Verner & Vine

[2005] FamCA 763

THE FAMILY LAW ACT 1975

IN THE COURT OF

THE FAMILY COURT OF AUSTRALIA No. NCF181 of 2005

AT NEWCASTLE

BETWEEN:

MS VINE (RESPONDENT)

AND

MS VERNER (APPLICANT)

CORAM: The Honourable Justice M.J.M. Lawrie

Date of Hearing: 8, 9 and 10 August 2005

Date of Judgment: 15 August 2005

JUDGMENT OF THE COURT

Appearances:

The applicant appeared for and on her own behalf.

Mr Bates of Counsel, instructed by Berryman Partners, Lawyers, appeared for and on behalf of the respondent.

CATCHWORDS:

FAMILY LAW – CHILDREN – Contact – Meaning of “parent” – Child’s best interests

This matter concerned an application for contact orders.
The philosophy of the Family Law Act in respect of children is set out in various sections. Section 65E says, “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration”. This makes it clear that the child is the focus of the Court’s attention. The Court has to do its best to try to come to the arrangement which will most assist the child.
The purpose of the law, as far as is relevant to this matter is set out in
Section 60B(1):
“Object of Part and principles underlying it
60B (1) The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that, except when it is or would be contrary to a child's best interests[1]:
(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 of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
…”
It is clear from the language of the section that the children are the ones with “rights”, not the adults.
[1] Emphasis supplied
The way in which the child’s best interests are determined is by taking into account a number of factors which are set out in Section 68F:
“How a court determines what is in a child’s best interests
68F (1) Subject to subsection (3), in determining what is in the child’s best interests, the court must consider the matters set out in subsection (2).
(2) The court must consider:
(a)any wishes 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 wishes;
(b)the nature of the relationship of the child with each of the child’s parents and with other persons;
(c)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, with whom he or she has been living;
(d)the practical difficulty and expense of a child having contact 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;
(e)the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs;
(f)the child’s maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court thinks are relevant;
(g)the need to protect the child from physical or psychological harm caused, or that may be caused, by:
(i)being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or
(ii)being directly or indirectly exposed to abuse,
ill-treatment, violence or other behaviour that is directed towards, or may affect, another person;
(h)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(i)any family violence involving the child or a member of the child’s family;
(j)any family violence order that applies to the child or a member of the child’s family;
(k)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;
(l)any other fact or circumstance that the court thinks is relevant.”
The court has to consider this range of factors. Some will be more important in one case, some in another.
Section 64(B)(4) provides that a parenting order may deal with “contact between a child and another person or other persons”. Section 64C provides that “a parenting order in relation to a child may be made in favour of a parent of the child or some other person.”
Is the applicant a “parent” or some other person?
The child concerned, “A”, was born in April 2001. She was conceived by IVF. The respondent is the biological mother, and carried the child. She was not married when the child was born. The father was an anonymous donor. The mother was living with the applicant when the child was born. The mother says they were only friends; the applicant says that the mother was her lesbian partner.
Certainly in the process of obtaining the IVF insemination the mother held out that she was in a lesbian relationship with the applicant. The applicant co-signed the documents for the clinic as the partner of the mother. They attended counselling together as part of the IVF process and held out that they were a lesbian couple.
Section 60H of the Family Law Act deals with children born as a result of artificial conception procedures. It provides:
“60H (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 a man; and
(b)   either of the following paragraphs apply:
(i)the procedure was carried out with their consent;
(ii)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the man;
then, whether or not the child is biologically a child of the woman and of the man, the child is their child for the purposes of this Act.
(2) If:
(a)a child is born to a woman as a result of the carrying out of an artificial conception procedure; and
(b)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman;
then, whether or not the child is biologically a child of the woman, the child is her child for the purposes of this Act.
(3) If:
(a)a child is born to a woman as a result of the carrying out of an artificial conception procedure; and
(b)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of a man;
then, whether or not the child is biologically a child of the man, the child is his child for the purposes of this Act.
(4) If a person lives with another person as the husband or wife of the first-mentioned person on a genuine domestic basis although not legally married to that person, subsection (1) applies in relation to them as if:
(a)     they were married to each other; and
(b)     neither person were married to any other person.
(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.”

The relevant New South Wales law is the Status of Children Act 1996 No 76. Section 14 provides:
“Presumptions of parentage arising out of use of fertilisation procedures
(1)   When a married woman has undergone a fertilisation procedure as a result of which she becomes pregnant:
(a) her husband is presumed to be the father of any child born as a result of the pregnancy even if he did not provide any or all of the sperm used in the procedure, but only if he consented to the procedure, and
(b) the woman is presumed to be the mother of any child born as a result of the pregnancy even if she did not provide the ovum used in the procedure.
(2)   If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using any sperm obtained from a man who is not her husband, that man is presumed not to be the father of any child born as a result of the pregnancy.
(3)   If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using an ovum obtained from another woman, that other woman is presumed not to be the mother of any child born as a result of the pregnancy.
(4)   Any presumption arising under subsections (1)-(3) is irrebuttable.
(5)   In any proceedings in which the operation of subsection (1) is relevant, a husband’s consent to the carrying out of the fertilisation procedure is presumed.
(6)   In this section:
(a) a reference to a married woman includes a reference to a woman who is living with a man as his wife on a bona fide domestic basis although not married to him, and
(b) a reference (however expressed) to the husband or wife of a person:
(i) is, in a case where the person is living with another person of the opposite sex as his or her spouse on a bona fide domestic basis although not married to the other person, a reference to that other person, and
(ii) does not, in that case, include a reference to the spouse (if any) to whom the person is actually married.”

The application of the sections above results in the respondent being the mother (which she also is, biologically), and the donor not being the father, but does not provide for any legal status as a “parent” for a same-sex partner who might be living with the mother at the time of conception, whether as a de facto partner or otherwise.
“Parent” as such is not defined in section 60D of the Family Law Act. In its ordinary use, as indicated for example in the Macquarie Dictionary, it means “a father or a mother”. The definition section of the Act only refers to “parent in relation to a child who has been adopted, means an adoptive parent of the child.” The applicant has not adopted the child.
In these circumstances, the applicant cannot be considered as a “parent” under the Act, but may be within the class of “other people significant to their care, welfare and development”.
The mother is now married. The child has two half siblings who are the biological children of the mother and her husband. She does not want any orders for contact with “A” being made in favour of the applicant. Her husband supports her.
The applicant seeks the following orders:
“1.     That the child [A] …. reside with the respondent mother.
2.    That the Applicant have the joint responsibility, in consultation with Respondent for making decisions about the long term care, welfare and development of the child.
3.    That the Applicant have the joint responsibility, in consultation with Respondent for making decisions about the child’s medical condition and treatment, including operations, medical treatments and dental treatments, speech therapists, physiotherapists and alternative medical treatment of the child.
4.    That the Applicant have contact as agreed between the parties, failing agreement as follows:
(a)     Each alternate weekend from 10.00am on Friday to 5.00pm on Sunday.
5.    Upon the child commencing school age, as agreed or failing agreement as follows:
(a)Each alternate week from after school on Friday to Sunday 7.00pm
(b)In the event that any contact weekend falls on a long weekend including a Monday then contact to the Applicant shall be extended to 6.00 pm on Monday; if it falls on a long weekend including Friday, then contact shall commence on 6.00pm Thursday.
(c)Half of all school holidays with each alternate Christmas holiday to include Christmas Day.
(d)     For 4 hours on the child’s birthday.
(e)     The applicant have contact for half of each Mother’s Day.
6.     That the Respondent provide to the Applicant on a regular basis copies of all school reports, any other reports on school progress and behavioural issues and other school circulars in relation to the child, as soon as practicable after they are received and that each party shall pay one half of any associated costs of photocopying and postage.
7.     That the Respondent provide to the Applicant, in a timely manner, copies of all notices received from school and details of all functions, parent and teacher nights and other activities to which the parents are invited.
8.     That the Respondent keep the Applicant informed about the welfare and education of the child.
9.     That the Respondent encourage and foster the child’s relationship with the Applicant.
10.    That the Respondent will encourage the child, at reasonable times, to communicate by telephone with the Applicant during periods of holiday contact.
11.    That the Respondent will provide a contact number and address to the Applicant during periods when the Respondent has holiday contact with the child.
12.    That the Applicant have joint responsibility in consultation with the Respondent about travel within Australia undertaken by the child.
13.    That the Applicant have joint responsibility in consultation with the Respondent for decisions about taking the child outside Australia and the applicant consents [sic] to be obtained in writing.”

During the course of the litigation the applicant repeatedly referred to the child as “my daughter” or “our daughter”. The pattern of orders sought is a pattern which might be appropriate in the case of a parent, but would be extraordinary for a
non-parent, particularly for example, alternative Christmas Days. The impact on the child of being separated from her half-siblings on alternate weekends, for half of the school holidays and so forth does not appear to have been given any consideration in the drafting of the orders sought. On the face of it, the application is less child focussed than concerned with an assertion by the applicant of a parental “entitlement”. They also do not appear to have taken “A’s” special circumstances into account.
The language of the Act in speaking of the group of people with whom children have a right of contact, other than their parents, does not refer to people who may once have played a role in their life, but looks at the present and future, and speaks of their “care, welfare and development”. The Court needs to be able to see how the contact will benefit the children’s development, welfare and be a positive in the care of the child.
Contact, even when dealing with a case of an application by a biological parent, will only be ordered:
“where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact.[2]”
[2] Nygh J, Cotton and Cotton (1983) FLC ¶91-330

The applicant spent much of her case seeking to establish that she and the respondent had had a nine year lesbian relationship. She called evidence from her brother (who was on affidavit), and her sister (in reply) to assert that they had shared a bed.
I was not impressed by either of her siblings as witnesses. Some of their evidence was inconsistent with evidence of the applicant herself. The brother said that the child had come for contact on alternate weekends at a different time (after 5.00 pm when he would have been home from school) from that which had been given by the applicant (10.00 am on Friday morning).
Her sister, a Police Prosecutor, had been in court for the whole of the evidence before she was called to give evidence in reply. She was clearly partisan.
Her evidence resembled a submission. She asserted that at a time she was living with her sister and was therefore witness to the relationship, that the applicant and respondent were in a “de facto relationship”, during a period when she said that the respondent was spending “quite a bit of time”, meaning by that that “she would come over for dinner and stay the night”, and “it felt like she was living there” even though she was in fact living elsewhere.
She said that they were both very honest with their relationship and that they both openly displayed their affection. That was not consistent with the applicant’s evidence that the respondent had been reticent about letting people know about the same-sex relationship. The applicant had put that forward in explanation for the lack of reference to her claimed role in the B Hospital. She said that the respondent “was ashamed of our relationship.”
The applicant’s sister said she had told the applicant the respondent “was cheating on her” and that this had caused a falling out when she preferred the respondent to her sister.
The applicant herself was not an impressive witness either. She was inaccurate about dates, she gave inconsistent versions of events in her affidavits and her oral evidence, she shifted her position on matters during cross-examination.
The applicant tendered photographs of herself, some with the child, and some with the respondent. Some of these had been arranged in an album in which pages had been decorated with hearts, teddy bears, with cards, poems and love letters which she claimed were from the respondent.
The respondent said that some of the cards shown to her in the witness box were not written by her. The applicant tendered as a “sample of the respondent’s handwriting”, exhibit “T” which was a questionnaire which the respondent had filled out for the C Hospital.
The applicant and the mother attended the same school for at least part of their education. They both seem to have experimented with handwriting styles.
Many of the letters are differently formed in the C Hospital document from how they are formed in the various cards. In some of the cards the top stroke of the letter “T” is on a slight angle, rising from left to right. In the hospital questionnaire printed by the respondent they do not, but they do noticeably in the notebook written by the applicant which became Exhibit K.
The evidence is inconclusive. It is possible that the albums, which give the impression of having been prepared by an adolescent, contain a mixture of real cards from the mother and some written by, or altered by, the applicant, or that they are all from the mother with experiments with different styles of handwriting which could belong to either. The photographs also could be consistent with the mother’s description of the relationship. They had been close friends at school and the applicant was taken in by the mother’s family as a sort of “foster daughter” when they were still at school. Some of the material could be consistent with a close sentimental “sisterly” friendship. The mother said she had a close sisterly relationship with the applicant, with a limited period where there was some sexual activity between them, but which she decided “was not for me.”
It is certain that the applicant and mother purchased a house together as joint tenants. The mother provided the $30,000 deposit, the applicant worked and made mortgage payments. It is certain that the applicant and the mother put themselves forward as a lesbian couple to enable the mother to be artificially inseminated.
The mother says that there were financial benefits in the way that the house was purchased and that was why it was done in that fashion, and that the applicant, as her best friend, helped her with her ambition to have a baby, but that she was never a co-parent.

Whatever the nature of the relationship at the time “A” was conceived, the relationship is now very different from a close friendship or a love affair. The applicant maintains a lesbian identification. The mother does not. She is married, and has two children with her husband.
The applicant not only sought through the proceedings to have the respondent “admit” to her lesbian past, but there is a real possibility that she wishes to tell the child about it as well. In her submissions she said for example that, “I believe the truth and not denying the reality will help her not have any psychological issues in the future.” The truth, she asserts, is that the mother was in a lesbian relationship in which she was the co-parent of the child.
The cross-examination of the mother and her husband by the applicant was far more focussed on the adult relationships than on the child. The applicant denigrated the respondent, and sought to upset and unsettle the husband during her cross-examination of him, raising a conviction that the respondent had for petty theft, suggesting to him that she had lied to him, suggesting that she had had affairs and relationships of which he was ignorant. Her attitude to them both was hectoring and sarcastic. She was self-centred; some questions put to the respondent included, “Are you jealous and angry I am no longer with you?”; “Do you despise my happiness?”; “Are you jealous I am achieving my goals?”; “Are you trying to do what you can to destroy my life because you are vengeful because I left you?”
The state of the relationship between these former friends which exists today makes it clear that it would be extremely unpleasant for the mother to be in a position where she was required to have any further contact with the applicant.
I am satisfied that it would impinge on her and her family’s need for peace and tranquillity and cause upset in the child’s home which would not be in the child’s interest.
The child, the mother and her husband are in a particularly difficult situation. “A” is severely handicapped through having spastic quadriplegia cerebral palsy with athetoid movements. As summarised in the S Centre file, she needs maximal assistance in all activities of daily living.
The applicant dismisses the child’s problems. She claims to have had her for fortnightly contact on a regular basis and that there were no difficulties in caring for her and no special equipment required. The mother says in the past she minded her for some hours on a few occasions, but that assistance came to an end when she tried to retain her, and the child was retrieved through the intervention of the police.
I accept the version of events given by the mother. The applicant was not able to describe the child’s regime, which is involved with a considerable amount of equipment and with skills required on the part of the carer which she does not have. The applicant has recently obtained a job with the S Centre as a carer in a facility which deals with adults, and put herself forward as someone who would therefore have no difficulty in caring for the child. I do not think the experience of caring for the child on occasions for a few hours when the child was younger and smaller has given her any insight into the demands of caring for the child.
The records indicate that the mother and her husband are devoted parents to the child. It is extremely demanding, particularly with the other two small children. The mother’s husband says, and I accept, that he treats them all as his own.
As he said, “I may not be her father but I am her Dad.” I was very impressed with the mother’s husband, and as far as parenting of the child was concerned, very impressed with the mother.
It would not be in the child’s interests for the mother and her husband to be placed under any further stress. The thought that the applicant had any control over their lives and was able to intrude into their family when they did not want to have an ongoing relationship with her would be very stressful.
It would not be in the child’s interests to be told that she is different from the other children in the family, or to be treated differently from the other children. It would not be in the child’s interests to be exposed to any criticism of, or hostility towards, her mother or her stepfather. Orders in favour of the applicant would be likely to lead to all of these things.
I am satisfied that the significance of the applicant in the child’s life is now a matter of history, namely the participation in the IVF process, and the occasional assistance she offered as the mother’s friend when the child was younger. There will be no benefit to the child in seeing her, and considerable risk of harm.
Dealing in brief with the various factors in Section 68F.
(a) any wishes 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 wishes
The child is unable to express any wishes.
(b) the nature of the relationship of the child with each of the child’s parents and with other persons
The child has a good relationship with her mother and stepfather, and had been happy in the past when minded by the applicant for short periods.
(c) 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, with whom he or she has been living
The child is very dependant on her mother and her stepfather and her siblings are particularly important as playmates and companions due to her limited mobility. It would be likely to be extremely distressing for her to be separated from any of them for any length of time.
(d) the practical difficulty and expense of a child having contact 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
The need to have special equipment for the care of the child would make any contact more difficult than usual.
(e) the capacity of each parent, or of any other person, to provide for the needs of the child including emotional and intellectual needs
I am satisfied the mother and the stepfather have the capacity to provide well for the emotional and intellectual needs of the child; I am not so satisfied in respect of the applicant who does not present as insightful or child focussed.
(f) the child’s maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court thinks are relevant
The child’s health is relevant and has been discussed above.
(g) the need to protect the child from physical or psychological harm caused, or that may be caused, by: (i) being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or (ii) being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person
There is a risk that the applicant may seek to involve the child in her preoccupation with the relationship which she had with her mother at the time of her conception, and this could cause confusion, and distress.
(h) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The mother and the stepfather have shown an exemplary attitude to the child and the responsibilities of parenthood.
(i) any family violence involving the child or a member of the child’s family
Not relevant.
(j) any family violence order that applies to the child or a member of the child’s family
Not relevant.
(k) 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
For the child’s sake, the less her mother and stepfather have to be distracted from the task of caring for her, the better.
(l) any other fact or circumstance that the court thinks is relevant
The relevant circumstances have been discussed above.
In all the circumstances I am satisfied it would be in the child’s best interests for their to be no contact with the applicant:
1.The application for contact is dismissed.
2.That the exhibits may be returned upon the usual undertakings.
3.That all material produced in response to subpoenas be returned to the party who produced it.
4.That the matter be removed from the pending cases list.

____________

I certify that this page and the previous 17 pages is a true copy of the judgment handed down by Justice M.J.M Lawrie dated 15 August 2005.
Associate to Lawrie J.

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as VINE & VERNER

[2005] FamCA 763

15 August 2005

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