W and C
[2009] FCWA 61
•26 MAY 2009
[2009] FCWA 61
| JURISDICTION | : | FAMILY COURT OF WESTERN AUSTRALIA |
| ACT | : | FAMILY COURT ACT 1997 |
| LOCATION | : | PERTH |
| CITATION | : | W and C [2009] FCWA 61 |
| CORAM | : | CRISFORD J |
| HEARD | : | 2 & 5 FEBRUARY 2009 |
| DELIVERED | : | 26 MAY 2009 |
| FILE NO/S | : | PTW 5476 of 2008 |
| BETWEEN | : | W |
| Applicant/Father | ||
| AND | ||
| C Respondent/Mother | ||
| Catchwords: |
CHILDREN'S ISSUES - who is a parent - equal shared parental responsibility - when does it apply - naming of child - time spent
Legislation:
Adoption Act 1994
Artificial Conception Act 1985 s 7(2)
Family Court Act 1997 s 5(1), s 36(1), s 36(2), s 66A, s 66C(2), s 66C(3), s 70A, s 84(2), s 85,
s 86A, s 88, s 89(1), Division 5 of Part 5
Human Reproductive Technology Act 1991 (Western Australia) s 3
Interpretation Act 1984
Surrogacy Act 2008
[2009] FCWA 61
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Mr M Supljeglav |
| Respondent | : | Ms S Tovey |
Solicitors:
| Applicant | : | DS Family Law |
| Respondent | : | Dwyer Durack |
Case(s) referred to in judgment(s):
Goode and Goode (2006) FamCA 1346
Mulvany and Lane (2008) FamCAFC 76
Potts & Bims and Ors [2007] FamCA 394
Re C and D (1998) FLC 92–815
[2009] FCWA 61
1 In recent years the use of artificial insemination procedures has risen
dramatically, both here and overseas. They were once procedures of last resort for infertile heterosexual married couples. They have now become a mainstream solution for various reproductive challenges including absence of a heterosexual partner. New groups such as single women seeking to raise a child alone, same sex couples and gay men who have arranged for a mother to carry their child have used these procedures.
2 Whilst technology has grown and the ambit of artificial insemination procedures
has expanded the legal system lags behind. This can lead to complicated child custody disputes between the parties. (Sperm Donor or Thwarted Father? Elizabeth E McDonald, Family Court Review, Vol. 47 No. 2, April 2009 340-355.)
3 The call for legislative change in Australia made by Guest J in Re Patrick (2002) FLC 93-096 and again the following year by Brown J in Re Mark (2003) FLC 93-173 has largely been ignored. Where it has been considered it has failed to keep pace with the increasingly diverse concept of “family”.
Applications before the Court
4 The Court is asked to deal with an application for parenting orders, filed 5
November 2008, and brought in relation to a child, presently known as [PTC], born
[in] August 2008.5 The applicant, [Mr W], seeks among other things, that the parties have equal
shared parental responsibility for the child. He also seeks to spend time with the child
and he wants to have a part in the naming of the child.6 The respondent, [Ms C], opposes the orders. She seeks sole parental
responsibility for the child. She says the presumption of equal shared parental
responsibility found in s 70A of the Family Court Act is not appropriate in this case.
Brief Relevant Background
7 The applicant is in a same-sex de facto relationship with his partner of 10 years,
[Mr T].
8 They had hoped to raise children of their own. To this end [Mr T] responded to
an advertisement that had been placed by the respondent in the Perth gay press as
follows:“CO PARENT – Single lesbian looking for male co-parent/s. I am
financially and emotionally stable and am looking for similar in a single or
gay couple to co-parent.Email [sic]: [email protected]”
The couple said:
“we would like a straight down the line, 50/50 legal, financial and co-
parenting arrangement”.
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9 The applicant says the parties met over coffee in or about June 2007. Also
present were [Mr T] and the respondent’s friend [Ms J]. There were further meetings between the parties and [Mr T] during which the applicant says “we discussed our backgrounds and [Mr T] and I once again outlined our hopes for an equal shared co- parenting arrangement where we share in the care and decision making for the child together with the financial costs associated with raising the child”.
