Sofia & Treacy - [2022] FedCFamC1F 777

Federal Circuit and Family Court of Australia
(DIVISION 1)
Sofia & Treacy [2022] FedCFamC1F 777

File number: MLC 13024 of 2020

Judgment of: CARTER J

Date of judgment: 14 October 2022

Catchwords: FAMILY LAW- CHILDREN – Parentage – artificial conception – same-sex relationship – where the respondent is the child’s biological mother – whether the applicant is the other intended parent – whether the parties were in a de facto relationship at the time of the artificial conception procedure – declaration of parentage is not permitted to be made – witness credibility.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4AA, 60H

Cases cited:
Bernieres & Anor v Dhopal & Anor (2017) 57 Fam LR 149

Briginshaw v Briginshaw (1938) 60 CLR 336

Carlson & Fluvium[2012] FamCA 32

Delamarre & Asprey [2014] FamCAFC 218

Fairbairn v Radecki [2022] HCA 18

Gustz& Denniston [2019] FamCA 16

Jonah and White (2012) FLC 93-522

Lynam v Director-General of Social Security (1983) 52 ALR 128

Moby and Shulter (2010) FLC 93-447

Shelby & Rylan [2022] FedCFamC1A 143

Sinclair and Whittaker [2013] FamCAFC 129

Taisha & Peng and Anor [2012] FamCA 385

Division: Division 1 First Instance

Number of paragraphs: 257

Date of last submissions: 25 August 2022

Date of hearing: 22 – 25 August 2022

Place: Melbourne

Counsel for the Applicant: Ms Glenys Jardine

Solicitor for the Applicant: Pentana Stanton

Counsel for the Respondent: Ms Therese Borger

Counsel for the Respondent: Ms Vanessa Bacchetti

Solicitor for the Respondent: Russell Kennedy Lawyers
ORDERS

MLC 13024 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
SOFIA

Applicant

AND:
MS TREACY

Respondent

order made by:

CARTER J

DATE OF ORDER:

14 october 2022

Upon the court finding that:
A.The parties were not in a de facto relationship as at October/November 2018; and
B.Accordingly, pursuant to s60H of the Family Law Act 1975 (Cth), the applicant is not a parent of the child X born … 2019.

THE COURT ORDERS THAT:
1.The proceedings are adjourned to 2 November 2022 at 10.00 am for mention.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sofia & Treacy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
Introduction

The applicant, Sofia, instituted these proceedings by way of an application filed on 27 November 2020 against the respondent, Ms Treacy, the birth and biological mother of X born in 2019. X is now three years old.
I note that the applicant is gender fluid. At the commencement of the proceedings the applicant advised she was content for the use of the pronouns she/her in these proceedings. She is 53 years old, and works in the arts industry.
The respondent is 40 years old. She works in the beauty industry.
This matter came before me for determination of a threshold issue as to whether the parties were in a de facto relationship at the time X was conceived, as a result of an artificial conception procedure, in November 2018. That finding has significant implications as a result of the operation of s 60H of the Family Law Act 1975 (Cth) (“the Act”).
Section 60H of the Act provides, relevantly:
(1) If:
(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent); and
(b) either:
(i) the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or
(ii) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;
then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act:
(c) the child is the child of the woman and of the other intended parent;
…
(5)For the purposes of subsection (1), a person is to be 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.
It is agreed that X was born to the respondent as a result of the carrying out of an artificial conception procedure undertaken together by the parties, at the respondent’s home in or around November 2018.
The applicant asserts the parties were in a de facto relationship at the time X was conceived through an artificial conception procedure. The respondent denies the parties were in a de facto relationship at the time of X’s conception.
It is agreed that whether or not the applicant is a parent of X falls to be determined solely by reference to s 60H of the Act. This was made clear by the Full Court decision of Bernieres & Anor v Dhopal & Anor (2017) 57 Fam LR 149.
Accordingly, if I am satisfied that:
(a)the parties were in a de facto relationship at the time that artificial conception procedure was carried out; and
(b)the parties consented to the carrying out of the procedure,
then the applicant is the “other intended parent”.
The legislation makes it clear that if those are my findings:
(a)the applicant will be deemed the other intended parent notwithstanding she is not a biological parent;
(b)X is the child of the respondent and the applicant; and
(c)X is not the child of the man whose sperm was used to inseminate the respondent.
Meaning of ‘de facto relationship’
The meaning of a de facto relationship is defined by s 4AA of the Act. Subsection 4AA(1) provides that a person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
The section continues:
Working out if persons have a relationship as a couple
(2)      Those circumstances may include any or all of the following:
(a)       the duration of the relationship;
(b)      the nature and extent of their common residence;
(c)      whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)      the ownership, use and acquisition of their property;
(f)      the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)      the care and support of children;
(i)       the reputation and public aspects of the relationship.
The existence or non-existence of any particular circumstances is not determinative, and no particular finding of any particular fact is required to lead to an overall determination that the relationship was a de facto relationship. The court is entitled to attach whatever weight is deemed appropriate to any of the circumstances.
The question of whether the parties were in a de facto relationship at the relevant time does not involve the exercise of discretion. The court must make a finding of fact based on the composite picture of all the facts and circumstances. The applicant bears the burden of proof.
Whilst the substantive orders sought by the applicant are parenting orders, this is not a matter in which the court must regard X’s best interests as the paramount consideration. Clearly, whether the parties were or were not in a de facto relationship, as a matter of law, could not be answered differently whether the substantial proceedings were about financial matters or children.
The evidence
It has not been possible to include every aspect of each of the parties’ evidence. However, I have taken all the evidence into account. Just because I have not mentioned something in these reasons does not mean that I have not considered it.
Some of the witnesses appeared via Microsoft Teams. The trial was otherwise conducted in person. There were no technical or other issues that impacted on the running of the trial. I am satisfied I was sufficiently able to hear and assess the evidence that was given. The parties each gave evidence and were subject to cross examination. They each attended court in person.
Prior to the trial commencing, I excused the Independent Children’s Lawyer from attending. The question that I must determine does not turn on the best interests of X, and accordingly there was no role for the Independent Children’s Lawyer to play at this threshold hearing.
As already observed, I must consider the nature of the relationship as at the time of the insemination process around November 2018, which resulted in X’s birth. That is the critical date. It does not matter if the parties subsequent to that insemination became de facto partners. Nor is what the parties did or said after X’s conception relevant to that determination, save insofar as it might inform and reflect the nature of the parties’ relationship as at the time of conception.
In dealing with objections, substantial parts of the material were struck out as not relevant to the issues I must now determine. However, I did not strike out all the evidence of events post conception, where it seemed that that evidence could shed some light on the nature of the parties’ relationship at the critical date.
I note however, that the later the events occurred after the critical date, the less relevant they seem to be in determining the nature of the relationship at the relevant time of conception. In my view, the events leading up to that event, and those that occurred fairly shortly thereafter provide a greater insight into how the parties’ relationship is to be characterised at the relevant date.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities. I note that the applicant bears the onus of satisfying that ordinary civil standard. I cannot guess whether the parties were in a de facto relationship. The applicant must persuade me of that.
As set out by Dixon J (as he then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
As put by Rich J in that case, the court needs to have “reasonable satisfaction” or a “comfortable satisfaction” of the alleged facts.
As I will set out later in these reasons, there were parts of the applicant’s affidavit material that were vague and lacking in details. Other parts contained opinions and conclusions, the basis of which was not set out. The applicant gave her oral evidence in a careful manner. At times, she was evasive, and as I will set out in these reasons, there were occasions in which her evidence was not wholly accurate. I formed the impression that the applicant has at times overstated or re-cast the nature of the parties’ relationship. That is not to say that I formed the impression that the applicant was deliberately dishonest. Rather, as observed by Kent J in Carlson & Fluvium[2012] FamCA 32 at [165]:
…human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues.
No doubt, the matters to hand are highly emotive issues.
Conversely, I am satisfied that, generally, the respondent gave evidence that was truthful and accurate. She gave responsive answers, and did not appear to overstate or exaggerate her recollections. Her evidence appeared plausible, and was consistent and comparatively specific and detailed.
The applicant relied upon her trial affidavit filed 20 July 2022 and her affidavit in reply dated 15 August 2022. The applicant also relied upon evidence from the following witnesses:
(a)Ms D (“Ms D”), who filed an affidavit on 18 July 2022. She has been a friend of the applicant for over 20 years. She gave her evidence via Microsoft Teams. Whilst Ms D impressed as a credible witness, her evidence was of little relevance to the issue I am currently determining as she had almost nothing to do with the parties at the relevant time.
(b)Ms B (“Ms B”), who filed an affidavit on 18 July 2022. She is a very close family friend of the applicant, having known her for over 22 years. She gave her evidence via Microsoft Teams. Ms B is clearly a strong supporter of the applicant. At times, Ms B’s evidence went beyond what she herself heard or observed. She made statements about her beliefs as to the nature of the parties’ relationship, and came to various conclusions without specifying the facts upon which she drew those conclusions. Regrettably, these matters undermined much of her evidence.
(c)Mr F (“Mr F”), who filed an affidavit on 18 July 2022 and gave his evidence via Microsoft Teams. He is a friend of the applicant and previous housemate, having known her for about 25 years. He gave his evidence in a straightforward and upfront manner. As I will set out later in these reasons, some of his evidence lacked particularity, which impacted on the weight the evidence could be given.
(d)Dr G (“Dr G”) filed an affidavit on 18 July 2022 and gave her evidence via Microsoft Teams. Dr G has known the applicant for 20 years. She was an ex partner of the applicant and they have remained friends. She impressed as an honest witness. However, her evidence was of little relevance to the issue I must now decide as she, too, had little to do with the parties at the relevant time. Some of her evidence was also lacking in detail.
(e)Mr H (“Mr H”), who filed an affidavit on 18 July 2022. He is a friend, and was a neighbour of the applicant from October 2018 to August 2020. He gave his evidence via Microsoft Teams. He impressed as credible, although again, his evidence was a little vague.
(f)Ms J (“Ms J”), who filed an affidavit on 18 July 2022. She is the partner of Mr H. I struck out most of her affidavit as it dealt substantially with matters well post conception. She was not required for cross examination.
The respondent relied upon her trial affidavit filed 3 August 2022. The respondent also relied on the following witnesses:
(a)Ms K (“Ms K”), who filed an affidavit on 1 August 2022. She is a friend of the respondent and has known her for over 10 years. She lived in the respondent’s home from April 2015 until October 2017. She gave her evidence in person, and she impressed as a credible and reliable witness.
(b)Mr L (“Mr L”), who filed an affidavit on 1 August 2022. He is a friend of the respondent and has known her for over 10 years. He lived in the respondent’s home from 1 July 2018 until 12 August 2018. He gave his evidence in person, and impressed as an honest and straightforward witness.
(c)Mr M (“Mr M”), who filed an affidavit on 27 August 2021 and attended court and gave his evidence in person. He met the respondent about four years ago through a mutual friend. He lived in the respondent’s home from 6 May 2019 for about three months. He gave his evidence in an upfront and straightforward manner.
(d)Ms N (“Ms N”), who filed an affidavit dated 27 August 2021. She has been a friend of the respondent for 18 years. She gave her evidence via Teams. She similarly impressed as a candid and honest witness.
Ms O (“Ms O”), had deposed an affidavit on behalf of the respondent on 27 August 2021, in which she confirmed that her understanding was that the parties were girlfriends, that the respondent was on a “solo parenting journey” and that she had never said anything that suggested the applicant was intended to be a parent. However, Ms O was unavailable to give evidence and accordingly, her affidavit cannot be given any significant weight.
History of the relationship
It appears common ground the parties commenced their relationship in July 2017, after the respondent had commenced tutoring with the applicant. There is no dispute that the parties became sexually intimate quite quickly, and that the relationship was exclusive.
There is also no dispute that prior to the parties’ starting their relationship, the respondent had been trying to get pregnant using a donor. By the time the parties met, the respondent had tried to conceive with a man in Sydney, and another man from Western Australia. She had obtained advice from a solicitor with P Lawyers, and instructed them to draw up a Sperm Donor Agreement on her behalf. She and that second gentlemen signed that agreement, and several attempts at insemination were made in May 2017. However, the respondent did not fall pregnant.
The relationship in 2017
The applicant asserted the relationship quickly progressed and that during the parties’ holiday away together, in Q Town in September 2017, the parties “agreed to have a child together” and that the respondent would “carry the child and that I would be the child’s other (inseminating) parent”. The applicant did not provide details as to what she asserted the parties actually said that formed the basis of her statement that they had reached an agreement to jointly parent a child. I note that according to the applicant, this is alleged to have been agreed between the parties very quickly after they started dating.
The applicant also asserted that shortly after the parties returned from Q Town she emailed her parents and told them that the parties planned to have a child together in 2018 and were going to marry in the United States in 2019. In that email, the applicant acknowledged that her relationship with the respondent was in “its early days”, but indicated that she felt the respondent might be “the one” and told her parents she would like them to meet her. In that email, the applicant wrote that the respondent had always wanted to have a child, which was something the applicant had “never really contemplated at all.” The applicant prevaricated somewhat when cross examined about this comment.

