SIMPSON & BROCKMANN - [2008] FMCAfam 763

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SIMPSON & BROCKMANN

[2008] FMCAfam 763

FAMILY LAW – Parenting – same sex relationship – children born of each partner – whether “parent” of that parties non biological child – equal shared parental responsibility – relocation.

Family Law Act 1975, ss.60CC, 61DA, 65DAA

H & J & Anor [2006] FMCAfam 514
Mulvany & Lane [2008] FMCAfam 473
B & B & Anor [2007] FMCAfam 246
PBC & LMC [2006] FMCAfam 469

Applicant:

MS SIMPSON

Respondent:

MS BROCKMANN

File Number:

LEC 311 of 2007

Judgment of:

Jarrett FM

Hearing dates:

30 August, 2007 (Lismore) & 27 June, 2008 (Brisbane)

Date of Last Submission:

27 June, 2008

Delivered at:

Brisbane

Delivered on:

18 July, 2008

REPRESENTATION

Counsel for the Applicant:

Ms Cotter-Moroz

Solicitors for the Applicant:

Trenches McKenzie Cox

Counsel for the Respondent:

Mr Baston

Solicitors for the Respondent:

Newhams Solicitor

ORDERS

That paragraph 4, 5, 6 and 7 of the orders made on 15 April, 2004 be discharged.
That the child [Y] spend time with [X] and Ms Simpson at their residence from time to time:
(a)on the third weekend of every second month, provided such time falls within a school term;
(b)for one week during the child’s school holidays in autumn, winter and spring in each year, being the first half in even numbered years and the second half in odd numbered years.
(c)for two weeks during the child’s school holidays in summer in each year, being the first two weeks in even numbered years and the last two weeks in odd numbered years.
That the child [X] spend time with [Y] and Ms Brockmann at their residence from time to time:
(a)on the third weekend of every second month, provided such time falls within a school term;
(b)for one week during the child’s school holidays in Autumn, winter and spring in each year, being the second half in even numbered years and the first half in odd numbered years.
(c)for two weeks during the child’s school holidays in summer in each year, being the first two weeks in odd numbered years and the last two weeks in even numbered years.
Order 2(a) hereof shall commence with the first occasion of time to be spent in the third week of August, 2008.
Order 2(b) hereof shall commence with the first occasion of time to be spent in the third week of September, 2008.
To facilitate the periods of time referred to in orders 2 and 3 hereof, the following shall occur:
(a)The periods of time shall be from Saturday morning until Sunday afternoon (and in the case of school holiday time, from the first Saturday of that period to the last Sunday in that period).
(b)That the applicant collect [X] and [Y] from and deliver [X] and [Y] to Coolangatta Airport and the respondent collect [X] and [Y] from and deliver [X] and [Y] to Sydney Airport.
(c)
That the respondent meet the costs of the air travel for all save

4 return flights for [Y] to Coolangatta from Sydney each year for which the applicant shall pay.
(d)That for the first two visits of [X] to Sydney that the respondent pay for [X] to be accompanied by the applicant or respondent for the plane travel at the election of the applicant.
All other outstanding applications are dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

LEC 311 OF 2007

MS SIMPSON

Applicant

And

MS BROCKMANN

Respondent

REASONS FOR JUDGMENT

This case concerns parenting arrangements for [Y] (born [in] 1998 and now 10 years of age) and [X] (born [in] 1997 and now 11 years of age). [Y]’s biological mother is the respondent, Ms Brockmann and [X]’s biological mother is the applicant, Ms Simpson.
Ms Simpson and Ms Brockmann were in an intimate relationship. They lived together between early 1994 and April, 2003. Both children were born during that period. Both women used the services of an IVF clinic to become pregnant. The same sperm donor was used for each pregnancy. The identity of the donor is unknown.
Ms Simpson and Ms Brockmann have fallen into dispute since their separation about the parenting arrangements that will best suit [Y] and [X]. There have been parenting orders between them in the past, but recently Ms Brockmann and [Y] moved from where they lived in northern New South Wales to Sydney. That meant that the parenting orders that were then in place became unworkable and Ms Simpson instituted these proceedings.
Primarily Ms Simpson asks for an order that [Y] and [X] live with her in northern New South Wales and that they spend time with Ms Brockmann depending upon where it is that she is living from time to time. The proposed regime is not straightforward and is different for both children. She also has an alternative proposal in the event that the orders she primarily seeks are not made. I set out the orders sought in full in appendix “A” to these reasons.
Ms Brockmann seeks orders which are much less complex. They are predicated on basis that earlier orders between the parties are discharged and that she will continue to reside in Sydney and

Ms Simpson in northern New South Wales. She asks for orders that [Y] live with her in Sydney and [X] live with Ms Simpson. She seeks that [Y] spend time with Ms Simpson and [X] in northern New South Wales once every second month and that she spend time with [X] (in the company of [Y]) in Sydney once every second month. She proposes no other specified periods of time between either child and either party.

Background

Ms Simpson is 46 years of age and Ms Brockmann is 42 years of age.
The parties told Mr Sean Moriarty, a social worker who has prepared a family report in this matter, that they commenced a relationship at a young age. They did not commence to live together, however, until early 1994. They lived in Sydney at that time, but in 1999 they moved to Lismore. They separated in 2003.
When they were born, [Y] and [X] were both given names that included as their family name “Simpson”. They each also had the last of their given names as “Brockmann”. Ms Simpson explains in her affidavit that the children were referred to with the surname “Brockmann Simpson” when their name was written, but when spoken their surname was simply said as “Simpson”. She explains that the parties agreed that should be so because of a fear that their name might be shortened to “[omitted]”.
The parties anticipated that there might be legal problems for them or the children if one or other of the parties was to pass away, or they were to separate. In an effort to avoid those problems they entered into consent parenting orders for each child soon after birth. The orders for [X] were made in the Local Court at Sydney on 4 September, 1997. They provide for [X] to reside with both Ms Simpson and

Ms Brockmann. They further provide for the parties to have joint responsibility for [X]’s day to day and long term care, welfare and development. Orders in the same terms were made in respect of [Y] on 25 September, 1998.
During their cohabitation in Sydney, both Ms Simpson and

Ms Brockmann worked, although Ms Simpson says that

Ms Brockmann’s hours were longer then hers, often requiring her to work late and on weekends. Ms Simpson’s says that her work hours were more regular, predictable and less lengthy than those worked by Ms Brockmann.
Both took maternity leave (one year in the case of Ms Simpson and about nine months in the case of Ms Brockmann) following the birth of the respective children. Both women provided care for the children during their period of leave. Both women returned to fulltime work after their maternity leave expired, but when Ms Brockmann did so,

Ms Simpson reduced her employment commitments to a part-time basis.
About six months after Ms Brockmann returned to employment, that is in September, 1999, the parties and the children moved to Lismore. Ms Brockmann secured full time employment which, according to

Ms Simpson, saw her work long hours and on each weekend. That persisted until 2002 when she reduced her remunerative employment to four days per week, but she then took up voluntary work with community based organisations. According to Ms Simpson, that kept Ms Brockmann just as busy.
Ms Simpson cared for the children on a full time basis. She was not in remunerative employment. She returned to tertiary study two days per week between 2000 and September, 2002 but found that her child rearing and household responsibilities were too onerous to allow her to continue. Between the end of 2002 and early 2003 she took up part time employment, but the funding for that ran out after four months.
Both parties say that it was their perception that the children regard both women as their mother, although referred to them as “[first name omitted]” in the case of Ms Simpson, and “[first name omitted]” or “Ms Brockmann” in the case of Ms Brockmann.
By reason of a number of matters, all set out in the report of

Mr Moriarty, the parties’ relationship became untenable and they separated. Upon separation in April, 2003 Ms Brockmann left the parties’ home in Lismore with [Y] and Ms Simpson stayed in that home with [X]. As Mr Moriarty points out, “The reasons for this demarcation are not clear, given that both Ms Brockmann and
Ms Simpson claim that there was never a distinction applied to the biological connections regarding the two children, although they each claim that the other made such distinctions apparent at the time of separation.”[i]
Ms Brockmann and [Y] went to reside in an investment property owned by the parties at [S], about 50 mins by road from Lismore. The other arrangements for the children to spend time with the party with whom they were not living, and their sibling in the period between April, 2003 and December, 2003 are in dispute.
For example, Ms Brockmann says that [Y] went to day care four days per week and, because of restrictions placed upon them by

Ms Simpson, she and [Y] could only see [X] during daylight hours. That meant that they saw him only about 2 – 3 hours per week. She says that Ms Simpson did not see [Y] other than when she and [Y] spent time with [X]. On the other hand, Ms Simpson says that she picked [Y] up from daycare each weekday afternoon and she stayed with her until Ms Brockmann picked her up after work between 6.00pm and 7.00pm each day.
Another example concerns the change in living arrangements between the households that occurred in July, 2003. Ms Simpson says that the parties agreed to swap houses and that she and [X] would live in [S] and Ms Brockmann and [Y] would live in Lismore. As it turned out, Ms Simpson and [X] moved to [S] and Ms Brockmann and [Y] to Lismore, but they moved to rented accommodation in Lismore, not the parties’ former home. That appears to have remained vacant and was used by Ms Simpson when she came to Lismore each day to drop [X] at school and collect him afterwards.
Although Ms Brockmann agrees that the physical arrangements just described were put in place, the reasons for them differ to those given by Ms Simpson. Ms Brockmann says that she and [Y] moved to rented accommodation in Lismore so that she could be closer to and spend more time with [X]. Upon her doing so, she says that Ms Simpson moved, without her consent, to [S] and changed [X]’s school to a school in that area. It was only after a court order was made did she return [X] to be schooled in Lismore.
Ms Simpson does not mention in her evidence that Ms Brockmann made an application to this Court and an order was made on 25 July, 2003 which required [X]’s re-enrolment in his Lismore school, and which, on an interim basis, provided for time between the children and each of the parties each weekend.
To the extent that it is necessary to make findings about the two examples I have just referred to, I prefer the evidence of

Ms Brockmann, as it is more consistent with the objective facts – the institution of proceedings and the making of an order – than the reasons for the arrangements described by Ms Simpson.
Further interim orders were made by consent in August, 2003 that continued the previously ordered arrangements, but added further time between each of the parties and the children – specifically mid-week time, telephone communication and school holiday time.
Further interim orders were again made by consent in January, 2004. They discharged the earlier orders and substituted a new residence and contact regime. They expressly permitted [X] to be enrolled at a school nearer his home at [S]. Each child remained living with their respective biological mother and, over the course of a repeating three week period, they spent one weekend with their sibling in their own home, one weekend in the other home (with their sibling) and on the third weekend no contact with the other party or sibling took place. Mid-week contact (from 4.00pm to 7.30pm) was to take place – on Wednesdays for [X] and Tuesdays for [Y]. Provision was also made for telephone contact.
The matter was listed for trial on 15 April, 2004 but the parties managed to agree on final orders without the need for a trial. They agreed that each child would continue to live with their respective biological mother. They agreed that the three weekly regime earlier agreed on an interim basis should continue, as should the mid-week contact. Telephone contact was done away with (save for a notation that each party should encourage the child in their care to telephone the other party each week). No provision for extended time with each child’s non-biological mother or sibling over school holidays was provided for, although each party was given the opportunity to suspend contact on two occasions per year – once in the any of the Easter, winter or spring holidays and once in the Christmas holidays.
At about the same time that the parties were litigating about the children, they were also litigating in the Supreme Court of New South Wales about property adjustment issues. Those proceedings commenced in February, 2004 and concluded in June, 2005.
The practical effect of the resolution of those proceedings was that at that time Ms Simpson and [X] moved into rented premises at [O] and in December, 2005 Ms Brockmann and [Y] moved to live at the [S] property. In the period between June, 2005 and November, 2006

Ms Simpson purchased a block of land at [G] and she contracted to have a house built upon that land. There were difficulties with construction and from November, 2006 she and [X] have lived in a caravan on that house site. She expected that construction of the house would be completed by September, 2007.
From the outset, it seems that the final parenting orders were beset with difficulty. What took place (or more to the point did not take place) and the reasons for that is the subject of dispute between the parties.
I will deal with the mid-week contact first. Ms Brockmann alleges that after the orders were made and until August, 2004 only one in three mid-week contact visits occurred between Ms Simpson and [Y].

Ms Simpson says that they all occurred except for two occasions in August, 2004 and they continued until September, 2004 when they ceased. Ms Brockmann alleges that the mid-week contact ceased in early August, 2004 when Ms Simpson sought to change the day from Tuesday to a Thursday. Remarkably, Ms Simpson alleges that

Ms Brockmann sought her agreement to change mid-week contact for [X] from Wednesdays to Thursdays. She could not agree to that and so, she says, Ms Brockmann ceased mid-week contact with [X] from August, 2004.
Ms Brockmann says that her mid-week contact with [X] continued until late October, 2004 when it ceased as a result of an incident between she and Ms Simpson that occurred on 31 October, 2004.

It occurred when Ms Brockmann dropped [X] back after time with her on a weekend. Ms Simpson was working in the garden at the time and when Ms Brockmann arrived she had a pruning saw in her hand.

Ms Simpson went to greet Ms Brockmann and [X] and to find out if she could see [Y] (who she hoped was with them). Ms Brockmann was late returning [X] and Ms Simpson wanted an explanation for that as well. Ms Brockmann did not have [Y] with her, nor did she provide what Ms Simpson considered was a sufficient explanation for her tardiness. Ms Brockmann felt threatened by the presence of the saw, which Ms Simpson refused to throw down, and by Ms Simpson’s persistence in remonstrating with her.
Ms Brockmann left the scene on foot and called the Police, who did not respond before Ms Brockmann was able to return to her car and leave the scene. Sometime later on 10 November she presented to the Lismore Police and made a statement. On the strength of that statement an application for an apprehended violence order was pressed against Ms Simpson. She consented to an order, because she says, she could not afford the legal expenses to oppose it.
Thereafter, mid-week contact with [X] ceased as Ms Brockmann says that she was too frightened to persist with the contact. She did persist, however, with the weekend contact which continued unabated although it seems that the changeover point may have changed. The evidence is not clear on that point. On the first occasion of weekend contact after the 31 October incident, Ms Brockmann attended with her sister Ms J, with whom she knew Ms Simpson did not get along. She attend with Ms J unannounced and bearing a video camera. On Ms Brockmann’s account, Ms Simpson reacted badly and “pushed’” Ms J.

On Ms Simpson’ account she was clearly upset by what she viewed as an imposition. Ms Brockmann claims that this incident fuelled her anxiety about Ms Simpson’s behaviour and her own safety.
As to the weekend contact, both parties agree that Ms Simpson’s weekend contact with [Y] ceased altogether in September, 2004.

Ms Simpson’s says that she had great difficulty in keeping contact with [Y]. The implication she makes is that her relationship with [Y] was not supported by Ms Brockmann. It is at this time that she says that her mid-week contact with [Y] also stopped.
Ms Brockmann says that Ms Simpson told her she was stopping contact because she could not afford to drive between [G] and Lismore to collect and redeliver [Y] for her time. That resonates in some evidence from Ms Simpson to the effect that she was experiencing financial difficulty at the time because she was on a low income and had to meet the mortgage on the [G] property[ii]. She resumed weekend contact with [Y] in accordance with the orders in August, 2005 and that continued until May, 2007.
In respect of these contact issues, I am satisfied that:
a)Ms Simpson’s contact with [Y] occurred according to the terms of the final consent orders between the parties until she ceased spending time with [Y] in September, 2004 due to her financial circumstances;
b)
There were two or three occasions when [Y]’s mid-week time with Ms Simpson did not occur because of difficulties on

Ms Simpson part;
c)Ms Brockmann’s mid-week time with [X] ceased in October, 2004 as she chose to desist with it; and
d)Ms Brockmann’s weekend time with [X] has been maintained from when the orders were made until Ms Brockmann moved to Sydney.
Arising out of the foregoing matters are the following observations:
a)
It is curious that Ms Brockmann would not persist with the mid-week contact but did persist with the weekend contact, apparently as a result of the incident on 31 October and the subsequent incident. It seems inconsistent to continue one and not the other. It is more consistent with Ms Simpson’s claim that

Ms Brockmann wished to change the mid-week day from Wednesday because that day did not suit her. I think it more probable than not that the cessation of midweek contact for [X] had nothing to do with Ms Brockmann’s alleged fear of

Ms Simpson, but was for her own purposes.
b)The failure to facilitate any time between Ms Simpson and [Y] after Ms Simpson said that she could not afford the travel to take up time with [Y], tends to suggest that Ms Brockmann was not committed to facilitating and encouraging [Y]’s relationship with Ms Simpson, nor that she valued that relationship. That is especially so in circumstances where once every three weeks at least Ms Brockmann was attending upon Ms Simpson to either collect or deliver [X].