10 The applicant states that difficulties arose over the issue of a parenting
agreement. He states that “[Mr T] and I would draft an agreement and pass it on to the Respondent for her comments. The respondent would then down-load an entirely different form of agreement from the internet and send it to us to redraft”.
11 Despite not entering into a formal agreement, the parties continued with their
plans to conceive a child. In about September 2007, [Mr T] returned a “low sperm count” rendering him unsuitable as a donor. The applicant approached the respondent to see “if she would accept me as the biological father” and she said yes.
12 The respondent says that [Mr T] advised her they could still proceed on the same
terms but with the applicant in his stead. She says she had no concerns about this as this “would still fulfil what I saw as necessary for the child, being knowledge of the donor for medical and identity reasons”.
13 The applicant deposes that the respondent approached the couple in October
2007 to advise when she would be ovulating. When questioned about the parenting
plan the applicant said, “yes we should finalise it soon”.14 The applicant and [Mr T] received legal advice on the parenting plan. He says
the advice “was to the effect that agreements written prior to the birth of a child were evidence of intention only but that we should have a concluded agreement before the child was born, the terms of which could be lodged as orders after the child’s birth”.
15 In October and November 2007, the respondent inseminated herself with the applicant’s semen on five or six occasions.
16 The applicant says he and [Mr T] were uneasy about the situation and decided to
put things on hold until they had entered into a parenting agreement. He says they
advised the respondent of this in late November 2007.17 The applicant has annexed a number of emails in support of his position. The accuracy of some emails has been disputed by the respondent.
18 Emails of 30 November 2007 are not in dispute. One such email sent at 11:19 from [Mr T] to the respondent simply states, “Any luck this month”. This appears inconsistent with the applicant’s evidence that in November arrangements were put “on hold” pending a parenting plan.
19 In an email dated 5 December 2007 from the respondent to [Mr T], she writes:
“Thanks for being honest with me last night. Even though I did not show much emotion last night I am upset because I thought you two would be perfect daddies. Can I ask if you and [Mr W] have thought about still
[2009] FCWA 61
providing me with “little boys” and playing a lesser part in a childs [sic]
life ie as uncles”.
20 In an email sent from the respondent to [Mr T] on 7 February 2008 at 10:06 she
states:
“On 4 December when we had dinner and you both told me you had
changed your mind about having a child with me I was really upset”.
21 In February 2008, the respondent advised the applicant and [Mr T] she was three
months pregnant. She says she discovered she was pregnant subsequent to the
meeting on 4 December 2006.22 After the birth of the child in August the parties continued to have substantial difficulties culminating in the commencement of these court proceedings.
Parental Responsibility
23 Although the parties concentrated their submissions on the issue of whether the
applicant was a “parent” it is also necessary to canvass the issue of parental responsibility generally. However, as a starting point I will address what I consider to be the applicable law on the issue of “parent” in the circumstances here.
24 The applicant’s counsel argues that the Family Law Act 1975 applies to the determination of who is a “parent” of this child. He urges the court to take an expansive approach in defining the term.
25 Counsel for the respondent argues that, as the Commonwealth position in this regard is not settled, this Court must turn to State law to determine this matter.
26 I agree with the position of the respondent that State law applies but for different reasons to those put forward by her Counsel.
27 Simply put, historically, constitutional limits meant that Parliament could only
legislate on matters with respect to “marriage”. This meant that the Commonwealth
could not legislate in relation to ex-nuptial children.28 Agreement was reached between the states and territories, in the late 1970’s, that
uniform legislation should be enacted governing the status of children born as a result of artificial insemination by donor. Following the drafting of a “Model Bill” authorised by the Standing Committee of Attorneys-General, various states enacted their own legislation.
29 Between 1984 and 1985 each of the States (except Queensland) enacted
legislation dealing with the status of children born from artificial insemination and
IVF procedures. Western Australia enacted the Artificial Conception Act 1985.30 Between 1986 and 1987 the various states referred their powers to the
Commonwealth, with the exception of Western Australia. In response to this referral
[2009] FCWA 61
of power, and specifically in relation to children born of artificial insemination
procedures, section 60H of the Family Law Act was enacted.31 However, as Western Australia is a non-referring state, s 60H of the Family Law Act does not apply to ex-nuptial children born as a result of artificial insemination procedures in Western Australia. There is no mirror provision of s 60H in the Family Court Act 1997.
32 Section 36(2) of the Family Court Act confers jurisdiction on this Court to make orders with respect to a child born outside of marriage (“ex nuptial child”).
33 In these proceedings, there is no dispute that the child was conceived as a result
of an artificial conception procedure between parties who were not married. As such, the child is an ex-nuptial child and, by virtue of the provisions set out above, decisions concerning the child are governed by the Family Court Act.
34 The only definition of “parent” in the Family Court Act is contained in section 5(1). This definition operates only in relation to adopted children so is not relevant in these proceedings. Thus, by virtue of s 36(1), it is necessary to turn to other state legislation to make a determination in this matter. Section 36(1) states:
“The Court has throughout the State the non-federal jurisdictions conferred
on it by or under this or any other Act.”
35 The Interpretation Act 1984 defines “parent” to include:
(a) a person who is a parent within the meaning of the Artificial Conception Act 1985 (“ACA”); (b) a person who is an adoptive parent under the Adoption Act 1994; (c) a person who is a parent in a relationship of parent and child that arises because of a parentage order under the Surrogacy Act 2008;”
36 A perusal of the Adoption Act 1994 and the Surrogacy Act 2008 satisfies the Court that neither has application here.
37 Section 7(2) of the ACA which sets out the position of a biological parent in relation to artificial fertilisation procedures provides that:
“(2) Where —
(a) a woman becomes pregnant in consequence of an artificial fertilisation procedure; and (b) a man (not being the woman's husband) produced sperm used for the purposes of the procedure, then for the purposes of the law of the State, the man referred to in
paragraph (b) —
[2009] FCWA 61
(c) shall be conclusively presumed not to have caused the pregnancy; and (d) is not the father of any child born as a result of the pregnancy.”
38 Subsection (c) and (d) apply “for the purposes of the law of the State”. This Act does not limit the section’s application to specific laws of the State. It is stated generally, and as such, can be taken to mean that it applies to all laws of the State, including the Family Court Act.
39 In considering the position of the applicant in relation to the legislation, I see no
ambiguity or difficulty in the interpretation of the section of the ACA itself. The words
are plain and do not require any clarification.
Section 3 of the Human Reproductive Technology Act 1991 (Western Australia) provides a definition of “biological parent”. It states:
“biological parent means a person who —
(a) is the source of a human egg or human sperm used in an artificial fertilisation procedure; and (b) is the genetic parent of a human embryo developed, or of a child born, as a consequence of that procedure”
40 There is no real dispute that the applicant is a biological parent or, as the respondent pejoratively termed him - a sperm donor.
41 When coupled with the Human Reproductive Technology Act although the applicant is the male biological parent, apparently he is not the father of the child and is presumed not to have caused the pregnancy. There is, at best, a degree of tension in this.
42 Obviously, there are many differences in the meaning of a parent taking into
account genetic, social and legal concepts. These different contexts can be seen historically in arrangements such as adoption and, more recently, in the area of surrogacy. What can loosely be termed custody disputes bring a legal dimension to “parent”.
43 I have considered what is referred to as the expansive view of Brown J in Re Mark (supra) and also Guest J’s differing views. I am here considering the applicable legislation of Western Australia and have determined it is appropriate to use the Interpretation Act and the ACA to ascertain whether the applicant is a parent.
44 I am satisfied that the applicant is not the legal father but, rather, the genetic or
biological parent. However, it is important that this matter be considered in a social
context.
[2009] FCWA 61
45 Division 5 of Part 5 of the Family Court Act covers parenting orders. Pursuant to subsection 89(1) the Court may, with some riders, make such parenting order as it thinks proper.
46 According to section 88 of the Family Court Act, the child’s parents, the child, a grandparent of the child or any other person concerned with the care, welfare or development of the child may apply for a parenting order.
47 Subsection 84(2) states that a parenting order may deal with one or more of the
following:
(a) who a child will live with; (b) the time a child is to spend with other persons; (c) the allocation of parental responsibility for a child; (d) where persons share parental responsibility for a child, how decisions concerning the child will be made; (e) communication between the child and other persons; (f) maintenance of a child; (g) steps to be taken before an application can be made to a court to vary an order; (h) process to be used for resolving disputes about the terms or operation of an order; (i) any aspect of the care, welfare or development of a child or any other aspect of parental responsibility for a child.
48 Notably, subsection 84(2a) states:
(2a) The person referred to in subsection (2) may be, or include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).
49 In addition, s 85 states:
“Parenting orders may be made in favour of parents or other persons
— FLA s 64C
85 A parenting order in relation to a child may be made in favour of a parent of the child or some other person.”
50 Section 86A requires that a court must regard the best interests of the child as the paramount consideration.
51 Any order made pursuant to s 89(1) of the Family Court Act is subject to s 70A which concerns a presumption of equal shared parental responsibility. The section provides that, when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. I am satisfied the presumption does not apply here.
[2009] FCWA 61
52 However, persons other than parents may apply for a parenting order and any
such parenting order may make provision for the allocation of parental responsibility. The applicant has applied for parenting orders and I need to consider whether he is a person concerned with the care, welfare or development of the child. If he is I need to consider whether it is in the best interests of the child to make the order he seeks for equal shared parental responsibility.
53 The applicant’s evidence is that he has spent time with the child “following his
return from hospital” which took place “in the Respondent’s home for a period of
approximately 8 weeks, each alternate day for up to 2 hours”.54 On 24 November 2008, the Magistrates Court ordered that the applicant be able
to spend time with the child on 3 occasions, for an hour each time. On 10 December 2008, orders were pronounced in terms of a Minute of Consent which provided for the applicant to spend 2 hours with the child on various days, covering the period 14 December 2008 to 2 February 2009. Further consent orders have been made for supervised time.
55 In her email to [Mr T] sent Wednesday, 5 December 2007 at 10.51am, the respondent writes:
“Can I ask if you and [Mr W] have thought about still providing me with
“little boys” and playing a lesser part in a childs [sic] life ie as uncles”.
56 And further, in her email to [Mr T] sent Thursday, 7 February 2008 at 10.06, the respondent writes:
“You both know that I feel strongly about a child having more than one stable adult/parent in its life and hope that you both will want to be in this childs [sic] life in some capacity”.
57 Also, on Thursday, 6 March 2008, the respondent advised the applicant, by
email, that he and his partner were welcome to attend at [the Hospital Radiology]
while she underwent an “anatomy scan”.58 The applicant and his partner are clearly people who are concerned with the
care, welfare or development of the child, which at least at some stage appears to have
been recognised by the respondent also.
Parenting orders
59 I now turn to the parenting orders sought by the applicant.
60 Section 66A of the Act makes clear that I am required to treat the best interests of the child as the paramount consideration. The objects of Part VII 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
[2009] FCWA 61
(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.
61 Section 66C sets out the matters I must take into account in determining what is
in the best interests of this child. Section 66C(2) details what are described as primary considerations and s 66C(3) details additional considerations to be taken into account in determining what is in the child’s best interest. The additional considerations are not secondary considerations but are matters to be read in conjunction with the primary considerations. There is a degree of overlap in some of the considerations.
62 A perusal of the various sections makes it clear that some of the primary and
additional considerations refer to a child’s parents only. This has been the subject of
some judicial discussion.63 In Potts & Bims and Ors [2007] FamCA 394, Moore J stated as follows (at para
8):
“Some Part VII provisions refer to ‘parent/s’ which, given the word’s ordinary meaning and in the absence of an expanded definition or some other descriptor such as ‘party’, means a number of sections do not apply when assessing ‘best interests’ in proceedings that are not between parents but between a parent and a non-parent [eg. relative]. Section 60B(1) and (2) set out the objects of Part VII and the principles underlying them. However, a number are expressed to apply to ‘parent/s’ and so are excluded in proceedings of the latter kind.
…
With objects and underlying principles as a guide, the determination of what is in a child’s best interests requires the court to consider both ‘primary considerations’ and ‘additional considerations’ set out in s 60CC. But again the use by the legislature of the word ‘parent/s’ in a number of those considerations operates to exclude those factors in proceedings between a parent and non-parent. Falling within that group is the primary consideration in paragraph 60CC(2)(a) and the additional considerations at paragraph (c), (e), and (i).”
64 Her Honour goes on further:
“On that same analysis, the presumption of equal shared parental responsibility imposed by s61DA and, if it applies and the order is to provide for equal shared parental responsibility, consideration of the child/ren spending equal time or substantial and significant time, as set out
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more particularly in s65DAA, are not prescribed pathways in the reasoning process towards a best interests conclusion in proceedings between a parent and non-parent. Nonetheless, the particular applications may make it necessary to address those outcomes in any event.”
65 The proceedings before her Honour concerned an application brought by the
maternal grandparents to which the parents were both respondents. However, her
comments are quite apposite.66 This matter was recently considered by the Full Court (Finn, May and Thackray
JJ in Mulvany and Lane (2008) FamCAFC 76 – 12/05/09. In a joint judgment May and Thackray JJ state:
“82. Such discussion, however, is ultimately unhelpful. It diverts attention away from the central enquiry, which is to determine the outcome that will be best for the child. Instead, it focuses attention on semantic issues that whether relevant matters should be discussed by reference to one section 60CC factor instead of another. In our view, provided his Honour gave due weight to all relevant factors, it would matter not whether he considered the child’s very important relationship with the father by reference to section 60CC(2)(a) or by reference to one of the additional considerations.”
67 In dealing with this matter I intend to address every relevant consideration
whether or not it refers to parent or other person. I do this for the sake of convenience. It has the benefit of addressing each relevant matter in turn, rather than simply including them together in s 60CC(3)(m).
68 In arriving at a decision I am also mindful of what was said in Re C and D (1998) FLC 92–815:
“This court made it clear in Rice and Miller (1993) FLC 92–415 and more recently in Re Evelyn (1998) FLC 92-807 that the biological parent does not stand in any preferred position and that fact does not in any way impinge upon the principle that the best interests of the child are paramount.”
69 As was said in Goode and Goode (2006) FamCA 1346, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. I am aware the Court is limited in the findings of fact it can make and should not be drawn into matters relating to the merits of the substantive case.
70 The Court is in a difficult position, in particular, in this enquiry given firstly the
age of the child, the circumstances of his birth and the fact the emphasis during the course of submissions was on the issue of whether the applicant is a parent or not. However, these parties do need and have sought some guidance for the near future.
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Primary considerations
• the benefit to the child of having a meaningful relationship with both of the child’s parents;
71 There are two people who have been pivotal in bringing this child to life – the
parties to the proceedings. The mother and the applicant planned the birth of this child, participated in the artificial fertilisation procedure and each has maintained an ongoing interest and commitment to him. There was no suggestion the applicant was to be anything other than a known donor.
72 Whether this role was to be avuncular or paternal is of little moment. Given the
relationship and the obvious commitment it is trite to say it is beneficial to the child to be given the opportunity of developing a meaningful relationship with these two people. Each presents as dedicated and caring. However, it is necessary to consider whether there is any detriment to the child in having a meaningful relationship with either that it outweighs the benefit I have outlined.
73 Unfortunately, at least as early as early December 2007, the parties were at odds
about the role of the applicant and obvious friction arose between them. This friction was not ameliorated with the birth of the child, rather it has escalated. Although the child is very young, the unfortunate dynamics of the relationship between the parties will impact increasingly on his wellbeing if allowed to.
74 It is necessary that the ideal of these two parties working together in the best
interests of the child is not outweighed by the increasing animosity and proprietary
attitude each is showing.
• the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
75 Although both parties have been critical of the other in terms of his or her
behaviour and method of communication, I am not satisfied that this is a matter of
great moment, at least at this stage, in my determination.
Additional considerations
• 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; and
76 This is not relevant.
• 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);
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77 The child has a close relationship with his mother. He has spent time with the
applicant since his birth although I accept it is not to the extent the applicant would like. Given the age of the child I am satisfied that he has an appropriate relationship with the two central figures in his life.
78 Apart from the parties to the proceedings, [Mr T] has been consistently involved
throughout. Indeed initially he was the proposed party to the artificial conception procedure. He has a longstanding relationship with the applicant and I accept it was always anticipated he would be involved with the child as well. There is no evidence to doubt he has the beginnings of a good relationship with the child.
79 In the original advertisement the respondent describes herself as a single lesbian
looking for male co-parent/parents. On 19 January 2009 [Ms F] swore an affidavit describing herself as the lesbian companion of the respondent. There is some dispute about the role of [Ms F] and her relationship with the respondent.
80 At this stage the issue remains largely unexplored. However, there was some
suggestion by counsel for the respondent that [Ms F] may seek to be joined in these
proceedings.81 I do accept that [Ms F] has a relationship with the child and has been of
assistance to the respondent. Like [Mr T], her role cannot be discounted on the basis
of the information before me.
• the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent; and
82 I am not satisfied that either party is particularly willing or able to facilitate and
encourage a close and continuing relationship between the child and the other party. Although words are spoken to that effect, some of the issues that have arisen cause the Court to doubt whether the parties are able to put aside their own very diametrically opposed views ranging from a name for the child to what he should be fed.
83 With time it is hoped the disparity in their views will lessen. Both will be involved with the child long-term.
• 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;
84 There is no suggestion by anyone that the child should be separated at this stage
from the respondent for any great length of time. The applicant seeks increasing time with the child and I am satisfied if this is done in an age appropriate and sensitive manner it will have no adverse effect on the child.
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85 The respondent has questioned the applicant’s ability to provide appropriate
nutrition to the child and if he is separated from her for any length of time feeding
does become a matter for consideration given his age.
• 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;
86 This is of no particular relevance in this case.
• 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;
87 I am concerned about the capacity of both the parties to provide for the
emotional needs of this child. This is a difficult issue to address on the evidence before the Court and will need to be fully explored at a later date. The affidavit material filed emphasises the disharmony these parties feel.
88 However, there is one matter that does warrant attention at this stage. The
naming of this child has been contentious. The applicant is critical of the respondent’s attempt to name the male child with what he considers to be a female name. He cites the reason for her so wishing to name the child as something “brought to her by the universe”. The respondent admits she may have said this.
89 The respondent seeks a declaration that the child be known as [PTC]. On the
other hand the applicant has suggested the name [CPTMW-T]. Both names have the
potential to cause problems.90 I am not satisfied either party has been able to consider a name without being consumed by their own position rather than what may be best for the child.
• 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; and
91 This, again, is a rather shadowy consideration at this stage. The applicant, in
particular, has raised issues regarding the mother’s lifestyle. These are issues that will no doubt be canvassed at length at a later stage. I am unable to determine on the basis of the information before me whether there is any substance to the concerns of either party about this aspect of the other and how it is likely to impact on the child in the future.
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• the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents; and 92 I accept that both parties are loving towards the child and are both willing to
accept responsibility for the child. In one sense the child is blessed in having four
people extremely concerned about his welfare.93 The disconcerting aspect is the attitude of the parties to each other.
94 The parties are at odds about the issue of financial support. The applicant says
that financial support has been offered and, in fact, given. He says a cheque for $5,000 was not cashed by the respondent and he cancelled it. He and [Mr T] have provided other support in the form of food, clothing and baby items. The respondent has a different view. Although she accepts some items have been given to her, she disputes their appropriateness would have preferred assistance with housework by the provision of a cleaner and a float tank.
• 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;
95 It is with regret the Court accepts no orders at this stage are likely to finalise
proceedings. Without being unduly pessimistic it is likely that Court proceedings will continue until the parties are able to come to their own understanding and acceptance about the best way forward.
• any other fact or circumstance the court thinks is relevant
96 There is considerable dispute about whether the original arrangement between
[Mr T] and the respondent was a concluded parenting agreement and if so what are its terms. The dispute centres around the accuracy and reliability of some of the email exchanges annexed to various of the affidavits.
97 I accept that the respondent and [Mr T] did discuss a co-parenting arrangement
but as far as can be ascertained the talks related to the respondent and [Mr T], rather
than the applicant.98 Given the applicant and [Mr T]’s desire to cool their heels in relation to the joint
endeavour with the respondent in early December 2008, I am not satisfied there was ever any meeting of minds about what would happen after a birth and the exact position of the applicant in relation to the child.
Discussion
99 I am not satisfied on an interim basis that an order for equal shared parental
responsibility is appropriate. I am concerned that the discord and disharmony between the parties on almost every issue, even given the child’s young age, is not in his best interests.
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100 The parties could not agree on much before the birth such that the applicant
decided to put the whole process of artificial conception on hold. As it transpired, by
this time, at least on her version the respondent was pregnant.101 This is not to suggest the applicant is disinterested now. Quite to the contrary he
is caring and concerned. However, an order for equal shared parental responsibility involves cooperation and compromise, an ability to negotiate and communicate. This is not present. The parties have been able to negotiate some spending of time between the applicant and the child, but it involves supervision and is not what the applicant had sought. I am not confident any agreement is presently possible on the issue of the name given the issue was alive even before the birth.
102 There are some decisions that have to be made and some clear guidelines put in
place for the child’s feeding and his care. This is an interim decision only and further time will have elapsed and more information will be before the Court when the matter is next aired.
103 An order for sole parental responsibility should not be construed as a “win” for
the respondent. It is not an attempt to marginalise the position of the applicant but simply to allow some practical decisions to be made where I see agreement, co- operation and compromise as presently impossible.
104 I am prepared to make orders ensuring that the applicant has some role and is kept informed without being accorded equal shared parental responsibility.
105 Given the order I intend to make for the mother to have interim sole parental responsibility I accept she will proceed to name the child.
106 As already mentioned both names suggested by the respective parties have the potential to cause difficulties for this child, albeit for different reasons.
107 The applicant’s initiating application seeks “spend time” orders until the child is
5 years old. The name proposed by the respondent is reflective of the surname of the
person with whom he will live and the name he is currently known as.108 I am persuaded it is in the child’s best interests to have continuing and increased
time with the applicant. I would seek the assistance of the Family Consultant to negotiate with the parties and assist them in arriving at an age appropriate regime which will suit the child and take into account feeding and if necessary, supervision and the attendance at parenting courses.
109 Even if I am wrong in my finding that the applicant is not a parent for the
purpose of these particular proceedings and the presumption previously referred to did apply, I consider the interim decision on the issue of equal shared parental responsibility would be the same.
110 Section 70A(4) provides that the presumption may also be rebutted where the
court is satisfied that it is not in the best interests of the child for parents to have equal
shared parental responsibility.
[2009] FCWA 61
111 Overall I am satisfied that it is not in the best interests of this child for these
| parties whether they are parents or not to have equal shared parental responsibility at this stage. |
| Orders |
Until further order:
(a)
The respondent have sole parental responsibility for the child the subject of these proceedings born 14 August 2008.
I certify that the preceding [111] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate