Purcell and Anor and Nelson and Anor

Case •

[2015] FCCA 274

•

12 February 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

PURCELL & ANOR & NELSON & ANOR [2015] FCCA 274

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – two children aged three years and fourteen months – donor father and same sex partner seek parenting orders – mothers seek a more restricted role for donor father and no time with donor’s partner – appointment of Court expert – cautious approach taken to time spent with donor father – two month intervals.

FAMILY LAW – Family Law Act 1975 (Cth), s.60CC(2)(b) still applies.

FAMILY LAW – Parental responsibility – whether two people can exercise sole parental responsibility – equal shared parental responsibility – order for respondents to have equal shared parental responsibility between themselves – no order for applicants to have parental responsibility.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60H, 61DA, 65C

Federal Circuit Court Rules 2001, r.15.09
Cases cited:
Donnell & Dovey [2010] FamCAFC 15; (2010) 42 Fam LR 559; FLC 93-428
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Reiby & Meadowbank [2013] FCCA 2040
First Applicant: MR PURCELL
Second Applicant: MR NELSON
First Respondent: MS NELSON
Second Respondent: MS PARRY
File Number: SYC 6222 of 2014
Judgment of: Judge Scarlett
Hearing date: 3 February 2015
Date of Last Submission: 3 February 2015
Delivered at: Sydney
Delivered on: 12 February 2015

REPRESENTATION

Counsel for the Applicant: Mr Johnston
Solicitors for the Applicant: Harris & Company
Counsel for the Respondents: Ms Clifford
Solicitors for the Respondents: Hamish Cumming Family Lawyers

ORDERS

UNTIL FURTHER ORDER

  1. The children [X] born [omitted] 2011 and [Y] born [omitted] 2014 are to live with the First and Second Respondents.

  2. The First and Second Respondents are to have equal shared parental responsibility for the children [X] and [Y].

  3. The children [X] and [Y] are to spend time with the First Applicant as follows:

    (a)On the first weekend of January, March, May, July, September and November in each year, on either a Saturday or a Sunday at the First Applicant’s election, from 9:00 am to 11:00 am or such other period of two hours as the parties shall agree; and

    (b)On such other occasions as the parties shall agree.

  4. For the purposes of the above order:

    (a)The First Applicant is to give the Respondents 28 days’ notice of his intention to spend time with the children on each occasion and nominate his election of either the Saturday or the Sunday of that weekend;

    (b)The First Applicant and the Respondents are to agree on a venue in close proximity to the residence of the Respondents for the First Applicant’s time with the children to take place and if the parties fail to agree on a venue then the Respondents will nominate a venue;

    (c)The First Applicant’s time with the children or either of them will take place in the presence of or in close proximity to either or both of the Respondents; and

    (d)In the event that either or both of the children become distressed during the First Applicant’s time with them and are unable to be comforted by the Respondents then the Respondents are at liberty to terminate the First Applicant’s time with the children.

  5. As provided by Rule 15.09, Dr B is appointed as a Court Expert to enquire into and report upon matters relating to the welfare of the children [X] born [in] 2011 and [Y] born [in] 2013 and that in preparing the report to the Court Dr B is requested to consider the following matters:

    (a)The nature of the relationship of the children with:

    (i)Each of the children’s parents;

    (ii)The Applicant Mr Purcell;

    (iii)The Applicant Mr Nelson; and

    (iv)Any other relevant person.

    (b)The likely effect of any change in the children’s circumstances, including the likely effect on the children of any separation from:

    (i)Either of the children’s parents;

    (ii)The Applicant Mr Purcell;

    (iii)The Applicant Mr Nelson; and

    (iv)Any other relevant person.

    (c)The capacity of:

    (i)Each of the children’s parents;

    (ii)The Applicant Mr Purcell;

    (iii)The Applicant Mr Nelson; and

    (iv)Any other relevant person

    to provide for the needs of the children including emotional and intellectual needs, including the impact on that capacity of the relationship between the parties.

    (d)The capacity of the parties to communicate with each other and co-operate in relation to the children’s care, and the impact if any of the children spending regular time in both households;

    (e)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and the parties and any other characteristic of the children that the Expert thinks relevant;

    (f)The attitude to the children and the responsibilities of parenthood demonstrated by each of the parties;

    (g)The extent to which each of the parties has taken, or failed to take, the opportunity:

    (i)to participate in making decisions about major long term issues in relation to the children; and

    (ii)to spend time and communicate with the children.

    (h)The practical difficulty and expense of the children spending time with and communicating with a party and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with the parties on a regular basis; and

    (i)Any other matter that the Court Expert considers relevant to the welfare of the children.

  6. The Applicants are to be liable for one (1) half of Dr B’s report and within twenty-one (21) days of the making of these Orders the Applicants are to pay their half of Dr B’s estimate of fees, being the sum of $5,000.00 into the trust account of the Respondents’ solicitors for payment out to Dr B upon completion of her Expert Report.

  7. In the event that Dr B is required to appear to give evidence in this matter, the parties are to be equally responsible for the cost of Dr B’s attendance at Court;

  8. The parties are to do all things necessary to facilitate the preparation of the report including attending on and arranging for the children to attend upon Dr B;

  9. Leave to apply on seven days’ notice in respect of any matters concerning the Court Expert Report.

IT IS NOTED that publication of this judgment under the pseudonym Purcell & Anor & Nelson & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6222 of 2014

MR PURCELL

First Applicant

MR NELSON

Second Applicant

And

MS NELSON

First Respondent

MS PARRY

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an Application for parenting orders by the biological father of two little girls and his de facto partner. The First Respondent Ms Nelson is the biological mother of the children and the Second Respondent is her de facto partner.

  2. It is common ground that the First Applicant, whilst he is the biological father of the children is not a parent of the children by virtue of the provisions of s.60H of the Family Law Act 1975 (Cth). In each case, the Birth Certificates of the children show the First and Second respondents as the children’s parents with the notation in each case:

    Birth mother is Ms Nelson.

  3. Subsection 60H(1) provides that:

    If:

    (a)a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent); and

    (b)    either:

    (i)the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or

    (ii)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;

    then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act:

    (c)the child is the child of the woman and of the other intended parent; and

    (d)if a person other than the woman and other intended parent provided genetic material – the child is not the child of that person.    

  4. The Applicants have standing to bring their Application in accordance with the provisions of s.65C(c) of the Act, which provides that:

    A parenting order in relation to a child may be applied for by:

    (a)    either or both of the child’s parents; or

    (b)    the child; or

    (ba)  a grandparent of the child; or

    (c)any other person concerned with the care, welfare and development of the child.  

Background

  1. The First Applicant was born in Indonesia on [in] 1971. He is 43 years old. He moved to Australia permanently in October 1994 and in December 1997 formed a de facto relationship with the Second Applicant.

  2. The Applicants met the Respondents over the Internet in December 2010. The First Applicant deposed that he and the Second Applicant had decided that they wanted to have a child under a co-parenting arrangement and sought out a suitable female couple with whom that arrangement could be put into place.[1]   

    [1] Affidavit of Mr Purcell 21.1.2015 at paragraph [9]

  3. The child [X] was conceived early in 2011.

  4. The parties all signed a Parenting Agreement in July 2011.

  5. The child [X] was born [omitted] 2011. She is now aged three years and two months.

  6. The Applicants commenced spending time with [X], including on her first birthday on [omitted] 2012.

  7. The parties had further discussions on Australia Day in 2013 and agreed to conceive another baby.

  8. The child [Y] was born to the First Applicant on [omitted] 2013. 

  9. The Applicants commenced spending time with both children.

  10. The Respondents informed the Applicants on 15th May 2014 that they would no longer allow the Second Applicant to see the children.

  11. The parties took part in mediation with Relationships Australia but no agreement was reached.

  12. The First Applicant commenced proceedings by filing an Initiating Application seeking orders that he and his partner, later to become the Second Applicant, should spend time with the children.

  13. The First Applicant and the Respondents attended a Child Dispute Conference with a Family Consultant on 27th November 2014. The Family Consultant noted in the Child Dispute Conference Memorandum to Court that the Respondents took the view that they should be the ones to decide the time that the children should spend with others:

    They propose that Mr Purcell spend time with the children for approximately two hours on a three monthly basis and in the presence of either Ms Nelson or Ms Parry. At present, Ms Nelson and Ms Parry oppose time between the children and Mr Nelson. Ms Nelson and Ms Parry essentially now maintain that the intention of the original parenting agreement was to allow the children the opportunity to know Mr Purcell for identity purposes only.

    …Ms Nelson and Ms Parry claim to feel fearful of, and intimidated by, Mr Nelson (as an example they allege that he has raised his voice at them).

    In addition, Ms Nelson and Ms Parry described several incidents when they allege that [X] has appeared uncomfortable and “petrified” as a consequence of Mr Nelson’s behaviour.[2]

    [2] Child Dispute Conference Memorandum to Court 27.11.2014 page 2

  14. On 27th November 2014 the First Applicant filed an Amended Initiating Application seeking orders that the children should spend time with the First Applicant and his partner.

  15. On 28th November 2014 the First Applicant and the Respondents entered into Interim Consent Orders providing that he was to spend time with the children at a park between the hours of 8:00 and 9:30 am on 6th December 2014.

  16. The First Applicant met the Respondents at the park on 6th December and spent time with [X] but not specifically with [Y], although she was present.

  17. The two Applicants (as Mr Nelson was to become) and the two respondents attended a further Child Dispute Conference on 20th January 2015. No agreement was reached.

  18. The Family Consultant noted her concern about the potentially detrimental impact on the children of being in the midst of the dynamics of the poor relationship between the adults. The Family Consultant suggested a possible interim compromise:

    …that the children spend supervised time with Mr Purcell and Mr Nelson every two months at a Contact Centre. The purpose of such supervision would be to provide an opportunity to monitor the alleged concerns about Mr Nelson but also provide some limited time between the children, Mr Purcell and Mr Nelson.[3]

    [3] Child Dispute Conference Memorandum to Court 28 January 2015 page 2

  19. The two Applicants seemed open to supervision but were not agreeable to spending time with the children only every two months.

  20. The Respondents maintained their opposition to the children spending any time with Mr Nelson, even if it were supervised, and “expressed concern that the children are unlikely to be unduly distressed by any requirement to attend a Contact Centre.[4]

    [4] Ibid

  21. A Further Amended Initiating Application was filed on 22nd January 2015, naming both the biological father and his partner as Applicants. This Application sought orders that the children should live with the Respondents and spend regular time with the Applicants in a two week cycle, increasing after two periods of two months.

  22. The Respondents filed their amended Response on 28th January, seeking interim orders providing that only the first Applicant should spend time with the children for the purposes of identification.     

The parties’ proposals

  1. The Applicants seek interim orders as set out in their Further Amended Application of 22nd January 2015 and a Minute of Order handed up in Court at the hearing on 2nd February 2015.

  2. In the Application, the Applicants seek orders providing that:

    a)the children will live with the Respondents;

    b)the children will spend time with both Applicants:

    i)for the first two calendar months in a two week cycle from 1:00pm to 3:30pm on the Saturday of week one and from 2:00pm until 3:30pm on the Sunday of week two;

    ii)for a further two calendar months in a two week cycle from 2:00pm to 4:30pm on Saturday of week one and from 2:00pm to 4:30pm of week two; and

    iii)for a further two calendar months in a two week cycle from 9:00am to 1:00pm on the Saturday of week one and from 9:00am to 1:00pm on the Sunday of week two; and

    c)Orders relating to supervision and changeover which were not pressed.

  3. In the Applicants’ Minute of Order, they seek the following orders:

    1. That pending further order all times spent by the Applicants with the children [X] born [in] 2011 and [Y] born [in] 2013 be supervised by Catholic Care Contact Centre.

    2. That each party forthwith make Application to Catholic Care Contact Centre to have the parties assessed for the provision of supervised time for the children to spend with the Applicants.

    3. That the Applicants shall bear the costs of supervision proposed by Catholic Care Contact Centre.

  4. The interim orders sought by the Respondents are set out in their Amended Response. Essentially, those proposed orders provide that:

    a)the Respondents should have sole parental responsibility for the children;

    b)the children should live with the Respondents;

    c)the children should spend time with the First Applicant “for the purposes of identification” as agreed but failing agreement:

    i)on the first weekend of every third month for two hours on a Saturday or a Sunday at the First Applicant’s election for a period of two hours at times agreed or otherwise from 9:00am until 11:00am;

    ii)the First Applicant to give not less than 28 days’ confirmation that he will attend;

    iii)the time to be at a mutually agreed venue or, in default of agreement, as elected by the Respondents;

    iv)the time to be supervised by the Respondents and if the children become distressed the Respondents may terminate the time;

    v)Dr B to be appointed as Court Expert under Rule 15.09 to prepare a Court Expert Report.

  5. After some discussion, Counsel for the Applicants, Mr Johnston, indicated that he had instructions not to oppose the appointment of Dr B as Court Expert.

Evidence and Submissions

  1. The Applicants relied on the Further Amended Initiating Application and the following affidavits:

    a)the affidavit of Mr Purcell of 21st January 2015;

    b)the affidavit of Mr Nelson of 21st January 2015; and

    c)the affidavit of [Ms A] of 1st October 2014.

  2. It was submitted on behalf of the Applicants that [X] has formed a warm relationship with both the First and the Second Applicants. The children are of Indonesian/Australian background and the First Applicant plans to introduce the girls to the Indonesian culture.

  3. Whilst the Respondents have complained about the behaviour of the Second Applicant, there was no complaint made in relation to the First Applicant’s capacity to care for the children.

  4. Mr Johnston submitted that the Respondents’ attitude towards the Applicants in not permitting the children to spend time with them is neither responsible nor in the best interests of the children. When the meeting took place at Queenscliff in accordance with the consent Order made on 28th November 2014 the Respondents did not provide the younger child, [Y], to spend time with the First Applicant at all and they only permitted him to spend 25 minutes with [X].

  5. It was further submitted that this is a unique case where two same sex couple came together with a mutual intention of creating a family for the two girls where they would live with the mothers and spend time with the biological father and his partner. The parties were so committed that they went to the trouble and expense of committing their intentions to writing.

  6. Mr Johnston referred the Court to the decisions of this Court in Reiby & Meadowbank[5]  and the Full Court of the Family Court in Donnell & Dovey[6]. He said that this cannot be an “identity” case; it is a “relationship” case.

    [5] [2013] FCCA 2040

    [6] [2010] FamCAFC 15; (2010) 42 Fam LR 559; FLC 93-428

  7. The Respondents relied on:

    a)their Amended Response filed on 28th January 2015;

    b)the affidavit of Ms Nelson of 20th November 2014;

    c)the affidavit of Ms Parry of 28th January 2015;

    d)the Child Dispute Conference Memorandum of 27th November 2014; and

    e)the Child Dispute Conference Memorandum of 28th January 2015.

  8. Counsel for the Respondents, Ms Clifford, also tendered a calendar for the years 2012 to 2014 on which had been marked the dates when the Applicants, or at least the First Applicant, had spent time with one or both of the children. Ms Clifford submitted that the times offered by the Respondents to the First Applicant were more frequent than he had recently availed himself of in spending time with either of the children.

  9. Whilst it was initially submitted that, as the Applicants are not “parents” of the children, none of the statutory presumptions in section 60CC that apply to parents apply to these Applicants.

  10. Counsel for the Respondents submitted that there is currently no evidence before the Court, based on any observations with the children, upon which the Court can begin to consider what the Applicants’ relationship is with these children nor the effect that the “adult animosity” may have on the children in the event that the Court makes orders adamantly opposed by the Respondents, who are the children’s parents and primary carers.

  11. It was further submitted that the Family Consultant’s comments highlight the significant and complex issues in this matter, which are final and not interim matters. It is important to protect the children from the adult animosity and undue distress and disruption in their care and routines.

  1. Ms Clifford submitted that the orders proposed by the Applicants represent a fundamental change to the children’s time with either of the Applicants to date, even on the Applicants’ version of the history of the matter.

  2. The Respondents propose regular time between the children and the First Applicant, in their presence, being more frequent time than the First Applicant has elected to spend with the children in the previous 12 months. However, they oppose any time between the children and the Second Respondent as a consequence of their experience of his behaviour and attitude towards the children and themselves.

Parenting Applications

  1. This is an interim hearing and the Court must follow the necessarily limited procedure referred to in Goode & Goode[7]. The Court must have regard to the matters contained in Part VII of the Family Law Act 1975 (Cth), particularly:

    a)Section 60B, which contains the objects of Part VII and the principles underlying those objects;

    b)Section 60CA, which requires the Court to regard the best interests of the child (or children , in this case) as the paramount consideration;

    c)Section 60CC, which sets out the way that the Court determines what is in a child’s best interests;

    d)Section 61DA, which deals with the presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child; and

    e)Section 65DAA, which requires the Court to consider equal time or substantial and significant with each parent where an order has been made that the parents should have equal shared parental responsibility for the children.

    [7] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

  2. All of these matters have been considered where they are relevant.

Relevant matters in section 60CC of the Family Law Act

  1. It seems to be clear that the provisions of s.60CC(2)(a), which refers to the benefit to the child of having a meaningful relationship with both of the child’s parents, does not apply in this case, as the First Applicant, although he is the donor of the relevant genetic material, is not a parent for the purpose of these proceedings by virtue of s.60H(1)(d). Consequently, s.60CC(2)(a) can never have application, as all of the relevant provisions of the Act referring specifically to parents fall away” (see Donnell & Dovey[8] at [101], [119]-[120]; Reiby & Meadowbank[9] at [142]-[143]). This will also apply to some of the provisions of s.60CC(3) also.

    [8] [2010] FamCAFC 15; (2010) 42 Fam LR 559; FLC 93-428

    [9] [2013] FCCA 2040

  2. However, it appears that s.60CC(2)(b), which refers to the need to protect the child from physical or psychological harm, still applies, and it would seem to be particularly relevant to the current case. It is also clear that various provisions of s.60CC(3) that do not specifically refer to a child’s parent will still apply.

  3. The Respondents have expressed concern about the effect of the Second Applicant on the children, particularly [X], and there are concerns expressed by the Respondents and noted by the Family Consultant in respect of the animosity between the adults and its negative and unsettling effect on the children.

  4. However, nowhere in the affidavit evidence of either Respondent can be found any criticism of the First Applicant in his attitude to and interaction with the children. His interaction with the children, mainly [X], appears as mild, reserved and non-threatening.

  5. By comparison, both Respondents are highly critical of the Second Applicant, both in his interaction with the children and his overbearing manner towards them.

  6. Ms Nelson, the First Respondent, deposed in her affidavit of 20 November 2014 at paragraph [119]:

    I have been so stressed about [Mr Nelson’s] behaviour toward Ms Parry, I and the children that it was affecting both my home and work life.

  7. Ms Parry deposed at paragraph [43] of her affidavit of 28 January 2015:

    I do not feel comfortable communicating with [Mr Nelson]. My dealings with [Mr Nelson] over the past 12 months have been incredibly difficult. I have felt stressed, anxious and at times physically ill. I have seen that interacting with [Mr Nelson] has had a similar impact upon [Ms Nelson], who has had difficulty sleeping and has lost a lot of weight in the past 12 months. I have lost all confidence and trust in [Mr Nelson] and [Mr Purcell].

  8. Ms Parry described the time between the First Applicant and the children on 6th December 2014 in comparatively neutral terms, noting that [Mr Purcell] interacted with [X] at times and saying as she was packing up prior to leaving, “Next time I would like to spend time with [Y]”.[10]

    [10] Affidavit of Ms Parry 28.1.2015 at [45]

  9. Interestingly, Ms Parry reported:

    As [Mr Purcell] walked away, [X] said to me “who is that man?”. I said to her: ‘That’s [name of Applicant omitted].[11]

    [11] Ibid

Parental Responsibility

  1. The Respondents seek an order that they should have sole parental responsibility for the children. As the Respondents who are the parents under the law, it seems clear that they should have parental responsibility rather than the Applicants. The question of parental responsibility was discussed in Reiby & Meadowbank[12] at [142]-[144]:

    142.Section 61DA of the Act states that when making a parenting order in relation to a child, the court must apply a presumption that it is in the child’s best interests for the child’s parents to have equal shared parental responsibility for that child.

    143.That presumption therefore applies, as a matter of logic, to equal shared parental responsibility being held by the Respondents, as they are X’s parents pursuant to S.60H(1). The presumption does not apply to the Applicant, who is specifically not X’s “parent” pursuant to that section.

    144.Mr Puckey, for the Applicant, sought to persuade me that that is an overly legalistic view, but it is simply what the statute says.

    [12] supra

  2. Curiously, in the Orders made by the Court, her Honour ordered:

    That the Respondents have sole parental responsibility for the child.

  3. With respect, I find it difficult to understand how two people can have sole parental responsibility. The word “sole” necessarily carries with it the meaning that it relates to one person, not more than one. Again, with respect, her Honour’s reasoning in the paragraphs referred to above seem to support an order that the Respondents have equal shared parental responsibility, i.e. equal shared parental responsibility between themselves.

Section 65DAA of the Family Law Act

  1. In the particular circumstances of this case, the provisions of s.65DAA of the Act do not apply.

Orders that are in the children’s best interests

  1. It would appear that the Court should proceed with caution in making interim parenting orders, noting the animosity between the Applicants and the Respondents and the fact that a Court Expert report is to be ordered.

  2. I am satisfied that it is not in the children’s best interests to make any parenting order in favour of the Second Respondent at this stage for the above reasons. It would appear that the parties’ present antagonism would make any order unworkable.

  3. The question of the Second Applicant’s time with the child should await a final hearing, once the report is available and the evidence can be properly tested.

  4. I am satisfied, however, that it is in the children’s best interests to have regular time with the First Applicant between now and the final hearing. I am mindful of the fact that the children have an Indonesian heritage and it would be of benefit to them to learn about this and obtain the benefit of the rich culture that Indonesia has to offer.

  5. The Respondents ask that the First Applicant’s time should be limited to a period of two hours once every three months, for the purposes of identification, but I am not satisfied that this will necessarily assist even in that regard. The First Applicant had not seen the children since May 2014 when he spent time with [X] in the park on 6th December 2014, and she asked Ms Parry who he was. Clearly, she did not recognise him after a gap of seven months. Mr Purcell would be a complete stranger to the younger child, [Y], who is only fourteen months old.

  6. The time spent by the First Applicant with the children needs to be sufficient for them to get to know him, even if they do not comprehend that he is their biological father. However, the relationship between the parties is so tense at present that the Respondents need to be relatively comfortable with an arrangement that sees the First Applicant spending regular time with the children.

  7. I am not of the view that the children’s time should be spent at a Contact Centre. It would seem to me to be better for these two children to be in a situation where their mothers are comfortable with their being in the presence of Mr Purcell so that they can get to know him.

  8. In my view, the First Applicant should spend time with the children for a period of up to two hours, at two monthly intervals, in January, March, May, July, September and November of each year.

  9. The matter should otherwise wait for the final hearing.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  12 February 2015


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Cases Citing This Decision

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Cases Cited

3

Statutory Material Cited

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Reiby and Meadowbank and Anor [2013] FCCA 2040
Donnell & Dovey [2010] FamCAFC 15
Goode & Goode [2006] FamCA 1346