Reiby and Meadowbank and Anor
[2013] FCCA 2040
•11 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| REIBY & MEADOWBANK & ANOR | [2013] FCCA 2040 |
| Catchwords: FAMILY LAW – Parenting orders for the two year old child of lesbian parents and a donor father – where the Applicant seeks equal shared parental responsibility and a shared care arrangement – where the Respondents seek a much more restricted role for the Applicant. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 60H, 61C, 61DA, 64B, 64C, 65AA, 65C, 65DAA, 65DAC |
| Aldridge and Keaton [2009] Fam CAFC 229 Donnell and Dovey [2010] FamCAFC 15 Wilson and Anor and Roberts and Anor [2010] Fam CA 734 Groth & Banks [2013] FAMCA 430 Wadlow & Kaldman & Ors [2013] FCCA 1033 |
| Applicant: | MR REIBY |
| First Respondent: | MS T MEADOWBANK |
| Second Respondent | MS S MEADOWBANK |
| File Number: | MLC 7054 of 2012 |
| Judgment of: | Judge Small |
| Hearing dates: | 26 and 27 September 2013 |
| Date of Last Submission: | 11 October 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 11 December 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Puckey |
| Solicitors for the Applicant: | Slater & Gordon Lawyers |
| Counsel for the Respondents: | Ms Smallwood |
| Solicitors for the Respondents: | Nicholes Family Lawyers |
ORDERS
That all previous parenting orders in relation to the child X born (omitted) 2011 (“the child”) be discharged.
That the Respondents have sole parental responsibility for the child.
That the child live with the Respondents.
That the child spend time and communicate with the Applicant by agreement between the parties from time to time, and failing agreement, as follows:
(a) Until 27 March 2014, on a two week cycle as follows:
In week one:
(i) On Tuesday from 8:30 am to 12:30 pm
(ii) On Thursday from 5:30 pm to 8:30 pm
In week two:
i. On Tuesday from 8:30 am to 12:30 pm
ii.On Saturday from 8:30 am to 12:30 pm
(b)Thereafter until the child’s third birthday, on a two- week cycle as follows:
In week one:
(i) On Tuesday from 8:30 am to 12:30 pm
(ii) On Thursday from 5:30 pm to 8:30 pm
In week two:
i. On Tuesday from 8:30 am to 12:30 pm
ii.On Saturday from 8:30 am to 2:00 pm
(c)Thereafter until 27 March 2015 in a two week cycle as follows:
(i) On Tuesday from 8:30 am to 12:30 pm
(ii) On Thursday from 5:30 pm to 8:30 pm
In week two:
i. On Tuesday from 8:30 am to 12:30 pm
ii.On Saturday from 10:00 am to 5 pm
(d)Thereafter until 27 March 2016:
(i) On each Wednesday from10:00 am to 5:00pm;
(ii) On each alternate weekend from 4:00 pm on Saturday to 9:00 am on Sunday for four visits;
(iii) Thereafter on each alternate weekend from 10:00 am on Saturday to 10:00 am on Sunday;
(iv) By telephone on the Saturday when the child is not spending time with the Applicant between the hours of 5:30 pm and 6:00 pm, with the Applicant to make the call to a telephone number provided by the Respondents and the Respondents to ensure that the child is available to take the call.
(e)Thereafter, until the child begins school:
(i) On each Wednesday from 10:00 am to 5:00 pm;
(ii) On each alternate weekend from 10 am on Saturday to 5:00 pm on Sunday
(iii) By telephone on the Saturday when the child is not spending time with the Applicant between the hours of 5:30 pm and 6:00 pm, with the Applicant to make the call to a telephone number provided by the Respondents and the Respondents to ensure that the child is available to take the call.
(f)Thereafter, once the child begins school:
(i) On one weekend per month during school term times by agreement, and failing agreement the first weekend of each month, from 10:00 am Saturday to 5:00 pm Sunday;
(ii) Each Wednesday from after school until 7:00 pm with the Applicant to provide the evening meal for the child before returning her to the Respondents’ home;
(iii) By telephone on each of the Saturdays when the child is not spending time with the Applicant between the hours of 5:30 pm and 6:00 pm, with the Applicant to make the call to a telephone number provided by the Respondents and the Respondents to ensure that the child is available to take the call.
(iv) For no more than two weeks per year in any school holiday period by agreement between the parties and failing agreement, for one week from after school on the last day of second term, and for one week ending at 6:00 pm on the Friday prior to the beginning of the school year;
(g)For three hours by agreement on Christmas Day and failing agreement from 9:30 am to 12:30 pm in odd years;
(h)For three hours by agreement for the child’s birthday each year and failing agreement between 10:00 am and 1:00 pm on 27 September if not a school day and between 3:30 pm and 6:30 pm on 28 September if 27 September is a school day other than Friday, when time shall be spent between 10:00 am and 1:00 pm on 28 September;
(i)For three hours by agreement for the Applicant’s birthday each year and failing agreement between 10:00 am and 1:00 pm on the following Saturday should it not fall on a day when the child is usually spending time with the Applicant, with the Applicant’s time to suspend from 10:00 am to 1:00 pm on the Saturday following each of the Respondent’s birthdays each year should they fall on a day when the child is usually spending time with the Applicant;
(j)From 10:00 am to 5:00 pm on Fathers’ Day each year should it fall on a day when the child is not usually spending time with the Applicant, with time to suspend at 10:00 am on Mothers’ Day should it fall on a day when the child is usually spending time with the Applicant.
(k)At such other times as the parties may agree from time to time.
(5)Changeover shall take place at a venue agreed by the parties from time to time and failing agreement the Applicant shall collect the child from the Respondents’ home and the Respondents or either of them shall collect the child from the Applicant’s home.
(6)The Applicant is hereby restrained by injunction from using any illicit drugs within 24 hours of and during the time that the child is in his care, and from drinking alcohol within 12 hours of such time, and from drinking alcohol to excess or having a blood alcohol reading of .05 or more during such time.
(7)The Respondents shall ensure that the Applicant is named as the child’s father on all medical and educational forms where the child’s contacts are named, and he shall be at liberty to attend all public school events and functions usually attended by a child’s family and significant others, and to receive, at his own expense, all school reports, photographs and other like items in relation to the child’s progress. The Applicant may attend parent-teacher interviews with the consent of the Respondents.
(8)The Respondents shall provide their consent to any doctor or other health practitioner who might be treating the child to speak to the Applicant about the child’s diagnosis, treatment and progress.
(9)The Applicant and the Respondents shall advise each other as soon as practicable in the event that the child suffers any significant illness or injury while she is in their respective care and shall advise each other of any treatment provided to the child as a result.
(10)The Applicant and the Respondents shall advise each other of any change in their address, telephone numbers and email or other electronic contact details within three days of such change.
(11)That the parties be and are hereby restrained by injunction from belittling, abusing or otherwise denigrating each other in the presence or hearing of the child and from allowing her to remain in the presence or hearing of any person engaging in such conduct.
(12)That all extant applications be otherwise dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 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.
IT IS NOTED that publication of this judgment under the pseudonym Reiby & Meadowbank & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 7054 of 2012
| MR REIBY |
Applicant
And
| MS T MEADOWBANK |
First Respondent
| MS S MEADOWBANK |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for parenting orders in relation to a two year old child, X born (omitted) 2011 (“X”), who was conceived by artificial insemination.
The Respondents, Ms T Meadowbank (“the first-named Respondent”) and Ms S Meadowbank (“the second-named Respondent”) are in a de facto relationship, and having been committed to one another for several years, were considering having a child.
The Applicant, Mr Reiby (“the Applicant”), approached the first-named Respondent, who was a friend of his, and assisted the Respondents to achieve that aim by donating his genetic material so that the first-named Respondent could conceive.
The Applicant seeks orders for equal shared parental responsibility in relation to X, and for orders that X spend time with him in a graduated pattern which would ultimately see her living with him and the Respondents on a 5/9 nights per fortnight regime.
The parties are in dispute about what the Applicant’s role in X’s life should be in terms of the amount of time she spends with him and in relation to his wish to have equal shared parental responsibility for her.
Background
The Respondents have been in a relationship since September 2005.
The first-named Respondent was diagnosed with chronic fatigue syndrome in 2006 and has been in receipt of a Disability Support Benefit since that time. The second-named Respondent works full time as a (occupation omitted).
The Applicant works part-time as an (occupation omitted).
In January 2010, the Applicant, who had been a friend of the first-named Respondent, sent her a text message in the following terms:
Hey does anyone want to be a surrogate for me or have a baby with me?
It was the Applicant’s evidence at trial that he did not send that message to anyone other than the first-named Respondent.
He was aware at that time that the first-named Respondent was in a committed same-sex relationship with the second-named Respondent. The Applicant was in a relationship with Mr A (“Mr A”).
The Applicant, Mr A and the Respondents had discussions throughout the first half of 2010 in relation to possible arrangements they might make for the birth of a child whose biological parents would be the first-named Respondent and the Applicant.
However, on 12 July 2010, Mr A sent a message to the Respondents via Facebook to the effect that his relationship with the Applicant had ended.