In my view, there are three other matters that support the observation that Ms Brockmann was not committed to facilitating and encouraging [Y]’s relationship with Ms Simpson. The first is that she arranged for [Y]’s surname to be changed from Simpson to Brockmann without consultation or consent from Ms Simpson in May, 2005. She says she did that because, amongst other things, [Y] had no contact with

Ms Simpson since September, 2004 and Ms Simpson had shown “no interest in [Y]’s life as a parent”. This statement, however, does not accord with Ms Brockmann’s own evidence that Ms Simpson had enquired after [Y] and sought to see her as early as the incident on

31 October, 2004. It also does not accord with her evidence that over the course of one week in February, 2005 Ms Simpson allegedly “bombarded” [Y] with over 22 telephone messages. Ms Simpson’ evidence, which I accept, is that she consistently attempted telephone contact with [Y][iii]. Sometimes she succeeded and most times she did not. I accept Ms Simpson’s evidence that she attempted to have

Ms Brockmann leave [Y] with her when [Y] came on trips to collect [X] for his time with Ms Brockmann.[iv]
Whilst Ms Brockmann may not have been required to obtain

Ms Simpson’s consent to changing [Y]’s name (the previous orders for joint responsibility had been earlier discharged), it demonstrates an attitude towards Ms Simpson’s role in [Y]’s life which is concerning.
The second matter is that at the commencement of 2006 (at which time weekend contact had recommenced between [Y] and Ms Simpson)

Ms Brockmann enrolled [Y] at the [L] school without consultation with Ms Brockmann. That was despite her insistence on an order in July, 2003 that [X] return to his school in Lismore when Ms Simpson took a similar unilateral decision. Ms Brockmann informed Ms Simpson by a note dated 18 December, 2005 that [Y] was to go to [L] School.
The third matter is that on two occasions after Ms Brockmann and [Y] moved back [S] – the first in early 2006 and the second a year later in early 2007 – she advertised for a carer for [Y] for 1-2 afternoons per week. Ms Simpson saw the advertisements and responded that she could look after [Y]. Ms Brockmann refused. I do not accept that the reasons she gives for refusing Ms Simpson’ assistance[v]. The reasons for refusing Ms Simpson’ first offer do not make sense. Ms Brockmann advertised a need for a babysitter yet, by the terms of the letter, clearly saw Ms Simpson offer as a request for further contact with [Y], which she was not prepared to allow. In my view her response was nothing more than a mean-spirited rejection of Ms Simpson’s offer designed to antagonise her. It was not child focussed. The reasons for rejecting the second approach in 2007 are even more fatuous. Since June, 2005 (eighteen months earlier) Ms Simpson had exercised her weekend time with [Y] consistently – there is no complaint to the contrary.

Yet Ms Brockmann says that it was Ms Simpson’ history of “inconsistency and lack of commitment to midweek contact” that led her to reject Ms Simpson’s offer of assistance. She further says that “At no time since July, 2004 had the applicant ever asked to re-establish midweek contact”. But that is how Ms Brockmann had seen Ms Simpson’s offer of assistance in early 2006 in response to her advertisement – as an attempt at establishing more contact with [Y]. Moreover, when midweek contact had ceased as a result of

Ms Simpson’s financial position in September, 2004, the parties lived some distance apart. By early 2007 they lived very close to each other and so the issue that led to the demise of [Y]’s contact with

Ms Simpson was not likely to occur again.
In February, 2007 Ms Simpson took up part-time employment [in the child-care industry].
On 14 May, 2007 Ms Brockmann and [Y] left the [G] property and commenced residing in Sydney. She took up an employment offer in Sydney. Ms Brockmann apprehended that Ms Simpson did not object to the move. Ms Simpson did object to the move, but I am satisfied that Ms Brockmann’s apprehension was honestly and genuinely formed by her, and on the basis of the text messages and other communications between the parties, reasonably formed.
Ms Simpson commenced these proceedings in May, 2007. By the time they came before the Court, Ms Brockmann had moved to Sydney with [Y]. In terms of time between [Y] and [X] and Ms Simpson, on

16 July, 2007 the Court ordered that [Y] spend time with them on the weekend of 28 and 29 July, 2007. Orders were made for telephone communication. The first hearing date occurred on 30 August, 2007.
In September, 2007 Ms Brockmann formed a new relationship with a Ms F. She has not given evidence in these proceedings. She now cohabits with Ms Brockmann and [Y] in Sydney.
In November, 2007 Ms Brockmann fell ill and investigations revealed that she had an aggressive form of ovarian cancer. She underwent surgery in November, 2007 and was hospitalised for five nights. Whilst in hospital, [Y] was cared for by Ms Brockmann’s sisters, both of who live in Byron Bay, but had come to Sydney for support.
Ms Brockmann commenced chemotherapy in January, 2008 and concluded her treatment in April, 2008. She says that she was unwell for about four – seven days after each treatment, which were three weeks apart. When the chemotherapy commenced, [Y] spent a few days at Ms Brockmann’s parent’s home in Sydney. She was cared for by Ms Brockmann’s sister. For about four to seven days after each chemotherapy treatment Ms Brockmann’s sisters saw to [Y]’s care.
In cross-examination, Ms Brockmann said that she did not consider having [Y] cared for by Ms Simpson and that she thought it more important for [Y] to be in Sydney because [Y] was very worried about her. In my view there is some merit in the criticism made by

Ms Simpson’ counsel about this attitude by Ms Brockmann towards having [Y] cared for by Ms Simpson.
As a result of her illness, Ms Brockmann ceased full time employment in November, 2007 but she continues to work on a part time basis when she is well enough. She is hopeful of returning to work on a full time basis by the end of July, 2008, although she has underestimated the cumulative effect of the tiredness upon her caused by the chemotherapy.
Ms Brockmann’s general practitioner, Dr B gave evidence that

Ms Brockmann’s surgery removed all signs of visible cancer and her chemotherapy progressed well. Her prognosis is good although there is about a 50% chance, or perhaps slightly higher, that her cancer will recur.
By reason of Ms Brockmann’s illness Ms Simpson made application to reopen her case and call more evidence. That application was granted and on 4 March, 2008 further interim orders for time between [Y] and Ms Simpson were made.

Standing

Neither party suggested that the other did not have standing under the Family Law Act 1975 to bring proceedings for parenting orders concerning the child that was not their biological child. Clearly they have such standing[vi]. Counsel for Ms Brockmann argued, however, that neither woman was, for the purposes of the Act, a parent of the child to whom they had not given birth. Only a biological parent of a child was a parent for the purposes of the Act. It was argued that there were significant consequences as to the approach to be taken by this Court if that was accepted. Counsel for Ms Simpson argued that they were clearly parents, and the Act, specifically ss.61DA and 65DAA, by implication if not expressly, were engaged in respect of both children and both women.
The term parent is not defined in the Act. Brown J’s oft cited judgment in Re Mark: An Application relating to Parental Responsibility (2003) FamCA 822 discusses that issue in a different context and is not directly relevant here.
I was taken to two cases by counsel for Ms Brockmann that do appear directly on point. The first is a decision of Brown FM in H & J & Anor [2006] FMCAfam 514. In that case the dispute was between two women that had been in a same sex relationship, one of whom had conceived the subject child through “assisted insemination”. Brown FM had little difficulty concluding, albeit on an interim basis, that the woman who had not given birth to the child was not a parent for the purposes of the Act of the child. His Honour found that s.60H of the Act was of no assistance as its terms did not operate to deem a non-biological member of a same sex couple as a parent for the purposes of the Act.
The second was a decision of Howard FM in Mulvany & Lane [2008] FMCAfam 473. In that case the applicant father discovered shortly before the hearing that he was not, in fact, the biological father of the childe the subject of the dispute. He nonetheless pressed his application. After referring to a passage from Family Law by Anthony Dickey QC, his Honour concluded that the applicant was not a parent of the subject child for the purposes of the Act.
Counsel for Ms Simpson drew my attention to the decision of

Altobelli FM in B & B & Anor [2007] FMCAfam 246 wherein his Honour proceeded to consider an application for interim parenting orders between two women who had previously been in a relationship with each other on the basis that they were both parents for the purposes of the Act. His Honour did not consider the issue I am now called on to consider. His Honour’s reasons suggest that the issue was not raised and argued before him and he certainly makes no decision about the point.
I am not persuaded that the decisions of FM Brown or FM Howard are clearly wrong. The decision of FM Altobelli does not decide the issue. I should follow the decisions of other members of this Court unless I am satisfied that they are clearly wrong. I am satisfied that, for the purposes of the Act, Ms Brockmann is not [X]’s parent and

Ms Simpson is not [Y]’s parent for the purposes of the Act.

The Law

Counsel for Ms Simpson submits that this is a “relocation” case. I see little use for labels such as that, because, as the authorities make clear, the case needs to be determined against the statutory framework set out in the Act. That framework does not change according the particular label given to the nature of the case before the Court.
I can find no better exposition of the law to be applied in this case than a statement of the relevant principles in a recent decision of Sexton FM. I will set out that statement in full, which comes from her Honour's decision in PBC & LMC [2006] FMCAfam 469:
7. His Honour Justice Kirby in the High Court decision of AMS v AIF; AIF v AMS (1999) FLC 92-852 said (at paragraph 142):
…each [relocation] case depends on the application of the governing legislation which, in turn, is in a constant state of amendment and re-expression…
8. Parenting orders are governed by Part VII of the Family Law Act 1975. When making a parenting order, s.61DA of the Family Law Act requires the court to apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for their welfare. Section 65DAC provides that all decisions about major long term issues be made jointly by those who share parental responsibility. Major long term issues are defined in section 4 as education, religious and cultural, health, name and significant changes in living arrangements. There is no dispute between the parties in the present case that they will equally share parental responsibility for the children. I agree that is appropriate. The application of this presumption triggers the application of s.65DAA (1) which requires the court to:
a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
c) if it is, consider making an order to provide for (including a provision in the order) for the child to spend equal time with each of the parents.
Section 65DAA(2) provides that if the court does not make an order for equal time, the court must consider whether the child spending significant and substantial time with each parent would be in the best interests of the child and whether such an arrangement is reasonably practicable. Substantial and significant time and reasonable practicality are defined in s.65DAA(3) and (5).
9. Section 60CA provides that the child’s best interests are the paramount consideration when considering particular parenting orders and to determine the child’s best interests the court must consider the primary matters set out in s.60CC(2) and the additional matters set out in s.60CC(3). Section 60CC(4) requires that the court consider the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. Section 65D provides, subject to the presumption of equal shared parental responsibility, that the court may make such parenting order as it thinks proper.
10. As the Full Court held in B and B: Family Law Reform Act 1995 (1997) FLC 92-755, relocation cases are not a separate category within the Act to be determined by their own principles and rules. Each is a case under Part VII relating to the best interests of the children. The Full Court in A v A Relocation Approach (2000) FLC 93-035 stated the guiding principles to be applied in relocation cases:
a) The best interests of the child are the paramount consideration but not the sole consideration;
b) A court cannot require the applicant to demonstrate “compelling reasons” for the relocation;
c) The court must evaluate the competing proposals presented and weigh up the advantages and disadvantages of each for the child’s best interests;
d) This should not be done in a way that separates the issue of relocation from that of residence;
e) The court must weigh the evidence as to how each proposal would hold advantages and disadvantages for the child’s best interests; and
f) The court must refer to the principles underlying the objects of the parenting provisions of the Family Law Act and the relationship between those principles and the factors which must be considered when deciding what orders are in a child’s best interests.
11. The Full Court in A v A then set out a 3-step summary of the correct approach to be applied in cases involving a proposal to relocate the residence of a child:
a) Identify the competing proposals of the parties;
b) Explain the advantages and disadvantages of each proposal by examining the s.68F(2) factors (now the s.60CC factors) with regard to the objects of the parenting provisions of the Act, which includes an evaluation of the “reasons for relocation as they bear upon the child’s best interests” against other factors; and
c) Explain why one proposal is to be preferred having regard to the best interests of the child as the paramount, but not sole consideration.
I accept her Honour's statement of the law as a correct statement of the principles to be applied in this case.
By reason of my determination that neither party in this case is the parent for the purposes of the Act of the child they did not bear, a consideration of the presumption of equal shared parental responsibility does not arise. That presumption applies only to parents.
Similarly, because the presumption does not apply and because there can be no order that the children’s parents have equal shared parental responsibility for them in this case, the matters that the court might be called on to consider by s.65DAA of the Act do not arise in this case.
That is not to say that the Court could not nonetheless make an order for equal shared parental responsibility as Ms Simpson seeks. Such an order must arise as a direct result of a consideration of the best interest principle and the matter relevant to that exercise, rather than by operation of the s.61DA presumption.

Best Interests

Section 60CC(2)(a) Benefit to the child of having a meaningful relationship with both of the child’s parents.

Ms Brockmann’s proposal would mean that each child would live with his or her parent. Under this provision, each child’s relationship with the non-biological party is not relevant.
On Ms Simpson’ primary proposal, [Y]’s relationship with her mother is likely to be affected because she would no longer spend most of her time being parented by her as she has at least since separation. She would be removed from her primary carer, something Mr Moriarty did not think was wise. If [Y] lived in northern New South Wales with

Ms Simpson, and Ms Brockmann continued to live in Sydney, I have a real doubt that a meaningful relationship, to the extent that it presently exists would continue. Mr Moriarty saw no reason to interfere with the nature of the extent of [Y]’s relationship with her mother.
Thus, Ms Brockmann’s proposal has better implications for [Y] having regard to this factor. Neither proposal would impact upon [X]’s relationship with his mother.

Section 60CC(2)(b) Protecting the child from physical or psychological harm from being subjected to, or exposed to abuse neglect or family violence.

I have no concerns about the children in this regard in the care of either party. The incident of 31 October, 2004 and the subsequent incident involving Ms J seem to have been “one-offs” that have not been repeated since. Although there are some generalised allegations of violence by Ms Brockmann in her affidavit concerning Ms Simpson,

I am not prepared to find on the strength of those statements that

Ms Simpson presents a risk to either child whilst they are in her care.
There are some concerns about [X]’s behaviour towards [Y]. He has been diagnosed with a form of Asperger’s Syndrome. He is disruptive and defiant at school and on his own account to Mr Moriarty, hurtful towards [Y]. He hits her. Notwithstanding that, I am satisfied that

Ms Simpson would take appropriate action to ensure [Y]’s safety if she was in her care, even for lengthy periods.

Section 60CC 3(a) Views expressed by the children.

It is clear form the evidence that both [Y] and [X] are exceptional children. They are both highly intelligent – well beyond their chronological ages – and articulate. [X] is more reserved that [Y] and as I pointed out above, suffers from Asperger’s Syndrome.

Mr Moriarty, who had the opportunity of meeting the children makes the following observations:
48. They are unusual children in the sense that both are obviously intelligent, although [X] is more reclusive and antisocial in his general mannerisms whereas [Y] is outgoing, highly expressive and with a command of language beyond her peers. Observed together they interacted in a somewhat abrasive fashion, with [X] the more sullen and unresponsive.
[Y] expressed some views to Mr Moriarty which he recorded as follows:
49. It was immediately apparent that [Y] conceptualizes issues easily and evocatively; she immediately sat down and said that it felt to her like ‘in the middle of the tug of war and Ms Simpson is pulling on one side and Ms Brockmann on the other... no-one wins.’ She returned to this image a few times to explain her feelings, becoming upset in the process. She added plaintively ‘I am sick of moving so please don‘t ask me to move again,’ however she clearly did not wish to make a definitive statement about where she would most prefer to live, although she made it plain in speaking about her current life that she is happier now than before.
50. In talking to [Y] about her feelings it was necessary not to dwell on them for too long as she became teary very quickly. If she moved off the subject of her two parents she spoke naturally and happily about her interests. She sees herself as having different interests from other children, disqualifying herself from watching television as she prefers books. She spoke about how other children seemed to like the Simpsons TV show, which she finds boring and unrealistic.
51. She has made friends at her new school, but has not always found it easy to make friends because she feels that she is different. To [Y], this was not related to the atypical composition of her family, but more the difference between her interests and those of other children.
52. [Y] complained a lot about [X], saying that he often hit her when she visited, although she was prepared to concede that ‘I have noticed he is a bit nicer now, but he is still very short-tempered, it must be all that TV. ‘Still she said ‘I can‘t bear [X] for more than two days a weekend, every three or four weeks.’
53. In relation to the move to Sydney she said that she initially ‘wasn’t that pleased, half of me wanted to go and half of me wanted to stay.’ She felt happier in Sydney, saying ‘I have more friends.’ She had hated her previous school in Lismore, describing it as ‘filthy’ and saying ‘I got picked on’, whereas at her current school this does not occur.

As for [X], Mr Moriarty observed:
54. [X] lacked expression and was often avoidant of eye contact. At times he appeared ill at ease and he struggled with his words. The language he does employ is nevertheless advanced for his age, however he is introspective and often unwilling to speak. Observed in play he was very active and outgoing, but self absorbed and not always aware of what was going on around him. He talks a lot about watching television and doing things indoors rather than playing outside.
55. [X] related happily with Ms Simpson and Ms Brockmann, and appeared equally comfortable with both. He had no views about the fact that [Y] had moved to Sydney and the closest he came to expressing anything about her was in an interview with his sister in which [Y] said to him that she wanted him to talk about why he always hit her, even though ‘I know men don‘t like to talk about their feelings that much.’ [X] was nonplussed by this, but agreed that he did hit her, but did not know why, other than that she annoyed him sometimes. He related to [Y] ambivalently.
Both parties allege that [Y] has expressed wishes to them about living with them. Indeed, it was initially Ms Simpson’s case that she has taken the stand that she has as an advocate for [Y], who had told her that she wanted to live with her. Whether that is right, the statements to Mr Moriarty seem to be the most recent made by [Y], and therefore perhaps more reliable. Given her age, however, I apply caution when assessing the weight to be given to them.

Section 60CC 3(b) The nature of the relationship of the children with each parent and other persons.

There is no evidence to indicate anything other than a good relationship exists between these children and each of the parties. As set out above, Mr Moriarty’s observations indicated that the children each had an easy and comfortable relationship with each adult.
The relationship between [Y] and [X] appears a little problematical, and [X] is described as ambivalent towards [Y]. Mr Moriarty offers some explanations for that appearance:
56. [Y] and [X] are aware that they are siblings, however there was a degree of disengagement in their interactions, and partly this may be along normal developmental lines given that they are of different genders and clearly have different interests. There is a clear disparity in their personalities; [X] is more disengaged than his sister, and did not exhibit any strong attachment to his sister, even after not having seen her for such a long period. It might be presumed that this distance between them has partly been amplified by the restrictions in time that they have spent together since the separation of the parents.
Ms Brockmann claims that [Y] has good and enduring relationships with her sisters, her mother and her step father. Whether this is so is impossible to judge upon the evidence. It is relevant to note, however that Ms Brockmann’s two sisters reside in the Byron Bay Area and so if [Y] was to remain in Sydney, her relationship with her Aunts might not be progressed as they would if she lived in the same general area. The issue was not explored with Mr Moriarty and so I do not have the benefit of his views upon it.

Section 60CC(3)(c) The willingness of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent.

For reasons that I have already expressed, I think there is some good reason to be concerned about Ms Brockmann’s desire to ensure that [Y]’s relationship with Ms Simpson is maintained to any great degree. Having said that, I have no doubt that she would ensure that any orders for time between [Y] and Ms Simpson would be honoured. I do not think that there will be much scope, however, for additional time not provided in the orders.
Ms Simpson’ primary proposal would see to it that [Y]’s relationship with her was maintained. But it would be at the expense of her relationship with Ms Brockmann and that proposal is not supported by Mr Moriarty.

Section 60CC(3)(d) The likely effect of any changes in the child’s circumstances including the likely effect on the child of separation form parents.

Ms Simpson submits that if [Y] continues to reside in Sydney, her time with she and [X] will be reduced and that will have a negative impact upon the quality of the relationship.
The orders that were in place at the time of the move to Sydney provided for [Y] and Ms Simpson to see each other once every three weeks for one over night period. The orders provided for [Y] and [X] to see each other twice every three weeks, again for one overnight period on each occasion.
Over a twelve month period, that would be 17 contact periods with

Ms Simpson and twice that with [X].
On Ms Simpson present proposal, [Y] would, of course live with her. On her alternative proposal [Y] would spend considerably more time than agreed in 2004 with her.
On Ms Brockmann’s current proposal, [Y]’s time with Ms Simpson would be reduced to six occasions per year, and her time with [X] would be double that – one occasion each month.
Mr Moriarty seems to have understood Ms Brockmann’s proposal as continuing, more or less, the amount of time that [Y] was spending with Ms Simpson prior to the move to Sydney. In that respect, I think he was wrong. He made clear in cross-examination, however, that even if Ms Brockmann’s proposal resulted in a reduction to about one third of the time that [Y] was otherwise spending with Ms Brockmann, her relationship with Ms Simpson would withstand that reduction and “the features of their relationship would endure”. Moreover,

Mr Moriarty expressed the view that [Y] would not herself not likely support her removal from Ms Brockmann’s primary care.
On balance, and having regard to Mr Moriarty’s evidence, I am satisfied that there are more likely to be negative impacts upon [Y], specifically in her relationship with her mother, if she was removed from her primary care. A reduction in her time with Ms Simpson, however, is not likely to have a significant impact upon her relationship with Ms Simpson.
From [Y]’s point of view, Ms Simpson’s alternative proposal would maintain [Y]’s primary care with her mother and would increase her time with Ms Simpson. That would seem to be the least troublesome of the options, although it would require [Y] to move again (with Ms Brockmann) – something of which she was not enamoured.
A reduction in the time between [Y] and [X] was not seen by

Mr Moriarty to be troublesome for either child, in light of the fractious relationship between them.
No significant time in the case was spent on an examination of the effects of the various proposals upon [X]. That is understandable given that he will continue to reside with Ms Simpson on any proposal. There is no cogent evidence that a reduction in [X]’s time with

Ms Brockmann would work to [X]’s disadvantage.

Section 60CC(3)(e) The practical difficulty and expense of children spending time with a parent.

Ms Simpson is on a limited income. It is unlikely that she will be able to fund frequent trips to Sydney for herself and [X] or to the north for [Y].
Ms Brockmann’s income has also recently suffered a downturn although it may recover in time. Her overall asset position is not in evidence and so it is not clear what reserves she has. Her new partner is meeting the lion’s share of the cost of a new dwelling they have recently purchased together in Sydney.
The distance between the parties presents a difficult problem – as it always does in cases like these. Ms Simpson’s alternative position is that Ms Brockmann and [Y] both return to live in northern New South Wales. That would alleviate some of the practical difficulty occasioned by the distance that presently exists.
An issue raised by Ms Simpson is that [X] is fearful of flying and that future arrangements dependent on flight would therefore be impractical. I am not satisfied that is an insurmountable problem, however. [X] has flown before and the evidence is equivocal about his opposition to it.
Mr Moriarty asked [X] about flying to Sydney:
58. Asked about flying, [X] responded by saying that he did not think that he would like to fly, but then he thought that maybe he could. It was difficult to ascertain from this response how fearful he might be if this were to occur.
Although a factor to be taken into account in these proceedings, it is not a matter to which any great moment should be attached.

Section 60CC(3)(f) The capacity of each parent to provide for the needs of the children including emotional and intellectual needs.

In this case there is no evidence to indicate that either party is unable to provide for the needs of the children. Ms Brockmann suggests in her evidence that there are deficiencies in the accommodation that is offered by Ms Simpson and also in the standard of care – things seem less regimented in her household – and consequently observations made by [Y] take on an inflated significance. On the evidence no substantive criticism can be made of the care that can be provided by both of these women for these children. Both have demonstrated themselves to be able to provide for the physical and intellectual needs of the children.
Ms Brockmann seems less sensitive however, to [Y]’s emotional needs. Her conduct in the September, 2004 - August, 2005 evidences a concerning lack of awareness of [Y]’s need to maintain her relationship with Ms Simpson. Her recent concern to keep [Y] in Sydney during Ms Brockmann’s illness and treatment might also be reflective of that same lack of sensitivity.
The use of carers for [Y] in Ms Brockmann’s household is not a concern even if Ms Simpson is otherwise available to look after [Y] full time. The disadvantage of having her mother working full time (when she returns to full time work) and having to have care arrangements in place may well be offset by the advantage of having a parent who is modelling a good work ethic.

Section 66CC(3)(g) The maturity, sex, lifestyle and background of the child or either of the child’s parents.

No issues were raised in this regard save for some allegations of drug use in the past by Ms Simpson. I note however that both women told Mr Moriarty of their drug use in the past. It is, on the evidence, no longer an issue.
Neither party made a submission that the fact that the parties had been in, and Ms Brockmann has re established a same-sex relationship was in any way relevant to the determinations needed in this case.

Section 60CC(3)(h)

It was not submitted that this factor was relevant.

Section 60CC(3)(i) The attitude to the child and the responsibilities of parenthood, demonstrated by each of the child’s parents.

In my view I have discussed the matters otherwise relevant to this consideration above.

Section 60CC(3)(j) Any family violence involving a child or member of the child’s family and Section 60CC(3)(k) Any family violence order that applies to the child or a member of the child’s family.

I have discussed this issue above. It is of little moment in this case. There is no current family violence order in place.

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.

Indeed it would be preferable to make an order that is the least likely to lead to the institution of further proceedings in relation to these children. In my estimation however, any of the proposed orders can the same potential in that regard.

Section 60CC(3)(m) Any other fact or circumstance that the Court thinks is relevant.

Ms Brockmann’s reasons for moving to Sydney are relevant. The concern her dissatisfaction with living in Lismore and [S], [Y]’s schooling and her dissatisfaction with the schools that [Y] attended there, and the ability to secure a well paid position of employment that would not otherwise have been available to her on the north coast.
It was not demonstrated in cross-examination that any of those reasons were not genuine or that the beliefs upon which they were based were not honestly held by Ms Brockmann.
There is the added complication of Ms Brockmann’s health.

Her treating general practitioner and specialists are in the Sydney area. Her treatment is recent and although her prognosis is good, her chances of a regression appear to be not insignificant.

Conclusion

Mr Moriarty did not recommend a change to the residential arrangements for the children. He thought that the current arrangements should remain in place and that Ms Brockmann’s proposals would adequately address the children’s needs. I agree.
In my view there is little by way of advantage for [Y] or [X] if [Y] was to be removed from Ms Brockmann’s primary care. It is likely to cause difficulties for [Y]. On the evidence her current relationships can be maintained, even if she remains living in Sydney.
There is no discernable benefit to the children by ordering

Ms Brockmann and [Y] to relocate back to the north coast. That might cause difficulties for Ms Brockmann should her health decline.
The time proposed by Ms Brockmann seems to me to be the bear minimum that should be ordered. Although the parties did not provide for it in the past, it seems appropriate to me to include in the orders some provision for holiday contact time over school holiday periods. That of itself will tend to equate the quantity of time to be had by the children with each of the parties with what is was before the move to Sydney.
I do not think on a consideration of the matters I have referred to above, that there should be an order for equal shared parental responsibility. Apart from the notion that in a practical sense it would be hard to implement with one party in Sydney and the other on the north coast, in 2004 the parties abandoned the notion that they should share parental responsibility for the children by the terms of the final orders agreed between them in their earlier litigation.
The issue of the costs of travel to accommodate the time the children should spend with each other and the other party arises because, primarily of Ms Simpson financial position. Ms Brockmann is likely to be, very soon, back in well paid full time employment. She also has significant external supports that she can call upon. She should bear the lion’s share of the costs of travel and the orders will reflect that.
For the foregoing reasons I make the orders set out at the commencement of these reasons.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Acting Associate: E Crutchfield

Date: 18 July, 2008

[i] exhibit 1 paragraph 4

[ii] see paragraph 83 of her affidavit filed on 24 August, 2007.

[iii] see paragraphs 82, 86, 87, 90 and 91 and annexure “F” of her affidavit filed 24 August, 2007.

[iv] see paragraphs 84, 85 and 92 and 93 of her affidavit filed 24 August, 2007.

[v] see exhibit “L” to the affidavit of the respondent filed on 10 July, 2007 and paragraph 25 of the same affidavit

[vi] s.65C(c) of the Act