Sofia & Treacy (No 2)
[2024] FedCFamC1F 147
•25 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sofia & Treacy (No 2) [2024] FedCFamC1F 147
File number: MLC 13024 of 2020 Judgment of: MCGUIRE J Date of judgment: 25 June 2024 Catchwords: FAMILY LAW – PARENTING – where child is now four years of age – conception by a sperm donor – same sex relationship – where respondent is the child’s biological mother – where applicant seeks a declaration of parentage and pursues time with the child despite an order being made in 2022 that the parties were not in a de facto relationship as at October/November 2018 and that the applicant is not a parent of the child – application dismissed – declaration of parentage not permitted – where no relationship between the child and the applicant since child was very young – where there is a highly conflicted and distrustful relationship between applicant and respondent - orders that child live with respondent – that respondent have sole parental responsibility for the child – that there be no orders for time with or communication with the applicant Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC(2) and (3), 65C, 69VA, 102Q, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Rule 10.12
Cases cited: Burton & Churchin and Anor (2013) FLC 93-56; [2013] FamCAFC 180
Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96
Malcolm & Monroe and Anor (2011) FLC 93-460; [2011] FamCAFC 16
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Re: F Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348
Valentine & Lacerra and Anor (2013) FLC 93-539; [2013] FamCAFC 53
Division: Division 1 First Instance Number of paragraphs: 167 Date of hearing: 18, 19 and 20 December 2023, 5, 6, 22 and 23 February 2024 and 24 April 2024 Place: Melbourne Solicitor for the Applicant: Litigant in Person Solicitor for the Respondent: Litigant in Person Counsel for the Independent Children’s Lawyer: Ms Colla Solicitor for the Independent Children’s Lawyer: CMB Legal
Table of Corrections 3 July 2024 In paragraph 1 the word “X” has been replaced with the word “AA”. ORDERS
MLC 13024 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: SOFIA
Applicant
AND: MS TREACY
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
25 JUNE 2024
THE COURT ORDERS THAT:
1.The child X (“X”) born 2019 live with his mother Ms Treacy.
2.Ms Treacy have sole parental responsibility for X.
3.The applicant, Sofia, spend no time with X.
4.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
5.The Amended Initiating Application filed by Sofia on 18 July 2022 be dismissed.
6.All extant applications, other than costs, otherwise be dismissed.
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).
Part XIVB 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 of Sofia & Treacy (No 2) has been approved pursuant to subsection 114(Q)(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 3 July 2024MCGUIRE J
APPLICATIONS
These are parenting proceedings in respect of one child X born 2019 (aged 4 years).
The applicant is Sofia who identifies by one only given name and preferred pronouns but where we agreed early in the proceedings to be referenced by me as “Sofia” at all times. Sofia prefers not to disclose her Christian and surname given at birth. The Court respects Sofia’s wishes in this regard.
Between July 2017 and December 2019 Sofia was in a same-sex relationship with the respondent, Ms Treacy.
The child X was born to Ms Treacy by way of sperm donor in 2019.
Over four days in August 2022 Carter J heard preliminary proceedings in respect of the application filed by Sofia on 27 November 2022 as to the discrete threshold issue of whether the parties were in a de facto relationship at the time X was conceived as a result of the above‑mentioned artificial conception procedure in 2018. Her Honours judgment was handed down on 14 October 2022 where her Honour made the following orders:
A.The parties were not in a de facto relationship as at […] 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. (Original emphasis)
Her Honour’s orders remain in force and effect not having been disturbed by any successful appeal.
It is proper to note that, despite the Reasons and Orders of Carter J, Sofia continues to assert to be a “parent” of X.
Both Sofia and Ms Treacy represented themselves before this Court in a trial which, although listed for three days, occupied seven days of court time.
Both parties presented as well prepared in each of their cases. Both parties acted with the utmost courtesy towards each other and the Court.
Prior to the taking of evidence, the Court took some considerable time to advise the parties of the trial process and procedure with an invitation to each to seek assistance at any time in respect of the procedure.[1]
[1] Re: F Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348.
In a lengthy but helpful Case Outline Sofia initially sought orders in the alternative as to X living primarily either with Sofia or with the respondent, Ms Treacy. However, by the time of final submissions Sofia had conceded primary lives-with orders to Ms Treacy albeit with comprehensive, substantial and significant time for X with Sofia on a graduated regime as follows:
(i)for the first two months on two occasions each week for a period of four hours;
(ii)thereafter for a further two months on two occasions each week for periods of four hours and introducing one overnight period each week for X with Sofia;
(iii)thereafter for a further period of two months each week on two occasions for periods of six hours on each occasion together with two non-consecutive overnight periods for X with Sofia;
(iv)thereafter for a further period of two months in each week on two occasions for periods of six hours on each occasion and in each week for two consecutive nights; and
(v)thereafter each alternate weekend between Friday at 3:30pm and Monday at 9.00am together with one day in week one (1) for a period of six hours and for two occasions in week two (2) each for six hours together with two consecutive overnight’s in either week one (1) or week two (2).
In addition, Sofia seeks one half of each Victorian gazetted school holiday period as from the second term of 2024 and block periods of 14 days in each gazetted summer school holiday period.
Sofia proposes time with X on special occasions including:
(i)a number of religious days;
(ii)on Christmas Eve or Christmas Day in alternating years;
(iii)on New Year’s Eve or New Year’s Day in alternating years;
(iv)on Mr BB’s birthday (uncle) each year between 2.00pm and 7.00pm;
(v)time on Mother’s Day weekend in each year;
(vi)on X’s birthday (if not already in the care of Sofia);
(vii)on Father’s Day weekend; and
(viii)Ms B’s (aunt) birthday each year.
Sofia proposes various injunctive orders including an airport watch list order in respect of X and also that the parties attended various parenting courses/therapeutic interventions.
Sofia urges orders requiring the parties to communicate by appropriate “App” and various mutual notifications in respect of X.
Sofia proposes that changeovers occur at a family contact service at the expense of Ms Treacy solely.
Consistent with Sofia’s non-acceptance of the findings and orders of Carter J, the Court is asked to make a Declaration pursuant to s 69VA of the Family Law Act 1975 (Cth) (“the Act”) that Sofia is a parent of the child X and similarly pursuant to Rule 10.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Further, Sofia seeks an order in the following terms:
33.That, pursuant to s20(1)(b) and s23(1) and (sic) of the Births Deaths and Marriages Registration Act 1996, the child’s original birth registration details be restored, re-listing the Applicant as a legally registered parent of the child, listing the child’s middle name in its original for (sic) – [X]; and listing the relationship status of the parties/parents as “de facto” which was correct at the time of the original registration of the birth of the child sealed […]19.