The Applicant did not contact the Respondents at that time, and the Respondents assumed from that message that the loose arrangement they had with the Applicant and Mr A would not continue.
The Respondents’ evidence is that they specifically wanted a known donor for their child, as they had known a woman who did not know the identity of her father in similar circumstances, and who had experienced considerable distress in relation to her identity. Discussions with that woman led them to believe that it would be in the prospective child’s best interests to know who his/her biological father was and to have some kind of relationship with him.
The first-named Respondent contacted the Applicant and advised him that she and the second-named Respondent were keen to continue the discussions if he was.
The first-named Respondent met the Applicant on 21 August 2010 and discussed the conception and arrangements for the child in general terms.
There were further meetings between the Applicant and the Respondents in October and November of 2010 where the matter was discussed.
Ultimately the Applicant provided his genetic material in the first week of January 2011, and the first-named Respondent immediately became pregnant. X was conceived by artificial insemination without the Applicant being present, and was born on (omitted) 2011. The Applicant was present at the birth.
On 13 September 2011 the first-named Respondent changed her surname to that of her partner, the second-named Respondent.
It was agreed during the pregnancy that the child would have the joint surname of “Meadowbank-Reiby” and that is how X’s name was registered on her birth certificate. That birth certificate is dated 15 June 2012, some nine months after X’s birth.
Differences in the parties’ understanding of the terms of the agreement they thought they had made in relation to X’s care began to arise during the pregnancy, and by the time X was three months old, the parties had sought legal advice in relation to how the Applicant’s role would be defined.
The parties all attended at RKL Lawyers in October 2011 to obtain information about these matters.
The Applicant appears to have believed that the parties had come to an agreement at that meeting, and instructed his solicitors to draft a Minute of Consent Orders and a Statement of Agreed Facts so that Parenting Orders could be made by the Court.
The Respondents were shocked and surprised to receive those documents as they had understood that no solid agreement had been reached, and that the parties might attend mediation or pursue other non-legal avenues in relation to resolving what was by then a fairly tense relationship between the parties.
The relationship appears to have deteriorated significantly from that time, resulting in the Applicant filing his Initiating Application on 3 August 2012.
Despite this unfolding dispute, X was spending regular and frequent day time with the Applicant at the Respondents’ home, and later at his home, from the time of her birth.
Procedural History
In his Initiating Application filed on 3 August 2012, the Applicant sought the following orders:
Final Orders sought
1)That the Applicant (“Mr Reiby”) and the Respondents (“Ms T Meadowbank and Ms S Meadowbank”) have equal shared parental responsibility for the child X born (omitted) 2011 (“X”).
2)That X live with Mr Reiby, Ms T Meadowbank and Ms S Meadowbank in each fortnight as follows:
1)With Ms T Meadowbank and Ms S Meadowbank from 5:00 pm on Monday in the first week until 5:00 pm on Monday in the second week;
2)with Mr Reiby from 5:00 pm on Monday in the second week until 5:00 pm in the following week.
3)That in all even numbered years:
1)X spend time with Mr Reiby from 12 noon Christmas Eve until 12 noon Christmas Day; and
2)X spend time with Ms T Meadowbank and Ms S Meadowbank from 12 noon Christmas Day until 12 noon Boxing Day
4)That in all odd numbered years:
1)X spend time with Ms T Meadowbank and Ms S Meadowbank from 12 noon Christmas Eve until 12 noon Christmas Day; and
2)X spend time with Mr Reiby from 12 noon Christmas Day until 12 noon Boxing Day.
5)That X spend time with Mr Reiby from 11:00 am until 5:00 pm on Father’s Day in 2012 and from 9:00 am to 5:00 pm on Father’s Day thereafter and any provision for time under this order that is inconsistent with this paragraph be suspended so as to facilitate Mr Reiby’s time with X.
6)That X spend time with Ms T Meadowbank and Ms S Meadowbank from 9:00 am until 5:00 pm on Mother’s Day and that any provision under this order that is inconsistent with this paragraph be suspended so as to facilitate Ms T Meadowbank and Ms S Meadowbank’s time with X.
7)That X spend equal time with Mr Reiby, Ms T Meadowbank and Ms S Meadowbank on her birthday.
8)For the purpose of changeover Mr Reiby will collect X from Ms T Meadowbank and Ms S Meadowbank’s home at the commencement of his time with X and Ms T Meadowbank and/or Ms S Meadowbank will collect X from Mr Reiby’s residence at the conclusion of his time.
9)Such further or other orders as this Honourable Court deems appropriate.
Interim or procedural orders sought
1) That the Applicant (“Mr Reiby”) and the Respondents (“Ms T Meadowbank and Ms S Meadowbank”) have equal shared parental responsibility for the child X born (omitted) 2011 (“X”).
2) That X live with Ms T Meadowbank and Ms S Meadowbank.
3) That X spend time and communicate with Mr Reiby:
a)For a preliminary period as follows:
a.In week one each Monday, Thursday and Sunday from 11:00 am until 5:00 pm;
b.In week two each Thursday, Friday and Saturday from 11:00 am until 5:00 pm;
c.At such other times as may be agreed;
b)From 27 December 2012 for a further three months as follows:
i. In week one each Monday, Thursday and Sunday from 9:00 am until 5:00 pm;
ii. In week two each Thursday, Friday and Saturday from 9:00 am until 5:00 pm; and
iii. At such other times as may be agreed.
c)From 27 March 2012 (sic) for a further six months as follows:
i. In week one each Monday, Thursday and Sunday from am until 5:00 pm;
ii. In week two from 4:00pm Friday until 4:00 pm on Saturday; and
iii. At such other times as may be agreed.
d)from 27 September 2013 for a period of 12 months as follows:
i. In week one from 3:00 pm Friday until 3:00 Sunday;
ii. In week two from 3:00 pm Wednesday until 10:00 am Saturday; and
iii. At such other times as may be agreed between the parties.
4) That from 27 September 2014, X live with Mr Reiby, Ms T Meadowbank and Ms S Meadowbank in each fortnight as follows:
a. With Ms T Meadowbank and Ms S Meadowbank from 5:00 pm on Monday in the first week until 5:00 pm on Monday in the second week;
b. with Mr Reiby from 5:00 pm on Monday in the second week until 5:00 pm in the following week.
5) That in all even numbered years:
a. X spend time with Mr Reiby from 12 noon Christmas Eve until 12 noon Christmas Day; and
b. X spend time with Ms T Meadowbank and Ms S Meadowbank from 12 noon Christmas Day until 12 noon Boxing Day
6) That in all odd numbered years:
a. X spend time with Ms T Meadowbank and Ms S Meadowbank from 12 noon Christmas Eve until 12 noon Christmas Day; and
b. X spend time with Mr Reiby from 12 noon Christmas Day until 12 noon Boxing Day.
7) That X spend time with Mr Reiby from 11:00 am until 5:00 pm on Father’s Day in 2012 and from 9:00 am to 5:00 pm on Father’s Day thereafter and any provision for time under this order that is inconsistent with this paragraph be suspended so as to facilitate Mr Reiby’s time with X.
8) That X spend time with Ms T Meadowbank and Ms S Meadowbank from 9:00 am until 5:00 pm on Mother’s Day and that any provision under this order that is inconsistent with this paragraph be suspended so as to facilitate Ms T Meadowbank and Ms S Meadowbank’s time with X.
9) That X spend equal time with Mr Reiby, Ms T Meadowbank and Ms S Meadowbank on her birthday.
10) For the purpose of changeover Mr Reiby will collect X from Ms T Meadowbank and Ms S Meadowbank’s home at the commencement of his time with X and Ms T Meadowbank and/or Ms S Meadowbank will collect X from Mr Reiby’s residence at the conclusion of his time.
11) That until further order Ms T Meadowbank and/or Ms S Meadowbank and their servants or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child X born (omitted) 2011 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Watch List in force at all points of arrival and departure by sae or air in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal.
12) Such further orders as this Honourable Court deems appropriate.
In their Response filed 24 August 2012, the Respondents sought these orders:
Final orders sought by… the respondent
(1)That the Application filed by the Applicant on 3 August 2012 be dismissed.
(2)That the firstnamed respondent and second names (sic) respondent, Ms T Meadowbank & Ms S Meadowbank, share parental responsibility for the child:
a.X born the (omitted) 2011 (“X”)
(3)That the Applicant spend time with X as follows:
a.From the 1st of September 2012 until the end of December 2012 (save and except for the period Overseas which is to be suspended from the 8th of September 2012 until 27th of September 2012 and time in Adelaide between the 23rd of December 2012 and 8th January 2013) as follows:
i.In week one each Tuesday, Thursday and Sunday from 2 pm until 5pm with the last hour to be unsupervised between 4pm and 5pm.
ii.In week two each Tuesday, Thursday and Saturday from 11 am until 2pm with the last hour between 1pm and 2pm to be unsupervised.
iii.In week three, each Monday, Wednesday, Friday, 9am until 2pm with the last hour between 11am and 12pm unsupervised.
b.From the 8th of January 2013 until the end of March 2013, with an additional hour on the same days as paragraph 3 (sic).
c.From March 2013 until September 2013 the same period totally unsupervised, with the Applicant to collect X at the start and the Respondent to collect X at the conclusion.
(4)That the time the Applicant spend (sic) with X be reassessed just prior to X’s second birthday in (omitted) 2013 and if necessary a clinical psychologist be engaged.
(5)That the Applicant submit to regular drug testing within 48 hours of any request made by the Respondents to do so of up to 10 times per year and that such drug testing be:
a.Supervised urine drug tests.
b.Broad spectrum tests including the checking of cannabis, metabolites, alcohol, opiates etc.
c.That the drug test screens be provided to the Respondents by the Applicant.
(6)Such further and other orders as the Court deems fit.
Interim or procedural orders sought by … the respondent
(7)That the Application filed by the Applicant on 3 August 2012 be dismissed.
(8)That the firstnamed respondent and second names (sic) respondent, Ms T Meadowbank & Ms S Meadowbank, share parental responsibility for the child:
(a)X born the (omitted) 2011 (“X”) (sic)
(9)That the Applicant spend time with X as follows:
a.From the 1st of September 2012 until the end of December 2012 (save and except for the period Overseas which is to be suspended from the 8th of September 2012 until 27th of September 2012 and time in Adelaide between the 23rd of December 2012 and 8th January 2013) as follows:
i.In week one each Tuesday, Thursday and Sunday from 2 pm until 5pm with the last hour to be unsupervised between 4pm and 5pm.
ii.In week two each Tuesday, Thursday and Saturday from 11 am until 2pm with the last hour between 1pm and 2pm to be unsupervised.
iii.In week three, each Monday, Wednesday, Friday, 9am until 2pm with the last hour between 11am and 12pm unsupervised.
b.From the 8th of January 2013 until the end of March 2013, with an additional hour on the same days as paragraph 3 (sic).
c.From March 2013 until September 2013 the same period totally unsupervised, with the Applicant to collect X at the start and the Respondent to collect X at the conclusion.
(10)That the time the Applicant spend (sic) with X be reassessed just prior to X’s second birthday in (omitted) 2013 and if necessary a clinical psychologist be engaged.
(11)That the Applicant submit to regular drug testing within 48 hours of any request made by the Respondents to do so of up to 10 times per year and that such drug testing be:
a.Supervised urine drug tests.
b.Broad spectrum tests including the checking of cannabis, metabolites, alcohol, opiates etc.
c.That the drug test screens be provided to the Respondents by the Applicant.
(12)Such further and other orders as the Court deems fit.
The matter first came before Federal Magistrate Walters (as His Honour then was) on 27 August 2012, when interim orders were made by consent, including an order for the preparation of a private family report, and the matter was otherwise set down for Final Hearing on 21 February 2013, with a mention on 17 December 2012.
The interim orders provided for X to “live with” the Applicant for four hour blocks on six days per fortnight, on Father’s Day 2012, and 5 and 7 September 2012. The Respondents had planned an overseas holiday between 8 and 26 September and this latter block was make-up time.
Unfortunately, within days of those orders being made, the Respondents became concerned about the Applicant’s ability to properly care for X as a result of an incident where he had allegedly failed to clean X sufficiently while preparing to change her nappy.
Further incidents followed in relation to the Applicant apparently failing to comply with X’s dietary regime, and all these concerns were raised with Dr J (“Dr J”) at the time of the first Family Report interviews in October 2012.
At the mention of the matter on 19 December 2012 before FM Riethmuller (as His Honour then was), further orders were made by consent for reduced time to be spent between X and the Applicant pending the Final Hearing, but including orders for time beyond 19 March 2013.
Those orders provided for X to spend time with the Applicant for two-hour blocks on four days per fortnight, with that time to suspend over the Christmas period to allow the Respondents to travel to Adelaide. Make-up time was to be provided on their return.
From 19 March 2013, these orders provided for time to be spent for four three-hour blocks each fortnight and as otherwise agreed between the parties.
The orders also provided for:
·the parties to use a communications book
·the Applicant to provide evidence of having had an age-appropriate child restraint professionally installed in his vehicle
·the Applicant to observe X’s usual dietary regime as far as was practicable
·the Applicant to return X to her mothers’ care if she became distressed and he was unable to comfort her
·the Applicant to be present at all times when X was in his care
·the parties to attend upon a psychologist for assistance in improving their cooperative parenting communication and implementing these orders for X’s benefit
·an injunction on all parties physically disciplining X or allowing any other person to do so
and
·changeover such that the Applicant collect X at the beginning of his time with her and the Respondents or either of them collect her at the end of that time.
The matter next came before the court on 27 March 2013, where it was adjourned to a one day final hearing on a date to be fixed in July 2013, and orders were made for an updated Family Report to be prepared by Dr J.
Due to the unavailability of judicial officers, the matter did not go to trial in July 2013.
Frustrated at the lack of progress of his time with X, and believing that the Respondents did not intend to provide X for increased time, and particularly for overnight time, the Applicant issued an Application in a Case on 5 August 2013.
The Respondents filed a Response and the matter came before Judge Hughes on 13 August 2013.
On that date, orders were made by consent which adjusted the time X spent with the Applicant such that she spend four hours with him each Tuesday morning, three hours on alternate Thursday evenings, and four hours in the intervening Saturdays.
Changeover provisions were adjusted so that for the Thursday evening time only, the Respondents were to deliver and collect X at the commencement and conclusion of her time with the Applicant.
The orders also provided for time to be spent on Fathers’ Day and on the day after X’s second birthday.
On 15 August 2013 Judge Hughes made orders in chambers setting the matter down for final hearing before her for 2-3 days from 25 September 2013, and making updated trial directions.
By an Amended Response filed on 16 September 2013, the Respondents sought the following final orders (and I have omitted the previous orders sought, which were orders 2-5):
(1)That the Application filed by the Applicant on 3 August 2012 be dismissed.
(6)That the First and Second Respondents have equal shared parental responsibility for the child X born (omitted) 2011 (“X”).
(7)That X live with the First and Second Respondents.
(8)That X spend time with the Applicant as may be agreed between the parties and in default of agreement, as follows:
(a)From the date of these Orders until 30 June 2014 for 3 block periods of 4 hours and 1 block period of 3 hours per fortnight, at times to be agreed between the parties, and in default of agreement, as follows:
(i) In Week One:
a)On Tuesday from 8:30am until 12:30pm; and
b)On Thursday from 8:30am until 11:30am.
(ii) In Week Two:
a)On Tuesday from 8:30am until 12:30pm; and
b)On Saturday from 8:30am until 2:30pm.
(b)From July 1 2014 until X commences primary school for 3 block periods of 4 hours and 1 block period of 6 hours per fortnight, at times to be agreed between the parties, ands in default of agreement, as follows:
(i) In Week One:
a)On Tuesday from 8:30 am until 12:30 pm; and
b)On Thursday from 8:30 am until 12:30 pm.
(ii) In Week Two:
a)On Tuesday from 8:30 am until 12:30 pm; and
b)On Saturday from 8:30 am until 2:30 pm.
(c)On Father’s Day from 8:30am until 2:30pm each year, unless otherwise agreed between the parties.
(d) On X’s birthday for a block period of 4 hours to include the provision of a meal as agreed between the parties, and in default of agreement, from 10:00am until 2:00pm.
(e) On Boxing Day for a block period of 4 hours to include the provision of a meal as agreed between the parties and in default of agreement, from 4:00pm until 8:00pm.
(f)As may otherwise be agreed between the parties.
(9)For the purposes of facilitating X’s time with the Applicant, the Applicant shall collect X from the First and Second Respondent’s (sic) home or at such other place as may be agreed between the parties at the commencement of his time with X and the First and Second Respondents shall collect X from the Applicant’s home or at such other at such other place as may be agreed between the parties at the conclusion of his time with X.
(10)Notwithstanding the provisions in Order 8, X shall spend time with the First and Second Respondents as follows:
(a)From 6:00pm on Friday until 6:00pm Sunday of the Mother’s Day weekend.
(b)From 6:00pm preceding the birthdays of the First and Second Respondents until 6:00pm on their birthdays.
(c)On X’s birthday each year as agreed between the parties, and in default of agreement, from 6:00pm the day preceding X’s birthday until 10:00am on X’s birthday and from 4:00pm onwards on X’s birthday.
(d)From 10:00am on Christmas Eve until 10:00am on Boxing Day, unless otherwise agreed between the parties.
(e)For a period of up to 4 weeks each year as nominated by the First and Second Respondents providing they give the Applicant 2 weeks’ notice in advance.
(11)The First and Second Respondents shall authorise any child care centre of preschool that X may attend to provide the Applicant with photocopies of reports, newsletters and announcements.
(12)That the parties shall notify the (sic) each other of any serious injury or illness suffered by X.
(13)That the parties shall advise each other forthwith and as soon as practicable, in the event that X suffers a significant illness or injury or requires hospitalisation whilst in their care.
(14)That each party notify the other, not more than 24 hours after any change to their:
(a)Address;
(b)Mobile telephone numbers; and/or
(c)Email address.
(15)Such further or other Order as the Court deems fit.
The matter came on for Final Hearing before Judge Hughes on 25 September 2013, but the Respondents made an application for Judge Hughes to recuse herself after she had made some opening remarks in relation to possible settlement options. Judge Hughes heard that application and dismissed it.
However, quite properly in my view, she decided that the Respondents had clearly lost confidence in her ability to hear the matter impartially, and she asked that I hear the matter instead. I was unable to hear the matter on 25 September and it therefore came before me for Final Hearing on 26 September, with a shortened hearing time of two days.
All viva voce evidence was heard in that two days, with all witnesses being cross-examined and orders being made for counsel to provide written closing submissions. Judgement was then reserved.
The Evidence
Much time was spent at trial in adducing evidence about the agreement/s the parties either made or did not make in the time prior to X’s conception, during the pregnancy, and in the period shortly after her birth. There appeared to be an acceptance by all parties that if I were to make a finding of fact that those alleged agreements had in fact been made, that finding would be proof only of the intention of the parties at the time, and not of a legally binding agreement.
The concepts of “intention” or “intent” are in my view, better suited to the jurisdictions of general civil and criminal law than to family law parenting matters. In the words of the Respondents’ counsel’s written submissions: “The proceedings are not a contract dispute”.
The Family Law Act 1975 (Cth) (“the Act”) makes clear that any rights contained in Part VII of the Act belong to the child and not to the parents or any other party (s.60B). Thus it is not possible for parents and any other person or persons to make contractually binding agreements about a child’s care unless those agreements are contained in a Minute of Proposed Consent Orders which is then made an order of the Court.
Further, s.60CA makes clear that in making any particular parenting order, the court must regard the best interests of the child as its paramount consideration. I can find no mention of the “intention” of the child’s parents (or other parties) as a consideration anywhere in Part VII of the Act other than in s.60H(1)(a) when the section talks about an “intended parent” of a child born as a result of artificial conception procedures. In that context, the “intended parent” is stated to be a person to whom the woman who gives birth to the child is either married or a de facto partner. That is not the case as between the Respondents and the Applicant in this case.
For these reasons, I do not place any weight on any agreements the parties might or might not have reached about X’s care before the institution of these proceedings. She has statutory rights under the Act and these simply cannot be contracted away by her parents and/or any third parties.
Any decision I make in relation to parental responsibility for X, or as to her care, will be made on the basis of the evidence of the parties’ relationship history with X, and on her best interests, with full consideration being given to the matters set out in s.60CC.
Therefore I do not intend to spend any time in these reasons on the content of any prior alleged agreements made, and in particular to the Minute of Consent Orders and Statement of Agreed Facts prepared by the Applicant’s lawyers in late 2011, particularly as those documents were never signed by the Respondents.
Regardless of whether the parties agreed to certain matters before the institution of these proceedings, that alleged agreement, and/or the intention behind it, is not a matter that should influence the court’s decision in this parenting case. The parties are not in agreement now, and that is the starting point for the court’s consideration.
I will now turn to the evidence in relation to what the parties’ relationship with X has been since her birth.
X has lived continuously with the Respondents since her birth. They are clearly her primary carers, with the first-named Respondent remaining at home to care for X while the second-named Respondent works to support her family.
The Applicant’s evidence
X has spent time with the Applicant since her birth and indeed he was present when she was born.
Since then, he has spent consistent, regular and frequent time with X, initially at the home of the Respondents with the first-named Respondent and/or the second-named Respondent present, then without them present for a short time, and later at his own home.
The time X spends with the Applicant has been governed by court orders, all made by consent, since August 2012. Before that, time was spent as agreed between the parties.
As the matter came to final hearing, X was spending time with the Applicant as follows:
·From 8:30 am until 12:30 pm each Tuesday
·From 5:30 pm until 8:30 pm on alternate Thursdays
·From 8:30 am until 12:30 pm on alternate Saturdays in the alternate week to the Thursday evening time
X had also spent time with the Applicant on Fathers’ Day, just a few weeks before the final hearing.
This time has been significant on any view, and the frequent and regular time spent with the Applicant since her birth has allowed X to establish a solid relationship with him, albeit not a primary care relationship. Apart from two periods of time in 2012 when the Respondents were away from Melbourne on holiday, X has spent time with the Applicant in almost every week of her life.
The Applicant seeks to progress that relationship gradually to a time where X spends five nights per fortnight in his care when she commences school, and I note that that regime is quite common in orders made in this Court.
He wishes to have equal shared parental responsibility for X so that he might be involved in her life in the same way as any other father might.
He acknowledges that the fact that X’s surname is a hyphenated version of his name and the surname of the respondents is a sign of goodwill on their part, and that the Respondents were under no obligation to register X’s surname in that way.
His evidence is that X enjoys her time with him and that she appears to be happy and settled in his care. He says that he has learned how to settle X when she becomes distressed, that he is able to feed and change her, that he loves her dearly and that he has much to offer her as a father.
He says that X has developed relationships with his family and friends and especially enjoys the time she spends with her paternal grandmother and aunt.
He states that X has her own room at his home which contains a cot, some toys and a couch, and that X is familiar with that room and knows it is “hers”.
In his trial affidavit sworn 2 September 2013, he sets out multiple occasions in the first six months of X’s life when the Respondents brought X to spend time with him and his family for special events.
He says that in November 2011 he asked if he could take X to the christening of a child of a close friend. There was some discomfort about this request and after some email correspondence, the Applicant says he understood that X was perhaps too young to be separated from the first-named Respondent at that stage and says that he “tried to thereafter pay closer attention to (the first-named Respondent’s) anxieties and remain mindful of X’s developmental needs.”[1]
[1] The Affidavit of the Applicant sworn 2 September 2013 paragraph 50
The Applicant deposes that he took leave, reduced his work hours and relocated to live with his mother when X was born so that he could be closer to X. He acknowledged in his oral evidence that his mother assists him with X’s care, but insists that it is he who is the main carer when X is with him.
He says that in general, changeovers have been affected without problem, even after these proceedings were initiated, although he described at trial one incident where X was distressed at the commencement of her time with him, and in order to show the Respondents that she had settled, he took a video of her in the car using his mobile phone and sent it to the Respondents so that they would not worry.
He says that he initiated these proceedings after the first-named Respondent told him at the end of May 2013 that she was not ready for X to be away from her for more than 30 minutes at a time, and he had sought advice from a specialist relationship centre which indicated that “30 minutes was not adequate to build a relationship with X”[2]. He says that he did not issue proceedings earlier because he did not want to resort to litigation and he hoped the situation would improve.
[2]Supra para 61.
He feels that the Respondents have been and are overly critical of his parenting skills and that they find fault with him at every opportunity.
He perceives the Respondents to have been inflexible at times when he has wanted to change his time with X to accommodate special events, while he has been flexible in changing times to suit them. He admits that this has caused him some frustration.
The Applicant sets out the arrangements made between him and the Respondents in relation to his financial support of X. He is not legally obliged to pay child support as he is not a liable parent under child support legislation, but the parties have come to an arrangement whereby the Applicant provides support for X as though he were a liable parent and based on the child support formula provided by the Child Support Agency. That support is paid retrospectively from the date of X’s birth and is ongoing.
At trial, the Applicant appeared somewhat defensive, although he did concede several matters during cross-examination (for instance that he did not really need to have equal shared parental responsibility in order to be involved in X’s school life). He struck me as a generally truthful man, although I was sceptical about some of his evidence in relation to his drug use.
He certainly impressed as being determined to have as much involvement as he can in X’s life and it was clear that he sees himself as her father, and indeed like any father who does not live full time with his child.
The Respondents’ evidence
The Respondents, while acknowledging from the outset that they wish X to know and have a relationship with the Applicant, depose to feeling concerned about the level of involvement he seeks in her life and to have some reservations about his lifestyle and values.
They believe that the Applicant is not focussed on X’s developmental needs and that he is more concerned with establishing himself in his role as her father than with being sensitive to her actual needs.
In their joint initial Affidavit[3], the Respondents deposed to serious concerns about the Applicant’s drug and alcohol use, and annexed to that Affidavit certain of his text messages, and Facebook and Twitter postings, including the following:
·“A scotch a day helps me work rest and play” – 6 March 2011
·“Day of beach, Asian food and scotch” - 5 November 2011
·“Ahh first Xmas drink poured. Many more to go.” – 24 December 2011
·“…at SplendourInTheGrass…..wicked music and atmosphere and of access to the performers only area which led to free drugs and a clean toilet! NB: Splendr or Dys&MisEliza do not endorse drugs taking” – undated
·“Riddle me this: after a weekend of Splendour plus work today n drinking another jug now – how will I feel tomorrow?” - undated
·“Drink some scotch that always fixes me” 30 March 2012
·“Coke is always good after a big night of drinking. I agree. Both the powder and the liquid” – 25 May 2012
·“Don’t #drinkuntilyoudrop” I vomited before sleeping and continued when I woke up. My body hates me…But I’m happy it pulled through for me” - 11 June 2012
[3] Affidavit of The Respondents affirmed 23 August 2012
The first-named Respondent deposes[4] to the Applicant having sought to spend overnight time with X from her birth without any sensitivity to the fact that X would be breastfed. She says that the stress of the Applicant’s demands on her and the second-named Respondent, even before X was born, affected her health.
