following day.

10Following the commencement of proceedings, interim orders were made on 30 June 2014 for Child A to spend equal time with the parties on a four day rotating cycle, with handover taking place at 4.00 pm on day two and 8.00 am on day four. The parties were ordered to attend a case assessment conference and the matter subsequently proceeded to a more detailed interim argument. On 18 September 2014 the order of 30 June 2014 was discharged and interim orders were made for Child A to be in the care of the husband from 4.00 pm Tuesday to 4.00 pm Wednesday and from 4.00 pm Friday to 4.00 pm Sunday, and in the care of the wife at all other times, subject to earlier orders made in relation to special occasions. Those arrangements remained in place at the time of trial.

Handovers between the parties

11Handover has taken place at the [Country Suburb D] store, approximately halfway between the wife’s home in [Coastal Suburb E] and the husband’s home in Country Suburb F. There were ongoing difficulties between the parties at handovers and in relation to their communication more generally. The extent of the difficulties between the parties is made apparent by the devotion of 40 pages of the husband’s trial affidavit to the topic of handovers and some 13 pages of the wife’s trial affidavit to the same topic. A significant proportion of the time spent at trial was on the same subject, including the playing of video recordings of interactions.

12The difficulties with handover occurred almost from the outset. Both parties brought third parties with them to handovers, to act as “witnesses” to the other’s behaviour. In November 2014, at the husband’s instigation, a professional agency began supervising handovers, over the objection of the wife. While the wife was opposed to the use of the service, she acknowledged in her trial affidavit that:

After [the husband] retained [the agency] and because there was an independent third person in attendance, changeover started running much smoother. Only rarely was [Child A] upset at changeover during the involvement of [the agency] and this was only a minor thing, for example because [Child A] was tired.

13In early 2015, the husband commenced a relationship with [Ms P]. Ms P is the wife’s [relative], being the daughter of the wife’s relative [Ms R]. The husband and Ms P now live together, and at the time of the trial were expecting their first child [in late] 2017.

14It is an understatement of significant proportions to say that the wife reacted badly to the husband’s new relationship. She demonstrated hostility to the husband and to Ms P, whether or not Child A was present. She was abusive in gesture, action and language. She acknowledged in cross-examination that she tried to keep her extended family away from the husband, and that she resented their good relationship with him.

15She sought to insist that Ms P not accompany the husband to handovers in Country Suburb D, notwithstanding that Ms P’s daughter, [Child B], attended school near the handover location and that it was convenient to collect both children together. When pressed in relation to that in cross-examination, the wife observed that “there were two vehicles” available to the husband and Ms P.

16In October 2015, the supervision of handover by the independent agency ceased. The difficulties at handover continued, and increased.

17An email exchange between the parties on 30 and 31 January 2016 provides some insight into the tensions which continued. The husband emailed the wife, asking her to “please stop your ongoing abuse to me in front of [Child A] at changeovers” and that she stop telling [Child A] that she didn’t like, or hated, certain people and members of her family with whom the husband still associated. He said that Child A had recently started telling him that the wife “hates [Ms P] and [Child B]”.

18In her reply, the wife said:

I have not been abusing you at transition, anything I have said to you was said when [Child A] was in my car. I have not spoken to you or about others in front of [Child A] at transition.

I confirm I did ask you not to start involving my skanky [relative] in transition, [Child A] was in the car at the time and did not hear this.

19She denied putting Child A in a position “where he needs to take sides” saying that his relationship with his parents was the most important relationship to him “not those that are so-called parties and uncles and people of no significance”. She suggested that the husband’s efforts to promote relationships between Child A and her family were for his benefit rather than for the child, saying “you might be sleeping with my [relative] but other family members of mine are not your concern”. She described Ms P as a “disgusting disloyal person” and said that involving “others in transition would create more unnecessary changes for [Child A] especially someone that hates me and that I hate”.

The appointment of a Single Expert Witness

20In May 2016 an order was made for the appointment of Mr De Rooster as the Single Expert Witness (“SEW”). Terms of reference were to be agreed between the parties. Difficulties arose in that regard, and orders were eventually made on 21 September 2016 specifying the terms of reference for the proposed report. While the jointly agreed terms of reference were fairly standard in their nature, the additional terms of reference (included at the individual request of each party but not agreed by the other) are revealing.

21At the husband’s request, four specific terms of reference were included, relating to the issue of Child A having been born by a surrogacy arrangement. He asked that the SEW address the question of what effect might arise from him retaining the use of the preserved embryos and a “full blood sibling to [Child A]” being born, whether the original surrogacy arrangements themselves had any significance in the recommendation as to what would be in Child A’s long-term best interests, and how the SEW would recommend the parties inform Child A of the circumstances of his birth.

22At the wife’s request, 10 specific questions were included. One of those questions related to surrogacy issues, and another related to Child A’s attendance at the husband’s instigation on a psychologist, [Ms W]. Three questions related to the possible impact on Child A of seeing the father hunt. Further questions asked the SEW to address the likely impact on Child A of a significant change to his care arrangements and the question of whether he held any concerns about “any significant people in [Child A’s] life”.

23Further questions, included at the express request of the wife, asked for the SEW’s recommendations “as to informing [Child A] that his father is cohabiting with the [wife’s] relative, [Child A’s relative also]” and as to the impact on Child A of the husband “reassigning” Child A’s “relationships with [her] immediate family” including Ms P “being reassigned to Mother” and the wife’s relative “being reassigned to Nan”.

24The SEW published his report dated 13 June 2017, very shortly prior to trial. The contents of the report are referred to in more detail later in these reasons.

Matters no longer in issue

25At a status hearing listed of the court’s own motion on 7 June 2017, the parties were ordered to confer and file prior to trial a joint minute setting out any orders which could be made by consent. By that point, they had already conferred and filed a minute of jointly agreed orders in relation to arrangements to be made for Child A on Mother’s Day and Father’s Day each year.

26To their credit, the parties were able to agree further matters following the status hearing. A jointly signed minute was filed as ordered, which set out arrangements for Christmas, Easter, and other special occasions. It also set out arrangements for all school holiday periods, albeit subject to the resolution of a disagreement between the parties as to the year in which those agreed arrangements should commence. The minute also set out proposed consent orders in relation to overseas travel with Child A, telephone and other electronic communication, handover, the exchange of information between the parties, their communication generally, and the restraint of each party from denigrating the other in the presence of Child A, and discussing the court proceedings within his hearing, or imposing physical discipline on him.

27The orders to which the parties have agreed are sensible, and supported by the evidence. They will be incorporated in the draft orders to be set out at the conclusion of these reasons.

Matters remaining in issue – the proposals of the parties

28The wife seeks an order for equal shared parental responsibility. The husband seeks an order that he have sole parental responsibility.

29The wife seeks orders whereby Child A would live with her and spend regular time with the husband including each alternate weekend from after school on Friday until before school on Monday. In the short period before Child A commences full-time schooling, she proposes that he spend alternate weekends with the husband from Friday afternoon until Sunday afternoon. She proposes further that Child A spend time with the husband each week from after school Tuesday until before school on Wednesday, or from 9.00 am Tuesday until 9.00 am Wednesday if not a school day.

30The husband seeks orders whereby during school term Child A would live with him and spend time with the wife each alternate weekend from after school Friday until the commencement of school the following Monday.