In her oral evidence, the applicant maintained that she believed the parties commenced a de facto relationship from either the parties’ first or second date in July 2017. She also maintained she had previously thought about becoming a parent, and had discussed parenting with other partners, notwithstanding what she wrote to her adopted parents. These appeared to be examples of the applicant’s exaggeration of the history of the parties’ relationship.
Notably, whilst the applicant said she told her parents that the parties were planning to marry in the United States, the applicant does not depose to having actually discussed this with the respondent. There are not – as one might expect – particulars of any actual conversation or discussion she had with the respondent regarding this alleged agreement to, or discussion about getting married in the United States.
The respondent conceded the parties commenced an intimate relationship, and that they spent time together from mid-2017. However, she said that the parties were simply girlfriends and that their relationship never progressed to become a serious, committed relationship that could be described as a de facto relationship. She said she had wanted to be a parent for a long period, and the applicant supported the respondent’s journey to become a parent, just as the respondent supported the applicant’s career in the arts. She said these were the parties’ separate desires that each supported, encouraged and assisted the other to pursue.
The respondent deposed that whilst the parties did discuss the respondent having a baby when first getting to know one another, that was in the context of the respondent saying she wanted to be a mother, and the applicant saying she would not interfere with that desire. She strenuously denied the parties discussed marriage, or having a child together whilst on holidays in Q Town. Indeed, she said the applicant:
made it clear to me she wasn’t interested in ever having a child because she constantly said things to me like “[my career] is my baby and I have been chasing this dream my whole life”.
In about October 2017 the applicant said the parties swapped keys to each other’s home, and “regularly” stayed over at each other’s home. The respondent said she could not remember when the parties exchanged keys. In her oral evidence she said this was not a significant step for her, as she has provided keys to her home to many friends.
The applicant asserted that in late 2017, when the respondent’s flatmate Ms K was moving out, the respondent invited the applicant to move some personal belongings into her home. The applicant said she did then bring items to the respondent’s home. The applicant asserted that:
…we had personal items and belongings at both addresses. The respondent encouraged me to treat [her house] as my home and made space for me and my things. We would cook each other dinner…and do housework, errands and chores for each other at both houses.
By November 2017, the respondent and I carried on a domestic day to day life, sharing finances, social and family circles, as we planned the creation of family of our own.
These statements are not particularly useful. They are vague, and lacking in particularity and details. The applicant does not particularise the personal items and belongings she asserted the parties kept at the other’s home. She does not specify exactly what errands or chores she undertook on behalf of the respondent, or vice versa. How often did they cook for each other? The only specific chores deposed to by the applicant is that she watered the front garden (which the respondent said occurred on about three occasions) and took the bins out from time to time.
Moreover, what does it mean when she says the parties carried on “a domestic day to day life”? What does the applicant mean by sharing finances, particularly in circumstances where the other evidence is that the parties did not share finances? It is not clear what she means by sharing “social and family circles”. This lack of detail and particularity and the making of bald assertions is a troublesome part of the applicant’s case.
The applicant then said from around December 2017, she moved in “a considerable amount of personal possessions, artworks, personal items, clothing, books, tools, musical instruments and furniture” into the respondent’s home at her invitation. Again, there is no specificity about what was actually moved into the home. The applicant also said the parties entertained friends together at the respondent’s home “and began to share our plans of having a child and getting married with others”. She provided no details of events or persons who attended those events. Other than Mr F who attended once for dinner in 2018, Ms N who attended once for dinner in 2018 and Ms B who attended once for dinner in 2018, there is no evidence of the parties’ jointly entertaining friends at the respondent’s home. She provided no detailed evidence regarding alleged conversations of sharing plans of marriage and a baby. The evidence adduced by the applicant’s witnesses is generalised and lacking in specifics.
The respondent denied that the parties undertook chores for one another save that she acknowledged the applicant watered her garden, on perhaps three occasions. The respondent also denied the parties performed household duties for each other, or cooked for each other save for an occasional meal, or picking up a salad roll for the other party. She said she maintained her own home in a clean and tidy state, with no assistance from the applicant, and she did not assist the applicant in her housework either. She further denied that the parties purchased groceries for each other, and said the parties lived substantially independently of each other, maintaining their own separate homes, and separate finances.
The respondent denied the parties brought items to each other’s houses, save for toothbrushes and some underwear. She denied that she made space in her home for the applicant to bring in a “considerable amount” of her belongings. In her oral evidence, she said once Ms K moved out, and moved her things out of the second bedroom and the other two spare rooms, she set up one of the rooms as an exerciseroom, and one as a studio. The respondent said the applicant was excited the respondent was setting up a studio and brought over some equipment to put in the room. The respondent said the applicant also put a couple of her chakra paintings in that room. Other than these few items, the respondent denied the applicant moved her belongings into the respondent’s home.
The respondent described the relationship in 2017 as “dating” and “very casual”, and that it was not a “serious relationship”. She said she continued to plan to have a baby as a sole parent, as she had been since before dating the applicant, and she made those plans clear to the applicant.
The parties celebrated Christmas and New Year together.
Events in 2018
The applicant said that from around early 2018 she “began to contribute financially to what would be [X’s] future needs by purchasing clothing, toys, books, hearing protection, baby carrier and playmat”. That is denied by the respondent. The applicant was able to adduce only one receipt, dated 18 February 2019 to support that she purchased a baby carrier, for $70.
Dedication ceremony
The applicant deposed that in March 2018 the parties “performed a dedication ceremony to [X]…and we committed to our future together”. I note this event is asserted to have taken place well prior to him even being conceived. The applicant did not describe what a “dedication ceremony” involved. She did not depose as to discussions the parties had about that alleged ceremony, and the meaning of it. She did not depose what actually was said or done when the parties “committed to our future together”. She said she believed this ceremony demonstrated the parties “shared intention to create a family together”.
The respondent in her oral evidence acknowledged that she attended several harmonic baths at R Yoga Centre. However, she denied that there was ever any dedication ceremony for X at any time.
I note there are no photos or online postings about this alleged event. Nor do any of the other witnesses describe attending a dedication ceremony. As already noted, I have no understanding of what was involved in this asserted ceremony. Accordingly, it is difficult to conclude this wholly un-particularised event – if it occurred – demonstrated any intention of anything. It appears that the applicant has reconstructed this incident, seeking to create an impression that a more significant event was conducted.
Finding a donor
As set out, the respondent had engaged with sperm donors prior to meeting the applicant.
In her oral evidence, the applicant struggled to admit that the respondent had been searching for sperm donors prior to the parties’ relationship, saying somewhat evasively that she could not say what happened before. However, it is quite apparent that the respondent had attempted to get pregnant prior to dating the applicant. She had previously engaged in sexual intercourse in an attempt to fall pregnant. She had also attempted to artificially inseminate herself with a previous donor. Additionally, she had engaged lawyers in early 2017 to draft up a Sperm Donor Agreement on her behalf. That agreement was originally drawn up in relation to another man who had provided sperm to the respondent.
In what seemed to be an attempt to discredit that agreement, the applicant said the respondent had not paid the lawyer to draw it up, but had “[bartered] for that advice”.
The applicant said the parties asked a number of friends and personal acquaintances “over a number of months” during 2017 and 2018 “if they would become our sperm donor”. Again, she does not depose to the content of any asserted conversations, or name any people actually approached. The respondent acknowledged in her oral evidence that the applicant did ask one or two of her friends if they would be a sperm donor for the respondent.
It is common ground that the parties met with a Mr S (“Mr S”) in around March/April 2018, who ultimately provided the sperm for X’s conception. The respondent said she met Mr S through a website. In her oral evidence the applicant conceded that the respondent had made the initial approaches to Mr S about being a donor. She did not acknowledge that in her trial affidavit.
The respondent deposed that she agreed to the applicant coming along to the interviews with potential sperm donors as she did not want to exclude and upset her. She said that the applicant told her that if she came to the interviews she would not interfere, “as it is your body and decision, I will just be the silent supportive person there for you by your side”. Although this is denied by the applicant, I accept the respondent’s evidence for the reasons already outlined.
The respondent also deposed that when they met Mr S in person, she introduced the applicant as her girlfriend. When Mr S said he did not realise the respondent was looking with a partner, the respondent said she told him she was not, and that the applicant was only there to support her, and that only the respondent wanted to have the baby. Whilst the applicant specifically denied the conversation deposed to by the respondent regarding her intention at the interviews, it is notable that she did not deny this conversation between the respondent and Mr S.
It is also common ground that Mr S and the respondent signed a Sperm Donor Agreement on 27 May 2018. The agreement that was signed that day was an amended version of the Sperm Donor Agreement originally drafted in 2017. The respondent said the only change that needed to be made to that agreement was to include Mr S’s name as the sperm donor. She said the applicant told her she was good with computers and would make the change sought by the respondent to be the name of the donor, and said she would bring the amended version to the meeting with Mr S on 27 May 2018.
But that was not the only amendment that the respondent made to the sperm donor agreement. In addition to changing the sperm donor details, the applicant amended Recital C to read:
[The respondent] is currently in a relationship with [the applicant], [born […]] of [Suburb T] Victoria
The applicant deposed that the respondent requested she amend the Recitals to the Agreement to reflect that the parties were in a relationship. She also deposed that the respondent requested her to amend the agreement to also reflect that “[they] were to be [X’s] parents”.
The respondent denied asking the applicant to make changes other than the amending the donor’s name. She denied that she requested the applicant to include herself as the respondent’s partner on the agreement, or that she asked for the agreement to be amended to include both of the parties as the parents of any child born. She deposed she told the applicant that the most important term in the contact was that the respondent was to be the sole parent, and that only the name of the donor and dates were to be changed, and nothing else.
The respondent said the applicant made the amendment to Recital C herself without being instructed to do so by the respondent, and she was presented with the printed version including that amendment whilst on route to meet Mr S to have him sign the agreement.
The respondent in her oral evidence said she signed the agreement as amended by the applicant. She said she regarded the applicant as her girlfriend, so although she did not instruct the recital to be amended as it was, she did not disagree the parties were in a relationship. She said the agreement as amended continued to include what she regarded as the most important words – that she would be the sole parent, and she believed that meant no one else could “make a claim” over any baby conceived.
In my view, little turns on the reference in Recital C of the signed agreement to the parties being in a relationship. It is not in dispute that the parties were in a relationship at that time. The issue I must determine is the character or nature of that relationship at the relevant time.
Whilst the applicant deposed to being requested to amend the agreement to reflect that both she and the respondent would be parents, under cross examination she conceded there was no such request made by the respondent. It is troubling that the applicant deposed that there was such a request. The inclusion of that assertion cannot be explained as a typographical error or minor slip. It is quite fundamental to the issue now before me, and it was not correct. Although the applicant acknowledged this statement was incorrect when she was cross examined, she did not seek to correct the statement when given the opportunity to do so at the outset of her evidence. It is another matter that causes me to have some caution regarding the veracity of the applicant’s evidence.
It is plain that the agreement stipulates that the respondent will have sole parental responsibility for any child conceived, and that she shall be wholly financially responsible for any such child. Of course that agreement is between the respondent and Mr S, and not between the parties.
Trip to Queensland June 2018
The applicant asserted the parties travelled to Queensland in June 2018 to meet with the respondent’s parents. She said that when they were there, the parties “announced that we had found a sperm donor and were trying to get pregnant (as a couple).” I am not sure what the inclusion of the parenthesis means. Again, the applicant’s evidence lacks specificity – I remain unclear as to who said what and to whom, and the context and circumstances of what was said.
The respondent acknowledged the parties travelled to Queensland together and that the applicant was introduced to her parents. In her oral evidence the respondent denied that there was any announcement that the parties were trying to get pregnant as a couple. The respondent said she told her mother that she was trying to get pregnant and that she had found a donor (emphasis added).
The respondent did not have either of her parents on affidavit to refute the applicant’s evidence that the parties told the respondent’s parents of their joint plans to become parents. Counsel for the applicant did not make any submissions regarding any inference to be drawn from that.
Discussions June to December 2018
The applicant deposed that “between June and December 2018” the parties “discussed our preparation for co-parenting, we discussed nursery planning, parenting styles, education, recreation, creativity and religion”. Again, the applicant provided no particulars to those asserted discussions. In her oral evidence, the respondent denied discussing these matters with the applicant.
The applicant also deposed that between June and December the parties “decided on godparents on both sides of our families”. The applicant provided names for the godparents she said the parties agreed upon. She did not provide other details of the discussions the parties had regarding any godparents.
In her oral evidence the respondent said she made the decision on who the baby’s godparents would be, and that they were friends of hers. She did not agree that the parties discussed that some of the applicant’s friends would be made godparents, and denied ever having a discussion with the applicant’s friend Ms B about her becoming a godparent. The respondent acknowledged that she did discuss parenting styles with Ms B, as the respondent was reading a lot of books on parenting.
The applicant also said that from June 2018, the parties engaged in discussions about the baby they were preparing to have. She said the respondent told her she could take a hormone treatment to trigger lactation, so the parties could share breastfeeding duties. The respondent did not respond to this assertion and it was not put to her in cross examination.
Insemination of the respondent
There were approximately 19 separate insemination events conducted by the parties between June and November 2018. The first few occasions were undertaken at a hotel, at the respondent’s expense. The respondent also purchased all pregnancy tests. The applicant said she had purchased some syringes, but did not have any receipts to reflect that.
After using the hotel, the rest of the insemination attempts occurred at the respondent’s home. On each of those occasions, Mr S attended the premises, provided his sperm and then left. The parties then engaged intimately with each other, culminating in the applicant inseminating the respondent with the sperm. It is apparent that on one occasion, Mr S suggested that he engage in sexual intercourse with the respondent.
The respondent said she agreed for the applicant to inseminate her, and explained she thought her chances of conceiving a baby were increased if she orgasmed at the point of insemination. She also deposed that the parties had “started to drift apart sexually” at that time, and this provided an opportunity for the applicant to have sex with her. She also said that the applicant wanted to be there at every sperm handover and do the insemination for her, given that previously the respondent had engaged in intercourse with the early sperm donors before going down the insemination path. The respondent said the applicant “offered to help and I felt obliged to accept as we were dating”.
In her oral evidence the applicant conceded she was aware the respondent believed she was more likely to become pregnant if she orgasmed during insemination.
September/October 2018
The applicant said she and the respondent went on a trip to U Town in mid-September 2018. At a market there, she said she purchased shoes for the baby and a fertility bracelet for the respondent. The respondent said she could not recall the applicant purchasing any shoes or bracelet. On that trip it is agreed that the respondent undertook a pregnancy test, which confirmed she was pregnant. The applicant said she and the respondent “were overjoyed” but again she does not depose to any particular conversations the parties had with each other, or with family and friends at that time.