[4] Trial Affidavit of the first-named Respondent affirmed 16 September 2013
Nevertheless, she says that “After X was born, (the second-named Respondent) and I welcomed the Applicant into X’s life and fostered a positive relationship between them”.[5]
[5] Trial Affidavit of the first-named Respondent affirmed 16 September 2013 para 58.
She deposes to being concerned about what she saw as the Applicant’s demanding and unrealistic attitude to the way his relationship with X might proceed and develop, and also about particular incidents which caused her to have concerns about his ability to care appropriately for X.
For example, she deposes that the Applicant twice changed X’s nappy in 2012 in a way that left faeces on her genitals and that he was non-responsive and even dismissive in relation to her offer to show him how to change a girl’s nappy[6].
[6] Trial Affidavit of the first-named Respondent affirmed 16 September 2013 para 80(a) and (c)
She also alleges that he has been indifferent to and neglectful of X’s special dietary requirements which has caused X to suffer several bouts of diarrhoea and other gastro-intestinal discomfort. These concerns continue even after court orders were made on 19 December 2012 to the effect that the Applicant would comply with X’s diet.
The first-named Respondent says that X is not easy to settle for sleep and that even the second-named Respondent can have trouble settling her. She is concerned that if time with the Applicant increases further, X will not settle to sleep at his home and this lack of sleep will affect her wellbeing.
Further, she says that when X’s time with the Applicant increased after the orders of 13 August were made, she returned from her first four-hour period with the Applicant very unsettled, biting the first-named Respondent and throwing tantrums beyond the usual.
Overall, the first-named Respondent says “I am concerned that the increase in (the Applicant’s) time with X is progressing too quickly for X and is have (sic) an adverse effect on her”.[7]
[7] Ibid para 116
In her trial Affidavit sworn 16 September 2013, the second-named Respondent simply adopts the contents of the first-named Respondent’s Affidavit and states:
I am concerned that the orders (the Applicant) seeks in his Application lack insight into an appropriate care arrangement for X given her age, her routine and her stage of development for reasons deposed to in the first-named Respondent’s Affidavit.
At trial, the second-named Respondent appeared to be a little nervous, but was generally impressive in her evidence, acknowledging some mistakes in her behaviour and answering questions directly, if a little defensively.
The first-named Respondent was more combative, and appeared unwilling to concede any point under cross-examination.
Both Respondents appeared genuinely distressed by the proceedings and expressed irritation that they found themselves in court having to defend their family structure.
The Family Reports
During the proceedings two family reports were prepared by Dr J, a private psychologist with many years’ experience in preparing reports for this court. This is the only evidence before the Court that is independent of the parties. Dr J saw the parties and X in October 2012 and again in March 2013. Dr J also gave oral evidence at trial.
At the time of both reports, the Applicant was seeking orders for equal shared parental responsibility and for X to live with him and the Respondents on a week-about basis. I note that the week-about regime was not his application at trial.
Dr J states that the Applicant was “concerned that he needed to establish and maintain a bond with X and he believed that required spending significant time together”[8].
[8] Family Report of Dr J dated 23 November 2012 p 9
She went on to say: “However, (the Applicant) was also somewhat adult-centric and tended to make his arguments in terms of his needs…. He said he was a good person and a good father, but had some difficulty considering X’s perspective and needs”[9].
[9] Family Report of Dr J dated 23 November 2012 p 9
Dr J administered the Personality Assessment Index[10] (“the PAI”) to all three parties at the first interview.
[10] “A 344–item instrument developed in 1991 that provides information relevant for clinical diagnosis, treatment planning and screening for psychopathology” Family Report of Dr J dated 23 November 2012 p 12.
In relation to the Applicant, Dr J says that the testing showed that there was “no indication in (the Applicant’s) PAI results to suggest that illicit drug use is a problem for him”, but that “alcohol use has caused occasional problems in his life including difficulties with interpersonal relationships and/or the use of alcohol to reduce stress”[11]
Dr J goes on to say:
(The Applicant’s) PAI results also suggest that his personality style involves a degree of adventurousness, risk-taking and a tendency to be rather impulsive. At times, his behaviour may be likely to be reckless and he can be expected to entertain risks that are potentially dangerous to himself and to those around him. He is likely to be easily bored by routine and convention, and he may act impulsively in an effort to stir up excitement.
Testing also suggested that (the Applicant) is normally a confident and optimistic person who approaches life with a clear sense of purpose and distinct convictions. His PAI results suggested that his interpersonal style is likely to be warm, friendly and sympathetic. He is likely to value harmonious relationships and derive much satisfaction from these relationships with others.
People who score like (the Applicant) did on the PAI tend to be rather uncomfortable with interpersonal confrontation and they often prefer to take a diplomatic approach.
[11] Family Report of Dr J dated 23 November 2012 p13
In relation to the first-named Respondent, Dr J reports that her results in the first part of the testing:
suggest that she provided a rather idealistic self-description that suggested that she tended to portray herself as being exceptionally free of common shortcomings to which most individuals will admit and quite reluctant to admit to minor faults, perhaps not even willing to admit these faults to herself. Her results suggest that (she) may be blindly uncritical of her own behaviour and insensitive to negative consequences associated with her own behaviour, tending to minimise the negative impact that her behaviour has on others and on herself[12].
[12] Ibid p12-13
Because of the results of the preliminary test, Dr J did not believe that the remainder of the testing completed by the first-named Respondent was statistically valid, but that “her profile showed some indication that she may suffer physical signs of depression such as sleep, appetite problems and the loss of energy. This was consistent with her diagnosis of Chronic Fatigue Syndrome”[13].
[13] Ibid p 13
In relation to the second-named Respondent, Dr J stated that her PAI results:
.. suggested that she is generally a confident and outgoing person who may be at times troubled by self-doubt and misgivings about her adequacy and as a result may attribute her successes to good fortune rather than her achievements. She is likely to be relatively psychologically well-adjusted and show few overt signs of emotional disturbance.
People who score as (the Second-named Respondent) did tend to be clear thinking and approach problems in a reasonable and systematic ways. They take ascendant roles in relationships and are generally independent and self-reliant.[14]
[14] Ibid
I note that there is nothing in Dr J’s reporting of the PAI results that is in any way inconsistent with my perception of the parties in the witness box.
Dr J’s conclusions in her first report were that the parties needed to progress slowly so that X’s developmental needs were always at the forefront of their minds, but that it would be appropriate for her to spend time away from the first-named Respondent “when she (X) is feeling most confident and content”[15].
[15] Family Report of Dr J dated 23 November 2012 p 14
She felt that at the time of writing that report (November 2012), it would be best for X to spend all time with the Applicant at the home of the Respondents where X would feel more comfortable.
She also recommended that the parties have regular consultations with a psychologist to discuss X’s needs and to assist them to improve their relationship.
Dr J said clearly that she did not believe that equal shared care was appropriate for X at that time, or that extended and overnight time would be appropriate.
The final paragraph of Dr J’s first report states as follows:
For the time being, something along the lines of the current arrangement, but at X’s home, is probably the option that is most likely to maximise the Applicant’s relationship with her and best meet X’s needs over the next 12 to 18 months or so. As X develops, of course, she will better manage more time away from her mother, such that in about 18 months’ time she should be seeing her father two or three times a week, alone, and in two or three hourly blocks.[16]
[16] Family Report of Dr J dated 23 November 2012 p15
In her second updated report dated 15 April 2013, Dr J notes that X’s time with the Applicant had increased and that the time was being spent away from the Respondents’ home unsupervised. She also notes that the parties had been attending counselling as recommended in her previous report.
Dr J records that the appearance of the first-named Respondent had changed in that she had lost weight since their last meeting and appeared “thin and frail”.
Both she and the second-named Respondent reported to Dr J that they were finding the court proceedings very stressful and that they worried about X’s welfare when she was with the Applicant.
While the parties had attended counselling, the Respondents did not feel as though it had been beneficial as they felt that the Applicant had “perverted the therapy to focus on his determination for shared parental responsibility”[17]. Dr J states later in her report that the psychologist had confirmed that the Applicant had wanted to concentrate on that question rather than on ways the parties might best meet X’s needs in a cooperative manner.
[17] Family report of Dr J dated 15 April 2013 p 2
The Respondents maintained their concerns that the Applicant was attempting to push X too quickly and that X was not coping well with the (then) new arrangements. They felt that the middle-of-the-day times X spent with the Applicant were inappropriate because they tended to interfere with X’s afternoon nap.
Dr J notes that both Respondents at this interview spoke of wanting to have arrangements that were or would be in accordance with X’s wishes.
Dr J reports that the Applicant on this occasion “impressed as a dynamic man, who is determined to be a good father to X”.