31Child A presently attends kindergarten at Coastal Suburb E Primary School. It is agreed between the parties that he should remain at that school for the balance of 2017 regardless of the outcome of these proceedings. The husband intends shortly to move from Country Suburb F to live permanently on a property owned by his parents at [Country Town W]. The wife proposes that if Child A is living primarily with her, he should continue to attend Coastal Suburb E Primary School. The husband proposes that if Child A is living primarily with him, he should attend [School A] in Country Town W. The parties sensibly agreed that the question of Child A’s schooling will largely be determined by the outcome of their dispute as to with whom he should primarily live.

32The dispute between the parties in relation to school holidays is very narrow. The wife proposes that the agreed school holiday arrangements set out in the minute filed after the status hearing should not commence until the beginning of 2019, when Child A will commence year one at primary school. The husband argues that Child A’s attendance at pre-primary in 2018 will itself represent “full-time” schooling, with no differences in attendance between that year and year one, and that accordingly the agreed holiday arrangements should commence at the start of 2018.

33The husband seeks specific orders to permit Child A to spend time with him on the birthdays of Child A’s paternal grandparents. The wife does not agree. The husband concedes that the issue will largely fall away if orders are made for Child A to live primarily with him and that in those circumstances orders would not be required.

34The husband seeks orders to facilitate the issue and renewal of a passport for Child A. The wife opposes the making of such an order, notwithstanding her consent to orders facilitating travel outside Australia with Child A by either parent. Her position in that regard is somewhat difficult to understand.

35The husband seeks an order restraining the wife from causing or permitting Child A to be placed in the care or supervision of the wife’s older son [Mr G]. The wife does not agree. She acknowledges certain issues that Mr G has had, but expresses the hope that those issues are behind him. She asserts that the husband should trust her judgement as to whether Child A would be safe in the company of Mr G without her supervision or presence.

36The husband seeks an order restraining the wife, and any other third party, from exposing Child A to smoking. The wife says such an order is unnecessary, saying that she does not and has not ever smoked in the presence of Child A, and would not allow anyone else to do so. While the parties appear to be in heated agreement that Child A should not be exposed to smoking, the wife maintains her opposition to the proposed injunction on the ground that it is unnecessary. In closing submissions she suggested that if the court is “convinced by the [husband] to make any order as to this issue” it should be in the form of a mutual injunction restraining both parties.

37The husband seeks orders to facilitate the transfer of ownership of the cryopreserved embryos to him. The wife seeks the dismissal of that aspect of the husband’s application, and consequential orders requiring the parties to do all things necessary to enable the relevant fertility centre in Canada to assume ownership and control of the embryos, or that they be permitted to succumb.

Evidence at trial

38The wife relied on the following affidavits all filed on 23 March 2017:

1.her trial affidavit;

2.her financial statement;

3.the affidavit of her friend [Ms O];

4.the affidavit of her brother [Mr GA]; and

5.the affidavit of her neighbour [Ms D].

39In addition, by agreement, an updating proof of evidence of the wife, including her response to the report of the SEW, was handed up at the commencement of trial and confirmed by the wife in her oral evidence.

40None of the wife’s witnesses were required by the husband to present for cross‑examination. Their evidence was accordingly unchallenged.

41Regrettably, the wife’s trial affidavit as filed had 123 exhibits, extending to 427 pages. At the status hearing I queried the relevance of those materials to matters in issue and made an order requiring the filing and service prior to trial of a schedule specifying which, if any, of those annexures the wife sought to have received into evidence. I made it clear that any annexures not listed in that schedule would not be received into evidence.

42A schedule was filed as ordered. That resulted in only 24 of the original 123 exhibits being received into evidence. While that step was welcome and appropriate, it rather begs the question of why the material was exhibited to the trial affidavit in the first place.

43While certain of the rules of evidence are excluded in child-related proceedings by s 69ZT of Family Law Act 1975 (Cth) (“the Act”), the fundamental tests of relevance to matters in issue and probative value, are not. The “proposition that experienced legal practitioners have difficulty with the application of such a test defies comprehension”: Insurance Australia Ltd (t/a NRMA Insurance) v Milton (No 2) [2016] NSWCA 173 at [7].

44As the Full Court recently observed in Badawi & Badawi (Costs) [2017] FamCAFC 196 at [16], albeit in the context of the inclusion of unnecessary documents in appeal books, it is essential that parties and those representing them “bring a rational mind” to the question of what documents are to be produced or exhibited. The “automatic inclusion” of documents without proper consideration as to whether they are necessary for the disposition of the proceedings is to be “greatly deprecated”, both for reasons to do with the efficient management of cases, and for the avoidance of unnecessary costs to both parties. Both the Family Law Rules and the Legal Professional Conduct Rules contain provisions consistent with that observation.

45The husband relied on the following affidavits:

1.his affidavit filed on 4 August 2016;

2.his trial affidavit filed on 11 April 2017;

3.his financial statement filed on 15 May 2017; and

4.the affidavits of his mother [Mrs P], his partner Ms P, his friend [Ms K], his friend and neighbour [Ms T], and Child A’s godfather [Mr W] all filed on 11 April 2017.

46Ms P, Mr W, and Ms K presented for cross-examination as required by the wife. The husband’s mother and Ms T were not required for cross‑examination, and their evidence was accordingly unchallenged.

47Like the wife, the husband tendered an updating proof of evidence, including his response to the SEW report, at the commencement of the trial and confirmed the contents of that document in his oral evidence. Similarly, an updating proof of evidence of Ms P was tendered and confirmed.

48Ms W, a psychologist engaged by the husband to assist Child A was subpoenaed to give evidence.

49The SEW presented for cross-examination by the parties.

50Various documents, photographs, recordings and the like were put to witnesses during the course of the trial and admitted into evidence in that manner.

Observations as to the oral evidence at trial

51The wife was an unimpressive witness. She was at times evasive, and at other times unconvincing in her professed inability to recall detail of certain incidents in which her alleged conduct would reflect poorly on her. In particular, her claims to not recall much detail of certain heated telephone calls and other actions were not credible. Even leaving aside those claims, and her denial that she made racist comments both to and about Ms P, she admitted making obscene gestures towards her and other aggressive and abusive behaviour.

52She endeavoured to explain some of her provocative actions towards the husband and Ms P, either by promoting implausible or unsustainable interpretations of those actions or by attempting to minimise what she had done; I did not accept those explanations.

53By way of but one example, the wife was cross-examined about an occasion when Child A brought with him to her home some of his favourite home-made Italian sausage provided by the husband. Child A ate some of the sausage, leaving the rest in his bag where it remained unrefrigerated for the duration of his time with the wife. Having seen the remnants of the uneaten sausage in the bag, the wife chose to leave it there and inform the husband rather than simply discarding it before handover. When it was put to her in cross-examination that she had told the husband at handover that “your ding sausage is still in the bag” she denied using the offensive expression, but the following exchange occurred:

[WIFE]: I said there’s food in the bag. I didn’t say your ding sausage is in the bag.

[HIS HONOUR]: Why didn’t you just throw it out? Why send it back to Dad?

[WIFE]: It was already in the bag, when we got in the car for changeover it was already in the bag when [Child A] and I got in the vehicle.

[HIS HONOUR]: So why not throw it out? Assume I accept that it was forgotten in the bag and that was why it was left unrefrigerated – once you twigged to the fact that there was a three or four day old unrefrigerated sausage in the bag, why didn’t you just say to [Child A] “Oops we forgot the sausage” and just throw it out? Why send it back to [the husband] is my question.

[WIFE]: I didn’t think it through. I just left it in the bag and told [the husband] that it was there, so I don’t know.

[HIS HONOUR]: I’m asking why.

[WIFE]: I don’t know. I didn’t think it through. I just left it there because it was already there.

[HIS HONOUR]: You clearly knew it was there because you made a point of telling him it was there. I’m struggling to understand why you would send it back rather than just chucking it in the bin.

[WIFE]: We were already in the car your Honour at the time. So I could of, you know, why would I have got out the car, and then…

[HIS HONOUR]: You didn’t check [Child A’s] bag while you were driving did you?

[WIFE]: No I checked it as we were leaving home.

[HIS HONOUR]: So before you got in the car you knew the sausage was in the bag?

[WIFE]: [Child A] was already in his car seat…

[HIS HONOUR]: …Listen to my question. Before you got in the car and drove off from home you knew the sausage was still in the bag, didn’t you?

[WIFE]: No.

[HIS HONOUR]: So when did you twig to the fact the sausage was still in the bag?

[WIFE]: When I was already in the car, before I left home.

[HIS HONOUR]: So you checked his bag while you were in the car?

[WIFE]: Yes.

54The wife’s explanation was inherently implausible, both in content and in her presentation. The admittedly minor example set out above was, regrettably, only one of many incidents referred to in the evidence and unconvincingly explained by the wife.

55Those examples reflect poorly not only on the credibility of the wife as a witness, but on her capacity as a parent. As outlined in more detail later in these reasons, her antipathy towards Ms P, the husband and other family members is a matter significant to the determination of what arrangements will be in Child A’s best interests, and her oral evidence did nothing to alleviate the concerns raised in that regard.

56The husband in contrast presented as a straightforward and honest witness. He was largely unshaken in cross-examination, answered questions without apparent hesitation, and refrained from being argumentative. He was calm and measured in his answers. He acknowledged certain failings in his own conduct, and gave appropriate credit to the wife without hesitation, readily acknowledging that she is the “best mother she can be” and that Child A loves her very much.

57Where there was conflict between the evidence of the parties in relation to factual matters within the knowledge of each of them, I preferred the evidence of the husband.

58Ms P gave her evidence in a direct and straightforward manner and was clear in her answers. She was unshaken in cross-examination, other than in relation to matters where her interpretation of certain events might legitimately differ from an honest interpretation of the same events by the wife. I regarded her as an honest witness.

59Mr W was very calm and clear in his evidence, and was unshaken in cross‑examination. I accept his evidence.

60Similarly, Ms K was calm and direct in her evidence. To the limited extent that her evidence was challenged in cross-examination, it was unshaken. I accept her evidence.

61Ms W gave her evidence in a straightforward, direct and professional manner. She clearly recognised the difference between her therapeutic role and the forensic role of the SEW. She appropriately acknowledged various propositions put to her by counsel for the wife, but was unshaken in her evidence as to her dealings with and observations of Child A, her dealings with the parents, and the impact on Child A of the conflict between the parties. Her evidence was helpful to me.

62Mr De Rooster was cross-examined relatively briefly by both counsel. That cross-examination elicited some further explanation of some matters raised in his report, and some additional comments, but did not challenge the substance of the report submitted. He gave his evidence in a measured and professional manner.

The law – the parenting case

63The court’s power is to make such parenting order pursuant to the Act as it thinks proper.

64The husband is a biological parent of Child A; the wife is not. Both parties are parents of Child A for the purposes of the Act: Interpretation Act 1984 (WA) s 5; Artificial Conception Act 1985 (WA) s 6. The biological parent does not “stand in any preferred position” and the fact of biological parentage “does not in any way impinge upon the principle that the best interests of the child are paramount”: Re C and D (1988) FLC 92-815 at [10.10].

65In the absence of any parenting order to the contrary, each of the parents of a child has parental responsibility for the child. Parental responsibility is defined in s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.

66Section 61DA of the Act 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.

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.

67The words “reasonable grounds to believe” in s 61DA(2) are not unimportant. The Act does not require proof that a parent or other relevant adult has engaged in abuse of the child or family violence before the presumption of equal shared parental responsibility will not apply; it is sufficient for there to be “reasonable grounds to believe” that circumstance.

68Even if the presumption applies, it may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.

69In relation to that question, and all other questions associated, the court is required to consider the matters set out in s 60CC in determining what is in the best interests of the children. While those matters are divided in the legislation into “primary” and “additional” considerations, the primary considerations do not necessarily outweigh any combination of the additional considerations.

70The issues that are joined between the parties will dictate which s 60CC factors are relevant. The requirement to “consider” each factor does not mean that each factor must be expressly discussed in a judgment where the factor in question has no sufficient relevance in the particular circumstances of the individual case to displace the determinative significance of factors specifically discussed: Banks & Banks (2015) FLC 93-637.

71The court must also be guided by the objects of Pt VII of the Act and the principles underlying those objects.

72As the High Court recently observed in Bondelmonte & Bondelmonte (2016) 91 ALJR 402 at [32]:

A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child.

73If an order for equal shared parental responsibility is to be made, I am required to consider whether Child A spending equal time with each of his parents would be in his best interests and whether such an arrangement would be reasonably practicable. If so, I am then required to consider making such an order.

74Again against the background of an order for equal shared parental responsibility being made, if I do not make an order for Child A to spend equal time with each parent I am required to consider whether spending substantial and significant time, as relevantly defined in sub-s 65DAA(3), with each parent would be in his best interests and reasonably practicable. If so, I am required to consider making such an order.

The law – the issue of the embryos

75Both parties approached the matter on the basis that while the embryos are not properly characterised as “property”, the court has both jurisdiction and power to make orders in relation to the dispute by reference to the definition of matrimonial cause defined in s 4(e) of the Act in the following terms:

Proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship (other than proceedings under a law of a State or Territory prescribed for the purposes of section 114AB).

76Sub-section 114(1) empowers the court to “make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate…”. The list of matters specified in the subsections to s 114(1) is inclusive rather than exclusive.

The presumption of equal shared parental responsibility

77On the wife’s case, the statutory presumption of equal shared parental responsibility applies. While he does not assert that either party has engaged in family violence, the husband contends that the presumption may not apply, arguing that the wife’s hostility towards him, Ms P, and members of their families has constituted abuse of Child A, as defined in the Act, by exposing him to “psychological harm”. To the extent the husband’s submissions suggested that the statutory presumption might be inapplicable because of a perceived risk that the wife’s hostility would expose Child A to psychological harm in the future, those submissions misapprehended the relevant test.

78While the wife’s behaviour is a matter for serious concern, and the likely future impact of that behaviour weighs heavily in the consideration of what parenting arrangements are in Child A’s best interests, in my view the statutory presumption has not been displaced as asserted by the husband.

79In the words of the SEW:

Despite the parents’ concerns, differences and allegations, their current dispute does not seem to have a significant impact upon [Child A’s] emotional, social, educational and physical development and needs.

…[Child A] presented as an intelligent, well-adjusted youngster with no behavioural, emotional, health or developmental difficulties. He is socially well-adjusted, attends kindergarten and is achieving the expected developmental milestones for his age.

80Ms W considered it clear that Child A is affected by the conflict between his parents, and while she noted that he presented with adjustment related issues that may have developed into an adjustment disorder if not addressed, nothing in her report suggested that Child A had yet suffered serious psychological harm.