Sadly, the respondent miscarried shortly thereafter. The applicant said “we were devastated”, but again she does not depose to any particular conversations the parties had with each other, or with family and friends at that sad time. The respondent said she was not devastated by the miscarriage, but took hope from the fact she had fallen pregnant, as it indicated she was actually able to conceive.
Post insemination events
As repeatedly observed, the relevant time at which the court must be satisfied as to the nature of the parties’ relationship is at the time of conception. However, it seems to me that events that occurred shortly after that event may ‘shed light’ on the nature of the relationship as at the time of insemination.
When the respondent undertook a pregnancy test which returned a positive result in December, 2018, she sent the applicant a picture of the actual test. There was no accompanying text message included in the applicant’s affidavit. In her oral evidence the applicant conceded she had the same telephone as she did when that text message was sent, and accordingly it was understood she would be able to access that accompanying message. She was asked to produce the text message that accompanied the picture of the pregnancy test, but she did not do so. The respondent’s evidence was that she sent the picture of the positive test result with a text message “I’m pregnant!”
I note the pregnancy tests were purchased by the respondent. She met all costs for the midwife and other medical appointments throughout the pregnancy.
Very shortly after X was conceived, the parties attended a Christmas Eve dinner at the home of the applicant’s friend, Ms B. The applicant said Ms B gave the parties a gift for the newly conceived baby.
The parties then celebrated New Years’ Eve that year with Ms B and her husband at their home.
The respondent deposed that throughout her pregnancy, the applicant stayed over much less. That is not denied by the applicant.
It is agreed that throughout the pregnancy, the applicant attended a number of midwife appointments, ultrasound scans, some prenatal appointments, workshops and consultations together with the respondent. The applicant said that included the parties jointly attending V Radiology in January 2019 and February 2019, and W Radiology in April 2019, when the baby was scanned.
Whilst those appointments obviously occurred post insemination, the applicant’s presence at those early appointments, so shortly after the relevant event, would tend to suggest the parties shared a mutual intention to have a child, and parent a child together. That in turn, could inform the court as to the nature of the relationship as at the time X was conceived. However, the applicant’s presence is also consistent with the parties being girlfriends at the time, and that the applicant was being supportive of the respondent’s pregnancy. The respondent said the applicant had a car and offered to drive her to some appointments, which the respondent readily accepted. It is not unusual, in my experience, for pregnant women to be accompanied to such appointments by close friends or other family members, and not always the other parent.
As noted, the applicant made no financial contribution towards any of these appointments.
The respondent deposed that post insemination, when she told people she was having a baby she noticed that the applicant’s attitude shifted. She said the applicant said to her that she did not like the respondent saying the baby was hers and that she should be telling people “we” are having a baby, even though the applicant said “I know that it is your child”. The respondent said she felt pressured and anxious about the applicant’s reaction if she did not follow this direction.
The respondent deposed that in April 2019, the applicant took her hands, and looked her straight in the eyes and said:
You know I know this is your dream coming true and so I will support that. And no matter what happens to us, you know I’d never fight you for your baby, it’s your baby and it’s your dream.
This is denied by the applicant. However, again, I accept the respondent’s specific and detailed evidence.
The applicant asserted that in June 2019, she announced she was going to be a “Dad! With the love of my life” at a launch for one of her projects. She said the respondent had participated in and assisted with the project. Ms B corroborated the applicant’s version of the evening. The respondent also acknowledged the applicant’s announcement to the crowd. She said she was incredibly embarrassed and uncomfortable, but did not feel able to correct the applicant in front of everyone, and was worried about how she would react if the respondent did so.
Having heard the evidence, in my view, the project launch does not assist me in determining whether six months earlier the parties were in a de facto relationship.
I note the parties travelled together to Y Town in June 2019. The respondent did not refer to this holiday in her affidavit. That trip was some six to seven months after the relevant date.
The sparkle note book
At some point shortly after X was conceived, the applicant gave the respondent a “silver sparkle notebook”, in which the applicant suggested the respondent might record information for X, so he would have “some positive information about his creation and development”. Whilst the giving of that notebook and the entries written into it occurred after the point of conception, it seemed to me that it could shed light on whether the parties were in a de facto relationship at the relevant time of conception. Whilst an objection was taken to it, I determined it was relevant and admissible.
The respondent made multiple entries into the book, from shortly after X’s conception. At around eight weeks pregnant, the respondent wrote:
[the applicant] and I talk to you in my belly every day ☺
…
[the applicant] and I don’t care what sex you come out as, as long as you are healthy strong and we just know you will be beautiful.
We found someone that likes to help people like [the applicant] and I make our dreams come true.
…
We are very greatful [sic] he helped me and [the applicant] to have you!
At 10 weeks’ gestation, the respondent wrote:
I had my first scan last week, both [the applicant] and I saw your little body on the tv screen your little tiny heart was beating! Tears rolled from my eyes as I looked over to [the applicant].
It was a very special moment, it still does even feel real.
…
Anyway you are cooking away [X] and we are both very excited!
A little later – at around 13 weeks gestation - the respondent wrote:
we are so happy that you are growing healthy and happy!
…
It’s all very exciting. [The applicant] and I just booked our baby moon, our last holiday together as two people before you come along to the outside world!
[The applicant] is always talking to you thru my belly ☺ It’s very cute!
You are very loved already [X]!
At 16 weeks gestation, she wrote:
[The applicant] is an amazing [artist]! So you are lucky to have her always by your side. She will teach you so many wonderful things not only about [art] but about life too!
In March 2019 the respondent wrote she heard X’s heartbeat again, and that:
I recorded and sent to [the applicant] straight away!...It’s so exciting! And we can’t wait to meet you!
At 21 weeks gestation, the respondent wrote:
…today [the applicant] felt you kick when she had her head on my belly. Her whole face lit up with joy! It was a beautiful moment for us both. We really can’t believe you will be apart [sic] of our lives in only a matter of months!
There are later references to the applicant speaking and singing to X in utero, that the parties love the baby “so much already”, that X appears to recognise the applicant’s voice and that the parties cannot wait to meet him.
In mid-2019, at 31 weeks gestation, the respondent wrote that the applicant:
…has been the best partner to me ever, she loves me so much and cares for me so well I love her so much too!
I think we are going to have the best fun altogether as a family! I can’t wait!
Post X’s birth, the respondent continued to make entries into the notebook. She refers to the parties, jointly, as “we” saying “we are trying to make you smile [at the moment]”, and “we are blessed to have such a wonderful boy in our lives”. The last entry exhibited to the applicant’s affidavit is dated late 2019, written when X was three months old. It concludes:
You have been born into a unique family so will shine like a glorious individual. We love you [X]
In her oral evidence, the respondent asserted that the sparkle note book did not reflect her commitment to the applicant, or to a shared life together as parents. She said the entries were substantially contrived to appease the applicant who by that time, was becoming more difficult for the respondent to manage emotionally.
The respondent said by the time she was given the sparkle notebook, she had become quite fearful of the applicant, and their relationship had become quite complicated. In her affidavit material, the respondent deposed to the applicant having angry outbursts from time to time, from as early as September 2017, and that such outbursts left her “shaken and on edge” and “created an environment of fear and concern in me”. She said the applicant was her girlfriend during her pregnancy, and a part of her life, and that she hoped the parties would stay together. However, she said she was also fearful of the applicant’s reactions when she was displeased and felt she was “walking on eggshells” around the applicant.
In her oral evidence, the respondent said she was very conscious of using language that included the applicant in the notebook, as the applicant would become quite upset if the respondent used the word “I” and not “we” in her entries. She said she was very conscious that the applicant would read the entries, and that what she wrote was effectively being “monitored” by the applicant. She said she essentially “had” to write that “we” found someone, and that “we” are very grateful, and other entries to please the applicant. She said the reference to “a unique family” in the final entry meant that X’s mother had a girlfriend supporting her as a sole parent. The respondent said she uses the phrase “family” broadly, to refer to people she is not related to, and not in a relationship with. She said her main intention was to not upset the applicant and to make her feel included.
The respondent said if it was a private diary, it would have been worded very differently. She said a lot of what she wrote was not honest, and the words she chose, and the way she wrote was motivated by fear of the applicant’s reactions if she had written honestly.
In her oral evidence, the applicant agreed that the notebook was left on the kitchen bench, and available to her to read from time to time.
On its face, the sparkle note book lends considerable support to the applicant’s assertion that the parties’ were jointly engaged in the endeavour to create a family together. However, having heard the evidence of the respondent and her explanation for the entries in that note book, I accept that the respondent was troubled by behaviours of the applicant that she found unsettling. I also accept that the respondent wanted to keep her home calm and content during her pregnancy. Accordingly, I accept that the sparkle notebook was not a private record of the respondent’s personal thoughts and beliefs, but a document written knowing it would be read by the applicant, and in an effort to placate her.
X’s birth
The applicant was not at the respondent’s home when her waters broke. The respondent called the applicant. The applicant said she arrived within 30 minutes. The respondent said it took the applicant two hours to arrive after her waters had broken.
Although her waters had broken, contractions did not begin until around 9.00 pm that evening. The respondent was advised by the midwife to remain at home until she needed to get to the hospital. The applicant remained with the respondent at the respondent’s home that day and overnight until around 6.00 am the next morning when the respondent said she needed to go to the hospital. The applicant then drove the respondent to the hospital.
The applicant said she and the respondent were both invited to sign the Newborn Declaration Form “as parent of the child”. That form was not produced in court.
The parties went into the birthing suite together, and the applicant remained with the respondent during the labour and when X was born that day. The respondent also had other friends and supports present at the hospital during the labour and birth. There were four other women in addition to the applicant who were present in the birthing suite, including Ms N.
It is common ground that the respondent offered the applicant “skin to skin” contact, which the applicant accepted. The applicant described this as “father’s privilege”. However, I note that the respondent also offered Ms N “skin to skin” contact, which she declined, as she had just come from work and felt it would be unhygienic. That this form of contact was offered to another friend of the respondent’s detracts from the applicant’s assertion that there was a special parental link acknowledged by that contact.
The applicant deposed that she “contributed the child’s middle name”. But she does not depose to when she suggested X’s middle name, or the actual conversations they had around his name.
It is common ground that when X’s birth was registered, both the applicant and respondent were included on his birth certificate as his parents. That was subsequently changed, by the respondent, and an amended certificate was issued in around March 2020, which did not have the applicant as X’s parent. That change was then reversed by the Registry of Births Deaths and Marriages later in 2020.
The respondent deposed that in August she started to complete the Birth Registration forms. She said the applicant saw what she was doing and said “you’re putting in my details aren’t you?” The respondent expressed some reluctance to do so, and she said an argument started. The respondent said she had struggled to get X to sleep that day, and was worried the argument would wake him up. She said she felt pressured, bullied and stressed, so gave in and added in the applicant’s details to the form to calm her down.
I did not exclude the evidence regarding X’s birth and the completion of his birth certificate on the basis that it could be relevant to the question I must decide. However, having heard the evidence, it seems to me that these events do not throw light upon the nature of the relationship at the time of the procedure many months earlier.
The completion of the birth certificate including both parties as X’s parents occurred about 10 months after conception. The parties give competing evidence as to why the applicant was included on the certificate. The applicant says the parties both sought to include her as a parent to reflect their intentions as to his parentage at least when the certificate was signed. The respondent says she felt pressured and bullied into including the applicant’s name on the certificate as that was never the parties’ intentions. In my view, I do not need to determine that factual dispute as it would not assist me to determine the nature of the relationship as at the critical time.
Separation
The applicant said that in August 2019, the respondent asked her to sign documents for Centrelink advising that they separated in October 2019. The applicant said she did as directed, although the parties continued their relationship. She said the respondent advised her that their separation was “just on paper”. It seems this was for Centrelink purposes.
There was some evidence regarding an application made to Child Support, in around October or November 2019. I do not regard the events around that time as of assistance in determining the nature of the parties’ relationship 12 months earlier.
It appears common ground that the relationship ended in December 2019.
Witness descriptions of the parties’ relationship
Ms D
Ms D gave evidence on behalf of the applicant. She said that in September 2017, the applicant:
told me about ‘new beginnings’ with her new partner. From our conversations over the following months, I understood [the parties] to be in a committed romantic relationship.
Ms D does not depose that the applicant told her that the parties intended to get married, or were planning a child together at that time. In her oral evidence, Ms D acknowledged the applicant did not name the respondent when telling her about her new partner. She also acknowledged that the belief she formed about the nature of the parties’ relationship came only from speaking with the applicant. She never spoke with the respondent. Additionally, she acknowledged that she and the applicant did not speak regularly, just “now and then when we happened to bump into each other”.
Moreover, she deposed that her contact with the applicant was limited over 2018. In her oral evidence she agreed she and the applicant fell out of contact from January 2018. Accordingly, the evidence of Ms D does not assist the court as to the nature of the parties’ relationship at the relevant time. It also does not corroborate the applicant’s evidence as to the parties’ early formed intentions to marry and have a family together.
Dr G
Dr G gave evidence on behalf of the applicant. She deposed that in December 2017, the applicant “informed me via email of her romantic relationship” with the respondent. She similarly does not corroborate the applicant’s evidence that the parties at that time were planning to marry and have children together.
Dr G deposed that she attended a ‘Harmonic Bath’ at some time in 2018. She does not provide a date for this event. I am unclear if this is, or is not, the same event that the applicant called the dedication ceremony. Certainly, Dr G does not corroborate the applicant’s description of this event as a dedication ceremony.
Dr G said she was introduced to the respondent at this Harmonic Bath, and that during the conversation, the applicant told her that she and the respondent were trying to conceive a child (emphasis added). Dr G provided no details of what was actually said by either party. Dr G said this was the “first and only time” she met the respondent. Accordingly, her evidence did little to assist me to determine the issue currently before the court.
Mr F
Mr F gave evidence on behalf of the applicant. He said that in 2017 the applicant told him she had “met someone” and felt that relationship “was special”. He deposed that he knew the respondent was going to have a child and the applicant would play “a very important role in that journey”. I do not know how he came to know these things, nor do I know what he meant by a “very important role”. There are, of course, many important roles for adults to play in the lives of children that fall well short of being a parent.
Mr F also said the applicant was:
spending many nights at [the respondent’s] place and had moved some belongings into the house. They went on numerous holidays together and were planning to get married.
That evidence is somewhat vague. What are “many nights”? What are “some belongings”? Mr F did not set out how he came to the knowledge that the applicant had moved belongings into the respondent’s home, or what those belongings might be. Nor did he set out how he came to the view that parties were spending time together and planning to get married. He did not depose to any particular conversations with either party, or when those conversations may have occurred. Nor did he depose to actual observations he made himself.
In his oral evidence he advised it was the applicant who informed him about spending many nights at the respondent’s home. He said that occurred in 2017.
In terms of his assertion the parties went on “numerous holidays” he acknowledged there was the Q Town holiday in 2017 and he thought perhaps two trips to Queensland.