As will become apparent in these Reasons, such an order cannot be made where the orders of Carter J remain undisturbed.
Sofia seeks an order pursuant to s 102Q of the Act that the respondent, Ms Treacy, be issued with a “vexatious proceedings order”. Where Ms Treacy is the respondent it is difficult to understand the rationale of this proposed order and no evidence was given or adduced to support such an order.
Sofia seeks an order that “the Respondent return to the Applicant the $850 that the Applicant paid to the Respondent in cash for the family holiday planned for January 2020 that the Respondent refused to allow the Applicant to attend”. Similarly, no evidence of any probity was given but where in any event this Court holds no jurisdiction to make any such order.
Finally, Sofia seeks generally a costs order pursuant to s 117 of the Act.
The respondent, Ms Treacy, seeks orders as follows:
(1)that she have sole parental responsibility for X;
(2)that X live with her; and
(3)that X have no time or communication with the applicant, Sofia.
The Court has had the considerable assistance of an Independent Children’s Lawyer (“ICL”), Ms Badenoch, and of counsel instructed at the trial, Ms Colla. The ICL seeks orders consistent with those sought by the respondent, Ms Treacy.
ISSUES
There is an issue between the parties as to whether they should have equal shared parental responsibility for X.
There is an issue as to X’s living arrangements between the parties.
Sofia raises issues of family violence directed at Ms Treacy and specifically as to coercive controlling violence.
There are issues raised as to the mental, psychological and emotional health of each of the parties but without there being any expert evidence.
There are issues of credit and particularly where Sofia asserts the respondent, Ms Treacy, to have lied to this and a previous court and where, in any event, each of the parties have diametrically opposed recollections of historical events. In circumstances where proceedings are being continued in other jurisdictions (particularly the Victorian Civil and Administrative Tribunal) in respect of administrative issues including the child’s birth registration, Sofia, in particular, has raised such issues before this Court but where the findings of Carter J significantly deal with those issues in respect of the jurisdiction of this Court.
BACKGROUND
The applicant Sofia is 54 years of age. Sofia is gender fluid and, as mentioned above, agreed to the Court referencing only the preferred name “Sofia”. Sofia is an entertainer of some apparent talent, who also teaches.
The respondent, Ms Treacy, is 42 years of age. She is self-employed.
The evidence of Ms Treacy is that, consistent with her long held desire to mother a child, she attempted artificial insemination in early and mid-2017.
The parties met in June 2017 and commenced their relationship in July 2017. Each of the parties retained their own residence during the course of their relationship, but stayed variously at each residence and had some possessions at each other’s residence.
A sperm donor agreement was executed in mid-2018. The content of that document and, in particular, any reference to and the intent of the inclusion of Sofia in the document was of considerable dispute at the trial before me.
Ms Treacy became pregnant in 2018.
X was born in 2019. In 2019 Sofia was registered as “Parent 2” on X’s birth certificate.
The parties separated on or about 22 December 2019.
Sofia has had no direct contact with X since January 2020.
On 28 April 2020 a s 60I certificate was issued after mediation was deemed unsuitable. A second s 60I certificate was issued in November 2020.
Sofia commenced these proceedings by application of 27 November 2020.
On 14 October 2022 Carter J handed down Reasons in respect of the discrete preliminary issues.
In late 2022 the respondent, Ms Treacy, made an application to Births Deaths and Marriages, Victoria, to remove Sofia’s name from X’s birth certificate such that has resulted in ongoing proceedings initiated by Sofia against Births, Deaths and Marriages with Ms Treacy now a party to those proceedings. Those proceedings continue in the Victorian Civil and Administrative Tribunal (“VCAT”).
THE APPLICANT’S CASE
The applicant, Sofia, claims to be a parent of X despite the findings of Sofia relies on representations made by Ms Treacy together with extraneous evidence such as reference to Sofia on the child’s birth certificate and the material lodged by Ms Treacy with other government agencies.
Sofia says that later alterations to the child’s birth certificate by the Registrar of Births Deaths and Marriages (Victoria) was at the unilateral behest of Ms Treacy and made after the parties separated and contrary to their intent prior to X’s birth and during Ms Treacy’s pregnancy and months following X’s birth.
Sofia further says that even following the parties’ separation, representations were made by Ms Treacy consistent with Sofia having a continuing parent/child relationship with X.
Sofia says that Sofia and X enjoyed a fulsome parent/child relationship for a period of months.
Sofia argues that Sofia has much to offer X as a parent and role model.
Sofia argues that the respondent, Ms Treacy, has perpetrated family violence in a coercive and controlling manner by withholding and alienating X from Sofia.
Sofia argues a significant imbalance of power between the parties by way of the respondent, Ms Treacy, exerting control simply by reason of being X’s birth-mother.
Specifically Sofia, in Sofia's Case Summary, asserts particulars of family violence by Ms Treacy as follows:
·sexually abusive behaviour;
·repeated derogatory taunts;
·unreasonably denying the family member the financial autonomy that he or she would otherwise have had;
·preventing or keeping the family member from making or keeping connections with his or her family, friends or culture; and
·unlawfully depriving the family member or any member of the family members family of his or her liberty.
Sofia asserts that X has a right as provided in the Act to know both persons involved in his creation.
Despite the antagonistic history between the parties, Sofia asserts an ability to facilitate a cooperative parenting arrangement for X with Ms Treacy.
THE RESPONDENT’S CASE
The respondent, Ms Treacy, argues that there is no current relationship between X and Sofia and says there has not been since X was an infant. She assets that X has no memory retention of Sofia.
Ms Treacy argues that she never intended to have a child in a family unit relationship with Sofia, but always intended to be a sole parent evidenced by her commitment to having a child prior to her relationship with Sofia.
Ms Treacy says that she was subjected to emotional and psychological pressure from Sofia for the latter to be included on documents evidencing X’s birth.
Ms Treacy argues that, despite her claims and ambitions, Sofia did not provide a usual parenting role for X during the pregnancy and for the months following X’s birth until cessation of all contact in that Sofia did not contribute financially or with emotional commitment.
Ms Treacy argues that she and Sofia have a noncommunicative and noncooperative relationships such that a future cooperative parenting arrangement is not feasible and any involvement by Sofia in X’s life will inevitably lead to conflict such being contrary to the child’s best interests.
Ms Treacy argues that Sofia does not possess the emotional skills necessary for a parenting relationship with X.
ICL’S CASE
The ICL favours an order for sole parental responsibility for X in the respondent, Ms Treacy. The ICL says that the parties have no parenting relationship. The parties do not communicate. The parties have shown no ability to cooperate where they are mutually suspicious and disrespectful.
The ICL says that Sofia has no current relationship with X and that the child has no residual knowledge of Sofia.
The ICL notes that Ms Treacy has been the primary and sole carer for X since his birth or at least from a very young age and where there is no current or meaningful, or any, relationship between X and Sofia.
On the evidence of Sofia, the ICL is cautious of any reunification of X and Sofia in providing an opportunity for Sofia to force a “false narrative of parentage” on X thereby compromising his identity and core relationship with Ms Treacy.
The ICL notes in respect of the parties, and with particular emphasis on Sofia, an unwillingness or inability to consider alternative perspectives and to differentiate X’s needs and experiences from those of Sofia herself.
The ICL notes the entrenched conflict between the parties and that each of the parties have indicated a willingness to “appeal” should this Court not make orders consistent with their proposals and where litigation continues in other jurisdictions.
Essentially, the ICL circumstantially questions whether there be any benefits for X in a relationship with Sofia, or, at least, when balanced against the significant disadvantages that would flow in respect of the toxic and conflictual relationship between the relevant adults.
THE RELEVANT LAW
The Court acknowledges Sofia’ personal view that Sofia is a “parent” of X but also the finding of Carter J pursuant to the Act that Sofia is not a “parent” for the purposes of the legislation. Nevertheless, s 65C of the Act provides:
Who may apply for a parenting order
A parenting order in relation to a child may be applied for by:
(a) either or both of the child’s parents; or
(b) the child; or
(ba) a grandparent of the child; or
(c)any other person concerned with the care, welfare or development of the child.
In this sense, a “parenting order” might involve orders for parental responsibility, live-with, time-with, or specific parenting orders as provided for in the Act.
As always, the Court’s ultimate determination is premised on the provision at s 60CA of the child’s best interest being the paramount consideration for the Court. In determining those best interests, the Court is mandated to reference the proposals of the parties and the ICL to the numerous factors set out at s 60CC(2) and (3) of the Act against a background of the Objects and Principles of the legislation set out at s 60B as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Interestingly, the wording at particular subsections, such as s 60CC(2)(a) and s 60CC(3)(c), specify the “parent”. Nevertheless, a broader reading and construction of the section satisfies me that the consideration is not limited only to parents but to any person otherwise concerned as to a child’s welfare and best interests.[2] Indeed there is to be no presumption or preferential position applying as between a biological parent and a non-parent party in respect of children’s best interests.[3]
THE EVIDENCE
[2] Malcolm & Monroe and Anor (2011) FLC 93-460: [2011] FamCAFC 16.
[3] Valentine & Lacerra and Anor (2013) FLC 93-539; [2013] FamCAFC 53.
SOFIA
Sofia gave evidence in the form of a lengthy affidavit[4] replete with annexures and totalling some 568 pages. It is clear that the preparation for trial was meticulous, detailed and informed. As a layperson, Sofia was familiar with the relevant Family Law Act and numerous collateral and other legislation.
[4] Filed 13 November 2023.
Sofia submitted to cross-examination by the respondent, Ms Treacy, in person and by the ICL in a courteous and responsive manner being non-argumentative but keen to assert Sofia’s case at all times.
Without criticism, it is clear that Sofia feels aggrieved by the findings and orders of Carter J and by difficulties confronting her with various state legislation and authorities where it is equally clear that Sofia’s purpose is to establish and enforce Sofia’s belief of being a parent to X and to accept and discharge the responsibilities of that role.
Sofia presented in the witness box as decisive and emphatic in Sofia’s core assertions being that Sofia believes an agreement was reached for X to be a part of the family unit of Ms Treacy, X and Sofia’s and that Ms Treacy has fraudulently retreated from such agreement. Sofia on occasions became understandably emotional when questioned as to Sofia’s recollection of history and relationship with X.
When cross-examining Ms Treacy, Sofia was at all times polite, civil and respectful albeit occasionally emotional. Overall, Sofia’s evidence showed a determination both towards X’s best interests and Sofia’s sense of aggrievement at the hands of both Ms Treacy and the various government systems in which Sofia has been engaged. I observed, at times, a confusion of these issues and sentiments in Sofia although again without criticism.
In summary, Sofia presented the case with considerable skill and proper courtesy to the other parties and the Court.
MS TREACY
Ms Treacy was also self-represented and conducted herself with appropriate politeness and respect to the Court, the ICL, and Sofia. She was, however, emotional during much of her cross-examination and understandably so when confronted with difficult issues and questions from her former partner and in respect of her child. Her body language was demonstrable in her failure to make eye contact or face Sofia during cross-examination or even when at the bar table. Nevertheless, Ms Treacy’s answers is in cross-examination were direct and responsive. Neither party allowed the process of cross-examination of each other to degenerate into argument.
Similarly, Ms Treacy cross-examined with some noted skill and preparedness given that she too appeared without representation. Her case, however, was presented on a simpler platform than that of Sofia and as indicated in these Reasons. She too gave her version of history including her quest for parentage and her understanding of the actual and any potential role of Sofia with apparent consistency and particularisation albeit being a different version than that articulated by Sofia.
DR CC
Dr CC is a psychiatrist with an impressive resume and experience. Dr CC’s brief was to provide a psychiatric assessment in respect of each of the primary parties. He gave evidence and was cross-examined extensively and intrusively by Sofia but not by Ms Treacy with some short clarifying cross-examination by counsel for the ICL.
Dr CC’s responses in cross-examination by Sofia, including as to his expertise and qualifications, were direct and informed such that I am easily persuaded by both expertise and qualifications.
Similarly Dr CC’s written report is informed, comprehensive and of considerable assistance where in many ways his observations accord with my own lay observations of each of Sofia and Ms Treacy during the trial and the interlocutory court process.
Under the heading “Mental State Examination” Dr CC observes Sofia as follows:[5]
[Sofia] presented as a shy [person], casually dressed, [Sofia] was cooperative throughout the interview, with good eye contact. No psychomotor abnormalities were noted other than a tendency to fiddle with their hands. They spoke spontaneously and their speech was coherent with normal rate, volume, tone and rhythm. Their affect was largely euthymic although at times they could become tearful and talk under [their] breath, they particularly became tearful discussing their adoptive father and also discussing [X]. Their thought stream was normal with no overt formal thought disorder nor was there any suggestion that they were responding to internal stimuli.
[5] At page 14.
In respect of Sofia Dr CC offers the following diagnoses:[6]
·Anxiety Disorder; and
·Personality Disorder.
[6] At page 15.
In cross-examination by Sofia, Dr CC opined that such a detailed and intrusive cross‑examination might of itself reinforce his diagnosis as indeed might the very meticulous and highly detailed preparation of this case by Sofia.
In summary, Dr CC noted the difficult early developmental, emotional and family circumstances endured by Sofia. He also noted the significant differences “between the accounts of [Ms Treacy] and [Sofia] in relation to [Sofia’s] behaviour”.[7] He notes [Sofia’s] denial of the assertion by [Ms Treacy] that [Sofia] is controlling and coercive.
[7] At page 15.
Significantly, Dr CC opines in his final paragraph in respect of Sofia:[8]
By [Sofia’s] own account they do not feel safe in relation to [Ms Treacy]. There is in the Affidavits of both parties’ significant hostility and fear. It is, in my opinion, difficult to see how it would be possible for them to establish a cooperative parenting arrangement. It would, in my opinion, be inappropriate for [X] to be in the middle of a combative relationship.
[8] At page 15.
In answer to a question from myself, and where both parties are diagnosed with a personality disorder, Dr CC again doubted the efficacy of any anticipated cooperative parenting arrangement between Sofia and Ms Treacy.
Dr CC’s assessment of Ms Treacy is unremarkable although diagnosing an anxiety disorder together with particular personality traits.
Ms Treacy reports to Dr CC consistent with her evidence to this Court. She insists the relationship with Sofia was not a de facto one. She says that she was fearful of Sofia. She denies being verbally, physically or coercively abusive herself. She reports Sofia as a “predator going after my child and I feel unsafe”.
Dr CC considers Ms Treacy’s anxiety disorder to be mild but where she would benefit from some therapeutic intervention.
Dr CC concludes thus:[9]
In my opinion, control is an important issue for both women in this matter, however, given the fear and animosity in the various Affidavits it is, in my opinion, difficult to see how a cooperative parenting arrangement could develop which would leave the child at serious risk of being in the middle of conflict.
[9] At page 22.
MS C
Ms C is employed as a Senior Court Child Expert. She prepared a family report dated 11 August 2023 after interviews and observations made on 28 July 2023. At [57] Ms C explains no observations being undertaken between X and Sofia as follows:
There is no existing relationship between them thus observations of their interactions would have limited clinical utility. In addition, [X] may have found such observations unsettling/distressing given the likely strong emotional reaction from [Sofia] and his lack of understanding of context.
Ms C was also the author of a Children’s and Parents Issues Assessment dated 30 August 2021 with each of the parties with a purpose to assist and inform the Court by preliminary assessment.
Ms C holds a related qualification and has been assisting courts as a family consultant from 2019.
In her initial assessment Ms C identifies the key issues as being:[10]
·Whether Sofia has a parental role, rights and responsibilities in relation to X;
·X’s living and spend-time arrangements; and
·Mental health issues with regard to both parties, and the impact this has on their relationship and parenting capacity.
[10] At [9], [10] and [11].
At this early stage Sofia reported a concern that Ms Treacy may physically assault X so as to cause him injury which Ms Treacy might subsequently place the blame on Sofia. Such an early mistrust is indicative of the mutual suspicion that has permeated this matter until the present day but where it is difficult to identify evidence to support such a claim either then or now.
Ms C identified at an early stage that X may be exposed to “emotional regulation” from Sofia should the dispute continue (and should there be direct contact between X and Sofia). Sofia reported experiencing an anxiety disorder and having received assistance from several mental health plans.
Ms C identified a highly fractured relationship between the parties with entrenched opposing views then in respect of Sofia’s status with regard to X.
At [26] of that report Ms C opines:
Should spend-time occur, it is likely to have significant mental health responses for both the Applicant and the Respondent. The Applicant indicated that [they] feel unable to commence time-spend with [X] without therapeutic support for [themselves], as [they are] worried about containing [their] emotional responses. The Respondent has indicated significant anxiety and distress given her stated perspective to the Application and is likely to find this escalates if time-spend commences. Such mental health consequences for the Respondent may impact on her parenting capacity, and thus have a direct adverse consequence for [X]. …
The giving and adducing of evidence before me suggests that neither of the parties has moved substantially forward from this August 2021 position.
Unlike her first short-form assessment, Ms C's Family Report was prepared after the Reasons and orders of Carter J were handed down. As such, I was alerted on reading the Report and indeed Sofia’s early cross-examination focused on a comment at [8] of the Family Report thus:
On 14 October 2022, a Court finding was made by the Honourable Justice Carter that the parties’ relationship was not de facto and [Sofia] is not a parent of [X]. For the purpose of this assessment, the parties’ proposals have been evaluated in light of this finding. It is acknowledged that [Sofia] does not accept this finding, and continues to assert [they are] [X’s] legal parent. [Ms Treacy] maintains her position that [Sofia] is not, and never has been a parent of [X].
Ms C was questioned by Sofia as to her understanding of the consequences of the findings of Carter J and, in particular, that “[Sofia] is not a parent of [X]” and that the parties’ proposals have been “evaluated in light of this finding”. After hearing the evidence of Ms C in this respect, and generally, I am satisfied that Ms C has an understanding of the status of Sofia in these proceedings as set out in these reasons above and that her Honour’s findings are simply one fact for consideration in an overall determination as to the ultimate prospective best interests of X. Indeed, a full and detailed reading of Ms C’s report gives credence to this conclusion.
Ms C recommendations are:[11]
·Ms Treacy have sole parental responsibility of X; and
·X live with Ms Treacy and spend no time with Sofia.
[11] At [70] and [71].
At [9] Ms C identifies a fundamental issue between the parties where she says:
It is agreed that [X] has never lived with [Sofia]. It is disputed between the parties as to how frequently [Sofia] engaged in direct care/tasks for [X] when visiting [Ms Treacy] prior to separation, with [Sofia] indicating this was a frequent occurrence and [Ms Treacy] indicating that [Sofia] provided very little direct care of [X].
At [21] Ms C observes Sofia presenting as “emotionally fragile and somewhat brittle in her interview with a palpable level of anger/distress throughout”. Sofia is noted as using highly emotive language and maintaining a “victim-stance” dismissing any information that did not fit Sofia’s narrative as being “discrimination” due to Sofia’s sexual orientation. Further, Ms C observes Sofia struggling to differentiate between X’s needs and experiences from those of Sofia.
Sofia’s initiatives and motivations in these proceedings are disclosed in the Report at [22] as follows:
… [Sofia] believes that [their] experiences of adversity have contributed to […] developing strength of character, resilience and a strong commitment to truth telling. [They] spoke of her fight for parental rights to [X] as being driven by [their] values. [They] stated that [they are] fighting on behalf of all non-biological parents in the face of what [they] believes egregious and systemic discrimination by various government agencies and entities due to their complicity in the denial of […] parental rights due to [their] status as a non-biological LGBTQ gender-fluid parent.
Similar to her demeanour in this Court, Sofia was noted as being polite and cooperative but with many of her responses structured as either academic explanations or value statements.
Sofia’s determination in respect of these proceedings is noted at [24] of the report as follows:
[Sofia] highlighted her commitment to being recognised as [X’s] parent and taking on what she knows to be her rightful parental role. [Sofia] reported that she will appeal any Court decision that does not award her anything less than shared parental responsibility and shared care of [X] noting “we have 14 years of Court ahead of us”.
Ms C observed Ms Treacy as demonstrating a significant level of distress throughout the interview and presenting as exhausted and overwhelmed by the litigation being sentiments observed by me during the course of the trial.
The tense relationship between the parties to this litigation is noted when Ms Treacy unexpectedly came across Sofia who had arrived early for the interview appointment leaving Ms Treacy “highly distressed, teary, and visibly shaking”. Similarly, Ms Treacy reported a similar reaction in Sofia at an earlier accidental meeting of the two at a health appointment where Sofia “had curled up in a foetal position on the floor hyperventilating and had to be walked to her car by staff due to her reported intense fear of [Ms Treacy]”.
Ms Treacy is reported as being able to be objective to a degree in respect of Sofia including citing her admiration for Sofia having overcome significant childhood adversity and for her artistic ability.
Ms Treacy reported that there had never been an agreement or plan for the two to have a child together in circumstances where, as set out above, Ms Treacy had a long-standing plan to mother a child but where Ms Treacy was prepared to agree that she had perhaps given Sofia unrealistic expectations by use of terms such as “their child” but says that she did so under what she saw as obsessive pressure from Sofia and so as to reduce conflict.
Consistent with her own views of being a sole parent, Ms Treacy reported limited time and assistance rendered by Sofia for X in his infancy although Ms C notes a different version of history from Sofia.
Consistent with the evidence in this Court, Ms C reports that it was Ms Treacy who ended the relationship with Sofia when X was very young. Treacy cites Sofia’s demanding and volatile behaviour within the relationship and in respect of X for the ending of that relationship which now remains highly fractured and suspicious. Each party presented at the interviews for the report as highly distrusting of the other and expressing significant fear, anxiety and distress at the idea of any contact between them.
In respect of broader issues of family violence, Ms C reports each party believing they to be the victim of verbal family violence but where each denied being a perpetrator. Similarly, both parties considered these very proceedings to constitute a form of family violence by systems abuse to the stage where Sofia reports, as Sofia has submitted to this Court, that she considers Ms Treacy to have “abducted” X as a form of emotional family violence. Further, Sofia expressed a belief that Ms Treacy was implanting “false memories” in X where Ms Treacy fears that Sofia will give a “false narrative” to X if contact between Sofia and X occurs. The implication by each is of psychological/emotional harm being rendered X by the other.
At [45] Ms C opines that Sofia’s narrative indicates a strong self-focus and being dismissive of any impact on X being exposed to competing narratives about his parentage or conflict between the parties. In respect of Ms Treacy at [46] Ms C says:
[Ms Treacy] was able to demonstrate a detailed understanding of [X’s] temperament, personality and needs and routine. Although she also spoke of the impact on herself of involvement in the current dispute, her narrative demonstrated a duel (sic) focus on [X], including the impact on him of her parenting being compromised by involvement in ongoing litigation.
Ms C comments that X currently remains happily oblivious to the maelstrom surrounding his parentage dispute. He is secure in meeting his developmental milestones.
Ms C accepts Sofia’s many positive personal qualities and strengths which could ultimately benefit X and where she has a genuine and intense interest in X’s care, welfare and development. The consideration is, however, a balanced one where she also notes the ongoing and potential significant anxiety and fear for Ms Treacy where, in fact, Sofia articulates her own fear and anxieties in respect of Ms Treacy. The exposure to such conflict and also to Sofia’s conviction to convey her narrative to X poses potential detriments for the child. Again, the inescapable truth here is that both parties express fear of the other and anxiety in any contact or communication with the other.
SECTION 60CC FACTORS
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
Importantly given the undisturbed finding of Carter J that Sofia is not a parent seen against Sofia’s consistent argument of being a “parent” evidenced by extraneous matters such as the birth certificate and documents lodged with other government agencies, the reference to the term “parent” in subsection needs consideration. The Full Court appear to have concluded that the consideration here is limited to parents as referenced.[12] Nevertheless, taking a more holistic view of s 60CC including s 60CC(3)(m) I am of the view that it is available for me to comment and consider those matters referenced at s 60CC(2)(a) if only in a more general fashion. It follows that in this matter it is clear that X’s established, dependent and supportive relationship sits with Ms Treacy. She is the parent that he knows. He is unlikely to have any relationship of memory with Sofia. There has been no relationship of any nature since X was very young.
[12] Burton & Churchin and Anor (2013) FLC 93-56; [2013] FamCAFC 180.
It is true, however, that the authorities see the notion of “meaningful relationship” being of a prospective and qualitative nature. Equally, however, there should be some discernible anticipated benefit for the child, if only on balance, in this consideration. That is, the focus is, as always, on the benefit to the child where the child’s best interests are the paramount consideration.[13]
[13] McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92.
My understanding of Sofia’s case is that Sofia places great importance on the establishment of a meaningful relationship with X. This, however, is not of itself a determinative factor of the child’s best interests but must be seen within the broader consideration of all of the matters set out in s 60CC(2) and (3).[14]
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
[14] Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96.
Family violence has a broad definition in the Act. It involves risks of physical, psychological, emotional harm to a child and family violence of physical, emotional, coercive/control, sexual and the financial types in respect of adults.
Each of the parties here assert family violence against the other. Each asserts a risk to X in the care of the other variously of physical or psychological/emotional types. Each professes fear of the other. These fears are compounded by apparent vulnerable, fragile and anxious demeanour and personality of each. The physical and emotional responses by each of Ms Treacy and Sofia when accidentally coming into direct visual contact with the other unexpectedly was demonstrative.
Both parties express a view that this current litigation is a form of family violence perpetrated by each on the other in the form of systems abuse.
The parties have separated from their personal relationship and this should alleviate the possibility of direct conflict albeit the concern for the Court, of course, is that X not be exposed to the conflictual and acrimonious relationship between the adults.
Ms Treacy argues that any contact between X and Sofia will involve Sofia conveying Sofia’s narrative of “parentage” to X with the potential for emotional and psychological confusion and harm including, in the opinion of the Senior Court Child Espert, developmental regression.[15]
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
[15] At [61] of the Family Report dated 11 August 2023.
X is just four years of age. It is not reasonable to expect he has any memory retention of Sofia. He is not of an age where he could be expected to rationalise his own views as to his best interests.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
The evidence is that X’s relationship with Ms Treacy is a bonded and attached one. Inevitably he would see Ms Treacy as his only parental figure.
X has no relationship with Sofia and has not done so since he was very young. Realistically, he has no memories of Sofia. It is abundantly clear that Ms Treacy does not inform X of her own or his previous relationship with Sofia. As such, the proposals for Sofia would be, in reality, to establish a new relationship for X rather than the re-establishment of a relationship with the child where the child has residual conscious memory.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
Ms Treacy has taken on all the responsibilities in respect of X as a sole parent. She says that she did so even during the months of some contact between X and Sofia.
Sofia says that Sofia participated in the care of the child during the first months of X’s life and brings this application in order to accept the obligations of making long-term decisions and spending time/communicating with X.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The orders sought by Sofia would initially present a dramatic change in X’s circumstances. He inevitably would understand himself to be a child of a sole parent, Ms Treacy. It is unlikely that he has any current knowledge or memory of Sofia. He has no expectation of a relationship with Sofia.
Sofia is ambitious in the quest to parent X. Sofia seeks considerable time with X and a substantial decision-making role. Should this occur and conflict and acrimony continue between the adults then such a change would impact significantly on X. This potential change is addressed by Ms C at [67] of her report as follows:
[Sofia’s] proposal of shared parental responsibility and shared care (with multiple changeovers) of [X] has the advantage to [X] of another adult in his life who is concerned about his care and welfare. It is the writer’s view however, that based on the information available for this assessment, [Sofia’s] proposal places [X] at risk of significant emotional harm. Such a plan undermines [X’s] emotional safety, stability and security. It frequently separates [X] from his primary carer and introduces a relationship with an adult who is determined that [X] view her as his parent. In addition it teaches [X] that his primary carer is duplicitous and untrustworthy. Further, given the poor state of the relationship between the parties and the entrenched nature of the dispute, there is a risk in [Sofia’s] proposal that [X] will be exposed to long-term high level conflict, with a high likelihood of future litigation should [Ms Treacy] not align with [Sofia’s] view in the future. Both are likely to impact on [X’s] current and future mental health, his ability to negotiate friendships, his ability to meet his academic potential and his relationships in adulthood.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Again, this sub-section references parents but, in any event, the evidence here does not anticipate any practical difficulty or expense should the Court be persuaded by Sofia’s proposal.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
Sofia argues that Ms Treacy lacks insight into X’s emotional needs in denying him a relationship with Sofia.
In all other respects, the evidence suggests that Ms Treacy provides appropriately for X’s physical and emotional needs where the evidence is that X is meeting his milestones.
The capacity of Sofia to attend to the child’s physical needs is yet untested. Sofia is not a person of any financial means although this is not of itself prohibitive of an order for time‑with. I have limited evidence as to Sofia’s accommodation and ability to provide stable living arrangements where Sofia’s proposal is for substantial and significant time with X.
Both adults suffer diagnoses by Dr CC of anxiety disorder together with the particular personality traits being premised in Sofia’s case as “[a] Personality Disorder”. Again, such diagnosis does not appear to have impacted negatively on Ms Treacy’s ability to care for X. The impact, if any, on Sofia’s capacity is unknown and untested.
Where any orders anticipate a need for high-level cooperative and communicative parenting, the toxic relationship between these parties would inevitably impact on their individual capacities to attend to X’s needs where conflict is a highly likely result and where such conflict is equally likely to cause emotional and psychological stress for X.
In a general sense, like Ms Treacy, Sofia offers many positive traits potentially for X. Such traits would complement those provided by Ms Treacy where Sofia is artistic, spiritual and keen to emotionally contribute to X. Sofia’s participation and dedication in these proceedings shows a willingness to attend to X’s needs. However, in circumstances where Sofia is inexperienced in the parenting role, no evidence in proper form has been given or adduced as to any helpful support networks.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Again, although the subsection references “parents”, I think it proper to reference the evidence to this subsection. Specifically, where the parties were engaged in a same-sex relationship, the evidence makes it clear that Sofia is forceful in her beliefs and participation in the LGBTQ community, its causes, and its values. I did not glean the same forceful involvement by Ms Treacy. It follows, and simply from my observations of the personalities of each of the parties, that X would be more likely imbued with these principles, admirable as they are, in one household than the other. Similarly, a perusal of the extensive orders sought by Sofia and set out above in these Reasons, is indicative of the spiritual or quasi-religious beliefs or adherences followed by Sofia. Given the orders sought, it is likely that X would be introduced to and engaged in such events and practices in the household of Sofia but not so in that of Ms Treacy. I make this observation simply to emphasise the likely divergent role models for X to be provided by Ms Treacy and Sofia where they seem to have little in common in lifestyle choices and practices.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration in these proceedings.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Again, where the subsection references “parents” I reference the evidence and the parties’ proposals here only by way of convenience.
Notably, each of the adults here advises the Senior Court Child Expert that they will launch appeals against any orders of this Court that do not accord with their applications. This shows not only a naiveté as to the process of appeal but also demonstrates the entrenched and litigious attitudes of each of Ms Treacy and Sofia with a consequent lack of insight into the needs of a child as young as X for stability, order and certainty in his life outside of the rigours of litigation.
My observations of the parties giving their evidence and of their affidavit materials suggests strongly to me that each is influenced to a high degree in this litigation by their personal attitude to the other rather than a primary focus on the best interests of X. The acrimony between the two adults is palpable and permeated the entirety of the proceedings highlighted by constant allegation, counter allegation and denial. Put simply, the paramountcy of X’s best interests seemed lost in the hostility and irascibility of each party to the other.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family; and
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family - any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
Issues of family violence have been dealt with above. Suffice to say, in a simplistic sense, the less contact or engagement between these parties then the less opportunity for exposure for X to their bitter and entrenched toxic relationship. Not surprisingly, the disputes between these parties has also been played out in the State Courts by way of the family violence or intervention orders with varying degrees of success or lack of success.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
An often unfulfilled yet proper ambition of these Courts dealing with parenting matters is for the parties to become enlightened or educated by the litigious process and to move forward in an objective and cooperative parenting regime. The evidence given by the parties to this Court together with the reports of Dr CC and Ms C suggest any such ambition here to be doomed and futile. Again, each party has candidly stated that they would use the appeal process simply to air any grievances at the orders made by this Court but with apparent naiveté as to the usual requirements for arguing on appeal. Litigation continues in another jurisdiction. It seems, therefore, that further litigation by these parties in respect of X is anticipated.
Further, however, and as insightfully observed by the Family Consultant, the entrenched conflictual relationship between the parties themselves personally and in respect of discrete issues such as “parentage of [X]” are highly indicative of continued litigation in these Courts.
DISCUSSION, CONSIDERATION AND FINDINGS
The Orders and Findings of Carter J of 14 October 2022 remain undisturbed being:
(A)The parties were not in a de facto relationship as at October/November 2018; and
(B)Accordingly, pursuant to s 60H of the Family Law Act 1975 (Cth), the applicant is not a parent of the child X born 2019.
X is currently four years of age. He has had no contact with Sofia since about December 2019.
The evidence allows me to find that X is progressing well and meeting his milestones in the sole care of Ms Treacy. It follows that X has a meaningful, dependent and supportive parent child relationship with Ms Treacy.
I am satisfied that X would have no memory retention of Sofia.
Where each of the parties alleges family violence during their relationship and since against the other, I do not find this issue to be determinative or weighty in my consideration of X’s best interests given that the parties’ personal relationship finished in December 2019 and they now have no direct contact. I find, however, that each of the parties remains suspicious and resentful of the other. I accept that each harbours a genuine fear of the other and manifested in the evidence of the responses of each adult to unexpected physical contact and proximity to the other. I find, therefore, that there is no realistic expectation of any civil, cooperative and communicative relationship between the two adults into the future.
I find that Ms Treacy had a long term wish to mother a child and as a sole parent as evidenced by her researching and resourcing of sperm donors and prior to her relationship with Sofia commencing in about July 2017.
I find that the parties were in a romantic relationship between July 2017 and December 2019 but again defer to the findings of Carter J that the relationship was not a de facto one within the definition in the Act. I am satisfied that the parties maintained separate residences throughout their relationship but spent time in each other’s residence several times per week.
I find that Ms Treacy had been attempting to become pregnant by sperm donor, with the intention of being a single parent prior to the commencement of a relationship with Sofia. I find that the eventual suitable and successful donor was found during the course of the relationship with Sofia and a donor agreement was negotiated and executed during the course of that relationship. Sofia is not a party to that agreement but is noted at recital C as being in a relationship with Ms Treacy as at the date of the agreement being 2018.
The recitals to the agreement give some evidentiary corroboration to Ms Treacy’s assertion that she at all times intended to be the sole parent of X where for instance at recital K appears the following:
[Ms Treacy] and [Mr S] both agree and intend that [Ms Treacy] will be the sole parent of any child(ren) who may be born as a result of his sperm donation to [Ms Treacy].
Further, the operative part of the agreement at 1.2 and 1.3 states:
1.2 [Ms Treacy] will have sole parental responsibility for the child(ren).
1.3 The child(ren) will live with [Ms Treacy].
There is evidence to support Ms Treacy’s contention that Sofia’s involvement and care for X was limited relative to her own role during the months of X’s contact with Sofia prior to the demise of the relationship between Ms Treacy and Sofia. The parties did not cohabit. X lived with Ms Treacy.
Nevertheless, there is evidence to suggest that Ms Treacy made representations and acknowledgements to Sofia prior to the pregnancy, during the pregnancy, and post X’s birth consistent with Sofia contentions to this Court that there was a joint intent between she and Ms Treacy for any child born to Ms Treacy to be a “child of the parties” in the sense of Sofia being accorded and she accepting the normal obligations and status of a parent. That evidence includes:
·Sofia name being included on the registration of birth (albeit that Ms Treacy disputes the circumstances and voluntariness by her of such inclusion);
·Representations made by Ms Treacy and documented in other government agencies such as Centrelink and/or the Child Support Agency;
·Recital C to the sperm donor agreement noting “[Ms Treacy] is currently in a relationship with [Sofia]”;
·A “sparkle diary” kept by Ms Treacy during the course of her pregnancy with regular use of the plural first-person pronoun “We” together with frequent direct reference to Sofia such as:
•Last week, both [Sofia] 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 [Sofia];
•Anyway you are cooking away [X] and we are both very excited! Love you (X);
•Either way we are so happy that you are growing healthy and happy!
•[Sofia] (and I just booked our baby moon, our last holiday together before you come along to the outside world… [Sofia] is always talking to you thru my belly;
•[Sofia] 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…;
•Beating away so fast and strong! I recorded and sent to [Sofia] straight away;
•And we can’t wait to meet you (love heart);
•21 week’s baby [X]! And today [Sofia] felt you kick when [they] had [their] head on my belly [their] whole face.
•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! Tomorrow we will go to have the final scan, where we will see you the most clearly inside my belly. It’s so exciting.
·Sofia’s presence at the birth and photographic evidence annexed to Sofia’s affidavit showing “skin to skin” photographs dated 2019 (X’s date of birth) and email annexed to Sofia’s affidavit addressed to Mr DD dated 27 September 2017 stating:
… [Ms Treacy] and I are planning to get married in 2019 in [the United States] and we are looking to have a child […] next year (conceiving around […] we think) something she has always wanted to do, and something I never really contemplated at all. Only with her would I consider such a future. She is very special and loves me very deeply. She […] runs her own business.
·Emails from Ms Treacy to Sofia at around the time of the separation in December 2019 including:
…But I want you in his life I truly do. I want you to know that no matter what happens you still are apart (sic) of [X’s] life as his other parent as much or as little as you want. … (January 2020).
…[X’s] doing well, thanks! I don’t have a ‘parenting plan’ locked in. Keen to hear what being a part of [X’s] life looks like to you? are you thinking about that? If yes, please let me know. I’ll work out a plan when I know what you’re thinking. …
Once a week visit is what I am comfortable with at the moment. We can look into twice weekly visits in a couple of months time. I’ll confirm Friday a couple of hours b4 to be more exact. His window in the arvo.
·On 7 February 2020 Ms Treacy caused a without prejudice solicitor’s letter (now exhibited before me without objection and hence waived) to be forwarded to Sofia as follows inter-alia:
We have to hand a copy of [X’s] birth certificate, which lists you as a parent. You being listed as a parent is somewhat unusual in circumstances where:
1. You are not a biological parent; and
2.Where you are not in a de facto relationship with the biological mother at the time of [X’s] conception, therefore do not meet the relevant criteria to be considered a parent according to s60H of the Family Law Act 1975.
We additionally note that our client has contacted Centrelink regarding child support matters and has been informed by Centrelink that they will not be collecting child-support from you because they “are not satisfied that [Sofia] is the parent of [X].”
…
It is our client’s priority to ensure that X is raised in a manner that promotes his physical and emotional well-being. In the present circumstances, our client considers that this can be achieved by:
(i)Our client remaining [X’s] primary carer as she has always been;
(ii)Entering into documentation to deal with the anomaly in [X’s] birth certificate, so as to bring it in line with Centrelink records; and
(iii)Moving forward, if you wish to be present in [X’s] life, then you to fulfil the role of a much loved Aunty.
Our client considers that you are a loving and good person, and she is therefore prepared to encourage [X] to build a relationship with you along the lines of a much loved [relative]. Our client envisages that this relationship would include:
(a)[X] having regular visit with you, with such visits to be based upon his age specific needs.…
(b)You to be informed as to [X’s] progress on health, and to be included in special family events such as birthdays, kinder concerts etc.; and
(c)Our client to have sole financial and parental responsibility for [X].
…
I find that the proposals in the aforementioned solicitor’s letter were withdrawn as earliest 27 February 2020 in a lengthy email from Ms Treacy to Sofia which states inter-alia:
…
It is clear to me that simply because we dated as girlfriends before and during my pregnancy, you have developed some kind of misplaced sense of ‘entitlement’ to seeing [X] who you have no relationship with, as though you have ‘rights’ to him.
…
As you know the only reason I chose to go through a sperm donor in having him is because in my circumstances I was not going to expose myself or my child to an artificially constructed second parent.
You knew this. You also agreed to this by signing as a witness to my sperm donor contract which clearly states I am to be the **only parent**
This was on top of the fact that you also gave me repeated undertakings and reassurances that if I have a baby you will never try to assert any legal rights to my child and it was on this basis we continued to date. You convinced me that you did not want a baby explaining your mission in life was to be [an] artist and that “more babies kill [artists] than drugs overdoses!”
…
My joy at being a single parent feels like it’s been hijacked by ongoing harassment from you demanding rights to my child which you simply do not have morally or legally. It’s unethical and lacks conscience.
…
When I came home with the baby you bathed him only a couple of times and told me ‘You better get some help coz I can’t help you like this’. You didn’t have a single sleepless night even when you were over a couple of times a week. I was relegated to the couch with the baby in my own home so as not to disturb you sleeping in my bed and so you could return to your home the next day rested for your own life and [artistic] projects. You didn’t even empty a single nappy bin or do one load of washing when you were over and even had to ask me where the bath mat was.
Your visits quickly tapered off after the baby because of your […] business and I had more help from friends come to visit me than I did from you after the baby was born…
The only money you ever contributed to this child was $50 cash in a card which you made sure to spell out in front of my friend here at the time was not for me but as a gift of the baby.
Still you were simultaneously proclaiming status as a ‘DAD’ to friends and family which everyone found to be a bizarre joke. You were not a parent and didn’t even act like a parent and wanted as my [friend] to call yourself ‘Dad’! You wanted no part of any responsibility, but wanted the glory.
…
You convince me time and time again that you would never fight me for my child no matter what happened to our relationship. Had I not trusted at least that I would have broken up with you before becoming pregnant. But it was only after it was too late that it seemed you wanted to be a part of all the focus on the baby and slowly started wanting to be seen as a ‘parent’ by virtue of being my girlfriend…
I knew it wasn’t a good idea to put you on the birth certificate but I felt scared not to because of your mental state and because you promised you would never fight me for him.
On reflection, I can and do accept as plausible the positions put by each of the parties in respect of the above history. That is, representations and acknowledgements were made to Sofia such to suggest that she would have a role consistent with that of a ‘parent’ for X. That may not have involved any understanding of “equality” but, in any event, an ongoing role dependent upon the enduring of the relationship with Ms Treacy.
Equally plausible is Ms Treacy’s version of history whereby she has long held a desire to parent a child as a sole parent and indeed made preparations for such well before the commencement of the relationship with Sofia. It is understandable that for the duration of the personal and romantic relationship with Sofia she would seek to involve Sofia in the parenting of X but not necessarily to relinquish her consistent desire to be a primary parent.
It is plausible to find that the demise of the relationship between the parties in December 2019 reinforced Ms Treacy’s view of herself as a sole parent of X.
Consequently, I find that Sofia had reasonable expectations by reasons of representations made to her that Sofia might have a continuing role in X’s life. I find, however, that Sofia now acts consequently by way of entitlement, empowerment or as of right considering herself to be a victim of Ms Treacy’s withdrawal of X from Sofia. It follows, therefore, that I find Sofia confuses matters of self-interest and objective insight into the needs of X. Sofia’ insistence that she should inform X of her own narrative of history with particulars as to her understanding of “parentage” evidences this confusion of priorities in Sofia.
Ms Treacy’s withdrawal of X from any relationship with Sofia is consistent with the demise of the personal relationship between Ms Treacy and Sofia and Ms Treacy’s continuing understanding that she was, in fact, always the sole parent of X.
I accept the diagnoses of Dr CC that Sofia suffers and anxiety disorder together with a personality disorder with particular personality traits and that Ms Treacy suffers an anxiety disorder together with particular personality traits. Even a lay person’s understanding of these conditions gives serious doubt as to there being any realistic possibility of proper communication or cooperation between these two adults in respect X with such traits compounded by mutual fear, suspicion and accusation, a conclusion in fact volunteered by Dr CC and supported by the Senior Court Child Expert, Ms C.
CONCLUSION
Whilst Sofia presents with some admirable personal traits, I conclude that there is no manifest benefit to X in a continuing relationship with Sofia. To the contrary, there is likely to be a detriment to him with probable emotional or psychological distress should such relationship be established and continue. The adults in this matter have no commonality. They do not share friends and acquaintances. They present with different worldly viewpoints. Sofia’s personal focus on being a victim and hence intending to convey Sofia’s narrative to X will be contrary to the parenting model now established with Ms Treacy. Irresistibly, there will be ongoing conflict, both personally and in respect of X, between Ms Treacy and Sofia given the determined positions taken by each compounded by their diagnosed personality traits. There is no biological connection of identity between X and Sofia although again I stress this is not a determinative factor in my consideration. There is every indication that Sofia’s litigious crusade will continue where Sofia considers Sofia the victim and my observation of Sofia’s personality and demeanour is that X would be further exposed to inevitable resulting conflict. Finally, this is not a matter of resurrecting or restoring a relationship. Realistically, X has no memory of the contact with Sofia. There is no current relationship of any type for X with Sofia. X is in all other respects progressing well, reaching his milestones, and about to broaden his world within the next year or so by commencing his schooling. As such, I am of the view, on the balance of probabilities, that X’s best interests are served by not establishing a relationship with Sofia. The application by Sofia will be dismissed. There will be orders that Ms Treacy have sole parental responsibility for X and that he live with her. There will be no orders for time-with or communication between X and Sofia.
I certify that the preceding one hundred and sixty-seven (167) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 25 June 2024
0
5
2