81I conclude that the statutory presumption in relation to equal shared parental responsibility applies in this case.

The primary considerations

The benefit to Child A of having a meaningful relationship with both parents

82It is common ground that Child A has a meaningful relationship with each of his parents and that those relationships are to his benefit.

83The issue which squarely arises in this case, however, is the question of which arrangements for Child A’s care will best ensure that both of those relationships are maintained.

84On either party’s proposal, Child A will live primarily with one parent and spend alternate weekends and school holiday time with the other. Neither proposal, therefore, is superior to the other in terms of the “timetabling” aspect of arrangements for the maintenance of Child A’s relationship with the parent with whom he does not primarily live.

85The maintenance of that relationship, however, is not merely a question of timetabling. The attitude of the parents to each other, and their respective capacities and willingness to support Child A’s relationship with the other, will be central to the maintenance of that relationship, particularly given Child A’s age.

86Ms W gave evidence which indicates Child A is exposed to his mother’s anger. Child A is reported as having told Ms W that he knows and sees how much the wife “hates [Child B]”. While Ms W acknowledged that the wife had “denied all allegations of aggressive behaviour” the evidence does not support that denial.

87Ms W noted also her concern that:

There is a lot of emphasis placed by [the wife] to clarify particular family labels to [Child A] around his family dynamics, e.g. “[Child B] is not your sister, she is your [other relative]” despite [Child B] being an older child living within the family household… there is a lot of emphasis from [the wife] to assert correct family terms of each member which places a lot of strain and confusion for [Child A] around how he is to act and feel around those people…

88She also described her efforts to engage with the wife, saying:

It is very difficult to engage [the wife] and when the opportunity for conversation occurs it is clear she is not supportive of [Child A’s] attending. When issues of concern are raised, [the wife] is quick to dismiss them as relating to attempts by [the husband] to agitate her or to try an (sic) gain sole custody of [Child A]. When focusing on [Child A’s] points of concern voiced by him directly, [the wife] seems to deflect the discussion on to [the husband’s] behaviour being the cause, rather than looking at ways she may be contributing.

89In contrast, she described the husband as active and engaged, noting that he had continued his efforts to share information with the wife and involve her in Child A’s counselling, despite the wife’s resistance, saying:

Although [the husband] has implemented strategies and they have assisted in reducing some of the distress and difficulties presented for [Child A], the effectiveness of the strategies are not as positive as they could be due to the resistance and lack of acknowledgement from [the wife].

90In the view of the SEW:

Both parents are somewhat reluctant to promote a relationship between [Child A] and the other parent. The father believes the mother negatively influences [Child A] against him and the mother believes the father discusses age inappropriate things with [Child A] about his conception. The parents’ allegations indicate they have a distant, distrusting and conflicted relationship which does not bode well for the encouragement of a positive relationship between each parent and [Child A]. This suggests the parents will have difficulty in promoting a relationship between [Child A] and the other parent unless they parallel parent.

91It must also be observed that both parents have made allegations against the other which do not bear scrutiny. The husband filed a Form 4 notice of family violence at an early stage of the proceedings; the concerns expressed in that notice were found to be unsubstantiated. The wife made various allegations against the husband, suggesting that he had exposed Child A to dangerous situations on the farm; in the course of the trial it became apparent that those allegations were at their highest exaggerated, if not fabricated at least in part.

92It is unnecessary for present purposes to determine whether in making those allegations either party was innocently, although inappropriately, reacting to the tensions associated with their dispute or whether either was more cynically seeking strategic advantage. In either case, their conduct reflects poorly on their capacity to co-parent and support the other’s relationship with Child A.

93By way of one example, the parties were unable to agree the arrangements to be made between them on Child A’s first day at kindergarten in February 2017. On the wife’s view, she made it clear to the husband that she preferred that only the two of them accompany Child A to kindergarten for his first day; on the husband’s view, the wife sought to “put restrictions” on who could attend. On the wife’s view, the husband was insistent that Ms P also attend; the husband denies that. In the end, the husband and Ms P accompanied Child A to his first day of kindergarten and the wife stayed home.

94On any interpretation, that was an unfortunate outcome for Child A regardless of whether it was caused primarily by the husband’s insensitivity towards the wife, or by the wife’s willingness to miss her son’s first day of kindergarten rather than come into contact with Ms P.

95While neither party is free of blame for the conflict, the husband has demonstrated a greater capacity than the wife to endeavour to communicate in a respectful fashion, and to behave appropriately in Child A’s presence. In his evidence, he was willing to acknowledge positive aspects both of the wife’s relationship with Child A, and her parenting abilities. He acknowledged some insensitive behaviour on his own part, including for example referring in Child A’s presence to the egg donor, Ms B, as “[Mummy B]” on one occasion, and acknowledged also that at least some of the tension at handovers was created by Ms P taking photos or video recordings of them.

96In contrast, the wife did not appear to have any proper appreciation of the potential impact of her behaviour on Child A. She appeared to regard her conduct as both understandable and justifiable. In the course of cross-examination in relation to her insistence that the husband keep away from her family, the following exchange took place:

[COUNSEL FOR THE HUSBAND]: ...When will I find a record anywhere where you’ve said to any of your family “I’ve changed my mind, I now am happy for you to accept invitations from [the husband]?”.

[THE WIFE]: I don’t speak to my family about [the husband].

[COUNSEL FOR THE HUSBAND]: No. And so if your family had understood… that you were vehemently opposed. Would it be fair that you were vehemently opposed to [them] having anything to do with [the husband] after separation?

[THE WIFE]: Certain members of the family, yes.

[COUNSEL FOR THE HUSBAND]: Including your father?

[THE WIFE]: That was for a brief period.

[COUNSEL FOR THE HUSBAND]: A brief period?

[THE WIFE]: Between separation and when dad died. Yes it was a very brief period, a period of a year and a couple of months….

[COUNSEL FOR THE HUSBAND]: …The context of this conversation that was recorded, was that you were threatening - if we go over the page - [the husband] says:

“[The wife] your family, they [want to] contact me…”

And you say:

“I don’t care if my family ask you for dinner, out of respect for me you need to say look I’m sorry, no, ok. You need to respect me like I’ve respected you and your family”.

[THE WIFE]: Absolutely, true.

[COUNSEL FOR THE HUSBAND]: Well, right. You couldn’t get a clearer statement of “stay away from my family” could you?

[THE WIFE]: At that time, yes. I believed at that time that it was best that we both stay away from each other’s families.

[COUNSEL FOR THE HUSBAND]: Best for who?

[THE WIFE]: Best for both of us in terms of having some respect for each other’s family members and sorting out this issue privately without the involvement of family.

[COUNSEL FOR THE HUSBAND]: Well clearly it wasn’t best for [Child A] was it?

[THE WIFE]: [Child A] was seeing both families at the time.

[COUNSEL FOR THE HUSBAND]: But the message is - the message to [Child A] is - your mum and your dad are in completely separate camps, isn’t it?

[THE WIFE]: Sorry, are you saying that’s the message today?...

[COUNSEL FOR THE HUSBAND]: That’s the message and throughout nothing has changed, that’s what I’m saying.

[THE WIFE]: At times, yes. [Child A] doesn’t socialise with the other parent… if [Child A] is with me he doesn’t socialise with [the husband].

[COUNSEL FOR THE HUSBAND]: But the message… no the message in this, is we are to keep completely separate families - I don’t care if my family ask you out to dinner out of respect for me you need to say look I’m sorry no.

[THE WIFE]: This is prior to us trying to sort things out. Shortly after we left, things – we were still trying to come to terms, sorting things out, keeping this out of court, and coming to some amicable solutions. So at this time I thought it was best that we just keep our families out of it and try and deal with it privately and that was the whole point of my conversation - please have some respect and keep my family out of it and let’s just deal with things privately ourselves. Today [Child A] sees many of my family members when he’s with [the husband] as he does with me. I don’t believe that [Child A] is feeling at any time that there is a major division between families at the moment.

[COUNSEL FOR THE HUSBAND]: When do you say [Child A] did think there was a division between the families?

[THE WIFE]: I don’t think [Child A] does think that.

[COUNSEL FOR THE HUSBAND]: So he never has experienced difficulty in terms of any thinking that the two families are quite separate.

[THE WIFE]: It’s very hard for me to say, I don’t know what happens [in] his time with his father, I know he sees some of my family members. [Child A] does understand that he sees different people at different homes.

[COUNSEL FOR THE HUSBAND]: …on your own evidence right, if [the husband] went along with what you insisted then, there would be no contact between [the husband] and your family members would there?

[THE WIFE]: That was only at that time. Yep, at that time, that’s what I wanted. That was my view.

And later, in the context of an exchange between the parties in regards to the location of the child:

[COUNSEL FOR THE HUSBAND]: [The husband] says, “Where’s [Child A] now?” you say:

“He’s in his pyjamas, he’s had his veggies and his tea, he’s sitting in the lounge room watching Pinkie Pinkie… with his toy so don’t worry about where he is, he’s with me, and he will remain with me. So it could even be a week ok, because you can’t get a recovery order because neither of us are listed as parents if it goes to court. So you’re unable to obtain a recovery order and so am I, it could get very messy but let’s do the right thing, ok. We’re both here to parent [Child A] so let’s do the right thing and respect each other’s family. I don’t care if you’ve got my whole family, the whole extended family, everyone, ringing and telling you to have a cup of tea. You’ve got your own friends and your own family so be respectful to me and say no thank you”.

So you agree to telling him you can’t get a recovery order, I’ll keep him for a week if I want, if you don’t do what I say.

[THE WIFE]: …My understanding then, I was looking into the fact, obviously, that there was surrogate birth mother’s and egg donors involved in this and looking at stuff and I was a little bit confused then as to what a recovery order was, I was looking into it at that time. [The husband] did express a couple of weeks prior to that that he was intending to get a recovery order… so I think I was just throwing it back at him Sir.

[COUNSEL FOR THE HUSBAND]: …And then just to contextualise what this was really about – rather than what you just said then about surrogates and so on – at the foot of the page you say:

“Ring her and tell her that your plans changed and something’s come up, you’re terribly sorry and text me in half an hour otherwise I’ll send you a text and I can say whatever in the text but I will do it. Ok”.

[THE WIFE]: Sorry I’m unsure…

[COUNSEL FOR THE HUSBAND]: …A second ago you suggested it was about surrogacy and [the husband] threatening you with a recovery order and I’m suggesting to you that it is straight out you threatening him if he doesn’t stay away from your family you will make it messy?

[THE WIFE]: Yes. I’m suggesting that he stay away from my family, yes.

[COUNSEL FOR THE HUSBAND]: And if we go over the page – “I will withhold. I will withhold [Child A] from you I will lie like you lied in your text when you withheld him from me”.

[THE WIFE]: Correct.

[COUNSEL FOR THE HUSBAND]: So you are quite happy, I suggest, to lie if it means you get what you want?

[THE WIFE]: That’s what he’d done to me previously, so that’s my suggestion.

[COUNSEL FOR THE HUSBAND]: Just answer the question please. Is the answer yes.

[THE WIFE]: Yes.

97As recently as Christmas 2016, a further example of the wife’s attitude towards the husband’s relationship with Ms P and its impact on Child A occurred.

98The husband and Ms P helped Child A purchase a Christmas present for the wife. The husband paid for the present, which was an item of clothing. Child A told the wife that Ms P had helped him choose it for her; her response was to send a text message to the husband saying that she would be “returning the top my [relative] bought for me for Christmas at today’s change over, I do not want gifts from you or my [relative] at any time”.

99The wife’s explanation for returning the item was that it did not fit properly. She said that she tried it on, that Child A understood that it did not fit and that she simply told him that she would send it back to the husband. Her denial of the proposition that Child A was disappointed or upset by that did not ring true.

100The wife acknowledged that the item of clothing, when received by her, still had the price tag on it and that it would have been a simple matter to exchange it. She admitted also that Child A gave her a [gift] for Mother’s Day 2017 and that, conscious that it had been bought with the assistance of the husband and Ms P she returned it with Child A. She initially tried to suggest that she had done so as the item did not fit properly and that Child A understood that. When asked by me she then admitted that such items do not actually come in different sizes, and that the reason she returned the gift was that she did not like the fact that it had been purchased by the husband and Ms P.

101The wife’s inability or unwillingness to recognise the impact on Child A of her actions in rejecting his gifts, and her capacity to prioritise her own resentment over that impact, are telling and do her no credit.

102As already indicated, I accept the evidence of Ms K and Mr W as to their various interactions with the wife since separation. Those interactions reflect poorly on the wife, and are indicative of a level of anger and aggression on her part which does not appear to have subsided in any meaningful way in the time that has passed since the parties separated.

103In the context of my earlier observations, it is noteworthy that in cross‑examination the wife agreed that if Child A lived primarily with her he should have the opportunity to spend time with the husband on the birthday of his new baby, but would not agree to Child A spending time with the husband on Ms P’s birthday. The wife would not agree to orders which would enable Child A to spend a short period of time with his paternal grandparents on each of their birthdays, notwithstanding the husband’s agreement to her request that Child A spend time with her on the last birthday of her father before he passed away.

104I conclude that it is unlikely that the wife would actively support and encourage Child A’s relationship with the husband and his family if Child A was to live primarily in her care. I conclude that in all likelihood she would comply with orders made for Child A to spend time with the husband, but no more.

105While the husband is not without fault, in my view he recognises the importance to Child A of the child’s relationship with the wife. I have more confidence in his ability to prioritise Child A’s interests and feelings over his own than I have in the wife’s ability to do the same.

106I conclude that the best prospect of Child A’s relationship with both parents being maintained and supported is if he lives primarily with the husband.

Any need to protect Child A from physical or psychological harm

107There is, in my view, a risk of psychological harm to Child A if his relationship with both parents is not supported. It is unnecessary to repeat the observations already made in that regard.

108Notwithstanding the allegations made by each of them during the proceedings, and the difficulty they encountered at trial in retreating from those allegations, neither party would seriously suggest that Child A is at risk of any physical harm in the care of the other. I do not, therefore, propose to set out the various allegations and counter allegations in these reasons, as it would be both unnecessary and potentially unhelpful to do so. It is sufficient to record that I have carefully considered the evidence of both parties and their witnesses in that regard, and conclude that there is no risk of physical harm to Child A in the care of either parent.

The additional considerations

109Child A clearly loves both parents and wishes to be with each of them. Neither party would suggest that he has expressed any other views which would be relevant, nor that he is of an age and level of maturity at which such views if expressed should be given weight.

110The evidence supports a conclusion that Child A has a good and developing relationship with Ms P and her daughter. It is to be anticipated that his relationship with the new child of the husband’s relationship with Ms P will be important to him. The husband has shown a willingness to facilitate the maintenance of Child A’s relationships with members of the wife’s family, notwithstanding the wife’s opposition to that, and will also facilitate Child A’s relationships with his own extended family. As noted above, the wife’s capacity or willingness to support Child A’s relationships with the husband’s family is limited.

111The wife has an adult son from a previous relationship. He has experienced some drug-related issues and has various criminal convictions. While she maintains her relationship with her son, the wife sensibly conceded in cross-examination that he should not be permitted to care for Child A. She did not suggest that any relationship he has with Child A is significant.

112Both parties have endeavoured to participate in making decisions about major long-term issues in relation to Child A, and spend time and communicate with him. Notwithstanding minor criticisms raised, they have also both appropriately fulfilled their obligations to maintain him.

113Child A has, since separation, lived in circumstances where his parents share his care on an almost equal basis. On either party’s proposal, those circumstances will change. The change will not, however, effect a separation from either parent in the sense that he will still spend regular time with each.

114The respective proposals of the parties reflect not only their views as to what arrangements are in Child A’s best interests, but an acknowledgement that an arrangement whereby he spends equal time with each of them, or substantial and significant time as that concept is defined in the Act, is not reasonably practicable in the circumstances.

115Both parties have an appropriate capacity to provide for Child A’s practical needs. Both have a capacity to provide for his emotional and intellectual needs, and both care deeply about him. That said, the observations and findings already made call into question the capacity of the wife to truly provide for Child A’s emotional needs, given her antipathy towards the husband and Ms P and her apparent inability or unwillingness to moderate the behaviour caused by that antipathy, or to recognise its potential impact on Child A.

116Other than the immaturity of some of their behaviour towards each other, there are no issues relating to the maturity, sex, lifestyle and background of the parties or the child that impact on the decision to be made. While the husband is Catholic and the wife is not, the wife has no objection to Child A been raised Catholic and educated in a Catholic school if he is living primarily with the husband. While the parties have different lifestyles and backgrounds, Child A can benefit from both.

117Both parties would regard themselves as having an appropriate attitude to Child A and to the responsibilities of parenthood. I have no doubt that both are devoted to Child A and take their responsibilities as parents seriously; it is to be hoped that after the conclusion of the proceedings they can moderate their behaviour towards each other so as to better meet those responsibilities.

118I have considered also whether it would be preferable to make the order least likely to lead to the institution of further proceedings in relation to Child A. That consideration does not favour the proposal of either party, other than potentially in relation to the issue of parental responsibility to which I will refer further below.

Conclusion – parenting orders

119As already noted, in my view the statutory presumption of equal shared parental responsibility applies in this case. Nevertheless, the presumption may be rebutted by evidence that satisfies me that it would not be in Child A’s best interests for the parties to have equal shared parental responsibility for him.

120Given the conflict between the parties, it is tempting to accept the submission on the part of the husband that an order for equal shared parental responsibility is effectively unworkable and therefore, contrary to Child A’s best interests. However, to accept that submission would be simplistic.

121The effect of an order for equal shared parental responsibility is to mandate consultation and joint decision-making in relation to major long-term issues in relation to the child. The definition of major long-term issues set out in the Act must be borne in mind, as must the objects of Part VII and the principles underlying them and the absence of mandated consultation and joint decision-making in relation to other issues.

122The wife acknowledged in cross-examination that if Child A was to live primarily with the husband she would agree to him being enrolled in a Catholic school as proposed, and would participate actively in that. She agreed also that she would have no objection to the husband continuing to raise Child A as a Catholic. Both parties had, at the commencement of the trial, sensibly agreed that choices regarding Child A’s schooling would be made by reference to the decision as to the parent with whom he is to primarily live.

123While the wife has not willingly participated in the counselling for Child A, as arranged by the husband, neither has she prevented it. It is to be hoped that she will review her position in relation to participation in any future counselling for Child A, including in relation to the circumstances of his conception and birth.

124While I do not dismiss the concerns raised about the capacity of the parties to consult with each other and make joint decisions, on balance the evidence does not satisfy me that an order for equal shared parental responsibility is not in Child A’s best interests.

125Accordingly, I propose to make an order for equal shared parental responsibility.

126As that order is to be made, I am required to consider whether an order for Child A to live equally with each of his parents is in his best interests and reasonably practicable. I have done so, and I agree with the conclusion reached by the parties that such an order would not be in Child A’s best interests and would not in any event be reasonably practicable.

127Similarly, I am required to consider whether an order for Child A to spend substantial and significant time with each parent is in his best interests and reasonably practicable. I have done so, and again I agree with the conclusion reached by the parties and reflected in their proposals.

128I conclude that it is in Child A’s best interests to live primarily with the husband, and to spend regular time with the wife.

129The wife proposed that the agreed school holiday arrangements set out in the minute filed after the status hearing should not commence until the beginning of 2019; that proposal, however, was based on her proposition that Child A would be living primarily with her. The husband’s proposal was that the agreed school holiday arrangements should commence in 2018, as in that year Child A’s attendance at pre‑primary would itself represent “full-time” schooling with no particular differences in attendance in the following year. I accept the husband’s submissions in that regard, and regard it as preferable that the agreed arrangements commence in 2018.

130While both parties agree that orders should be made to facilitate travel outside Australia with Child A by either parent, the wife opposed the making of the orders sought by the husband to facilitate the issue and renewal of a passport for him. As already indicated, her position in that regard was unexplained. I propose to make orders to facilitate the issue and renewal of Child A’s passport.

131While the wife did not concede that there was any necessity for the injunctive relief sought by the husband, in cross-examination she acknowledged both that Child A should not be left in the care of her adult son, and that he should not be exposed to smoking. I propose to make the requested injunctions, while noting that they are made without any admission as to need on the part of the wife.

The remaining embryos in Canada

132The final issue for determination is the disposition of the cryopreserved embryos presently held in storage in Canada.

133The husband seeks that ownership and control of the embryos be passed to him, as he intends to make use of them in the foreseeable future in the hope of having a further child or children. He expresses what he regards as his moral obligation to preserve and make use of the embryos, based on his belief that each of them already represents a life. He proposes either to proceed with a transfer of the embryos to Ms P, or to a surrogate in Canada. Ms P is supportive of his plans.

134The wife opposes the husband’s application and seeks that the two remaining embryos be permitted to succumb. She argues that the sole purpose of the creation of the embryos was for the joint use of the parties to have children together, and that as she has no desire to have further children with the husband, that purpose is at an end. She raises no other objection to the husband’s proposal.

135In their submissions, both parties referred to the decision of the Honourable Justice Penny in G and G [2007] FCWA 80. There are, however, significant factual differences between this case and that. In particular, in the earlier case:

1.the embryos were created using the genetic material of both parties;

2.the request form signed by the parties for the cryopreservation and storage of their embryos included an express provision, at their choice, that in the event of separation the embryos were to be discarded; and

3.the embryos were created and stored in Western Australia and accordingly were unarguably subject to the relevant legislation in this State.

136In the present case, as already noted, the embryos were created using genetic material from the husband and from a donor. The wife has no genetic connection to them .

137The documents executed by the parties in relation to both the creation of the embryos and the surrogacy arrangement are in evidence. Relevantly:

1.the parties agreed that the embryos should be jointly owned by them;

2.they agreed that their agreement with the fertility Centre was to be “governed by and construed in accordance with the laws of the Province of [Place A]”; and

3.they recorded their agreement as to the disposition of the cryopreserved embryos in the case of partnership breakdown or death in the following terms:

“If our relationship terminates, we acknowledge that there may be dispute over the ownership of the embryos. If this occurs, we agreed to inform [the fertility clinic] in writing (within 3 months) that there has been a change in our relationship, and that we will provide the necessary legal documentation to [the clinic] indicating who will assume sole ownership of the embryos. Both Parties’ signatures will be required on this document.

In the event of the death of one of us, we hereby give authority to the surviving partner to assume ownership of the stored embryos.

In the event of both of our deaths, we hereby give authority for [the clinic] to dispose of our embryos in an ethical fashion.”

138It is common ground that the relevant legislation in Canada is the Assisted Human Reproduction Act S.C 2004 c. 2 (“the AHR Act”) and the Assisted Human Reproduction (Section 8 Consent) Regulations SOR/2007-137 (“the AHR Regulations”). Copies current to 23 May 2017 were tendered, and may in any event be referred to pursuant to s 71 of the Evidence Act 1906 (WA).

139Sub-section 8(3) of the AHR Act provides that:

No person shall make use of an in vitro embryo for any purpose unless the donor has given written consent, in accordance with the regulations, to its use for that purpose.

140Sub-section 10(1) of the AHR Regulations provides that:

Subject to section 15, in this part, donor means the following individual or individuals for whose reproductive use an in vitro embryo is created:

(a)the individual who has no spouse or common-law partner at the time the in vitro embryo is created, regardless of the source of the human reproductive material used to create the embryo; or

(b)subject to subsection (3), the couple who are spouses or common-law partners at the time the in vitro embryo is created, regardless of the source of the human reproductive material used to create the embryo.

141It is common ground that the parties were spouses at the time the cryopreserved embryos were created, and that they were created for their reproductive use.

142Sub-section 10(1)(b) of the AHR Regulations is, however, expressly subject to sub-s (3), which is in the following terms:

In the case of an in vitro embryo created using human reproductive material from only one of the individuals in the couple that was the donor of the embryo at the time it was created, that individual becomes the donor of the embryo under paragraph (1)(a) if, before the use of the embryo, the individual is no longer a spouse or common-law partner in the couple.

143It is common ground that the cryopreserved embryos were created using reproductive material from the husband, but not from the wife. The parties are divorced and the husband is accordingly no longer a “spouse or common-law partner in the couple”. The embryos have not yet been used.

144Accordingly, under the Canadian law regulating their agreement:

1.prior to the separation of the parties, they were jointly the donors as defined, and their joint written consent to the use of the cryopreserved embryos was required; and

2.since the separation of the parties, the husband is the sole donor for that purpose and only his consent is required for the cryopreserved embryos to be used.

145In the submissions filed on her behalf, the wife implicitly accepts that to be the position. Nevertheless, while acknowledging that the requirements of the Canadian legislation have been met, the following submission is made on her behalf:

More importantly, however, as concerns the parties to this dispute, both parties remain the owners of the embryos and the intended parents of any child born as a result of the embryo creation in accordance with the documentation. In other words, it is important that both of the parties remain the current joint owners of the embryos in Canada notwithstanding who must provide consent for the purposes of complying with the [AHR] Regulations.

146That submission is, with respect, somewhat difficult to follow. While the distinction is drawn between ownership of the cryopreserved embryos and the power to consent to their use, there is no elucidation of the “importance” of that distinction.

147It was not suggested on behalf of the wife that she would be at risk of facing any form of legal obligation to a child born of the cryopreserved embryos. It is accordingly unnecessary to speculate as to the parentage under Western Australian law of any child born of the cryopreserved embryos to a surrogate mother in Canada or elsewhere, or the impact, if any, on that issue of a distinction between such arrangement being altruistic or commercial. Should one or both of the cryopreserved embryos be carried to term by Ms P, she would be the mother of that child for the purposes of Western Australian law in any event: Artificial Conception Act 1985 (WA).

148In short, the wife has advanced no cogent reason as to why the cryopreserved embryos should be permitted to succumb, nor as to why the husband should not be permitted to preserve and eventually use them. The agreement executed by the parties in this case stands in sharp distinction to the agreement between the parties in G and G (supra) that in the event of separation the embryos owned by them were to be discarded.

149The parties in this case expressly contemplated and agreed that in the event of separation one of them would assume sole ownership of the embryos. The wife does not wish to assume such sole ownership, but the husband does.

150In all the circumstances I consider it appropriate to grant the relief sought by the husband.

Proposed orders

151Subject to any submissions as to form, I propose to make the following orders:

1.All previous parenting orders be and are hereby discharged.

2.The Applicant wife [Ms Piccolo] (“the wife”) and the Respondent husband [Mr Piccolo] (“the husband”) have equal shared parental responsibility for [Child A], born [in] 2012.

3.The child will live with the husband.

4.The child will spend time with the wife during school term each alternate weekend from after school on the Friday until the commencement of school the following Monday.

5.The husband be at liberty to enrol the child at [School A] in [Country Town W] from the commencement of the 2018 school year.

6.The usual living arrangements for the child be suspended and the child spend time with each parent for Christmas as follows:

Christmas

(a)with the wife from 12.00 noon on 24 December until 2.00 pm on Christmas Day, in odd numbered years;

(b)with the husband from 2.00 pm on Christmas Day until 4.00 pm on Boxing Day, in odd numbered years;

(c)with the husband from 12.00 noon on 24 December until 2.00 pm on Christmas Day, in even numbered years; and

(d)with the wife from 2.00 pm on Christmas Day until 4.00 pm on Boxing Day, in even numbered years.

Easter

7.The usual living arrangements for the child be suspended and the child spend time with each parent with respect to Easter:

(a)in 2018 and each alternate year the child shall be with the husband from 4.00 pm Holy Thursday until 4.00 pm Easter Saturday and with the mother from 4.00 pm Easter Sunday until 4.00 pm Easter Monday; and

(b)in 2019 and each alternate year the child shall be with the wife from 4.00 pm Holy Thursday until 4.00 pm Easter Saturday and with the father from 4.00 pm Easter Saturday until 4.00 pm Easter Monday.

Other Special Occasions

8.The usual living arrangements for the child be suspended and the child spend time with each parent for special occasions as follows:

(a)[on] (the child’s birthday) with the child to spend time with the parent with whom he is not living:

(i)for a period of two hours if the date falls on a school day and in default of an agreement from the conclusion of school until 6.00 pm; or

(ii)for a period of not less than six hours if the date falls on a non-school day and in default of an agreement from 10.00 am to 4.00 pm;

(b)on (the wife’s birthday) with the child to spend time with the wife if he is not living with her pursuant to these orders:

(i)for a period of two hours if the date falls on a school day and in default of an agreement from the conclusion of school until 6.00 pm; or

(ii)for a period of not less than six hours if the date falls on a non-school day and in default of an agreement from 10.00 am to 4.00 pm;

(c)on (the husband’s birthday) with the child to spend time with the husband if he is not living with him pursuant to these orders:

(i)for a period of two hours if the date falls on a school day and in default of an agreement from the conclusion of school until 6.00 pm; or

(ii)for a period of not less than six hours if the date falls on a non-school day and in default of an agreement from 10.00 am to 4.00 pm; and

(d)on such other special occasions as agreed between the parties with agreement to not unreasonably be withheld.

9.The living arrangements for the child be suspended each year irrespective of the living arrangements:

(a)on Mother’s Day when the child will spend time with the wife from 5.00 pm on the Saturday prior to Mother’s Day until 5.00 pm on Mother’s Day or as otherwise agreed between the parties; and

(b)on Father’s Day when the child will spend time with the husband from 5.00 pm on the Saturday prior to Father’s Day until 5.00 pm on Father’s Day or as otherwise agreed between the parties

School Holidays

10.With effect from the commencement of the 2018 school year, the usual living arrangements for the child shall be suspended during school holiday periods and the parties shall spend that holiday time with the child as follows:

(a)during each Term 1, 2 and 3 school holiday periods:

(i)with the wife for the first half of each Term 1, 2 and 3 school holiday period from the conclusion of school on the last day of term until 5.00 pm on the middle Saturday of the holiday period;

(ii)with the husband for the second half of each Term 1, 2 and 3 school holiday period from 5.00 pm on the middle Saturday of the holiday period until the commencement of school on the first day of term;

(b)during each summer school holiday period with the parties on an alternating weekly basis with the husband for the first week from the conclusion of school on the last day of Term 4 of each year until 5.00 pm seven days later with the usual living arrangement to resume in the first week of Term 1 each year;

(c)notwithstanding sub-paragraph(b) above, the parties each be at liberty to nominate a period of up to two weeks in duration during the December/January school holidays each year for the purpose of spending extended time with the child. For the purposes of this order:

(i)the husband do have preference as to the extended dates in odd numbered years, and the wife do have preference as to the extended dates in even numbered years;

(ii)the child spend an equal amount of time with the other parent either immediately before or immediately after the extended period; and

(iii)if neither parent makes a nomination for an extended period with the child in a particular year, then the week about arrangement do continue over the December/January school holiday period.

Passport and Travel Outside of Western Australia

11.If either parent wishes to travel with the child outside the State of Western Australia then such travel shall take place within the period of time the child is spending with the party wishing to travel with the child (‘the travelling partner”), unless the parties agree otherwise in writing, or by order of the Court; and

(a)if the proposed travel is within Australia, the travelling parent shall provide not less than 28 days written notice to the non-travelling parent of their intention to travel and shall, as soon as practicable provide the non-travelling parent with:

(i)a copy of any itinerary;

(ii)details of where the child will be staying during the period of travel; and

(iii)contact details of the child during the period of travel;

(b)if the proposed travel is outside Australia then:

(i)the travelling parent shall provide not less than 35 days written notice to the non-travelling parent of their intention to travel and, at the same time, provide details to the non-travelling parent of:

(a)the proposed destination and travel arrangements;

(b)details of where the child will be staying during the period of travel;

(c)contact details for the child during the period of travel; and

(d)as soon as practicable when the bookings are made provide the other parent with a copy of the travel itinerary and any booking confirmations for accommodation; and

(c)the parties be restrained and an injunction granted restraining the parties from travelling with the child to a travel destination subject to a Smart Traveller Warning of “exercise a high degree of caution” or above.

12.The parties each do all things necessary to obtain, and thereafter renew as required, a passport for the child, which passport shall be held by the husband, but provided by him to the wife on reasonable request to facilitate her travel with the child.

Contact by Electronic Communication

13.Each party do facilitate and encourage reasonable telephone communication between the child and the other parent via phone, email, FaceTime or Skype, including regular communication during any period of extended travel.

Changeover

14.For the purposes of these orders, if changeover does not occur at the child’s school, then handover is to take place outside the [Country Suburb D] General Store or at such other location as agreed between the parties in advance by email or text message, noting that it is anticipated by the parties that an alternative venue may need to be agreed after the husband moves to [Country Town W].

Notification of Address and Other Details

15.Both parties shall keep the other informed as to their residential address, email address, landline telephone number and mobile phone number. Each party notify the other of any change of residential address and/or contact email, or telephone number/s within 28 days prior to such change occurring where it is practicable to do so.

16The parties each authorise and instruct each medical institution and medical practitioner attended upon by Child A to release to both parties to such information relating to his medical and dental health as may be reasonably requested from time to time.

17The parties each do all things necessary to ensure they are both nominated as the alternative contact person with any medical institution, medical practitioner, dentist, kindergarten, school or other educational institution should one party being unable to be contacted in cases of emergency.

18The parties inform and authorise all relevant organisations, agencies and individuals and in particular the Principal of any school at which Child A attends to provide both copies with any reports and/or information in relation to him.

Medical and Contact Nominations

19.The parties shall provide notice of significant medical issues concerning the child whilst he is in their care.

20.In the event the child suffers any significant illness or injury, the party with whom the child is with at that time as soon as practicable:

(a)inform the other party without delay of the nature of the injury or illness;

(b)inform the other party of the name and address of any health care professionals who have attended on the child; and

(c)authorise and instruct the said health care professionals to provide all information in relation to the child to the other party.

21.Both parties shall be permitted to attend all events for the child to which parents routinely attend.

22.Each party notify the other as soon as practicable of any invitations or activities the child is invited to attend during the other party’s time. Each party use their best endeavours not to disclose to the child any invitations or activities he is invited to attend during the other party’s time without the other party’s prior written consent.

Non-denigration

23.On a without admission basis, the parties each be restrained and injunction is granted restraining them such that they shall not:

(a)denigrate the other party or their family, in front of the child or within his hearing and will use their best endeavours to ensure other persons do not denigrate the other party in the presence of the child and will immediately withdraw the child from any situation in which any such denigration occurs;

(b)discuss these orders, proposals or any details or documents relating to the Family Court proceedings with the child;

(c)cause or impose any physical punishment on the child; or

(d)photograph or take a video recording of the other party without that party’s consent.

24.Each party will promote and encourage the child’s relationship with the other party or the other party’s family and will not undermine the child’s relationship with the other party.

Communication

25.The parties shall communicate via email or text. The parties will ensure all communications are civil and that emotive and profane language is avoided in all circumstances.

Injunctions

26.On a without admission basis:

(a)the wife be restrained and an injunction granted restraining her from causing or permitting the child to be placed in the care or supervision of [Mr G]; and

(b)both parties be restrained and injunctions granted restraining them from smoking in the presence of the child or allowing any third-party to smoke in his presence.

Embryos

27.The wife forthwith do all acts and things and sign all documents necessary to transfer to the husband any right or interest she may have in the cryopreserved embryos held in storage with the [Fertility Centre A] in Canada and to notify the said fertility centre that with effect from the date of these orders the husband shall be the sole owner of the said embryos.

28.With effect from the date of these orders, the husband is to be solely responsible for all costs associated with the said cryopreserved embryos including but not limited to costs associated with their storage, transportation, renewal, use or disposal.

Subpoenas

29.All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.

30.In relation to material tendered as an exhibit into evidence in these proceedings:

(a)all parties must collect the exhibits tendered by them (“their exhibits”), from the Chambers of the Honourable Justice O’Brien at least 28 days, and no later than 42 days, from today’s date;

(b)all parties must contact the Chambers of the Honourable Justice O’Brien to arrange the collection of their exhibits;

(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.

31.All outstanding applications and responses otherwise be and are hereby dismissed.

I certify that the preceding [151] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate