Re Patrick - [2002] FamCA 193

[2002] FamCA 193

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA JSPATRICK

AT MELBOURNE NO. ML 10036 of 1999

IN THE MATTER OF:

“RE. PATRICK”

(AN APPLICATION CONCERNING CONTACT)

JUDGMENT DELIVERED BY
THE HONOURABLE JUSTICE GUEST

EDITED FOR PUBLICATION

Date of Hearing:              21, 22, 23, 24, 25, 29, 30, 31 JANUARY 2002
  1 FEBRUARY 2002
Date of Judgment:           5 APRIL 2002

Appearances:

Ms Mendes Da Costa of counsel, instructed by Counsel & Kelly Family Lawyers, DX 38229 Flagstaff, on behalf of the Applicant (mother)

Ms Glaister of counsel, instructed by Counsel & Kelly Family Lawyers, DX 38229 Flagstaff, on behalf of the second named Applicant (co-parent)

Mr Udorovic QC with Ms Johns (and Mr Sweeney of counsel) instructed by Messrs Clancy & Triado, Solicitors, DX 12403 Camberwell, on behalf of the Respondent (father)

Dr Kovacs of counsel, instructed by Victoria Legal Aid, 350 Queen Street, Melbourne 3000, on behalf of the Child Representative

Re Patrick

ML 10036 of 1999

Coram: Guest J

Date of hearing: 21, 22, 23, 24, 25,2 9, 30, 31 January 2002, 1 February 2002

Date of judgment: 5 April 2002

CONTACT – child born as a result of artificial insemination of one of two lesbian partners by homosexual sperm donor – contested agreement – father seeking increased contact with the child – mother and co-parent opposing order and seeking that contact be restricted to twice-yearly – whether it is in the best interests of the child to have increased contact with his father – section 68F(2) factors

PARENTING – whether the father is a ‘parent’ under the Family Law Act and Child Support (Assessment) Act – meaning of ‘family’ – nature of parenting – gay and lesbian families – Family Law Act sections 60B, 60H

In January 1998, the father entered into an agreement with the mother and her lesbian partner (‘the co-parent’) to provide genetic material for the purpose of artificially inseminating the mother. The terms of the agreement were bitterly contested at the hearing.

After approximately 12 months of insemination attempts the mother conceived in January 1999. The father was informed of the conception and for several months the arrangements proceeded amicably. However, with the effluxion of time the parties’ relationship became embittered and disagreement as to the role of the father in the child’s life surfaced.

After attending two mediation sessions and failing to reach an agreement as to the father’s role, the mother and co-parent unilaterally decided not to involve the father any further in their plans for the birth and went into hiding.

Patrick was born on 11 September 1999. The father was informed of the child’s birth by a friend. The father remained unaware of the mother and co-parent’s whereabouts.

On 18 October 1999 the father filed an Application for Final Orders in which he sought joint responsibility with the mother for the long term care, welfare and development of Patrick, as well as graduating contact as the child got older. The mother opposed the application.

On 23 November orders were made by consent that leave be granted to the co-parent to intervene in the proceedings.

The parties attended confidential counselling on 6 December 1999. No resolution was achieved. However, from December 1999 the father began having contact with Patrick pursuant to consent orders.

On 2 June 2000 Final Orders were made by consent awarding the mother and co-parent joint responsibility for decisions concerning the long term and day to day care, welfare and development of the child. The father was granted contact for two hours each third Sunday to increase as the child got older.

Following the Final Orders contact proceeded but the relationship between the mother and co-parent and the father further deteriorated. In particular, the mother and co-parent sought to impose upon the father restrictions during contact, including that he not refer to himself as Patrick’s ‘dad’.

After several months of bitter correspondence between the parties and the unilateral cancellation of several contact visits by the mother and co-parent, on 8 May 2001 the mother and co-parent filed an application in the Federal Magistrates Service seeking to discharge the contact orders made on 2 June 2000. They refused to permit the father any further contact with Patrick.

The father opposed the application and sought fortnightly contact, graduating to overnight and school holiday contact as Patrick got older.

Held, (in allowing the application):

(per Guest J)

1. In deciding an issue such as this, section 65E of the Act requires the Court to regard the best interests of Patrick as the paramount consideration. It is a consideration of those best interests which forms the cornerstone of the judgment and remains its final determinant.

B and B: Family Law Reform Act 1995 (1997) FLC 92-755

2. Patrick has a loving relationship with the mother and the co-parent. They are, and have at all times been, his primary care givers. As matters now stand, Patrick is familiar with his father, comfortable in his presence and gains considerable reward and benefit from their mutual interaction. The father has sensitively approached the issue of his contact with Patrick, demonstrating both compassion and understanding. Patrick has much to gain from contact with his father.

3. The orders sought by the father appear to be a carefully considered proposal with a graduated increase in his contact with Patrick and underpin a responsible awareness to the current situation and promotion of Patrick’s best interests.

4. There is no decision in Australia that specifically addresses the issue of whether a sperm donor, whether anonymous or known, is a ‘parent’ within the meaning of the Act, though the Full Court has held that a sperm donor for a lesbian couple is not a ‘parent’ for the purposes of the Child Support (Assessment) Act.

B v J (1996) FLC 92-716 (per Fogarty J)

5. The effect of s 60H(3) of the Act is that where under a prescribed law of a State or Territory the child is a child of a man, the child is also to be regarded as his child under the Family Law Act. Thus a child is to be regarded as the child of the biological father and the biological father a ‘parent’ only if there is a specific State or Territory law which expressly confers that status on a sperm donor for the purposes of the Act. There are no prescribed laws on any State or Territory to that effect.

Family Law Act 1975 s 60H, Status of Children Act 1974 (Vic) section 10F

6. In the absence of express provisions in federal law, the Act can and should be read in light of such state and territory presumptions, thereby leaving the sperm donor, known or unknown, outside the meaning of ‘parent’. The father is thus not a ‘parent’ under the Act.

Family Law Act 1975 section 60H

7. Given the father’s active role in Patrick’s conception and his ongoing efforts to build a relationship with his son, it is difficult to understand that he is excluded, for the purposes of the Act, from being properly known as a ‘parent’ of Patrick, but merely to have jurisdictional status in the Family Court as “…any other persons” concerned with Patrick’s welfare.

8. It is time for State laws to be enacted to make available to lesbian women and their known donors a well-regulated scheme with all the safeguards, medical and otherwise, available to heterosexual couples. There is no doubt that the parties in this case would have benefited from such services and may not be in the position they are today had they been able to access counselling currently available to heterosexual couples.

9. Given the diversity of gay and lesbian families and the varying roles donors play in the lives of children conceived using their donated sperm the legislature needs to reassess section 60H of the Act and to consider the ramifications of its application in cases such as this. While the legislature may face unique challenges in drafting reform that acknowledges and protects children such as Patrick, and the family units to which they belong, this is not a basis for inaction.

CONTENTS

INTRODUCTION 1 - 3

BACKGROUND 3 - 15

THE LAW 16 - 18

THE EVIDENCE  18 - 86
4.1    ISSUES OF CREDIBILITY  18 - 27
4.2    THE ATTITUDE OF THE PARTIES  28 - 44
         4.3    THE ALLEGED AGREEMENT  44 - 61
         4.4    EVENTS FOLLOWING THE PREGNANCY  61 - 67
         4.5    THE ISSUE OF STRESS ASSOCIATED WITH
                  CONTACT   67 - 80
         4.6    THE VIDEO RECORDING   80 - 82
         4.7    THE ISSUE OF INAPPROPRIATE CARDS  82 - 86

EXPERT WITNESSES  86 - 110
         5.1    DR ROBERT GEORGE ADLER  86 - 97
         5.2    MR VINCENT PAPALEO  97 - 107
         5.3    DR NEIL COVENTRY  108 - 110

SECTION 68F(2) FACTORS 110 - 113

CONCLUSION 113 - 120

IS THE FATHER A ‘PARENT’ UNDER THE ACT?                120 - 129
         8.1    WHO IS A PARENT UNDER THE CHILD SUPPORT
                  (ASSESSMENT) ACT 1989?  120 - 124
         8.2    WHO IS A PARENT UNDER THE FAMILY LAW
                  ACT 1975?  124 - 129

POSSIBLE RECOMMENDATIONS  130 - 136
         9.1    FEDERAL LEGISLATION  130 - 134
         9.2    STATE LEGISLATION  134 - 136

OTHER MATTERS 136 - 142

THE COURT ORDERS 143 - 144

INTRODUCTION

The proceedings before me involve a sperm donor who is a homosexual, a committed lesbian couple and a two year old boy. They have brought into stark relief the complexities surrounding donor insemination and its relationship with family law.
The history and the factual circumstances surrounding these competing applications are complex. In January 1998, the donor (to whom I shall refer as the father, which is not a statement of law) entered into an agreement with the mother and the co-parent to provide genetic material for the purpose of artificially inseminating the mother. The terms of that agreement were bitterly contested at the hearing. Following many months of co-operative endeavour, the mother conceived and together with the co-parent, they informed the father of this fact in early January 1999. Their relationship thereafter soured. The birthing arrangements of Patrick, who was born on 11 September 1999, were concealed from the father who, upon learning of the birth, instituted proceedings (inter alia) for contact with Patrick. Despite final orders for contact subsequently being made by consent on 2 June 2000, the dispute re-emerged at the instigation of the mother and co-parent, with the result that each of the parties are now painfully polarised in their respective positions.
The proceedings before me commenced by way of a Form 3 Application jointly filed by the mother and the co-parent on 8 May 2001 that paragraphs 4, 5, 6, 7 and 8 of the final orders made on 2 June 2000 be discharged. The relevant orders made that day by Registrar Harold, with all parties being represented by counsel, were as follows:
“2.That the child Patrick born on 11 September 1999 reside with the mother and the co-parent.
3.That the mother and the co-parent have joint responsibility for decisions concerning the long term and day to day care, welfare and development of the child.
4.That the mother and the co-parent keep the father advised of any major health and education issues concerning the child.
5.That the father have contact with the child as follows:
(a)Each third Sunday from 8.30am to 10.30am or such other day or times as may be agreed commencing 25 June 2000.
(b)Such other contact as may be agreed.
(c)At the residence of LD or JB or such other venue as may be agreed.
(d)That upon the mother and the co-parent providing to the father 21 days’ notice in writing of their intention to and dates of travel, contact for one period shall be suspended on one occasion in the year 2000.
(e)With the person nominated by the mother and the co-parent to be available to the child.
6.That each party keep the others advised of their residential address and contact telephone number.
7.That if contact is unable to take place pursuant to 5(a) then contact shall take place on the following Sunday or at such other date or time as may be agreed.
8.That pursuant to Section 65L these parenting orders be supervised until 2001 by such counsellor as nominated by the Manager of Mediation to give any party to these orders such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of the parenting order.
…
…
AND THE COURT NOTES:
1.That it is understood between the parties that these contact orders are to remain in place until the child attains two years of age at which time they are to be reviewed to increase as age appropriate.
2.That the mother and the co-parent shall not be present during contact save by agreement between the parties.
3.That the father consents to order 3 hereof in order to promote the relationship between the mother and the co-parent and his relationship with them.”
The father filed a Form 3A Response on 17 May 2001 and sought final orders for contact with Patrick as follows:
“1.That as from 11 September 2001, Order 5 of the orders of 2 June 2000 be discharged and that father have contact with the child as follows:
(a)from 10am to 1pm on 16 September and 30 September;
(b)from 10am to 3pm on 14 October, 28 October and 11 November;
(c)from 10am to 5pm on 25 November and each alternate Sunday thereafter until the child is three years of age;
(d)that the father have overnight contact with the child from Saturday 5pm to Sunday 5pm on five occasions before the child is three years of age such contact to coincide with the contact weekend in paragraph (1)(c) hereof;
(e)from 10am Saturday to 5pm each alternate weekend commencing when the child is three years of age;
(f)such further or other contact as agreed between the parties.”
The orders sought by each of the parties are now different from those sought upon filing their applications and I propose to address that aspect later in my judgment. However, it is sufficient to say at this stage that the mother and the co-parent are agreeable to the father having contact with Patrick at least twice a year for a period of no more that three hours or at a greater frequency and duration if agreed to by them.

BACKGROUND

The father was born on 5 March 1951 and is now 51 years of age. The mother was born on 23 October 1961 and is 40 years of age. The co-parent was born on 16 July 1962 and is 39 years of age.
The father and the mother first met socially in 1989. The mother and the co-parent commenced their relationship in 1992 and took up residence together in a committed lesbian relationship in 1995. They physically separated on 16 December 1997 and, although remaining in a relationship, they lived apart until 28 February 1998.
In October 1997 the mother placed an advertisement for donors in the Melbourne Star Observer, a gay and lesbian newspaper. The advertisement (omitting the contact details) read as follows and ran in a number of subsequent issues:

Mixed Personals
attractive, creative Intelli-
gent gay woman seeks sperm
donor / co-parent. Gay man
/ couple preferred. Level of
involvement negotiable,
GOSH essential.

[GOSH, meaning “good sense of humour”]

After the co-parent and the mother moved into separate homes, the mother interviewed two prospective donors on 30 December 1997 and 4 January 1998. On 5 January 1998 she invited the father to her home for the purpose of interviewing him as a prospective donor. Following that meeting, the father confirmed his willingness to be a donor on 12 January 1998. In furtherance of their initial agreement, the father attended a Sexual Health Centre on 15 January 1998 to be tested for any sexually transmitted disease in anticipation of attempting to conceive a child with the mother. On 30 January 1998 all parties met at a restaurant to discuss the proposed pregnancy and their parenting arrangements.
The first private artificial insemination session took place on 31 January 1998. In all there were 27 (on the father’s version) or 35 (on the mother’s version) separate attempts between 31 January 1998 and 16 December 1998 engaged in by the mother and the father in furtherance of their agreement. The co-parent was also present on a number of occasions.
Shortly prior to the mother and the co-parent resuming co-habitation, the mother attended a meeting in February 1998 of prospective single lesbian parents at which she discussed the father’s role pursuant to their arrangement. This particular meeting, which was also attended by Ms G , achieved prominence in the course of the proceedings and is a matter to which I shall shortly refer.
There were a number of further events that were significant and in relation to which there is no disagreement between the parties. For example, on 20 March 1998 the father attended the Mercy Hospital for semen analysis at the request of the mother due to their failure, to that date, to achieve pregnancy. On 3 May 1998 he attended a house-warming party at the home of the mother and co-parent. It appears that their relationship was quite cordial. At one stage during the attempted artificial insemination process, the father travelled to Amsterdam to compete in the Gay Games. He has an active interest in sport. He was absent for about two months.
Following his return from overseas the parties met at a restaurant on 13 October 1998 where they discussed the continuation of the process of artificial insemination.
In early January 1999 the mother and co-parent informed the father that the mother was pregnant. They attended a celebratory dinner on 5 January 1999 and subsequently, on 31 January 1999 the mother and co-parent held a meeting of the prospective single lesbian parents support group at their home. Ms G also attended that meeting at which the mother announced the news of her pregnancy. Shortly thereafter, the parties attended a social function at the home of RF, (a friend of the father’s) on 28 February 1999 where they announced to their friends the news of the pregnancy.
However, with the effluxion of time their once amicable and agreeable relationship became progressively embittered. On 8 March 1999 the parties met at the home of the mother and co-parent in order to discuss various matters relating to the pregnancy and care of their prospective child. During the course of that meeting the mother announced that she did not want the father present at the birth. Several days later, the co-parent telephoned the father and informed him that the mother had been accepted into a Birthing Centre. On 13 March 1999 the father telephoned the mother and co-parent requesting they reconsider their decision regarding his attendance at the birth.
On 14 April 1999 the parties attended a mediation session with a Mr Michael Madden. It was at that meeting that the mother and co-parent provided to the father a draft agreement of the proposed care arrangements for the prospective child which had been drafted by them. No agreement was reached. They attended a further meeting with Mr Madden on 21 April 1999. A third meeting, scheduled for 7 May 1999 was cancelled by the mother and the co-parent and it appears, from this point of time, the mother and co-parent unilaterally decided not to involve the father any further in their plans for the birth.
The father then engaged a solicitor. On 29 July 1999 his solicitor wrote to the former solicitor for the mother and co-parent and (inter alia) had this to say:
“…
Our client instructs that your clients moved and he does not have their current address. We have enclosed a letter and ask that you please forward to (sic) this your clients on our client’s behalf. We would be grateful if you would provide us with details of your clients’ current address.
Our client also wishes to inquire as to how the mother’s pregnancy is progressing and whether or not she intends to deliver at the (Birthing Centre). He also seeks information as to the anticipated delivery date.
We look forward to your response.”

The former solicitor for the mother and co-parent replied on 12 August 1999 advising that they no longer held instructions to act and set out the last address they had for the mother and co-parent. They further advised they were unaware of the hospital into which the mother was booked for the birth or of the anticipated delivery date.
It is common ground that in September 1999 the father telephoned LD, a close friend of the mother and co-parent to ascertain their whereabouts and also to enquire as to the progress of the pregnancy. No information was provided. He telephoned the mother’s former work place and the Birthing Centre to ascertain her whereabouts. All enquiries made by him failed.
As I said, Patrick was born on 11 September 1999. The father was subsequently informed of the birth by a friend. Still unaware of their whereabouts, he employed the services of a private investigator on 28 September 1999. The father caused to be filed a Form 7 Application for Final Orders on 18 October 1999 in which he sought (in summary) the following:
·     that the mother and father have joint responsibility for making decisions concerning the long term care, welfare and development of Patrick;
·     that the child reside with the mother, and
·     that the father have contact with Patrick:
-on two occasions each week for two to three hours until the child was nine months old;
-thereafter on two occasions each week for five hours, and
-on two occasions each week to include overnight after Patrick was two years of age.
On 9 November 1999 the mother filed a Form 7A Response seeking that the father’s application be dismissed and in the alternative:
·     that Patrick live with the mother and co-parent who shall retain joint responsibility for his long term care, welfare and development;
·     that the mother and co-parent be responsible for Patrick’s day to day care, welfare and development, and
·     that the father have supervised contact with Patrick twice yearly as agreed between the parties.
The applications were adjourned to 23 November 1999. On 12 November 1999 an appointment for confidential counselling was cancelled by the mother. On 23 November 1999 an application was filed by the co-parent for leave to intervene in the proceedings. On that day, orders were made by consent that leave be granted to the co-parent to intervene in the proceedings and that she file a Form 7A Response on or before 6 December 1999. All existing applications were then adjourned to the Registrar’s Duty List on 14 December 1999 and it was further ordered that all parties attend counselling pursuant to S 62F(2) of the Family Law Act 1975 (as amended) (“the Act”) on 6 December 1999 and such other dates as may be directed.
The parties attended separate appointments for confidential counselling on 6 December 1999. No resolution was achieved. On 9 December 1999 the co-parent filed a Form 7A Response seeking an order that the father’s application be dismissed and that she and the mother have joint responsibility for the long term and day to day care, welfare and development of Patrick. She sought further orders that the child reside with the mother and herself and that the father’s contact with Patrick be otherwise reserved.
On 14 December 1999 the proceedings were adjourned by consent to 10 February 2000. However, prior to that date and on 16 December 1999 the father had his first contact with Patrick, who was then aged 14 weeks. The contact took place at the Family Court. He had further contact with the child on 28 January 2000. Those contact arrangements were pursuant to orders made by consent. On 10 February 2000 orders were made appointing a Child Representative and otherwise adjourning the proceedings to 31 March 2000. In addition, further orders were made by consent which provided:
“That the father have contact with Patrick on 5 March 2000 and 25 March 2000 between 10.30am and 12 noon (or on such other dates as may be agreed) between the parties.”
It was further ordered that the mother, the co-parent and RF, be permitted to be present during contact to be exercised at the home of LD (or at such other location as may be agreed). It was also ordered by consent that all parties attend upon Mr Vincent Papaleo for the preparation of a welfare report to the court.
The father had contact with Patrick at the home of LD and on 29 March 2000 Mr Papaleo delivered his first report. I propose to deal with that report later in my judgment.
On 31 March 2000 orders were made by consent adjourning the further hearing of the proceedings to 2 June 2000. It was also ordered that the father have contact with Patrick between 10.30am and 12pm on each of 16 April 2000, 5 May and 27 May 2000. Further, that the mother, the co-parent and RF (or in the event that he was unavailable), a named friend of the father’s, be permitted to be present during contact. Orders were also made as to where contact was to take place.
The contact scheduled for 16 April 2000 was cancelled by the mother and co-parent. No make-up contact was offered. However, the father had contact as ordered on both 5 May and 27 May 2000. On 2 June 2000, final orders were made by consent in the terms set out in par 3 of this judgment.
Following those orders, the father had contact with Patrick at the home of LD until 31 December 2000 when the mother and co-parent cancelled the next scheduled contact period. As a consequence, the father had no contact with Patrick between 10 December 2000 and 21 January 2001.
On 26 October 2000 the mother and co-parent wrote a letter to the father and (inter alia) requested that he did not refer to himself as Patrick’s “… dad” during contact and not to refer to members of his family as Patrick’s relatives. In the course of that letter, they had this to say:
“…
It has come to our attention that during contacts you are introducing your family members to Patrick using familial terms like ‘your grandmother’, ‘your aunt’ and ‘your cousin’. Presumably you are also referring to yourself, or being referred to by your guests, as Patrick’s ‘dad’. This method of introducing your family, and labelling his relationship to them is likely to cause Patrick confusion and distress in the future as it is in direct contradiction to the reality of how Patrick experiences his family and the way in which we will be speaking of you and your family.
It is clearly our responsibility as Patrick’s lesbian parents and the people who have long term and day to day care for Patrick, to ensure that Patrick feels positive about and understands his alternative family structure and his method of conception, and to guide Patrick through the associated complex emotional, ethical and social issues. It is our responsibility to ensure that the people Patrick has contact with respect him, his family and the decisions we make as his parents. These people include you and the people you bring to contacts.
[Later]
Patrick has contact with lots of people who aren’t in his direct family or extended family but who are never-the-less significant. This includes the contact he has with you and your family. Patrick will know that you and your relatives have a biological relationship to him because he will know that you are his donor. We are happy to refer to you as the father in Patrick’s presence, but absolutely do not accept or support you referring to yourself, or encouraging Patrick to call you dad, father or any other such title. Nor do we accept or support familial terms like grandmother/grandson, aunt/nephew or cousin to be used in Patrick’s presence in reference to your relatives.
[Later]
Patrick lives in a cultural and community setting in which his family as we define it is acknowledged and affirmed:- by us, his extended family, our friends, his playgroup and the broader gay-friendly members of our society. He often hears the word donor and already knows many children in similar situations who have varying levels of contact with their donors. Patrick will grow up knowing the difference between a donor and a father. The discrimination against lesbian families is considerable and the decisions we are making in regard to how to support Patrick in this regard are not made on a whim but rather through extensive personal experience and research:- books, articles, conferences, support groups, professional advice and anecdotes. Patrick is part of a socially disadvantaged minority group, and thus has special needs …
We believe that you can chose to make Patrick’s life easier by supporting us in the decisions we make as Patrick’s parents, and that you can use contacts as a time in which to establish a relationship with Patrick which is not based so much on pre-conceived roles such as ‘father’ and ‘son’ but on a more individual basis. …
Patrick will eventually be old enough to understand the issues that surround his family, his conception and the broader matrix of his biological origins. Until he is old enough not to be confused or overwhelmed by these issues we, as his parents, will be making those decisions for and with him. If we are ever going to be able to speak amicably to Patrick about you and your family, we need to feel that you are granting the same respect that you would offer any other intact, valid and complete family. We are proud of our family and would certainly prefer to be in a position where we could encourage Patrick to be proud of his connection to you.
…” (emphasis added)
The father replied to that letter on 6 December 2000. In my view, it was a conciliatory, sensitive and understanding letter in which he had this to say:
“Thank you for your letter of 26 October. It was great to see Patrick last time on 26 November, he is really looking well and happy. Thank-you once again for making the visits possible and please pass on my thanks to LD for her kindness in giving up her time and making her house available. I look forward to these visits with Patrick and he is a credit to you both. He is growing up so fast now and I notice quite distinct changes every time I see him. While this has been a terribly difficult time for us all I tell myself that the most important thing is that Patrick is healthy and happy. I hope that things can improve between us.
I have taken on board, and accept your concerns about how my relationship with Patrick can be best explained to him in the future. In the agreement between us signed in June this year I did sign over to you both, residence, day to day and long term care and decision making for Patrick. This was agreed to by me at that time for the following reasons:
·     That I believed it was in Patrick’s best interests;
·     To show my willingness to support you both and your position as Patrick’s primary care givers;
·     To try to improve the situation between myself and you both;
·     To avoid further damaging and costly litigation.
In no way do I wish to undermine your relationship and I haven’t sought to do this in the past. I do however remain father to Patrick and have not given up any of the responsibilities or rights associated with fatherhood. It was agreed from the beginning that I would be a dad/father to our child and it was never agreed by me that I might be seen simply as an uninvolved donor.
Further I am concerned at the confusion Patrick might experience if I am described to him other than as his father. I believe it is important that Patrick should know that he does indeed have a father and one who he has seen regularly and continues to see regularly. It is undesirable for Patrick to grow up believing that there is something missing in his life, his father, when that is clearly not the case at all. It is far better for Patrick to know that he has a father who loves him very much and who he sees on a regular basis. This may not be what you both want and it may not be what I want but I believe that it is in Patrick’s best interests.
In June this year I was challenged by Vincent Papaleo’s report to the court to accept you both as Patrick’s parents. I have tried my best to do so and as I said earlier Patrick is clearly a credit to you both. You too were challenged by the same report to accept that it is in Patrick’s best interests for him to bond with his father and to have an ongoing relationship with his father.
I would ask that you consider this.
…”
On 7 December 2000 the mother and co-parent again wrote to the father complaining that Patrick had been returning from contact “… unusually tired and vulnerable”. They expressed concern that there had been a gradual erosion of LD’s role during contact and asserted that:
“… LD needs to be able to be within sight or hearing of Patrick during most of the contact periods so that she can assess whether Patrick needs her, and so Patrick can be reassured by her presence or express his desire to be with her. We have discussed this matter with LD at length and have all agreed that LD needs to be more present during contacts”.
The father resumed contact with Patrick on 21 January 2001. The parties then attended confidential counselling pursuant to s 65L of the Act on two occasions in March 2001. No agreement was reached. The mother and co-parent imposed conditions upon the father’s contact with Patrick which he considered to be unreasonable, for example, that he take only one photograph during the contact period and not have a friend or family member accompany him. On 27 March 2001 the father’s solicitors wrote to the mother and co-parent’s solicitors referring to the restrictions placed upon contact by them and responded with the following:
“1.That Patrick is scared when they or their friends try to take a photo. Our client has agreed to take one photo only during his contact visits. It is agreed that our client is to bring the camera out and leave it for ten minutes or so and then ask Patrick if he can take the photo and respond accordingly.
2.That LD finds it offensive that our client spreads his rug on the floor at contact as it constitutes a hazard as Patrick may trip on the rug. Our client has agreed that he will not spread the rug on the floor for Patrick. He will use the rug for his own benefit if necessary.
3.Our client has been permitted to use LD’s tape player to play music but he is not permitted to bring his own tape player as this constitutes ‘too much’ input for Patrick.
4.Our client has been bringing a whole bag full of toys to contact. This is apparently too much input for Patrick and our client is permitted to bring one or two toys only.
5.There has been an agreement that our client will begin the ‘goodbye ritual’ by packing up his things before the end of the contact visit and being ready to leave rather than LD signalling the end of the contact visit by announcing that there are just a few minutes left, Patrick being passed to her and whisked away to the back of the house whilst our client packs up and prepares to leave.
6.Our client is permitted to provide his drink cup for Patrick (his Christmas present) to fill it for him and offer it to him, but is not to compete with anything which LD might offer him.
7.Our client is to ensure that Patrick remains strictly within the fence line and is not to walk on the footpath or the nature strip. The contact visit is to be restricted to the boundaries of LD’s property.”
The father again wrote to the mother and the co-parent regarding restrictions imposed by them during his contact with Patrick. The position worsened and on 28 April 2001 the co-parent telephoned the father and unilaterally cancelled a contact period scheduled for 29 April 2001. In the result, the father did not have contact with Patrick by reason of the mother and co-parent’s unilateral actions from 25 March 2001 until orders were made by Federal Magistrate Phipps on 11 July 2001.
The mother and co-parent failed to attend a further scheduled counselling session on 1 May 2001. On 2 May 2001 the solicitor for the mother and co-parent wrote to the father’s solicitors advising that an application was to be filed seeking discharge of the contact order as they considered that his contact was not in Patrick’s best interests. On 6 May 2001 the father attended the home of LD for contact purposes. Contact was refused. On 8 May 2001 the mother and co-parent did in fact cause to be filed an application out of the Federal Magistrates’ Court seeking (inter alia) a discharge of the contact orders made on 2 June 2000. They refused to permit the father any further contact with Patrick.
On 17 May 2001 the father responded to their initiating application and sought the orders to which I have earlier referred in par 4 of this judgment. On 19 June 2001 orders were made by consent re-appointing the Child Representative. On 11 July 2001 orders were made by Federal Magistrate Phipps that the parties attend upon Dr Robert Adler for the purposes of a welfare report and that contact ordered pursuant to par 5 of the order made on 2 June 2000 be resumed on 15 July 2001 between the hours of 9.30am and 11.30am. Subsequently, on 10 August 2001 further orders were made by the Magistrate transferring the proceedings to the Family Court of Australia.
On 23 October 2001 Dr Adler delivered his report in which he recommended that (inter alia):
“3.the father be allowed contact with Patrick at least twice a year for a period of no more than three hours on each occasion or at a greater frequency and duration if agreed by the mother and the co-parent.
…
7.As Patrick gets older his wishes regarding contact with the father should be respected and his frequency of contact varied accordingly.”
On 16 November 2001 the solicitors for the mother and co-parent wrote to the father’s solicitors proposing settlement in the terms of Dr Adler’s recommendation. That was rejected by the father’s solicitor on 21 November 2001. Towards the end of 2001, the mother and co-parent unilaterally cancelled the father’s scheduled contact to Patrick on two occasions. It was with that background the proceedings commenced before me on 21 January 2002 and continued over nine sitting days.

THE LAW

In deciding an issue such as this, s.65E of the Act requires me to regard the best interests of Patrick as the paramount consideration. Accordingly, it is a consideration of those best interests which forms the cornerstone of my judgment and remains its final determinant. See B and B Family Law Reform Act 1995 (1997) FLC 92-755 at par 9.51.
In determining that which is in Patrick’s best interests, there are a number of matters which I must consider. They are set out in s.68F(2) of the Act, to which I will return later in this judgment. Subject to matters I will later discuss, I discharge my task in these proceedings having regard to the objects and principles set out in s.60B of the Act which is in the following terms:
“60B(1)The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that, except when it is or would be contrary to the child’s best interests:
(a)children have a right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c)parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children.”
It is important to consider what the Full Court said in B and B Family Law Reform Act 1975 (supra) at par 9.54 when dealing with s.60B of the Act. The Court made it clear that the section is a significant part in the exercise as it represented a deliberate statement by the legislature of the object and principles which I am to apply in proceedings under Part VII of the Act. However, the section is subject to s.65E of the Act. The Full Court pointed out that s.60B did not purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests and went on to say:
“The object contained in subs (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in subs (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the court’s consideration of the matters in s.68F(2) and to the overall requirement of s.65E. The matters in s.68F(2) are to be considered in the context of the matters in s.60B which are relevant in that case. But s.65E defines the essential issue.”
See also Paskandy v Paskandy (1999) FLC 92-878 at par 35.

By reason of the manner in which these proceedings have been conducted by the parties, it will be necessary in the course of my judgment to make comments about and certain criticisms of them. I emphasise at the outset that my comments and criticisms are not intended to insult, belittle or to undermine the confidence of any of the parties. On the contrary, it is hoped that the findings I make in this judgment will be considered carefully by them, used positively to benefit Patrick and for the parties to better understand an objective consideration of those matters that I consider suitable to accord his best interests in the complex, unusual and discrete circumstances of these proceedings.
The appropriate standard of proof that I should apply to the various issues in contest is the civil standard, namely the balance of probabilities. In Briginshaw v. Briginshaw (1938) 60 CLR 336 at 361-2, Dixon J said:
“Except upon criminal issues to be proved by the Prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal.”
[See also Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ in Rejfek & Anor. v. McElroy & Anor. (1965) 112 CLR 517 at 521; Neat Holdings Pty Ltd v. Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 172; and s 140 Evidence Act (1995) Cth.

THE EVIDENCE

It was at my direction that counsel for the parties prepared an agreed Statement of Facts in Issue and which comprehensively prescribed the various matters for my determination. At the commencement of the proceedings I also had counsel detail all affidavits relied upon. In coming to my decision I have regard to those affidavits, to the paragraphs of other affidavits referred to during the evidence and to the oral evidence otherwise given in court. For the purposes of this judgment when dealing with the evidence, I have framed a number of specific headings which are, regardless of that specific identification, also intended to form part of my general findings relevant to all of the facts in issue for my determination.

4.1 ISSUES OF CREDIBILITY

At the commencement of the applications all counsel submitted that, given the antithetical evidence of the parties in their respective Order 30 Affidavits, credibility would be an important issue for my determination. It was with this in mind that I addressed myself carefully both to the presentation and content of their evidence. In so doing, I was alert to make appropriate allowance for any anxiety or tension that a witness may understandably experience when giving their evidence.
Given the above, matters of credit assumed significance in assisting me in my determination of relevant issues where the parties have advanced disparate versions of significant events. I have had the special advantage of observing the parties and their witnesses in court. In Minagall v Ayers (1966) SASR 151 at 154 Hogarth J had this to say:
“It is, of course, proper and usual for the court to take note of the demeanour of a witness when in the witness box giving evidence. This is one of the most common and valuable means available in the court for arriving at the truth of the matter.”
In Government Insurance Office of New South Wales v Bailey (1992) 20 NSWLR 304 at 313 (CA) Kirby, P (as he then was) said:
“… By conventional theory the observations made by a trial judge of the appearance and demeanour of a witness giving evidence are not only available to be used in the determination of a dispute but amount to important ingredients in the decision-making process. They normally provide the primary decision-maker a distinct advantage which controls, and even limits, the exercise by the Appellate Court of its statutory functions in an appeal by way of a re-hearing …
Justice is not truly blind. A decision-maker … sitting in a court room is not blinkered. The decision-maker observes the drama which is played out in the well of the court room. As Jacobs, J. remarked in (Jobst v Ingliss (1986) 41 SASR 399) parties and witnesses frequently sit in court and grimace, frown, laugh and otherwise display facial and body language which is virtually impossible for the decision-maker to fail to see.”
I was not impressed with the evidence of the mother. There was a clear tendency on her part to descend into non-responsive speeches and monologues emphasising the forcefulness of what I perceived to be an intransigent and uncompromising belief in her stated position before the Court. On several occasions I was obliged to request that she direct herself to the question. I observed her to display a modest degree of anxiety upon the commencement of her evidence, but this soon adjusted to a forceful presentation of her case with little associated stress. Towards the conclusion of her evidence, having been cross-examined at length over a number of hours, she displayed, not unnaturally in the circumstances, a tearful manifestation of distress. Overall, she had every opportunity to present her evidence and no complaint or submission was made by her counsel to the contrary.
I observed the mother to quickly adopt a position in the righteousness of her case which additionally involved, at times, gratuitously and unnecessarily denigrating the father. For example, she was asked about a dinner held on 5 January 1999 attended by the father, the co-parent and herself. The father had described it as a celebratory dinner and that they were all thrilled at the confirmation of the mother’s pregnancy. When asked whether the father was ‘thrilled’ as alleged, the mother said, at first, that she did not know. When pressed, she said “… I think he was amazed” and went on to gratuitously add “… I think he was just as amazed at the gorgeous men at the other table”. She then said that she “… did not think” he was thrilled, and again reiterated that he had more focus on “… the men at the other table than with the role he was to have as a father to the unborn child”. Having regard to all that I have heard, I reject that evidence as being risible. It was consistent, however, with her clear dislike of the father, and exemplified her endeavour to unfairly belittle him without justification and with her inability to make a clear and appropriate concession. I have no doubt that their meeting on that occasion was a significant and joyous occasion for all concerned.
In the course of her evidence the mother said that she thought the final consent orders of 2 June 2000 were made on the basis that the father would have contact, but in so doing, not as a “… parent would in normal circumstances”. I reject that evidence. She is an intelligent woman, and given the strength of her views, I am satisfied she both read and understood each and every paragraph of those orders and their intended meaning. She was at the time advised by experienced counsel. I have no doubt that when the mother signed those orders she full well appreciated the father’s role and the manner in which it would be undertaken by him.
The mother was cross examined at length in relation to other aspects of those orders which reflected clear concessions by the father and so obviously plain from its wording. She rejected the suggestion that those orders could be seen as a “… real sign of respect and desire (on the part of the father) not to rock the boat”, and countered with it being a sign of his consenting “… under pressure”. She hastily added that “… we would probably end up in court and that he would see it as a stepping stone”. I reject that evidence. It was but one of a number of instances whereby the mother was plainly resistant to making appropriate concessions, seeking to advance her cause and in so doing, demean the father. In contrast, I accept the father’s explanation for consenting to those orders namely, to promote the relationship between the mother and the co-parent and his own relationship with them. I accept that he also had regard to the comments made by Mr Papaleo in his first report of 29 March 2000 and accepted the reality that both the mother and the co-parent saw themselves as Patrick’s sole parents. The father deposed that the orders were important to the mother and the co-parent and, by consenting as he did, he hoped it would demonstrate recognition of his respect for them as Patrick’s parents. He said that he was attempting to display an understanding and willingness to listen to their concerns. I accept that it was his desire to promote their relationship.
The mother’s attention was addressed to the first notation of those orders which reads as follows:
“1.That it is understood between the parties that these contact orders are to remain in place until the child reaches two years of age at which time they are to be reviewed to increase as age appropriate”. (my emphasis)
The mother conceded that it was a declaration of intent by the parties that the father’s contact with Patrick would be reviewed by way of increase when Patrick was two years of age. She went on to add however that she did not “… remember reading them on the day”. When shown the original Minutes of Consent Orders she accepted, (for it would be plainly absurd to have done otherwise,) that she would have read each page before she signed them. She further accepted that it would be fair to assume she had a full knowledge of the intent of the orders upon their execution.
I am satisfied that this is a further example of the mother being at first less than frank in her evidence until faced with the original Minutes signed by her that day. It was only then that a concession, and one which I observed was reluctantly made, was in fact proffered by her.
It was the mother’s evidence that since April 2001 she and the co-parent had discussed artificial insemination of the co-parent by a known donor, who, for the purpose of these proceedings was called ‘Harry’. She said that they first considered this prior to their initial discussions with the father. It was then that she conceded their plan was a continuing one and, for the first time, that they were in contact with a known donor who was willing to provide genetic material for the artificial insemination of the co-parent. She said that another (lesbian) couple in the play group at which Patrick attended had asked their donor (Harry) if he would be interested in providing his semen to the co-parent. She explained that Harry had fathered other children, one of whom was known to her and that he personally lived in a committed homosexual relationship. The mother has met the other child, who is approximately twelve months old, and that Harry has seen the child “… about three or four times”. A notation from the medical notes of Dr Stafraci of 18 April 2001 records “… met with potential donor with (co-parent)”. The mother explained that both she and the co-parent have met with Harry to discuss the issue which was a “… positive experience” for them. A further record from the medical notes of Dr Stafraci dated 7 May 2001 refers to the donor, (apparently Harry), and his partner having a close relationship with the lesbian couple who introduced the mother and co-parent to him. She described their friends as having “... a great relationship with their donor”.
In my view, these matters were relevant to the proceedings before me and the omission of any reference to these events is most unfortunate and, in the absence of any explanation, appears to have been a conscious decision on the part of the mother and the co-parent. I am concerned that I have not been informed of the full circumstances concerning this relationship and their plans for the future.
The mother was referred to her meeting with the father on 5 January 1998. In her Order 30 Affidavit she had this to say:
“8.In October 1997 I advertised for a donor. As a result of the responses to this advertisement I interviewed Richard on 30 December 1997 and Michael on 4 January 1998. I interviewed the father on 5 January 1998.”
It is clear to me that the mother intended to convey that the father was interviewed following a response by him to the advertisement. In the result however, that eventuated not to be the case. The mother conceded, and in this instance, properly so, that her affidavit appeared to impute that the father responded to her advertisement. The mother said that she made it clear to the father that she was looking for a donor and went on to say “… I did not specify he was one of many”. I am satisfied that the mother provided no indication whatsoever to the father that he was part of a selection process being undertaken by her. When first cross examined on this issue, and confronted with the clear inference that her affidavit was open to a conclusion that she had misled the father, she confidently countered that she had made the position clear in her earlier affidavits. In the result, that too transpired to be quite incorrect.
Mr Udorovic cross examined the mother in relation to the witness statement of Ms G and in particular to that aspect dealing with a group meeting of prospective single lesbian parents held on 31 January 1999. At one stage, the mother asserted that she informed those present that “… we hoped there would be an amicable relationship with him (the father) and us”. When it was put by Mr Udorovic that she was making up her evidence as she went along, she then conceded that she did not have a specific memory of saying that at all. Mr Udorovic put to her that she was in effect tailoring her evidence and with that, I agree. Further, she went on to gratuitously add that she had “… some concerns” at the time, but did not raise them at the meeting. I reject that evidence. The impression I had on a number of occasions during the course of the mother’s evidence was that she would reconstruct events and conversations to best suit her own case and, at times, regardless of the truth.
In an affidavit filed by the mother on 23 November 1999 she deposed that it was never contemplated that the donor would play an active role in the life of any prospective child. She said that the agreement between the parties “… at all times” was that the father was to be known as the donor. This was the position maintained by her before me. In the proposed agreement drafted by the mother and the co-parent, and presented to the father at the first session of mediation with Mr Madden on 14 April 1999, it is provided (inter alia) as follows:
“8.All parties agree that in regards to any child born from the above said process of artificial insemination, both the RECIPIENT and the RECIPIENT’S PARTNER will be referred to as the child’s mother’s. The COUPLE agree that this same child may call the DONOR Father, Donor, Dad, Daddy or (the father’s Christian name)”.
Those two versions of events do not, in my view, sit happily together.
The evidence of the co-parent was in contrast to that of the mother. She earnestly endeavoured to answer all questions put to her, albeit utilising opportunities to promote and emphasise their case. Significantly, in my view, she made appropriate concessions and overall presented as a fairer and more reliable witness than the mother. Subject to a qualification to which I shall shortly refer, it appeared to me that she genuinely applied herself in an earnest attempt to understand both sides of this complex issue for my determination.
Somewhat unrealistically in the circumstances, but nevertheless to her credit, the co-parent on several occasions proposed that any resolution in the best interests of Patrick would be best achieved by mediation than by court order. The co-parent unhesitatingly accepted that the father was genuine in his claim for contact with Patrick, but qualified that concession by firstly suggesting, from her own observations, that there was a level of conflict between his own needs and those of Patrick. I found that to be somewhat vague and in any event she did not go on to particularise what she meant by that.
The other limb to her qualification was that despite the father having consented to orders in the terms of those made on 2 June 2000, she said that she did not believe the father just wanted contact, but wanted long term and day to day responsibility as well. The only evidence for that, she explained, was a reference in the letter from the father to the mother and co-parent dated 6 December 2000 and referred to in par 30 of this judgment where he said:
“In no way do I wish to undermine your relationship and I haven’t sought to do this in the past. I do however remain father to Patrick and have not given up any of the responsibilities or rights associated with fatherhood. It was agreed from the beginning that I would be the dad/father to our child and it was never agreed by me that I might be seen simply as an uninvolved donor.
…” (emphasis added)
The co-parent said that hers was not an “… ungrounded” fear, but was based on a number of other matters. When tested on that proposition, the co-parent was unable to articulate what those other matters were, other than to repeat what she had earlier proclaimed. In my view, that attitude of the co-parent is unfounded and irrationally based. I accept the father’s evidence about his stated intention as set out in this judgment and in my view, the fear expressed by the co-parent is groundless.
The father presented in sharp contrast to that of both the mother and the co-parent, but particularly the mother. He was calm and reasoned in the giving of his oral evidence, which was consistent with that to which he deposed in his various affidavits before the Court. I found him to be both credible and persuasive. He listened carefully to each question asked of him and to which he earnestly applied himself. He was not controlled by dogma, did not search for hidden motives, but applied himself consistently with the best interests of Patrick as the paramount consideration.
There were two areas of his evidence that came under sharp criticism from Dr Kovacs of counsel, who appeared for the Child Representative. That concerned whether or not there was a meeting held between the parties on 17 October 1998 and whether or not the father did in fact have in a bundle of cards which he brought with him on contact periods an anti-drug post card detailing a picture of a deceased young man in a toilet. I deal with each of these issues in detail later in my judgment. In each instance however and for the reasons stated, I find in favour of the father.
Having given these matters my most earnest consideration, I am satisfied that where the evidence of the father conflicts with the evidence of the mother and the co-parent on matters of significance to my determination, I prefer the evidence of the father.

4.2 THE ATTITUDE OF THE PARTIES

The mother saw no room for the father to have a paternal role, in the traditional sense, in the life of Patrick. To the contrary, she viewed him merely as a ‘donor’ of genetic material. The mother blanketed herself within the confines of her relationship with the co-parent and their household, which was “… Patrick’s family”, to the clear exclusion of the father other than as a known donor.
Their position, in so far as the father is concerned, was first heralded at the mediation session with Mr Madden on 14 April 1999, being several months following the announcement of the mother’s pregnancy with Patrick. He was there presented with a draft agreement prepared by the mother and the co-parent. It is the father’s evidence that this document by no measure reflected the totality of the discussion nor the accuracy of the various agreements that had earlier taken place between them.

On 22 May 2000, the mother’s treating psychiatrist, Dr Simon Stafraci, in a psychiatric report on the mother required by her then solicitors, had (inter alia) this to say:
“The psychological stress the mother has experienced as a consequence of these developments will undoubtedly manifest itself in her dealings with the father in future, and it is highly likely that she will present to Patrick a negative view of his biological father …” (Emphasis added)
In an affidavit filed on 26 May 2000 the mother made it clear that when dealing with the co-parent, “… there is no room in our relationship for a ‘father’. I would never have had this child had I realised the intention of the donor (of) trying to destroy my family”. Significantly however, and despite those two events, it was only seven days later that the final orders were made by consent on 2 June 2000.
The resolution between the parties as evidenced by the consent orders soon changed as the mother and the co-parent unilaterally sought to bring contact to an end. They forwarded the letter of 26 October 2000, to which I have earlier referred, in which they expressed their clear views and emphasised that Patrick was part of a socially disadvantaged minority group and accordingly had special needs. They underscored their total autonomy over the care of Patrick, asserting, (inter alia):
“… We are happy to refer to you as the father in Patrick’s presence, but absolutely do not accept or support you referring to yourself, or encouraging Patrick to call you dad, father or any other such title. Nor do we accept or support familial terms like grandmother/grandson, aunt/nephew or cousin be used in Patrick’s presence in reference to your relatives”.
In the course of her oral evidence, the mother made it clear that the father was not to adopt any paternal or traditional ‘fatherly’ role toward Patrick. He was not to do anything that saw him acting out the role of being a “… dad”. She spelled out with icy clarity that Patrick had no knowledge of there being ‘a father’ in his life. She said that the father was being asked to fulfil a role that she did not believe he could undertake. It was her view that if it was possible for him to have a role “… with some contact”, but at the same time act in a way in which he was not a parent, then an arrangement for contact would be possible. She said that contact could not work if the father were to act as a parent. Somewhat challenging to the particular facts of these proceedings, she denied that it was ‘artificial’ to create such a situation.
It was her evidence that in the future, she would explain to Patrick that his father was a ‘donor’, but that he “… was not your ‘father’”. After some degree of debate when being cross examined by Mr Udorovic, she said that Patrick could call him “… dad”, but that the father was not allowed to “… relate to him in that way”. When asked to explain what she meant by that, the mother said that he was to act in a “… loving, warm and playful manner that did not challenge any decisions the co-parent and I may make”. Having heard all the evidence, I am satisfied that is precisely what the father has in fact been doing during contact periods. He has, in a sensitive and compliant manner, followed all directions of any person over-seeing contact at the time and those of the mother and the co-parent, regardless at how unreasonable, fanciful and irrational they were. It appears to me that the mother is and has been plagued by an irrational application of definition to a situation where it was simply neither feasible nor appropriate to do so.
The mother denied that the father’s consent to the orders of 2 June 2000 demonstrated a respect by him for her and her ‘family’. When asked what more he could have done, she asserted that he should accept contact “… by invitation only”. The mother explained that the question of the father’s contact with Patrick “be reserved” and that he should withdraw from Patrick’s life, subject to the co-parent and herself permitting him to see Patrick at their discretion. That discretion was to be unfettered.
The mother’s stated position of her view of the father’s role was made perfectly clear in her evidence. She saw his contact with Patrick as being ‘intrusive’ upon her relationship with the co-parent “… because he’s enacting a parental role” and then went on to add that he was utilising contact to collect affidavit material for court purposes. When clarification was sought in relation to that, she explained her view that the father was more interested in collecting affidavit material than he was in Patrick’s welfare. She said he was acting in “… bad faith” and in his own interests, not those of Patrick. I reject that evidence.
The mother repeated an allegation she made in an affidavit that it was the father’s intention to try to ‘destroy’ her family. She said that she was quite serious about that. I regard that evidence as simply fanciful in the circumstances. Mr Udorovic asked the mother what harm could come to her relationship with the co-parent if contact were to be ordered by the court as sought by the father. She explained that the family would “… no longer exist”. On the other hand, she made it clear however that if contact was refused, the family would continue to exist. She said that if an order was made for the father to have contact with Patrick, the court would in fact be ordering “… the destruction of” her family and that she and the co-parent would “… no longer be Patrick’s parents and have total control”. Subsequently, she went on to add that it meant she was at risk of separating from the co-parent. I have no doubt that there would exist, at least for some time, feelings of anxiety and stress, but I do not accept that her relationship with the co-parent would be jeopardised to the extent expressed by her. I am reinforced in that conclusion by the evidence of the co-parent and also Dr Stafraci. The mother added, somewhat emotionally, that she would go “… crazy”. I see that as an emotive figure of speech on her part and not a realistic proposition.
In the course of her evidence, the mother said that there was no need for a “… parental” father in Patrick’s life. When asked why Patrick should be different from any other child and not have a right to know his father, the mother jauntily responded “… because he’s got leso’s for parents”. I see that as no more than a flippant expression of a view seriously held by the mother, namely that she co-exists with the co-parent in a discriminated and socially disadvantaged minority group. I do not regard that as unrealistic. She said that if a parental relationship developed between the father and Patrick, it would conflict with the parenting offered by the co-parent and herself. In the course of her evidence, the mother at one stage angrily exclaimed that the father was the sort of person who would lie in order to bolster his case in the pursuit of his contact with Patrick. I reject that evidence.
The mother agreed, when cross examined by Mr Udorovic, that her objection to contact was based upon a fundamental belief that children can be raised in a lesbian household without a father (in the traditional sense). She said that she was seeking to have that belief sanctioned by a court order. Such evidence is consistent with that deposed to by her in her affidavit filed on 26 May 2000 that there was “… no room in our relationship for a ‘father’ …”. From what I have both heard and read, it is doubtless true that children can be happily raised within a homo-nuclear family, but the difference here is that the father desires and has always desired to play an active and fatherly role in the life of his son.
It appears that during her pregnancy and following her cancellation of the third mediation conference with Mr Madden, the mother decided, together with the co-parent, to keep her address and telephone number screened from the father. In effect, as Mr Udorovic put to her, they went “… into hiding”. No doubt, it must have been a difficult time for the mother and the co-parent, given the way in which they lived during that period. She said that they kept the blinds shut, did not collect their mail, that she felt anxious when she left the home and that the hospital was put on alert, as were the hospital security guards. The mother asserted that she and the co-parent could not find a “… safe place to give birth because (the father) might find us”. When asked why such measures were taken, she responded that it was in order to protect the child and their family. Both she and the co-parent plotted to avoid contact with the father, an avoidance which, the mother said, was intended to continue after Patrick’s birth.
The mother said that both she and the co-parent would have contacted the father when they were able to deal with the conflict and assess whether he was prepared to proceed with contact on the basis that he would not act as a parent/father in the traditional sense. In relation to this, the mother said that she would expect contact to be approximately two times per year or otherwise “reserved”. If contact was offered, she made it clear that the father could “… play with” Patrick, but was not to act as a traditional father.
The mother said that it took some time for her to bond with Patrick and that the likeness of Patrick to the father was of concern to her. The mother deposed that as soon as Patrick was born, and she knew that he was a boy, she informed the co-parent that they had to protect the child. In her evidence she said that following the birth of Patrick it was difficult for her to be with Patrick or to recognise him as her child because his “… donor was the father” and that he had applied to court to have a parental role.
In her Order 30 affidavit filed on 20 December 2001, the mother had this to say:
“38.… From March to December 2000 Patrick often returned from contact smelling strongly of the father’s body odour. I found the odour repulsive and could not hold Patrick straight after the contact, which stressed him and distressed me as I could see his distress. I tried to resolve this problem by using aromatic oils and by having the co-parent bath Patrick and change his clothes before he came to me. …”
In her evidence before me, she said that it was “… the smell of the donor” that made her sick and that she felt she could not “… connect” with Patrick. She said it created a sense within her that Patrick was not her son, and that she was not his mother. This evidence was most unusual and of further concern to me.
The mother and the co-parent imposed conditions for contact which they viewed as being both fair and appropriate in the circumstances. They expected their conditions to be complied with and asserted that any failure to do so generated distress and heightened their lack of trust of the father. For example, in their letter dated 7 December 2000 to the father they had this to say:
“… We also wish to note that during the last contact LD requested that you spend a good part of the contact in her living room, and not in the front yard, however you did not respect this request. This request was made because it is easier for LD to be available to Patrick when you are all in the lounge room. Her front yard is also quite open to the public, and your continued use of this space during contacts undermines her privacy. We hope in the future that you will comply with such requests. We feel that LD has been extremely generous in making herself and her house available during contacts, and in providing you and your guests with privacy and time alone with Patrick. It concerns us when LD is not accorded the respect that she deserves.”
There was, throughout the mother’s evidence, a correction offered by her on a number of occasions when the respondent was referred to as “the father”. She made it clear he was the ‘donor’. On one occasion it was put to her by Mr Udorovic that Patrick had two families. Her immediate response was “… No, he has one family and he has a donor”. That is starkly consistent with her maintained concept of Patrick’s family and the role in which she saw the father.
I am satisfied that the mother’s attitude to the father has been a long standing one that at times, regrettably, bordered upon hatred. For example, in his medical notes Dr Stafraci recorded that on 23 December 1999 the mother said “… I hate him … I am incredibly angry … I feel powerless – he can and will use the law”. On 19 January 2000 the mother again repeated to Dr Stafraci that she hated the father and on 31 January 2000 Dr Stafraci recorded “… angered by his narcissism … by his inability to ‘see that I hate him’”. Finally, Dr Stafraci recorded on 27 March 2000 the mother saying “… I hate him being near me”.
There were numerous examples in the course of the mother’s evidence that overwhelmingly revealed her antipathetic and stubbornly resistant attitude to the father having an active traditional fatherly role in Patrick’s life. In the course of cross examination, Mr Udorovic enquired whether there was any room in Patrick’s life for a father to which the mother starkly replied “… if you mean by that word, a parental role, no”. I observed the mother to be quite dispassionate, matter of fact and resolute in giving that answer. She continually maintained that her family relationship would be damaged if the father were permitted contact as sought. She conceded however that there would be no damage to their relationship if on contact, he “… only played with him”, but went on to qualify that by alleging the father did not obey their instructions. She said that if contact were unrestricted “… anything could happen”. By that she explained the father could show Patrick materials and behaviour that were inappropriate, that he would not follow their advice and would “… lie to us about what happened during” contact periods. Her resistance to unrestricted contact was manifest and unremitting.
The co-parent was open to resolution of the conflict through mediation, which was a constant theme when giving her evidence. Whilst laudable in theory, it has been simply unworkable in practice given the hardened position of the mother and both the philosophical and ideological bases upon which each of the mother and co-parent predicated their case. Whilst she presented as more reasonable, understanding and moderate, in the final analysis her position was as promulgated by the mother.
The co-parent made it clear that she did not believe that a “… father/son” relationship was presently in Patrick’s best interest. The basis for this, she explained, was the lack of trust between the parties which the applications had failed to address.
The co-parent said that she was committed to Patrick and the father having contact in the future but qualified that by saying that she did not believe, at the present moment, it was in Patrick’s best interests. When asked what benefits would accrue to Patrick in the event of more frequent contact, she frankly responded by saying that “… a more effective bond would develop between Patrick and the father”. It was her view that the contact sought by the father was not appropriate because the “… damage” would be greater than the benefit. When she was asked what damage could possibly occur, she explained that what the father was asking for was a “… total reality shift” for Patrick who presently had a close parental relationship with the mother and herself, but not with the father. She said that to impose contact as sought would be extremely detrimental to Patrick.
One of the bases also for the co-parent’s view that contact should only take place two to three times per year was her fear that the father would, at some time in the future, make an application for residence of Patrick. She said that she needed to be secure that Patrick would not be taken from her. As I have said, that is not a position I would accept as having a realistic platform in the current circumstances, and both the mother and the co-parent should, in the result, leave this court safe in the belief that as matters presently stand they are the acknowledged residence parents of Patrick and responsible for both his long term and day to day care, welfare and development.
The co-parent somewhat surprisingly, expressed a personal antipathy towards the father. She said that she found his behaviour at contact inappropriate and that his attitude towards her had caused “… enormous pain”. She asserted that the father had actively sought to exclude her from Patrick’s life. There was no basis for that view and was inconsistent with the evidence of the father. Despite an evening break, the following morning the co-parent said that the father had caused her enormous pain and suffering and that his attitude to her could be seen from what was happening in the court room with a “… total concentration on the mother and marginalisation” of her own role. She complained that the father was prioritising the importance of biological parenting over that of psychological parenting. I do not see it that way and which view is also inconsistent with the evidence of the father which I accept. The co-parent made it clear that her position was that if the father was “… a parent”, then the lesbian community would need to take that into account in the future. She added, and with considerable insight, that the rights of donors also required to be protected.
The co-parent said that if the court determined that the father was “… not a parent” but an “… interested party” (to use the term of Mr Udorovic), she would be satisfied in part and in the absence of an amicable agreement, the only issue then remaining was the quantity of contact.
It was her view that the contact orders last put in place were confusing and that to have contact greater than two times per year for three hours would “… open the door” to the father. She said that his proposal was an extreme acceleration of his contact with Patrick and that it should be built around a longer time frame. When it was suggested to her that a period of four hours each alternate Sunday was appropriate, she rejected that as being traumatising “… for Patrick and our family” given his present relationship with the father. She again fell back on her complaint that the father’s behaviour, thus far, had not given her a basis for trust. In my view, her complaint was quite unfounded.
Mr Udorovic put to her that when Patrick was three years old and Father’s Day came around, would she agree to Patrick seeing his father on that day? She agreed with that, but qualified it by saying it was dependant upon whether Patrick wanted to see his father. Additionally, and demonstrating a general reluctance to enable contact between Patrick and his father, she explained that she would be seeing her own father that weekend and it may well be difficult for her to arrange contact. In my view, to leave that decision to a child of three years of age did not demonstrate a responsible parenting attitude.
The co-parent was referred to Annexure C to her affidavit filed on 8 May 2001 which was a copy letter dated 19 August 2000 forwarded by her (and the mother) to the father. Paragraph 2 of that letter read as follows:
“Given the level of acrimony and dispute between us and you, we feel it is inappropriate for you to buy Patrick a piece of clothing for his birthday, because we would find it difficult to utilise. If it is important to you to buy him a birthday present we suggest that you select an age appropriate toy, book or piece of music that you can bring to contact visits and take home with you when the visit concludes. Please ensure that the gift can be safely used in LD’s living room, porch or front yard and that it does not present any health risks for Patrick”.
The co-parent explained that at the time both she and the mother felt traumatised, but that the controlling attitude referred to in that letter was no longer held by her. She said, and fairly so, that the father could buy clothing and toys as “… things have changed”. I found that evidence encouraging.

Contrary to Fogarty J’s arguments, Sandor argues, with which I agree, that in the absence of express provisions in federal law, the Family Law Act can and should be read in light of such state and territory presumptions, thereby leaving the sperm donor, known or unknown, outside the meaning of ‘parent’. Where this leaves individuals such as the father is a matter for the legislature. Given the father’s active involvement in Patrick’s conception and his ongoing efforts to build a relationship with his son, it is a strange result that he is not Patrick’s ‘parent’. Equally strange, however, would be the case of an unknown donor who deposits his semen at a sperm bank only to find that he has parental responsibilities under the Family Law Act for any child conceived of his genetic material.
The decision of Fogarty, J in B v J (supra) has been referred to on two occasions in the context of decisions relating to s 60H of the Act. However, as neither case deals specifically with the position of a sperm donor, they provide little by way of direct guidance.
In P v P (1997) FLC 92-970 Mullane J considered the position of a husband who initially consented to his wife undergoing artificial insemination but withdrew his consent prior to conception of the child. Thus the question in P v P was not whether the sperm donor was the child’s parent, but whether the husband was regarded as a parent under the Act. The Court found that the wife was inseminated against the husband’s wishes and without his knowledge so that s 60H(1) of the Act did not confer on the husband the status of parent. Interestingly, Mullane J seems to have assumed that the donor was also not a parent as he held that the child had “… ‘only one parent, her mother’” (at 84,741).
The judgment of Fogarty, J in B v J (supra) was also referred to by the Full Court of the Family Court in Tobin v Tobin (1999) FLC 92-848. In that case a guardianship order was made in favour of a husband and wife by the Supreme Court of Queensland in respect of a child who was previously in their foster care. The question for the Full Court was whether the guardianship order and parenting orders made subsequently by the Family Court which amended the guardianship responsibilities, conferred on the husband the status of a parent under the Act. The Full Court held that the word ‘parent’ in the Act should be given its natural meaning in accordance with the Oxford and Macquarie Dictionaries as “… ‘A person who has begotten or borne a child’”. Thus a parent with a State guardianship order or a person in loco parentis was not a parent for the purpose of Part VII of the Act. This reasoning would suggest that the father in this case, as the biological parent of Patrick, is a parent for the purposes of the Act. However, the unique position of a sperm donor was not before the Court and for this reason it is of limited application.
Several decisions of State Supreme Courts have, since B v J (supra), applied the equivalent provision to s 10F of the Victorian Status of Children Act to sever the legal relationship between a donor and child. In the Supreme Court of the ACT In the Matter of an Application Pursuant to the Births, Deaths and Marriages Registrations Act, 5^th May 2000 (unreported), Crispin J held that he could not make a declaration that the donors in that case were the parents of the child despite that conclusion being in the interests of all parties, and although it would promote the welfare of the child. The facts in that case were that the fertilised egg of H1 and W1 (the donors) was carried pursuant to a surrogacy arrangement by W2 with the consent of H2. As previously agreed, upon birth, the child was returned to H1 and W1. However, Crispin J held that H1 and W1, in accordance with ACT law, were not the parents of the child, although biologically they were his mother and father. A similar decision in comparative circumstances was made by Windeyer J in the Supreme Court of New South Wales in PJ v DOCS [1990] NSW SC 340.
I have earlier found that the father holds a genuine and profound paternal love for Patrick and has, notwithstanding the negative definitions sought to be ascribed by the mother and the co-parent, much to offer the child in achieving the milestones of his development over the forthcoming years. It is in these particular circumstances difficult to understand that he is excluded, for the purposes of the Act, from being properly known as a ‘parent’ of Patrick, but merely to have jurisdictional status in the Family Court as “… any other person concerned” with Patrick’s welfare (s 65C(c) of the Act), or as was submitted on the part of the applicants, to have an avuncular role in the child’s life.
To be Patrick’s biological father in the circumstances as found by me and yet denied by bare statutory definition appropriate nomenclature as one of his ‘parents’ in my view sits awkwardly with the provisions of an Act which regulates family law in this country. It falls seamlessly from the expert evidence of both Dr Adler and Mr Papaleo that the mother and her committed lesbian partner in their homo-nuclear relationship are the child’s ‘parents’, but that a similar and appropriate recognition is not accorded to the biological father.
As matters presently stand, the father’s position is this. Patrick has the right of contact “… with other people significant to (his) care, welfare and development”. See s 60B(2)(b) of the Act. As a person who is “… concerned with the care, welfare and development of the child”, the father may apply for a parenting order pursuant to the provisions of s 65C of the Act. In that event, the child’s best interests are of paramount consideration (s 65E of the Act) and the considerations pursuant to s 68F(2) apply. On that basis the father, whilst not a ‘parent’ can have certain parental responsibilities conferred upon him within s 61D(1) of the Act.

POSSIBLE RECOMMENDATIONS

As far back as 1996, Fogarty J commented in B v J (supra) that:
“It is a reality of life children are born as a result of a variety of artificial conception procedures, out of non-traditional circumstances, and into non-traditional families. Legislation which deals with the personal and financial responsibility for such children should be clear and exhaustive and should recognise the reality of these situations”. (at 83,621)
Over five years have passed since his Honour expressed his view and, as these proceedings so starkly highlight, there has been no appreciable progress in this area. During the course of the proceedings the issue of how to best address the various identified problems was discussed by counsel from time to time at my invitation by reason of my growing concerns. Whilst one could envisage labyrinthine drafting problems alone, none the less, in my view legislation should be considered to recognise the reality in our community of the non-traditional circumstances evidenced in these proceedings and long ago identified by Fogarty, J. I have given this matter consideration and in so doing I have drawn heavily on the scholarly and helpful submissions by Dr Kovacs, in her role as counsel for the child representative.

9.1 FEDERAL LEGISLATION

The definition of ‘parent’ in s 60H of the Act requires clarification. The current provision was designed to maintain consistency between the Federal law and the status of children legislation of the States within the Commonwealth. It was also designed to ensure that the opposite-sex partner of a woman undergoing artificial insemination treatment is considered a parent of any child conceived through such a procedure, and to protect donors from parenting responsibilities and financial burdens they did not agree to when making available their genetic material.
However, as these proceedings illustrate, not all families using artificial insemination procedures fall into the traditional heterosexual model that the legislation intended to protect. Accordingly, consideration should be given to review the definition of ‘parent’ in s 60H of the Act to take into account that there are varying arrangements between donors and prospective mothers, and that donors such as the father in these proceedings may not only consider themselves a ‘parent’, but may also be considered by the recipient of the genetic material to be a parent.
The prescribed legislation for the purpose of each of the sub-provisions of s 60H of the Act should also be reviewed by each State and should set out, for the purposes of State law, who is intended to be a ‘parent’. The States need to decide whether they intend to include individuals such as the father within the definition of ‘parent’. Whatever State legislation is undertaken and prescribed in the future, it is important that issues concerning status of children be uniform throughout Australia such that if the States will not or cannot ultimately concur on these matters, it may become appropriate to ensure that the Commonwealth is armed with adequate powers to enact such laws.
Parties to artificial insemination should be able to plan parenting arrangements prior to conception in an endeavour to avoid, or at least minimise future, conflicts in the interests of the prospective child. It is currently open to a lesbian co-parent to obtain a parenting order as a “… person concerned with the care, welfare or development of the child” (s 65C(c) of the Act) as occurred in these proceedings, and this will remain the principal means of legalising the co-partner’s future relationship with the child. However, incorporating the donor in pre-planning poses problems under the current legislative regime.
It is possible that parenting contracts might avoid the associated stress of days of evidence as to the parties’ intentions, but as I have earlier said, they are unlikely to dictate the final outcome of a case. As Fogarty J stated in B v J, (supra) (at p. 83,618) “… It is well established that statutory rights granted to individuals which rest upon wider principles of public policy may not be waived”, and for which there is clear authority. An agreement absolving a father from the obligation to pay maintenance for a child would not be enforceable either directly or by way of estoppel. Nor would an agreement absolving the father from any other aspect of parental responsibility. Equally, a written agreement which provided for a donor to have frequent contact with a child could not prevail over a finding by the Court, in a given case, that contact was not in the best interests of the particular child. Whilst agreements may be valuable in avoiding, pre-empting or resolving inter-personal disputes between the individuals in donor insemination arrangements, it is the considerations in s 65E and s 68F(2) of the Act rather than the terms of any agreement which will dictate the outcome for the child.
Given the inherent problems of parenting contracts, the use of registered Parenting Plans pursuant to Division 4 of Part VII of the Act may assist parties in proceedings such as those before me. However, that Division is not in fact apposite to the current situation. Section 63C(1) of the Act refers to an agreement (that is, a parenting plan) between ‘parents’ which is not the position of either the co-parent or the father as donor. Accordingly, consideration should be given to Division 4 of the Act, so far as the Commonwealth Powers (Family Law – Children) Acts of the States allow, being extended to include such parties so as to permit a three way agreement.
It was the submission of Dr Kovacs, and with which I agree that the onerous obligations associated with registration of a parenting plan which attach to legal practitioners and counsellors under the provisions of s 63DA(1) of the Act would have enabled the parties in these proceedings to undertake counselling and to receive advice which might have exposed, at an early stage, some of the problems they later experienced. Section 63DA(1) of the Act contemplates that supportive programs would be available. Further safeguards are enacted in s 63E(2) and (4) of the Act as conditions of registration of a parenting plan. The plan could be executed before the conception took place and certainly before the birth, although it could not be registered until after the child was born.
Dr Kovacs observed that once registered, the child welfare provisions of a parenting plan would be given presumptive effect as an order of the Court under s 63F(3) of the Act, but which could not be the case as presently drafted if the child was to live with someone who is ‘not a parent’, that is, a person in the position of the father as the donor, or the co-parent in the proceedings before me. Further amendment of the parenting plan provisions of the Act would accordingly be required to provide for the child to live with those persons. The child maintenance provisions of a parenting plan would also not be effective as currently drafted because the child must be “… of the relevant marriage” pursuant to s 63G(1)(b) of the Act and they are not applicable where a child support assessment is available in relation to a child.
Whilst the Family Law Reform Act 1995 enacted notions of parental responsibility which, in certain areas reflected the then “state of the art”, they failed in significant respects to move beyond the general situation of a child being born into and/or living in a heterosexual household. For the most part, references in Part VII of the Family Law Act to both parents (eg s 60B(2) of the Act) or to either or both parents (eg s 61C(2) of the Act) highlight that Part VII proceeds from assumptions about the child’s family which have no application in the present circumstances. A review of the federal law in this area should be considered so that families such as are involved in the present proceedings are not precluded from the substantial protections of the Act.

9.2STATE LEGISLATION

Despite recently enacted legislation recognising same-sex relationships in several States (eg: Statute Law Amendment (Relationships) Act 2001 (Vic), and Property (Relationships) Act 1984 (NSW)), there are many areas of State law which continue to discriminate against gay and lesbian Australians. In particular, most states discriminate against lesbian and single women in relation to access to infertility treatment procedures. Artificial insemination procedures are regulated in Victoria by the Infertility Treatment Act 1995 (Vic) and are only available to women who are married or in a heterosexual de facto relationship. The Federal Court of Australia in McBain v State of Victoria [2000] FCA 1009 (28 July 2000 – Sundberg J) held that this provision was invalid due to inconsistency with s 22 of the Sex Discrimination Act (Cth) 1984. This decision is currently on appeal to the High Court of Australia. Furthermore, services are also only available to women who are infertile or where the embryo is at risk of genetic abnormality or disease. Accordingly, unless the legislation is amended, lesbian women such as the mother and co-parent in these proceedings are prohibited from accessing assisted reproductive services. The unsatisfactory nature of the position amongst the states is discussed by Millbank, If Australian Law Opened its Eyes to Lesbian and Gay Families, What would it see? Vol 12 1998 Australian Journal of Family Law, at p 99. There is much substance to many of her criticisms.
In her submissions Dr Kovacs pointed out that the regulatory regime created by the State laws is buttressed by the imposition of onerous penalties (see for example, ss 6 and 7 of the Infertility Treatment Act 1995 Vic). However, it is arguable that these provisions target unlicensed or non-complying medical operators rather than the common and informal arrangement which presents in these proceedings and which took place between these parties. In my view, consideration should be given to clarifying the penalty provisions, so that what appears to be the simple and common process of donor insemination is clearly removed from their scope. That too might facilitate the establishment of counselling and advice facilities for participating parties such as those in the proceedings before me.
It is time for State laws to be enacted to make available to lesbian women and their known donors a well regulated scheme with all of the safeguards, medical and otherwise available to heterosexual couples. There is no doubt that the parties in this case would have benefited from such services and may not be in the position they are today had they been able to access counselling currently available to heterosexual couples.

OTHER MATTERS

In my view, Patrick’s ‘family’ is comprised of the mother and the co-parent. It is a homo-nuclear family. They are his parents. That which constitutes a ‘family’ has been the subject of substantial debate particularly relevant to the gay and lesbian community. It has been argued that there has been –
“… a shift away from the indicia of biology and marriage relationships … towards a more flexible or purposive definition of family”.
(See: Australian Institute of Family Studies – Family Matters No. 55, Autumn 2000; Jenni Millbank). It appears to me that a “… family” being limited to the traditional hetero-nuclear family does not now reflect the reality of the various family forms within modern society. I see no reason why “… family” should not also include a homo-nuclear family as part of the diverse configuration of families reflected in our community.
In my view, both the mother and the co-parent have demonstrated a history of “… mutual interdependence, of the sharing of lives, of caring and love, of commitment and support” (per Lord Slynn Fitzpatrick v Sterling Housing Association Ltd (2001) 1 AC 27 at 38. They, together with Patrick, are a ‘family’. It is also appropriate to recall what Nicholson CJ had to say when dealing with the changing concept of family, namely:
“One of the fundamental misconceptions which plagues me is the failure to understand that heterosexual family life in no way gains stature, security and respect by the denigration or refusal to acknowledge same-sex families. The sum social good is in fact reduced, because when a community refuses to recognise and protect the genuine commitment made by its members, the state acts against everybody’s interests”.
[See “The Changing Concept of Family, Vol. 11 Australian Journal of Family Law, p 13].
The term ‘family’ has a flexible and wide meaning. It is not one fixed in time and is not a term of art. It necessarily and broadly encompasses a description of a unit which has ‘familial characteristics’. Not all families function in the same way. Never the less, they enjoy common characteristics such as those demonstrated by the applicants. Theirs is not of a casual or transitory nature but one that has embraced exclusivity and permanency. They are emotionally and financially inter-dependant and I have no doubt, share common interests, activities and companionship. Their biological and psychological relationship to and mutual care of Patrick makes it so much more obvious. In my view it would stultify the necessary progress of family law in this country if society were not to recognise the applicants as a ‘family’ when they offer that which is consistent and parallel with heterosexual families, save for the obviousness of being a same-sex couple. The issue of their homosexuality is, in my view, irrelevant. As Nicholson CJ said:
“… Sexual orientation is no basis upon which to make assumptions about the quality of an individual’s relationship or parenting capacities of a person. That is why sexual orientation in and of itself, has been held to be an irrelevant matter in disputes about children under the Family Law Act, unless it somehow impinges upon the best interests of a child.”
[See The Changing Concept of Family, (supra)]
Whilst there have been a number of relationship difficulties specific to the parties in these proceedings, the issue concerning contact between the father and Patrick which I have addressed in this judgment is not dissimilar from that arising in traditional heterosexual family disputes and decided daily by the Court. It is not unique. It is those other issues that bear prominence including the concept of ‘family’ and the father’s role within that family as a donor of genetic material. I do not see him as being a member of the family construct. It is his relationship with Patrick that is the central focus of his role and which should be permitted to grow parallel with the happiness and well-being of the ‘family’. When there are tensions between these two positions, I take into account all those relevant considerations to which I have referred and, in the exercise of my discretion, as I am required to do, make my determination in Patrick’s best interests.

Gay and lesbian families are a relatively newly recognised and, it seems, growing phenomenon in Australian society. Whilst they represent a small minority of families, surveys of lesbian women in NSW have found that approximately 20 per cent have children and over 40 per cent are considering having children in the future. (See V Barbeler, ‘The Young Lesbian Report: A Study of Attitudes and Behaviours of Adolescent Lesbians Today”, Twenty Ten Association, Sydney, 1992; Lesbians on the Loose, 1995 Readership Survey, Vol 7(3), p 9).
Although gay and lesbian families are increasing, they cannot be characterised as an homogenous group for they may take many forms. Children conceived via artificial donor insemination may have only two mothers, others, such as Patrick, may have two mothers and a father, and others, may have two mothers and two fathers. In a rare number of cases a child may have only two fathers. Within each of these family forms itself there may also be variations in the level of involvement of the father or fathers in the child’s life. Accordingly, whilst a child may have two mothers and a father, this does not necessarily mean that the father plays a traditional ‘fatherly’ role. In a survey of 84 women attending the Sydney Lesbian Parenting Conference in 2000, some 66 per cent of respondents with children conceived via donor insemination reported that the donor had no parenting responsibilities or decision making role, and only 12 per cent reported a sharing of parental responsibilities with the donor. In terms of the child’s contact with the donor, some 31 per cent had no contact, 33 per cent had ‘some’ contact, 22 per cent had ‘regular’ contact, and 13 per cent had ‘extensive’ contact with the donor relating to the child as a non-resident parent. Those interviewed were divided about the legal role of the donor, with just under one half responding that the donor should not have legal recognition under any circumstances while an equal number reported that legal recognition may be justified in some circumstances. Similar studies conducted in other countries have elicited similar results. (See Report of the Lesbian Parenting Conference 2000, Sydney cited in ‘Meet the Parents: A Review of the Research on Lesbian and Gay Families’, The Gay and Lesbian Rights Lobby (NSW) Inc, prepared by Millbank, January 2002)
Although the mother and the co-parent in these proceedings would prefer the father to play an avuncular role in Patrick’s life, the study discussed above indicates that other lesbian couples may want the donor father to play more of a parental role, albeit that of a non-resident parent. Mothers and fathers in the latter position may be surprised, if not angered, to learn that the biological father, with whom they desire their child to have a parent-child relationship, is not in fact the child’s ‘parent’. However, for those children who have little contact with their donor and who perceive their family unit as being made up of their two mothers, to be told that a relatively unknown third party is one of their ‘parents’ may also be upsetting.
It is clear that gay and lesbian families were not considered by the legislature when s 60H of the Act was being drafted. These families differ in significant ways from heterosexual families who access artificial insemination services. Such families would rarely envisage a scenario in which a sperm donor had a parental role in the life of a child conceived via artificial insemination. Few, if any, would want the donor involved in the child’s life. That section was drafted with a heterosexual model in mind and thus fails to recognise the complexity of family forms that might be created through artificial insemination. Given the diversity of gay and lesbian families and the varying role donors play in the lives of children conceived using their donated sperm, the legislature needs to reassess s 60H of the Act and to consider the ramifications of its application in cases such as this.
Finally, these proceedings, in critical ways atypical of those usually heard in the Family Court, have brought into sharp relief a number of significant issues which the Court will face in modern ‘family’ litigation. Both the mother and co-parent gave evidence of considerable discrimination against lesbian families and indicated that they, together with Patrick, are part of a socially disadvantaged minority group. I found this evidence to be of concern. They addressed the importance of Patrick understanding that they, the lesbian parents, are proud of their identity, that he is safe and that he will develop within the fabric of his family a sense of identity and self esteem. I have no doubt that he will also be endowed with the importance of the concept of ‘family’ through his father, who also must have weathered, at times, the storm of ridicule by bigoted members of our community. There do exist in our community elements of unfounded prejudice.
Mr Papaleo styled these proceedings as being immensely complex in involving a clash of values, beliefs and societal expectations, let alone the challenge to issues relating to parental responsibility, psychological versus biological parenting and the status of the co-parent (and the father) at law. In his paper, The Changing Concept of Family (supra) at p. 13, Nicholson CJ said that without:
“… the recognition of all family relationships, equality – the cornerstone of democratic society – is missing; and a public acknowledgment of private affections, commitments, inter-dependencies and identities is denied.”
Whatever the difficulties that currently exist between the mother, the co-parent and the father and which in my view are capable of sensible resolution, the immutable fact remains that Patrick is loved deeply by them all. That is his privilege. I view those that constitute his ‘family’, both in the narrow and broad sense, warrant equal treatment with the rest of our community, and certainly by the law.
Patrick, who is nearly two years of age is part of our community. He has the right to be treated equally as any other child. So too has the ‘family’ that nurtures him, houses him and who is charged with the onerous responsibility of leading him forward as a productive participant within our broad society. As family members they have a commitment to mutual interdependence, they share their lives, they care for and love each other and offer common support. They too have a right to be treated equally by the community as any other heterosexual nuclear family. As to the issue of equality, the Hon Madame Justice Claire L’Heureux-Dube, in Egan v Canada (1995) 2 SCR 513 at 543 had this to say:
“Equality, … means nothing if it does not represent a commitment to recognising each person’s equal worth as a human being, regardless of individual differences. Equality means that our society cannot tolerate legislative distinctions that treat certain people as second-class citizens, that demean them, that treat them as less capable for no good reasons, or that otherwise offend fundamental human dignity”.
Later, in a paper The Search for Equality: A Human Rights Issue (2000) 25 Queens Law Journal 401 her Honour, said:
“Equality implies freedom of choice regarding intimate association; true equality means respect for this deeply personal and individual decision”.
(Referring to K L Karst, The Freedom of Intimate Association (1980) 89 Yale LJ 624).
Having regard to the issues addressed in this judgment, it is time that the legislature considered some of the matters raised, including the nature of parenthood, the meaning of ‘family’, and the role of the law in regulating arrangements within the gay and lesbian community. The child at the centre of this dispute is part of a new and rapidly increasing generation of children being conceived and raised by gay and lesbian parents. However, under the current legislative regime, Patrick’s biological and social reality remains unrecognised. While the legislature may face unique challenges in drafting reform that acknowledges and protects children such as Patrick and the family units to which they belong, this is not a basis for inaction.

THE COURT ORDERS

Having regard to my findings in these proceedings, the proposed orders of the Court are as follows:
(1)That paragraph 5 of the Orders of 2 June 2000 be and are hereby discharged.
(2)That the father have contact with PATRICK born 11 September, 1999 as follows:
2.1As and from the date of this order until 11 September, 2002:
2.1.1each alternate Sunday for a period of four hours at times to be agreed between the parties and failing agreement from 10am to 2pm commencing on Sunday 7 April 2002;
2.1.2in the event that Father’s Day falls on a non-contact weekend, from 10am to 2pm on Father’s Day; and
2.1.3as may otherwise be agreed between the parties from time to time.
2.2As and from 11 September, 2002 until 11 September, 2003 as follows:
2.2.1each alternate Sunday for a period of eight hours at times to be agreed between the parties, and failing agreement from 9am to 5pm;
2.2.2in the event that Father’s Day falls on a non-contact weekend from 9am to 5pm on Father’s Day;
2.2.3as may otherwise be agreed between the parties from time to time.
2.3As and from 11 September, 2003 until 11 January, 2004 in each four week cycle as follows:
2.3.1in week one on Sunday from 9am to 5pm;
2.3.2in week three from 9am Saturday to 9am Sunday such contact to continue for a period of two months and thereafter such contact to conclude at 12 noon on Sunday.
2.4As and from 11 January, 2004 to 11 September, 2004 in each four week cycle as follows:
2.4.1in week one on Sunday from 9am to 5pm;
2.4.2in week three from 9am Saturday to 3pm Sunday;
2.4.3in the event that Father’s Day falls on a non-contact weekend from 9am to 5pm on Father’s Day;
2.4.4as may otherwise be agreed between the parties from time to time.
2.5As and from 11 September, 2004 as follows:
2.5.1each alternate weekend from the conclusion of school / creche on Friday to the commencement of school / creche on Monday, or in the event that the child is not attending school or creche, from 3.30pm Friday to 8.30am Monday;
2.5.2one half of all school holiday periods at times to be agreed between the parties and failing agreement for the second half of all school holiday periods;
2.5.3in the event that Father’s Day falls on a non-contact weekend from 9am to 5pm on Father’s Day;
2.5.4in the event that Mother’s Day falls on a contact weekend, such contact be suspended at 9am on Mother’s Day;
2.5.5on the child’s birthday and the father’s birthday for a period of two hours at times to be agreed between the parties and failing agreement from 4pm to 6pm on the said birthdays;
2.5.6as may otherwise be agreed between the parties from time to time.
(3)That for the purposes of contact, the father do collect the child from and return the child to the home of the mother and the co-parent.
(4)That paragraph 3 of the orders made on 2 June 2000 do include the following:
“… AND THAT the father do have responsibility for decisions concerning the child’s immediate care, welfare and development whilst the child is having contact with him”.
(5)That pursuant to s.65DA(2) of the Family Law Act 1975 (as amended), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
(6)That the appointment of the child representative be discharged from this day
(7) That pursuant to Order 38 rule 25 of the Family Law Rules this matter reasonably required the attendance of Counsel.

I certify that the preceding 336 numbered
paragraphs are a true copy of the
reasons for judgment herein of
the Honourable Justice Guest.

Associate to Guest J