He spoke of the need to have equal shared parental responsibility for X so that he would be able to speak to her doctors and know how she was going at school. He did not appear to understand or accept that he did not need to have equal shared parental responsibility to have that involvement.
The Applicant told Dr J that he expected X’s time with him to increase to six and then eight hours during the day before spending overnight time when she was about two-and-a-half years old. He told her that he believed that these increases were inevitable and that “it will have to happen”[18]
[18] Family report of Dr J dated 15 April 2013 p6
At this interview, X again showed a secure attachment to the Respondents and an increasing bond with the Applicant, by whom she seemed “entranced”.
Dr J’s recommendations in relation to the time to be spent between X and the Applicant were that it should move to mornings to account for X’s daily routine, and that it should progress slowly to account for her developmental needs. She makes the point that it is very difficult to predict what a (then) 18 month-old’s needs will be in the future but that all parties (but particularly the Applicant) need to be genuinely focussed on her needs at all times.
Dr J also indicated that she thought it would be better for X if the Respondents were to have parental responsibility for her.
The Law
As in any parenting matter, the law relating to who will have parenting responsibility for X, where she will live, and with whom she shall spend time, is set out in Part VII of the Act.
The first matter to be considered in this case is: Who are X’s parents?
The Applicant’s counsel initially indicated at trial that he may be asserting that the Respondents were not in a de facto relationship at the time of X’s conception, which would have had implications in relation to who X’s parents are at law, but there is no mention of that issue in his written closing submissions, despite his having cross-examined both Respondents about that matter at trial.
I therefore find that it is not disputed by the Applicant that the Respondents’ relationship was a de facto relationship pursuant to the Family Law Act 1975 (“the Act”) at the time X was conceived.
The implication of that finding is that by operation of s.60H of the Act, both Respondents are X’s parents at law and the Applicant is not.
Section 60H(1) of the Act states:
SECTION 60H CHILDREN BORN AS A RESULT OF ARTIFICAL CONCEPTION PROCEDURES
60H(1) If:
(a) A child is born to a woman as a result of the carrying out of a an artificial conception procedure while the woman was married to, or the de facto partner of, another person (the other intended parent); and
(b) Either:
i.The woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or
ii.Under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and the other intended parent;
Then, whether or not the child is biologically the child of the woman and the other intended parent, for the purposes of this Act:
(c) The child is a child of the woman and the other intended parent; and
(d) If a person other than the woman and the other intended parent provided genetic material – the child is not a child of that person.
In light of that section, and with the Applicant conceding that the Respondents were in a de facto relationship at the time of X’s conception, it is clear that as a matter of law that the Respondents are X’s parents under the Act, and that the Applicant is not.
That does not mean that the court cannot make a parenting order in the Applicant’s favour, or that he does not have standing to seek parenting orders under the Act, or indeed that he is not X’s “father” in the biological sense.
Section 64C states that a parenting order may be made in favour of “a parent of the child or some other person”.
A parenting order is defined in S.64B(1) as an order dealing with a matter mentioned under S.64B(2).
Section 64B(2) states as follows:
A parenting order may deal with one or more of the following:
(a)The person or persons with whom a child shall live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility for a child;
(d)If 2 or more persons are to share parental responsibility for a child – the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e)The communication a child is to have with another person or other persons;
(f)Maintenance of a child;
(g)The steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
i. A child to whom the order relates; or
ii. The parties to the proceedings in which an order is made;
(h)The process used for solving disputes about the terms or operation of the order;
(i)Any aspect of the care, welfare and development of the child or any other aspect of parental responsibility for a child.
The orders sought by both parties are clearly parenting orders.
Section 65C states that the following classes of people may apply for a parenting order:
(a)Either or both of the child’s parents; or
(b)The child; or
(ba) a grandparent of the child; or
(c)Any other person concerned with the care, welfare and development of the child.
I have already stated that the first-named Respondent and the second-named Respondent are X’s parents pursuant to S.60H of the Act, and that the Applicant is not. However, as X’s biological father, the Applicant is clearly a person concerned with the care, welfare and development of the child, and is therefore at liberty to seek parenting orders in relation to her.
In addition, as already stated, s.64C states that a parenting order may (my emphasis) be made in favour of a parent of the child or some other person.
The Applicant’s status as a person other than a parent will have some influence on the Court’s decision as to whether he should have equal shared parental responsibility for X with the Respondents, but the question of whether X should spend substantial and significant time with him is not so black and white.
Indeed, as has been pointed out by counsel for the Applicant, the Full Court in Donnell and Dovey[19] made it clear that not only might children’s best interests be served by them spending time or even living with persons who are not parents under the Act, but that those relationships may be of more importance to a child than his/her relationship with his/her legally defined parents.
[19] Donell and Dovey [2010] Fam CAFC 15
The issue of parental responsibility
The first issue to be decided in this case is whether the court should make an order for equal shared parental responsibility of X in favour of the Applicant and the Respondents.
Section 61DA of the Act states that when making a parenting order in relation to a child, the court must apply a presumption that it is in the child’s best interests for the child’s parents to have equal shared parental responsibility for that child.
That presumption therefore applies, as a matter of logic, to equal shared parental responsibility being held by the Respondents, as they are X’s parents pursuant to S.60H(1). The presumption does not apply to the Applicant, who is specifically not X’s “parent” pursuant to that section.
Mr Puckey, for the Applicant, sought to persuade me that that is an overly legalistic view, but it is simply what the statute says.
He further referred me to the decisions in the matters of Aldridge and Keaton[20] and Donnell and Dovey, and sought to persuade me, in his written submissions, that:
The legislature has had a number of attempts at drafting s.60H and the section continues to be plagued with difficulty in its application to cases involving children brought into the world with mutual intentions for the “donor of genetic material” to be involved in the child’s life. Section s.60H (sic) was enacted to give status to the partners of biological parents and extend the definition of “parent” accordingly. The amendments to exclude the donor of genetic material as a “parent” were never intended to override the principles discussed in the two cases referred to above or to exclude a known and involved Father (sic) from parenting a child. Very clear legislative intent would be required to do that.
[20] Aldridge and Keaton [2009] Fam CAFC 229
Section 60H was amended by the Commonwealth Parliament in 2008. Prior to that date the Section read as follows:
60H Children born as a result of artificial conception procedures
(1)If:
(a)Is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to a man; and
(b)Either of the following paragraphs apply:
(i) The procedure was carried out with their consent;
(ii) Under a prescribed law of the Commonwealth or of a State ort Territory, the child is a child of the woman and of the man;
Then, whether or not the child is biologically a child of the woman and of the man, the child is their child for the purposes of this Act.
(2) If:
(a)A child is born to a woman as a result of the carrying out of an artificial conception procedure; and
(b)Under a prescribed law of the Commonwealth or of a State ort Territory, the child is a child of the woman;
Then, whether or not the child is biologically a child of the woman, the child is her child for the purposes of this Act.
(3) If:
(a)A child is born to a woman as a result of the carrying out of an artificial conception procedure; and
(b)Under a prescribed law of the Commonwealth or of a State ort Territory, the child is a child of a man;
Then, whether or not the child is biologically a child of the man, the child is his child for the purposes of this Act.
(4) If a person lives with another person as the husband or wife of the first-mentioned person on a genuine domestic basis although not legally married to that person, subsection (1) applies in relation to them as if:
(a) they were married to each other; and
(b) neither person were married to another person.
(5) For the purposes of subsection (1), a person is presumed to have consented to an artificial conception procedure being carried out unless it is proved, on the balance of probabilities, that the person did not consent.
(6) In this section:
This Act includes:
(a) The standard Rules of Court; and
(b) The related Federal Magistrates Rules.
In Groth & Banks [2013] FamCA 430, Cronin J sets out the history of s.60H and the cases that concern it, and comes to the following conclusion (at paragraphs 17-20):
Section 60H deals with children born as a result of artificial conception procedures. The Act provides for the displacement of the donors of genetic material as parents. For example, biology is displaced and a person defined as a parent by adoption (ss 4, 60HA(2), 612E, 65J and 66B) or surrogacy arrangements. Section 60H provides that opportunity and sets out the circumstances in which the child is not the child of the person who provided the genetic material.
Section 60H provides three categories for children born as the result of artificial conception procedures. They are:
(a) where the child is born while the mother is married or the de facto partner of another person – 60H(1);
(b) where a child is born to a mother and under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of that woman – 60H(2);
(c) where the child is born to a mother and under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of a man – 60H(3).
In this case, (a) above does not apply as the mother was neither married nor in a de facto relationship. Nor does (b) assist because it has no direct relevance. Category (c) has no application because no prescribed law of a State or the Commonwealth has been made.
Section 60H should be interpreted as expanding rather than restricting the categories of people who could be a child’s parent (see Re Mark: An Application relating to parental responsibilities (2003) FLC 93-173 per Brown J and B v J (1996) FLC 92-716 per Fogarty J…).
In Groth and Banks, the circumstances were that a known donor had provided genetic material to a single woman so that that woman could conceive a child, and in those circumstances, His Honour said that the donor was indeed a parent as the matter did not come within one of the exclusion categories set out above.
That is not the situation here, as it is conceded by the Applicant that the Respondents were in a de facto relationship at the time of X’s conception.
This case clearly comes into the category described as (a) by Cronin J and therefore any argument that I should consider this case as affording an opportunity to expand the category of “parent” must fail.
In Wilson & Anor and Roberts & Anor[21] Dessau J addressed this issue directly in a case where a child had been born to a mother in a same-sex relationship using genetic material donated by one of the members of a male same-sex couple.
[21] Wilson & Anor and Roberts & Anor [2010] FamCA 734
In that case, the Applicants, Mr Wilson and Mr Farmer, sought parenting orders in relation to two-year-old E, including an order for equal shared parental responsibility. That application was resisted by the Respondents, who wished for the Applicants to have a restricted role in E’s life.
After setting out the facts of the case and detailing the s.60CC(3) factors to be considered, Her Honour said, at paragraph 335:
The reality for E is that his mothers are his primary attachment figures. It flows logically for him that that they should be responsible for making the important decisions about him. And I am satisfied that they need support in their primary parenting, and the Court’s imprimatur to make the decisions on E’s behalf.
I respectfully agree with Her Honour’s statement and find that it is applicable to the facts of this case, and I will therefore make an order for the Respondents to have sole parental responsibility for X.
The issue of with whom X shall live and spend time and communicate
The Applicant’s Initiating Application filed 3 August 2012 seeks an order that X live with the Respondents and him on an equal shared care, week-about regime.
However, at trial, he sought an eventual 5/9 nights per fortnight regime, with X living with the Respondents for nine nights and with the Applicant for five nights. This is a regime that falls under the definition of “substantial and significant time” set out in s.65DAA(3).
It is that application that I must consider now.
Section 65DAA says that if a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child then the court must consider whether it is in the child’s best interests to spend equal time or substantial and significant with each parent.
Had I intended to make an order for equal shared parental responsibility in favour of the Applicant, then s.65DAA would have required me to consider that issue. As I do not intend to make such an order, I am not bound to do so.
In any event, the Applicant is not a parent, so it follows that, as with s.61DA, s.65DAA does not apply to him.
However, as the Applicant, who has standing under s.65C(c), has sought an order for X to spend substantial and significant time with him, it is incumbent upon me to consider whether such an order is in X’s best interests.
Indeed, in Donnell and Dovey the Full Court said, at paragraph 87:
(T)he legislation makes important distinctions between parents and non-parents. Ultimately, however, orders can be made in favour of either parents or non-parents ….
Section 60CA of the Act states that in deciding whether to make any particular parenting order in relation to a child, a court must regard the best interests of the child as its paramount consideration. Therefore, in deciding whether to make an order for substantial and significant time as between X and the Applicant, I must consider X’s best interests as my primary concern.
Section 60CC sets out the matters the court must take into account when considering what order will be in the child’s best interests and I set out the relevant parts of that section here in full:
60CC(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections(2) and (3).
Primary considerations
60CC(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
60CC(3)Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child.
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Here again we immediately find the word “parent” in s.60CC(2)(a).
In Burton and Churchin and Anor[22] the Full Court decided that the trial judge had erred in deciding that s.60CC(2)(a) was applicable to a child’s relationship with an aunt, that is, a person who is not a “parent”. The trial judge had stated in his reasons that the provisions of s.60CC(2)(a) “also extend to both the step-mother and the aunt for the reason that clearly (the child) has a close relationship with each of them”.
[22] Burton & Churchin & Anor [2013] FamCAFC 180
In finding that the trial judge had erred in that decision, the Full Court, in approving the decision in Donnell and Dovey, stated:
There can be no question (and regardless of what may have been said in other cases) that the words of s 60CC(2), or more accurately, s.60cc(2)(a), refer to the benefit to the child of having a relationship with both the child’s parents. The paragraph says what it means, and there is no canon of statutory construction which would enable it to be rewritten.[23]
[23] Supra para 51
Therefore, despite the Applicant having standing to seek parenting orders, the Court is not bound to consider s.60CC(2)(a) as a primary consideration when deciding whether it is in X’s best interests to make an order for her to spend time with the Applicant.
In Wilson and Anor and Roberts and Anor, Dessau J quotes the Full Court in Donnell and Dovey, and notes that as well as deciding that s.60CC(2)(a) does not apply to non-parents:
(T)heir Honours went on to say that it did not give rise to any difficulty in ensuring that all relevant matters are taken into account, in that:
“…In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent. As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight.”[24].
[24] Wilson and Anor & Roberts and Anor supra para 49
In Wadlow & Kaldman & Ors[25], Judge Bender said the following:
[187] In the matter of Donnell v Dovey (2010) 42 FamLR 559 at paragraphs 121 and 122, the Full Court cited with approval the decision of Moore J in the matter of Potts & Binns [2007] FamCAFC 394.
[188] In Potts & Binns (supra), Her Honour was determining a dispute between the children’s parents and the maternal grandparents. Having considered the manner in which the Court should deal with those matters under sections 60CC(2) and (3) which make specific reference to parents only, Her Honour concluded that those subsections that referred specifically to “parents” could not be specifically considered in the context of parties who were not the child’s parent. Her Honour concluded however, that if the matters under sections 60CC(2) and (3), which were excluded for consideration because they made reference to “parents” were relevant to the best interests of the children, then those factors could be considered by reference to the catchall provision of section 60CC(3)(m). Her Honour was of the view that this enabled the Court to consider all factors that are relevant to the best interests of the children in question, whether the parties to the proceedings were the children’s parents or not.
[25] Wadlow & Kaldman & Ors [2013] FCCA 1033
I intend to approach this case on the same basis. That is, while s.60CC(2)(a) does not apply to the Applicant in this case, I will consider the benefit to X of having a meaningful relationship with him pursuant to s.60CC(3)(m).
Section 60CC(2)(b) requires me to consider the need to protect X from physical or psychological harm as a result of abuse, neglect or family violence as a primary consideration.
There was some evidence adduced by the Respondents that they felt that the Applicant had been neglectful of X on a couple of occasions in that they alleged that he had not cleaned her properly when changing her nappy on two occasions, and that he had not been sensitive to X’s distress at changeover on another occasion. There is little or no other evidence of risk to X otherwise, save for the inevitable impact upon her of the acrimonious nature of the relationship between the parties.
I note that the allegations made by the Respondents are quite minor when one considers the nature of some allegations made in proceedings before this court, and that the only harm alleged to have been caused by the first incident was a rash which was treated by the Respondents, while the evidence of the video taken of X in the Applicant’s car after the second does not in my view support the Respondents’ perception of the risk to X.
I therefore do not find that there is a particular need to protect X from physical or psychological harm from abuse, neglect or family violence in the circumstances of this case.
That leaves me with the matters set out in s.60CC(3), and I intend to approach this section in same way as s.60CC(2)(a) – that is, in discussing those subsections that deal with parents, I will refer only to the Respondents, but I will consider the issues raised in those subsections under subsection (m).
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
X is two years old and thus her views are not known, and even if she were able to articulate them, her tender years mean that I would not place any weight on them.
Section 60CC(3)(b): the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
The evidence before me, and particularly that found in Dr J, indicates that X’s relationship with the Respondents is secure, warm, close and loving and that she sees them, and the first-named Respondent in particular, as her primary caregivers and security source.
Section 60CC(3)(c): the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
a)(i) to participate in making decisions about major long-term issues in relation to the child; and
b)(ii) to spend time with the child; and
c)(iii) to communicate with the child.
The Respondents have taken every opportunity to be involved in decision-making in relation to X, and to spend time and communicate with her to the maximum extent possible.
Section 60CC(3)(ca): the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
X is appropriately supported by the Respondents.
Section 60CC(3)(d): the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The Applicant’s application seeks a graduated regime which would ultimately lead to X spending five nights per fortnight in his care.
That would have a considerable effect on X’s relationship with the Respondents, who are her parents. It would have a particular impact on X’s relationship with the second-named Respondent, who works full time and who by necessity does not spend as much time with X as the first-named Respondent is able to spend. To remove X from their home for five nights per fortnight could not help but diminish X’s time with the second-named Respondent further and would have an impact not only on her relationship with the second-named Respondent, but with the first-named Respondent as well.
In addition, the Applicant’s proposed regime would have an effect on X’s relationship with her maternal families and again, could not help but diminish the time available for her to spend time with them.
The Respondents seek orders that X spend only time during the day with the Applicant.
That would separate X from the Applicant and from her paternal family other than for very restricted periods of time. It would effectively prevent the Applicant from being involved in X’s life other than as a short term babysitter, and that cannot help but have an effect on her relationship with him and his family.
It is the Court’s task to find a balance between these relationships that will promote X’s best interests now and into the future.
Section 60CC(3)(d):
the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.
There is no evidence before the Court that any of the orders sought by any party would create any practical difficulties or expense for X or the Applicant or the Respondents. They currently live about 20 kilometres apart and transport is shared.
Section 60CC(3)(f):
the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
As is often the case in this Court, it is this provision which has caused most of the turmoil in this case.