Mr F’s evidence about the first time he met the respondent was similarly vague. He deposed meeting the respondent for the first time when invited to her home for dinner, and that the parties were in the kitchen “discussing plans for a baby”. However, he gave no indication of when that might be, save that it appears to have occurred somewhere between the parties first date in 2017 and late 2018. Nor did he provide any more particulars as to what was actually discussed. In his oral evidence he said he could not recall whether the dinner was in 2017 or 2018.
Mr F said that he next met the parties in late 2018, very shortly prior to X’s conception. This was just the second time he met the respondent. He said shortly after arriving, the respondent told him she had miscarried. He said
…both [parties] were very sad, yet hopeful for another chance to become parents.
Again, Mr F provides scant detail as to the substance of any discussion or conversation. He does depose:
We had also spoken multiple times how the process of trying for a baby being a gay person can get quite awkward with the other party involved, who is not your partner, in the next room.
However, I do not know who the “we” is to whom Mr F refers. Did he mean the applicant? Did he mean the respondent? Did he mean both parties? As I understood his oral evidence, the discussions he had were not with the respondent, but with the applicant.
Moreover, I do not know when these asserted conversations took place.
Given the lack of specificity in Mr F’s evidence, little weight can be attributed to it.
Ms B
Ms B also gave evidence on behalf of the applicant. She said that in July 2017 the applicant told her she was in an intimate relationship with the respondent, and that in August 2017 she was told they would be in Q Town for a holiday together.
In her affidavit, and using very similar language to that employed by the applicant, Ms B deposed that as of late September 2017
…the parties presented as a couple who were in a committed relationship with future plans. I was aware that they carried on a domestic day to day life together, sharing things financially and that their social and family circles were started to expand and intermingle/ overlap.
It is unhelpful to refer to the parties “presenting as a couple who were in a committed relationship with future plans” without deposing to how Ms B formed that opinion. Similarly, it is not helpful for a witness to say the parties “carried on a domestic day to day life together”. It would be far more useful to the court had Ms B deposed to what actual and specific activities she understood were being undertaken to form that view. She said she was “aware” they carried on a life together, without explaining how she was aware of this. What had she observed herself? What discussions did she have and with whom? Much of that paragraph is vague and not persuasive.
Ms B referred to the parties telephoning her around October 2017 to “share the exciting news that they had decided to have a baby together”. In her oral evidence Ms B maintained she had this conversation with both parties together, but she could not be more specific about that asserted conversation. Remarkably, the applicant did not depose to this conversation ever occurring. The respondent denied such a conversation ever took place.
Ms B corroborated that in October 2017 the applicant told her that she and the respondent had exchanged keys to their homes “and spent time at their respective premises”. In her oral evidence, Ms B said by October 2017, the parties’ relationship had become more “cemented”.
Ms B deposed that in October 2017, the parties visited her home. She heard the applicant say to Ms B’s brother that she was going to marry the respondent and they had decided to have a child together. Ms B said that night the respondent told her it was ‘fated’ that she had met the applicant, and that “it was meant to be”. However, Ms B does not depose that the respondent advised her the parties intended to get married or to have a child together that evening. She said she subsequently developed a good friendship with the respondent, and welcomed her into her family as the applicant’s “life partner”.
In November 2017, Ms B deposed the parties rang her to ask about astrological and numerological considerations and the best time for conception. Also in November Ms B was introduced to the respondent’s best friend Mr E (“Mr E”).
Ms B deposed that between November 2017 and April 2018 she was “made aware by both parties that they were meeting with various sperm donor candidates”. Again, there is little specificity in that statement.
Ms B said in December 2017 the applicant told her the parties were discussing getting married in the United States. She said the respondent “confirmed this in another conversation”, without providing any specifics of what was asserted to have been said, or when.
The parties visited Ms B’s home in February or March 2018 for a “full moon fire”.
Ms B also deposed that in April 2018 the applicant told her about Mr S and she said “I remember how excited both of them were.”
Ms B said in May 2018 the respondent sent her a text saying the parties were setting up a studio and exercise room as the respondent’s sub-tenant had moved out. I note that Ms K had moved out seven months before that asserted text message
Ms B also deposed that between June and December 2018 she was present during several conversations between the parties in which they discussed “co-parenting”, and listed “nursery planning, parenting, education, creativity and religion” as being topics discussed. This is another part of Ms B’s affidavit that appears to use very similar language to that of the applicant’s. In her oral evidence, Ms B denied that those words were suggested to her, and insisted that she wrote her own affidavit. It is difficult to accept that the remarkably similar wording between that part of the applicant’s affidavit and that part of Ms B’s affidavit came about other than by deliberate cross referencing. At any rate, Ms B’s evidence, like that of the applicant’s, provides no substance of what was asserted to have been discussed.
Ms B advised she was asked by the parties if she would be a godparent, and the parties were considering a set of godparents on each party’s side. Again, though, there are few specifics of that conversation.
Ms B further deposed that on 23 June 2018, for the first and only time during the parties’ relationship, she visited the respondent’s home. She said – vaguely – she saw “quite a lot of [the applicant’s] artworks, clothes, books and musical instruments throughout the house”. As noted, the respondent acknowledged that the applicant had a couple of paintings in the exercise room, and some equipment in the studio. It was not clear how Ms B would have seen “quite a lot” of the applicant’s clothing. In her oral evidence, Ms B confirmed she saw some artworks of the applicant’s, and some musical instruments. She also confirmed that when the applicant came to visit Ms B she came with more personal items.
Ms B said on 4 June 2018, the respondent sent her a photo of her holding a plate with a cup on it, captioned “sperm anyone? …1^st attempt down or is it up?”. She said that on a number of insemination occasions “from June to Dec [sic] 2018” the applicant called her and her husband, asking for “good vibes”. She said:
On several calls [the respondent] was clearly heard in the background saying things like, “got my legs up in the air [Ms B], fingers crossed!”
Ms B did not depose more specifically as to the point in time those calls were made.
Ms B said that from June to November 2018 – which time includes of course that critical date – she did not spend much time in person with either of the parties.
On the applicant’s birthday in 2018, the parties, Ms B, her husband and other friends of the parties met up to play pool. She deposed that “[b]aby plans were discussed during the games”.
It is unhelpful that there was no particularity as to what was discussed, or what was said by whom.
Ms B deposed the parties attended her home on Christmas Eve, 2018. She said the parties had informed her “that they were pregnant” and they celebrated this together on Christmas Eve. Ms B confirmed that she provided a soft toy for the baby.
I note Ms B’s evidence that the applicant texted her regarding the first ultrasound, and that the parties sent her “weekly ‘Baby Bump’ texts from either or both of the two ladies updating me on the size and development of the foetus”. Given Ms B’s close friendship with the applicant, it is not surprising that the parties kept her informed as the pregnancy progressed. It is also not inconsistent with the respondent’s assertion that the parties were girlfriends, and the applicant was playing a supportive role during the pregnancy.
In relation to the parties’ holiday in June 2019, Ms B said the parties told her this was their “babymoon holiday, the last before their baby was due”.
In her oral evidence, Ms B confirmed much of her understanding of the parties’ relationship came from what she was told by the applicant. She did see the parties together when they visited her home on a few occasions in 2017 and 2018, and she attended at the respondent’s home on one occasion in June 2018 for dinner. An issue with Ms B’s evidence is that at times rather than providing direct evidence of what she herself had witnessed, she voiced conclusions and opinions as to the nature of the parties’ relationship without articulating the basis for the formation of those conclusions and opinions, or rather based on what the applicant had told her.
Mr H
Mr H, a neighbour of the applicant’s deposed that he commenced living next door to the applicant from 10 October 2018. He said the applicant introduced the respondent to him outside their apartments, referring to her as her “partner”. He said over the following months he often saw the parties coming in and out of the applicant’s apartment. He said that occurring at times including late evening, and early morning. The reference to “often” is somewhat vague. At any rate, this is not inconsistent with the evidence of the parties that they did stay at each other’s homes. In his oral evidence Mr H said he met the respondent on several occasions, but he could not recall whether that was in 2018 or 2019.
Ms K
Ms K, who gave evidence on behalf of the respondent, lived at the respondent’s home from April 2015 until October 2017. She said that the respondent told her she was seeing the applicant in July 2017. She said that until she moved out, Ms K saw the applicant at the home just “a handful of times” and on an irregular basis. She said she did not see any furniture or effects or other belongings of the applicant’s in the home. She said that she and the respondent continued to equally share the outgoings on the house, which she would not have done had she felt the applicant was staying there to such an extent that she ought to contribute.
Ms K said the respondent referred to the applicant as her “girlfriend” towards the end of her tenancy. She did not depose to hearing the parties talking about marriage, or having a baby together. She said she was well aware the respondent wanted to have a baby, and that on the few occasions she heard the respondent talking about that in the presence of the applicant, the applicant did not show any positive interest in the topic.
In her oral evidence Ms K confirmed she only kept in touch with the respondent “from time to time” after she moved out and did not return to the house for a dinner after leaving. Accordingly, her evidence does not assist me to determine the nature of the parties’ relationship some 15 months after she moved out. However, it does support the respondent’s version of the parties’ relationship as at October 2017 being more casual than asserted by the applicant.
Ms K impressed as giving her evidence in an honest and straightforward manner, and I accept her evidence. Whilst her evidence covers a period many months before the relevant date, it contradicts the evidence of the applicant regarding the nature of the parties’ relationship as at October 2017. As indicated, Ms K’s impressed as a reliable and reasonably specific witness. Her evidence was of assistance in terms of assessing the applicant’s credibility regarding assertions the applicant made about the nature of the parties’ relationship as at the time Ms K was the respondent’s housemate.
Mr L
Mr L lived at the respondent’s home from 1 July 2018 until 12 August 2018.
Mr L gave his evidence in a clear and straightforward manner. He said during the time he lived there, the applicant stayed over about two or three nights each week. He said on those occasions, she sometimes ate dinner with him and the respondent, but not always. He deposed that he did not see the applicant cook, or wash up or undertake any household chores. He described that “she behaved much like a guest”.
Mr L said he did not see the applicant in the home in the mornings when he got up, as the applicant had already left. He said he did not hear the parties discussing plans for their future relationship. He does not depose to having heard the parties planning for a baby together.
In terms of finances, Mr L said he and respondent split all household bills between them, and there was no suggestion the applicant would contribute, or that there would be any adjustment to reduce what he had to pay as a result of the applicant spending time in the respondent’s home.
In his oral evidence Mr L said that he moved out in August 2018 as he had contract work for a project in Sydney. He was in the pre-planning stage during the time he lived with the respondent. He said he sometimes worked evenings, until about 11.00 pm and generally returned straight home afterwards. During this period, however, he said he generally worked 10.00 am to 6.00 pm, so he was able to confirm that the applicant was only present in the home two or three nights each week.
Mr L said he did not meet the applicant until around about the time he moved in. He said he spoke regularly to the respondent prior to moving in, generally catching up with her every couple of weeks. He said the respondent did not speak much about the applicant, other than to say she was “having an affair with a woman”. He knew the respondent was trying for a baby, and that in April 2018 she had found a sperm donor. He said he knew the applicant assisted the respondent with inseminations and said the respondent told him that the applicant was there “to support” her.
Mr L said further that one night he had a conversation with the applicant, in which the applicant stated she was “trying to get my head around [the respondent’s] chosen path” and that she was finding it difficult to come to terms with the fact that the respondent would be getting pregnant, and how that might affect their relationship. He said “I remember getting the strong impression that her priority was [her career] and that having a child was not something she wanted”. The applicant denied having made the statement attributed to her but did not otherwise deny the conversation.
Additionally, Mr L said that he did not observe that the applicant had moved in many belongings. He said he was very familiar with the respondent’s home, having known her for years, and that when he moved in in July 2018, the furniture, and other items remained as they had always been.
Mr L’s evidence substantially corroborates the respondent’s version of the parties’ relationship in the months shortly before X’s conception.
Mr M
Mr M lived at the respondent’s home from 6 May 2019 until a few weeks after X was born. He was, therefore, not in the home at the time of the conception process, and his evidence does not directly assist me in determining the nature of the parties’ relationship at the relevant time. He said during the time he lived in the respondent’s home, the applicant visited the home two to three times each week, and would arrive around dinner time and would generally leave to go home to sleep. He said on occasion she stayed overnight. He said he did not hear them discussing parenting or pregnancy related matters.
Mr M was not in the respondent’s home around the relevant time. However, his evidence was of assistance in terms of assessing the applicant’s credibility in relation to statements she made and behaviours she engaged in when he was in the home.
It was Mr M’s recollection that the applicant was not engaged in the pregnancy, and he never heard her expressing a desire to co-parent with the respondent. He confirmed she was there only two to three times each week prior to X’s birth. He presented as a reliable and honest witness. To the extent this is inconsistent with the evidence given by the applicant, I prefer the evidence of Mr M. Again, this raises some concern regarding the veracity of the applicant’s evidence.
Ms N
Ms N gave evidence on behalf of the respondent, which supported the respondent’s evidence as to the nature of the parties’ relationship.
Ms N said in 2017 when discussing the respondent’s new relationship with the applicant, the respondent told Ms N it was “not serious”.
Ms N visited the respondent’s home many times as her work was close by. Those visits were mostly during the day. She said she continued to visit the respondent’s home on a frequent basis throughout the duration of the relationship, and pregnancy. She said she did not see the applicant at the respondent’s home during the day if she popped in. Nor did she see any of the applicant’s belongings at that house at any time.
Ms N was not introduced to the applicant until August 2018 when the respondent hosted a dinner party at her home.
Ms N said the respondent had frequently discussed with her since 2016 that she wanted a baby. Ms N said during her relationship with the applicant, the respondent’s language around wanting a baby did not change, and she never suggested that she and the applicant would be having the baby together. She said the respondent never told her she and the applicant discussed marriage. The respondent never shared with Ms N any intention to live with the applicant, or share her life with her. In her oral evidence Ms N said she understood from the respondent’s conversations about the applicant that it was a “fun and casual relationship”, that the respondent found the applicant “intriguing”, but she never got the impression that this was a serious relationship.
In her oral evidence Ms N confirmed the applicant had spoken about wanting a baby from 2016, that she became obsessed about finding a donor, and that she wanted to have a baby as a single parent. Ms N maintained the respondent never talked about having a baby with the applicant. Ms N said she spoke with the applicant a lot about how Ms N could assist the respondent and support her as a single mother when she had a baby.
In her oral evidence Ms N said she was aware that the applicant had been present during the insemination process, although she was not aware that had occurred on 19 separate occasions. She said she was very supportive of the applicant being present, as Ms N was not comfortable about the respondent “going through that by herself”. Ms N further said that when the respondent told her she was pregnant, she said “I’m pregnant” and there was never any reference to it being “we” are pregnant or a suggestion that the applicant and respondent were having the baby together.
Moreover, Ms N said that on the occasions she did see the applicant, the applicant’s conversations were about her work, and she did not discuss wanting to have a baby, or sharing in the respondent’s dream of having a baby.
The impression Ms N formed was that the parties “both lead quite separate lives and had different aspirations”. Ms N was an impressive witness, and her evidence substantially corroborated that of the respondent.
Discussion
Whether the parties were in a de facto relationship at the relevant time will depend upon an assessment of the circumstances in play at that point in time, with each fact or circumstance to be given such weight as I consider appropriate. There are of course many differently expressed relationships that can appropriately attract the legal definition of de facto. Just because a relationship, or the personalities involved in the relationship are unusual, does not mean it cannot be a de facto relationship.

This was observed by the Full Court in Sinclair and Whittaker [2013] FamCAFC 129 (“Sinclair”), where their Honours said at [51] to [55] that when considering whether a couple are in a de facto relationship:
…the court is to have regard to all of the circumstances of their relationship. Those circumstances may include those specified in ss 4AA(2).
Sub-section 4AA(3) highlights that no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the subject persons have a de facto relationship.
Sub-section 4AA(4) provides:
A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
Thus, whether or not a de facto relationship, as defined, exists will depend upon an assessment of all of the circumstances of the relationship, each to be given the weight the court thinks appropriate.
In Lynam v Director-General of Social Security (1983) 52 ALR 128 (“Lynam”) at 131 the Federal Court said:
Each element of a relationship draws its colour and its significance from the other elements, some of which may point at one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons … meets the statutory test.
That is, I must look at the composite picture – all the elements of the relationship – to come to my determination as to whether in November 2018, the parties had a relationship as a couple living together on a genuine domestic basis.
There is no real dispute that the parties were in a romantic relationship from July 2017 until December 2019. The applicant says the parties’ moved quickly into a committed relationship which met the definition of a de facto relationship. The respondent says the relationship never progressed beyond a relatively casual, sexual relationship.
On either case, the parties had been together, in some form, in an exclusive, sexual and romantic relationship for about 16 months prior to X’s conception.
It is common ground that they did not live together in one property. As set out, the parties each maintained their own rental homes throughout the relationship. The applicant said that is explained by the business activities each of the parties operated from their homes which had spaces set up for their respective endeavours. The respondent’s premises comprises of four rooms at the front of the house, with a lounge and kitchen at the rear and a studio beyond that. The applicant has a large amount of work equipment in her apartment.
There is scant evidence to suggest the parties intended to set up a joint residence to live in together. They did not look for houses to share with each other. The respondent deposed to having had conversations with the applicant about moving into other premises but that the parties never contemplated moving in together. Instead the respondent introduced the applicant to friends and acquaintances of hers from time to time who could be potential housemates for the applicant.
The respondent also deposed that at some undisclosed point in time, that when the respondent suggested the applicant could live with her friend Mr E, the applicant said she did not like living with anyone and she would never live with a “lover” ever again. The applicant deposed that this conversation did not take place. However, she conceded she had looked for a bigger place, and had discussed the possibility of living with other people, including the respondent’s friend Mr E and with a client, Ms Z.
In relation to future living arrangements, respondent said:
It was well known between us that we were never going to live together, we discussed it a few times over the 28 months of dating. Apart from being much older than me and on very different path, [Sofia] made it clear she didn’t want to live with me and said things like, “I need my own space to sit and stare out the window and have no disturbances”.
In her oral evidence the applicant said that the parties did discuss moving in together, but the respondent was worried about losing clients if she moved to another location. The applicant conceded that she had not included that evidence in her affidavit material. It seems unlikely that the applicant would have omitted those discussions from her affidavit material if they occurred. This appeared to be another example of the applicant exaggerating the extent of the parties’ relationship.
It is, of course, not a prerequisite to establishing a de facto relationship that parties live together in the same premises. Parties may live in separate residences, but still be in a de facto relationship. Recently, in the case of Fairbairn v Radecki [2022] HCA 18 the High Court said at [33]:
Living together for the purposes of s 4AA(1) will often, perhaps usually, mean cohabitation of some residence by a couple for some period of time. But cohabitation of a residence or residences is not a necessary feature of "living together". That phrase must be construed to take account of the many various ways in which two people may share their lives together in the modern world. Two people, for any number of reasons, may not reside in the same residence, but nonetheless be in a de facto relationship in the sense required by s 4AA.
(Footnote omitted)
At [39] the High Court stated that living together should be construed as meaning sharing life as a couple:
The language of s 4AA of the Act and its reference to “living together” requires no different approach to determining whether a relationship exists of the kind defined. “Living together”, consistently with authority, should be construed as meaning sharing life as a couple. Section 4AA does not prescribe any way by which a couple may share life together. Its language is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist. That conclusion is supported by the varied factors listed in s 4AA(2). In a given case, some of the factors listed in s 4AA(2) may be relevant and some may be irrelevant; inevitably some may have greater prominence than others. A conclusion that a de facto relationship has ended may also arise because of factors not listed in s 4AA(2). Such a conclusion is mandated by s 4AA(3) and (4). In particular, s 4AA(4) is a statutory recognition that what may constitute a genuine de facto relationship is not be determined in the same way in every case by reference to rigid criteria that must always be satisfied. In that respect, the language of s 4AA(2)(b) does not assume that every de facto relationship must have a “common residence” to some “extent” and of some “nature”. Such a construction is entirely denied by s 4AA(3).
(Footnote omitted)
In relation to those observations by the High Court, the Full Court in Shelby & Rylan [2022] FedCFamC1A 143 said at [19]:
The High Court has arguably clarified that parties do not need to live together in order to be in a de facto relationship if they are sharing life as a couple. This however does not mean that every couple sharing life is necessarily living in a de facto relationship. The Court must have regard to all of the evidence, including to the matters referred to in s 4AA(2) of the Act. On one view, the phrase “sharing life” is simply a general summary of the s 4AA(2) circumstances.
I note further the observations made by Cronin J in Taisha & Peng and Anor (2012] FamCA 385 at [19]. His Honour referred to Murphy J’s definition in Jonah and White (2012) FLC 93-522 of a de facto relationship reflecting parties that have so merged their lives that for all practical purposes they are living together as a couple. Cronin J continued at [20]:
But there must still be evidence of a domestic relationship. Mushin J in Moby and Shulter…at para 167 said it was not a term of art but had to be given its ordinary meaning. I respectfully also adopt that because, having regard to s 4AA(4), the Court can take a wide discretionary view of the way in which the parties themselves conducted their relationship. Even having said that however, a domestic relationship must be one in which there are activities of running a household or shared households. That is, something must be seen to be related to domesticity which refers to home conditions and arrangements. For example, it could be indicated by people coming and going as if entitled to use and share the home’s facilities which is quite distinct from a boarding house or backpacking hostel where individuality reigns.
I have already outlined the imprecision of the applicant’s material regarding the frequency with which the parties stayed with each other, and the lack of detailed evidence she provided about keeping belongings at the respondent’s home. Whilst the applicant had some equipment in the studio, some artwork in the exercise room, and kept a toothbrush and underwear at the respondent’s home, there is little evidence that there were other belongings or furniture or personal effects belonging to the applicant in the respondent’s home. Neither Mr L nor Ms N saw any significant changes in the contents of the respondent’s home during the course of the parties’ relationship that would support the applicant’s contention that she moved a considerable amount of personal items and effects into the home. There is no evidence that the respondent kept belongings at the applicant’s premises, save for a toothbrush and some underwear.
In terms of the amount of time the parties were living together and sharing their lives, Mr H said he saw the parties at the applicant’s place “often”. Ms B confirmed she saw some of the applicant’s belongings in the respondent’s home shortly before conception, but she was otherwise was not at the home. Ms K and Mr L – who actually lived with the respondent – corroborate the respondent’s evidence.
The most specific evidence I have regarding the frequency that the parties spent time together close to the relevant date, is that the applicant was at the respondent’s home two or three times each week during the time Mr L lived there. The applicant was not there during the day and was often gone by the morning.
Whilst the applicant said from around October 2017 the respondent encouraged her to treat the respondent’s home as her own, made space for the applicant’s things, that they ran errands and chores and cooked for each other; these assertions were made with no particularity. Similarly, the applicant and Ms B asserted that by late 2017, the parties “carried on a domestic day to day life”. I have already noted the difficulties with making bald, unparticularised assertions such as these. I note Mr L’s evidence was that when he was living in the home he did not see the applicant undertaking any household or domestic chores. There appeared to be little persuasive evidence that the parties shared the running of their households, or that their relationship had sense of a domestic nature.
I note both the applicant and Ms B talked about the parties sharing finances. It did not appear that Ms B had any direct knowledge of that herself. Whilst the applicant deposed that by November 2017 the parties were “sharing finances”, she also deposed that:
The Respondent and I maintained our own finances, sharing expenses, gifts and loans etc. and paying for domestic, day to day things as life required and as finances permitted. We shared expenses like many couples do.
The applicant does not say what expenses they shared. No particulars of alleged shared expenses were provided to the court at all. What shared loans is she referring to? This evidence is vague and confusing.
Moreover, a closer examination of the parties’ financial matters does not support an assertion that the parties shared finances. That is, there was no evidence to suggest the parties intermingled their finances in any significant way. Rather, they remained financially independent from one another.
I note in the Full Court decision of Delamarre & Asprey [2014] FamCAFC 218 (“Delamarre”), their Honour’s found no error in the trial Judge according little weight to the parties’ maintaining separate finances in her assessment as to whether they were in a de facto relationship. The Full Court accepted the trial Judge’s observation, that “financial independence is not uncommon in modern relationships”, being an observation their Honours said was “undoubtedly true”. However, that the applicant deposed to the parties’ sharing finances, when there is little evidence to support that assertion, again suggests a cautious approach is to be applied to the applicant’s evidence where that is not otherwise corroborated.
Additionally, in the present matter, the parties did not just keep their finances substantially separate, maintaining separate accounts, and having no joint account – neither contributed to what might be regarded as shared expenses. As already set out, they maintained separate homes. The applicant paid for the rent and utilities for her premises, without contribution by the respondent, and vice versa. They did not account to one another for funds spent, or discuss financial matters with each other. Neither had any knowledge of the other’s financial circumstances in any detail.
The respondent also met almost exclusively the costs of the pregnancy, and birth of X. At its highest, the applicant may have paid for some syringes and purchased one baby carrier. Otherwise all medical and allied health professional costs, all costs associated with the donor insemination process, the pregnancy tests and all midwife costs were met by the respondent. There was no financial support offered by the applicant towards the conception of X or towards the medical and other costs incurred during the respondent’s pregnancy.
The respondent deposed that she was aware the applicant’s income was somewhat limited, and accordingly, she reimbursed the applicant for petrol if she drove her somewhere. Whilst the respondent provided the applicant with a supplementary card to her American Express credit card, which the applicant used on occasion, it is common ground that the applicant reimbursed the respondent for almost all funds used for her own benefit. The applicant was unable to adduce any evidence that she used the card to purchase items for herself and that she then did not repay the respondent. I note also that the respondent had provided the use of her American Express credit card to other friends on previous occasions, “as a loan so I can get the points”. She was not challenged in relation to that evidence.
Additionally, the respondent’s evidence was that when she applied for the card in January 2018 she ticked the box “other”, as the categories of “family”, “partner” or “friend” did not encapsulate the nature of the parties’ relationship.
The applicant purchased a second hand motor vehicle in January 2018. She deposed she did this at the respondent’s request, “in order to install a baby seat”. That is denied by the respondent, who said the applicant needed a new car as her old car had developed significant mechanical problems. I note that this is asserted to have occurred about 11 months before X was even conceived.
In her oral evidence, the applicant maintained she had disposed of her old car and purchased another one at the request of the respondent to get a bigger, family car. She was reluctant to agree that there were mechanical issues with her old car and insisted that her old car was “still fine”. However, she did ultimately concede that her old car did not have a roadworthy certificate and she had to give it away, having been unable to sell it. That suggested the applicant needed a newer, more reliable vehicle, irrespective of any decision to have a baby. The applicant’s reluctance to admit that there were issues with her old vehicle was difficult to understand.
The applicant borrowed $4,000 from her parents and another $2,700 from the respondent to complete the purchase of her new car. It is common ground that the applicant paid the respondent back the entirety of those funds between January and October 2018.
It is notable that in the email that the applicant sent to her parents on 27 September 2017, she wrote:-
My own rehab is going well, though I am still a bit hampered, mainly because of having a manual car. I'm looking to buy an auto as soon as possible, because changing gears in that low car is not helping my recovery at all and I am about to do a lot of driving.
I note this does not sit comfortably with her evidence that she purchased the car in January 2018 at the request of the respondent. The applicant had not referred to having any health issues in her affidavit, and she was somewhat reluctant to concede that in cross examination.
It seemed the applicant’s evidence about the car was framed to give the impression that the applicant’s motivation in obtaining another vehicle was at the request of the respondent for a family car, and did not stem from issues with the old vehicle or from any health issues the applicant was experiencing. Again, this appeared to be a reframing of events and motivations to shore up the applicant’s case.
The parties did travel to Q Town together in September 2017, to Queensland together in July 2018 to visit the respondent’s parents, and again in June 2019 to Y Town. The respondent paid for the accommodation in Q Town. The parties shared the expenses for the Y Town trip, with the respondent paying for the tickets and the applicant meeting the other costs. It is not clear who paid for the tickets to travel to Queensland in June 2018. These interstate trips appear to be the only time the parties’ shared expenses.
The parties owned no property together. They did not acquire any joint property. There is no suggestion that they looked for properties they could rent or purchase together.
In terms of the use of the other party’s property, the applicant said in October 2017, the parties exchanged keys to their respective residences. However, beyond saying the parties each had keys to the other person’s premises, she did not say how those keys – and homes – were used. It does not appear from the evidence before me that the parties attended at the home of the other, uninvited, or without the knowledge of the other party, or even in the absence of the other party (save for when the applicant watered the garden at the respondent’s home when she was away on a holiday). Rather, if the applicant attended at the respondent’s home, that appeared to generally be when the respondent was at home.
Notably, it is common ground that for most of the parties’ relationship prior to X’s conception, the respondent sublet a room in her home to third parties. In the evidence before me, the tenants included the following:
(a)from 23 April 2015 to 23 October 2017 Ms K sublet the second bedroom and other spare rooms in the respondent’s home. The applicant does not appear to have been involved at all in the discussions or decisions regarding Ms K moving out of the home. That was a decision made entirely by the respondent;
(b)from December 2017 to 30 June 2018 Ms J (“Ms J”) was a tenant in the home. She is not on affidavit. However, there is no suggestion that the respondent consulted with the applicant before she agreed to Ms J moving in as a tenant. That was a decision made by the respondent alone;
(c)from 1 July 2018 to 12 August 2018 Mr L stayed at the home. There is no suggestion that the respondent consulted with the applicant before offering her home to him. That was a decision made entirely by the respondent, without reference at all to the applicant. The respondent alone negotiated with Mr L, to the exclusion of the applicant; and
(d)from May 2019 until shortly after X was born, Mr M stayed at the home. Again there is no suggestion that the applicant was consulted about this subtenant.

All household decisions were made by each of the parties regarding their own home and the use of their own homes entirely independently.
There were no children of the relationship at the relevant time. Accordingly, the consideration of the care and support of children has no application in determining the nature of the parties’ relationship.
However, I note Gill J’s observation in Gustz& Denniston [2019] FamCA 16 at [49] that the respondent’s view as to whether the applicant would become a parent may:
throw light onto the nature of the relationship between the parties, for example whether it was a relationship of a mutual commitment to a shared life between the parties.
In that case, like the present case, the respondent asserted the applicant supported her desire to become a parent, but it was always clear that only the respondent would be a parent, and the applicant would not be a parent. His Honour did not accept the respondent’s case. He said at [141]:
The decision to have a child together is a strong indicator of a mutual commitment to a shared life. In many ways it is difficult to conceive of a stronger indicator. Unlike a house a child cannot be sold and the proceeds divided. A child is a step that irrevocably binds people together, in a manner that does not end on the cessation of relationship. An intended child speaks to the nature of the relationship in which the decision to have a child is taken.
In that matter, he said the parties made the decision to conceive a child:
in the context of an exclusive, romantic and sexual relationship in which the parties both loved each other and had told each other that fact.
His Honour concluded at [143]:
It is this combination of matters that leads to the conclusion that notwithstanding the limited manner of their co-residence, a lack of financial cooperation, and a relatively short relationship, by the time of the procedure the relationship was one of love, sexual intimacy and a joint play to have a baby such that it may be described as a couple living together on a genuine domestic basis.
I accept that the applicant’s involvement in the actual act of insemination – together with the entries made by the respondent in the sparkle notebook – appears to point to a mutual commitment to conceive a baby and a shared life that would follow from that. It does seem unusual that someone in the applicant’s position would participate in the insemination process in the manner the parties agree she did, unless it was to play a significant role in the baby’s life. It also seems at first blush that the sparkle notebook is confirmation of the parties’ mutual commitment to the baby and a shared life as parents. However, after carefully considering all the evidence, I am not so satisfied. I have already dealt with the parties’ competing contentions regarding the creation of the sparkle notebook.
In relation to X’s conception, I accept that the respondent had been seeking to fall pregnant via a sperm donor well before the parties commenced their relationship. I also accept that the respondent located Mr S. The respondent had previously obtained legal advice and had a Sperm Donor Agreement drawn up.
I also accept the respondent’s evidence that the applicant attended the meetings with Mr S at the request of the applicant. In the applicant’s presence, the respondent told Mr S that the parties were girlfriends, that the applicant was present as her support, and the respondent only wanted to have the baby. Additionally, I accept the respondent’s evidence that the applicant wanted to be present at all sperm handovers and do the insemination for the applicant. The applicant’s presence provided a deterrent in the event the donor wanted to have sexual intercourse with the respondent, which had been a method previously used by the respondent in an attempt to fall pregnant via donor sperm. I note that the applicant deposed that Mr S sought to engage in intercourse with the respondent on one of the earlier insemination attempts, which the applicant said she found “indecent and humiliating”.
Whilst it may be somewhat unusual, I accept the respondent’s evidence, that the applicant was providing practical assistance to the respondent when she undertook the task of insemination. That the respondent was brought to climax by the applicant reflected the respondent’s belief that this would increase the chances of conception. I note the applicant agreed in her oral evidence that the respondent did believe she was more likely to fall pregnant if she orgasmed during insemination.
As observed, the applicant did not contribute financially to the costs of the hotel rooms when the first attempts at insemination were made. She did not contribute to the other costs of the attempted inseminations, save, potentially to purchase some syringes.
Conclusion
The notebook and the applicant’s involvement in the mechanics of the insemination process is just a part of the evidence before me. I bear in mind what the Full Court said in Sinclair when they adopted the observations of Fitzgerald J in Lynam – namely that there is an endless scope for differences in human attitudes and activities – and accordingly an almost infinite variety of circumstances that the court may have to consider. What might be “normal” and what might be “unusual” will not assist me in determining whether the parties were in a de facto relationship within the meaning of s 4AA of the Act.
The respondent had been engaged in a long term plan to have a baby, and parent as a single mother, well before she met the applicant. She had sought to protect her role as a single parent by having a Sperm Donor Agreement drafted and signed by the donor she used. Beyond the applicant assisting with the actual insemination, and the sparkle notebook entries, there is, in my view, limited evidence that there was a mutual intention to create and parent a baby together, or that they had a mutual commitment to a shared life. Certainly, the applicant played a very supportive and active role in the insemination process, but there are other factors in the matter that lead away from the conclusion that the parties were in a de facto relationship at the relevant time.
In particular, the relationship was relatively new at the time of conception – around 16 months’ duration. It is accepted that the parties spent a lot of time together. But there was no persuasive evidence that they were operating as a couple sharing their lives. They did not appear to have a shared home life. Nor did it appear to me that they shared domestic activities, or the running of their households together. There was no persuasive evidence that the parties engaged in actually sharing domestic tasks or undertaking errands for the other.
There was no financial interdependence. There was no financial support provided to the other party’s home expenses. There was no consultation with the other about tenants, or use of the properties. There is evidence that the applicant had a few possessions in the respondent’s home, but nothing substantial.
Moreover, I accept the evidence of the respondent and her witnesses that the parties did not engage in discussions regarding co-parenting, having a child together, or getting married in 2017 or subsequently. I accept the respondent’s evidence that the concept of the parties jointly having and raising a child was not discussed. The credibility of the assertions made by the applicant and some of her witnesses regarding discussions that the parties had about marriage and baby plans is substantially undermined by a lack of detailed or specific evidence of any such alleged conversations. Only Ms B said the applicant told her she and the respondent were discussing getting married in the United States. The applicant herself does not specifically depose to telling that to Ms B. Mr F refers vaguely to the parties “planning to get married” and “discussing plans for a baby”. Additionally, much of the evidence of the applicant’s supporting witnesses is based on what they were told by the applicant herself.
Conversely, Mr L who lived at the respondent’s home until a few months before the insemination date and Ms N who was a close friend of the respondent’s and frequent attendee at her home in the months before and after insemination, both support the respondent’s contention that the parties’ relationship was more casual. Neither Mr L nor Ms N corroborated the applicant’s assertions that the parties discussed marriage, co-parenting or that they were having a baby together. Neither witness corroborated the assertion that the parties were undertaking household tasks for each other. Mr L said when the applicant attended the home, she “behaved much like a guest” and did not wash up or do other domestic chores. Neither Mr L nor Ms N heard the applicant saying she wanted a baby. Neither corroborated that the parties voiced any intention to commit to a shared life. Ms N said the respondent never said to her that the parties’ relationship was serious, and never said she was having a baby with the applicant.
There were no corroborative documents adduced by the applicant from the medical health providers upon whom the respondent attended during the pregnancy. I do not know, for instance, what was reported to the respondent’s general practitioner, or to any other provider as to the parties’ relationship status shortly after conception, or indeed prior to conception. I also have no antenatal documents from the midwife or the hospital confirming what the parties advised as to their relationship. Presumably, these documents could have been subpoenaed, but they have not been.
There were few text messages or other communications between the parties that were in evidence before me. There were similarly few photographs of the parties together tendered in evidence before me, and no evidence before me from social media which would point to a sharing of lives, or a living together on a genuine domestic basis. Given the ubiquity of the smart phone in our daily lives, the limited communication between the parties was curious.
The applicant deposed that:
I have consistently identified publicly and privately, pre and post birth with friends, relatives, health professionals, clients, colleagues and public and private agencies and with all others as both ‘Daddy’ or as a ‘She-Father’ (and also […] ‘Co-mother’) of [X].
The applicant does not depose to the dates of these public and private identifications.
It may well be that the applicant has held herself out as X’s other parent including pre-birth. It may also be that the applicant formed a view that the parties were in a committed de facto relationship at the relevant time. However, as observed by the Full court in Delamarre:
In Sinclair & Whittaker the Full Court has warned (at [65]) that because the ultimate decision as to whether there is a de facto relationship at any given time is a decision for the court and not for the parties, the perception of the parties as to the nature of the relationship, while a relevant matter, cannot be determinative.
It is regrettable that much of the applicant’s material and that of her witnesses contains bald assertions and conclusions, without the actual evidence upon which it is asserted those conclusions were drawn. Their affidavits made assertions without providing the evidentiary basis for those assertions, or advised they were aware of aspects of the parties’ relationship without explaining how they had come by that knowledge. This lack of particularity is a real issue for the applicant’s case. Vague and unparticularised statements make it difficult to discern what actually occurred or when the relationship ‘crossed the line’ to being a de facto relationship, if it did in fact do so.
This troubling lack of particularity may have been the result of poor drafting. Or it may reflect the respondent’s assertions, that there is no real substance to the assertion that the parties were engaged in a de facto relationship.
Similarly, much of the evidence adduced by the applicant’s witnesses was of limited use in determining the issue to hand. Their affidavits contained irrelevant commentary on the applicant’s personality, and complaints about unfair treatment of the applicant by the legal system. Some of the witnesses were not significantly involved with the parties at the relevant time.
Additionally, as already set out, I have reservations regarding the reliability of the applicant as a witness.
As noted, the applicant bears the burden of satisfying the court that the parties’ relationship as at X’s conception meets the definition of a de facto relationship. In order for me to conclude the parties were, at the relevant time, in a de facto relationship I must feel actually persuaded of that fact. I cannot guess. That is, the applicant must make out the existence of a de facto relationship to the reasonable satisfaction of the court. In my view, she has not done so. Certainly some parts of the evidence point at one direction, and some in the other. But I am required to consider the composite picture, and in my view, the evidence taken as a whole does not establish to the requisite degree that at the relevant time the parties were living together in a de facto relationship.
the submissions as to consenT
If the court had found that the parties were in a de facto relationship at the relevant time, the respondent asserted that her consent to the carrying out of the artificial conception procedure was conditional on the respondent being the sole parent for any child conceived. She said that would mean the requirement of consent in s 60H(1)(b)(i) was not met, and accordingly, the applicant was not a parent of X.
I have some reservations about that argument. However, given the findings I have made, I do not have to consider this argument further.
Orders to be made
For all of the foregoing reasons, I make the orders as are set out.

I certify that the preceding two hundred and fifty-seven (257) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter.
Associate:
Dated: 14 October 2022

File number:	MLC 13024 of 2020
Judgment of:	CARTER J
Date of judgment:	14 October 2022
Catchwords:	FAMILY LAW- CHILDREN – Parentage – artificial conception – same-sex relationship – where the respondent is the child’s biological mother – whether the applicant is the other intended parent – whether the parties were in a de facto relationship at the time of the artificial conception procedure – declaration of parentage is not permitted to be made – witness credibility.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4AA, 60H
Cases cited:	Bernieres & Anor v Dhopal & Anor (2017) 57 Fam LR 149 Briginshaw v Briginshaw (1938) 60 CLR 336 Carlson & Fluvium[2012] FamCA 32 Delamarre & Asprey [2014] FamCAFC 218 Fairbairn v Radecki [2022] HCA 18 Gustz& Denniston [2019] FamCA 16 Jonah and White (2012) FLC 93-522 Lynam v Director-General of Social Security (1983) 52 ALR 128 Moby and Shulter (2010) FLC 93-447 Shelby & Rylan [2022] FedCFamC1A 143 Sinclair and Whittaker [2013] FamCAFC 129 Taisha & Peng and Anor [2012] FamCA 385
Division:	Division 1 First Instance
Number of paragraphs:	257
Date of last submissions:	25 August 2022
Date of hearing:	22 – 25 August 2022
Place:	Melbourne
Counsel for the Applicant:	Ms Glenys Jardine
Solicitor for the Applicant:	Pentana Stanton
Counsel for the Respondent:	Ms Therese Borger
Counsel for the Respondent:	Ms Vanessa Bacchetti
Solicitor for the Respondent:	Russell Kennedy Lawyers

MLC 13024 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	SOFIA Applicant
AND:	MS TREACY Respondent

order made by:	CARTER J
DATE OF ORDER:	14 october 2022