There is no evidence to suggest that the Respondents are not capable of meeting X’s needs, apart from the inference the Applicant seeks to draw that they are over-protective of X.
There is some evidence to support that inference. The evidence in relation to the video that the Applicant took in his car when X was travelling with him (apart from being somewhat alarming in terms of road safety) shows that the Respondents interpreted X’s demeanour in the video in a rather catastrophic way, describing her as having tear-streaked cheeks and showing great distress, whereas when I saw the video, I did not see tears on her cheeks, and it did not seem to me that X was distressed at all, although she was somewhat subdued.
In terms of X’s physical and emotional needs, the Respondents have made several allegations about the capacity of the Applicant to meet those needs.
First they allege that the Applicant had ignored their concerns about X’s diet and that her health had suffered as a result. That dispute was resolved by orders made by consent on 19 December 2012 requiring the Applicant to “observe the child’s usual diet and routine whilst in his care as far as is practicable”, although the Respondents appear to remain somewhat sceptical that the Applicant complies with that Order.
The Respondents made much at trial of the Applicant’s postings on Facebook and Twitter from 2010, 2011and 2012 in relation to inappropriate drug and alcohol use, and sought to show that he has not changed his youthful “partying” ways.
They alleged that he has appeared at their home to spend time with X in a hung-over state and fear that he would be impaired in his care of X were he to spend time with her on his own in that state.
I note that it was adduced under cross-examination that they had known about the Applicant’s lifestyle before X’s conception.
The Applicant deposed that he was embarrassed by the Facebook and Twitter postings and said in evidence that they were designed to impress certain friends and not an indication of his actual habits. He specifically denied using illicit drugs at a music festival. He said that he had matured since making those comments and that he no longer engages in that conduct. He was adamant that he would not use drugs or drink to excess while X was is in care.
However under cross-examination the Applicant conceded that he had only taken action in relation to the postings once these proceedings had begun and when he realised they would not be considered supportive to his case.
I am concerned about the Facebook and Twitter postings as they do indicate a certain recklessness and immaturity on the part of the Applicant. In those circumstances I propose to make orders that prevent the Applicant from using illicit drugs, or alcohol to excess, for a period prior to and during all times when X is in his care.
In relation to the Applicant and the Respondents’ general capacity to meet X’s physical and emotional needs, I turn to the Family Reports and evidence of Dr J.
Dr J states that the Applicant showed “a well-practised style” in changing X’s nappy and that he is able to settle her when she is upset.
However, in her second report, dated 5 April 2013, she is critical of what she sees as his rather rigid insistence on procuring what he wants from these proceedings.
For instance, she says, on page 5 of her second report: “He impressed as determined to be a significant part of X’s life, but inclined to be overly sensitive to perceived incursions on his role.”
In both his interviews with Dr J and his evidence to the Court, the Applicant insisted that only increasing time with X would allow their relationship to solidify and grow. He also expressed the view that he would be excluded from important aspects of X’s life, such as involvement in her school activities or access to her treating medical practitioners, unless he had equal shared parental responsibility for X. Dr J considered that the Applicant was overly fixated on the issue of equal shared parental responsibility.
Further, the Applicant has simply assumed that there would be increasing time spent between him and X and that that would inevitably include overnight time, probably by the time X was about two-and-a-half years old. He told Dr J that “it will have to happen”.
It appears from the evidence that the Applicant is committed to being X’s father, and to having a significant role in her life. He clearly loves X, and wants what is best for her.
However, he assumes that what he wants is what is best for X, and there remain some concerns about his ability to put X’s emotional needs ahead of his own, to be sensitive to her developmental needs, and to take account of the fact that X lives with her mothers in an intact family.
Section 60CC(3)(g):
the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.
The Respondents live in a committed relationship. Further, it can be seen as a “characteristic” of X that she lives in a family with two mothers. That family is intact and there is no suggestion that X is not well cared for in that environment.
Section 60CC(3)(h):
if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
X is neither an Aboriginal nor a Torres Strait Islander child and therefore this consideration is not relevant in this case.
Section 60CC(3)(i):
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
The evidence in relation to this consideration is complex.
The Respondents profess to wish that X have an ongoing and significant relationship with the Applicant. However, it appears that they have less than crystal clear ideas as to what that actually means.
Their proposals as put to the Court at trial are for the Applicant to spend only relatively brief daytime time with X for an unspecified period of time into the future, and they do not appear to have thought about what is to happen after that in any detail.
Their attitude to X is that she is “not ready” to spend overnight time with the Applicant, and that position is supported by Dr J. However, my impression from seeing both Respondents in the witness box is that they have no confidence in the Applicant’s parenting capabilities, and I am not sure what evidence would need to be shown for them to believe that X is ready for overnight time in his care.
Their attitude to the responsibilities of parenthood seems to be a little over-protective, although not to any alarming degree. Apart from that, they have shown an unswerving and tenacious commitment to raising X together as parents and to providing her with the best family life they can possibly offer.
The very fact that they are adamant that X is to have an ongoing relationship of some kind with the Applicant and that they consider him X’s father displays a less than proprietorial attitude to X.
Section 60CC(3)(j):
any family violence involving the child or a member of the child’s family.
This case is remarkable for its lack of any suggestion of family violence and for the fact that despite their considerable differences, the parties have been able to relate to each in a relatively civil fashion for X’s sake. They are to be commended for that ability.
Section 60CC(3)(k): relates to family violence orders and is not relevant in this case.
Section.60CC(3)(l):
whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
As X is only two years old, it is almost impossible to craft orders that will hold until she is 18. We simply cannot know what her circumstances and developmental needs might be during her primary school years and into her adolescence.
The orders I propose to make will take the parties and X into her initial primary school years and I have crafted them in the hope that they will give the parties and X some certainty. It may be that X’s circumstances will change once she goes to school and it can only be hoped that if there are disputes between the parties at that time in relation to her care, that they will be able to resolve them through mediation or some other non-litigious process.
Section 60CC(3)(m):
any other fact or circumstance that the court thinks is relevant.
I note here that I have taken into consideration under this subsection those matters which, but for the Applicant not being a “parent”, I would have taken into account under s.60CC(2)(a) and s.60CC(3) (c), (ca), (d), (e), (g), and (i), as well as other matters. For instance, I have considered the benefit to X of having a meaningful relationship with the Applicant, albeit not as a primary consideration, and I have also taken into account the fact that X lives in an intact family with the Respondents as her parents.
I find that the while the Applicant’s relationship with X is necessarily different from that enjoyed by X and her mothers, there is nothing in the independent evidence to indicate that X is other than appropriately bonded to the Applicant and that they have a warm and close relationship.
The Respondents assert that initially the Applicant showed little interest in the newborn X and spent little time taking care of her (as opposed to merely visiting her), but the fact that he has spent consistent, regular and frequent time with X since her birth, and his actions in initiating these proceedings and following them through to trial, indicate that he is committed to building a meaningful relationship with her.
Although he is not legally obliged to do so, the Applicant has taken the opportunity to provide financial support for X. That is a commitment for which the Applicant is to be commended.
I have already made some comments about my perceptions in relation to the Applicant’s maturity and lifestyle and will not repeat them here.
However, an important factor to consider in my view is the fact that the Applicant is of (country omitted) background and that therefore X is fortunate to have mixed heritage in terms of culture and traditions.
It is obviously important that X understands her genetic roots and that she has an opportunity to explore her identity as a member of the cultures of both sides of her family.
It was the evidence of both Respondents that they chose to have a known donor for their child because they believe that a child should have the opportunity to understand where he/she comes from and to know his/her biological parents. They knew about the Applicant’s origins when they chose him to be X’s biological father and it can only be assumed that they understood that his heritage would be hers as well and were aware of what that would mean for her.
The Applicant’s attitude to X appears to be a little more nuanced than that of the Respondents. He is a committed father, but it seems that his wish or even need to be seen as a father can override his ability to see X’s actual needs. I have no doubt that he adores X, but she is not a commodity to be traded between him and the Respondents. There is no inevitability to his having a relationship with her that would involve overnight time
I do note that he moved his place of residence when X was born so he could be nearer to her and so that she could have a relationship with his family, and he organised his work arrangements to account for his time with her.
He has committed to paying child support for her in circumstances where he is not obliged to do so, and, perhaps most importantly, he has persisted with his time with X through difficult circumstances arising out of his relationship with the respondents. The Applicant is nothing if not a committed father.
While babies and very young children need to spend frequent and regular time with an adult in order to establish a sound and secure relationship with that adult, as the child grows older and the relationship has been established, it may not be necessary to maintain the same regime or to increase time in order for the relationship to be and remain significant and close.
Children often have multiple adults in their lives who love them dearly and would like to spend significant amounts of time with them. That does not mean that it is in the child’s best interests for the adults to spend what the Act says is substantial and significant time.
In those circumstances, the orders I will make will allow X to benefit from knowing and having a genuinely meaningful relationship with the Applicant, while at the same time recognising that her primary family consists of the Respondents and her.
I certify that the preceding two hundred and thirty-four (234) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 11 December 2013
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Injunction
-
Consent
-
Procedural Fairness
2
4
0