Wall and Pearson
[2016] FCCA 2654
•17 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WALL & PEARSON | [2016] FCCA 2654 |
| Catchwords: FAMILY LAW – Interim arrangements for parenting of children aged 8 & 4 – children both conceived by artificial conception procedure – parties previously in same sex relationship – each party is biological parent of one child – children currently separated – matters to be considered – best interests – nature of interim hearing. |
| Legislation: Family Law Act 1975, ss.4, 11F, 60H, 60CA, 60CC, 64B, 65D, 68L & 69R |
| Cases cited: Tobin v Tobin (1999) FLC 92-848 Goode & Goode (2006) FLC 93-286 |
| Applicant: | MS WALL |
| Respondent: | MS PEARSON |
| File Number: | ADC 1693 of 2016 |
| Judgment of: | Judge Brown |
| Hearing date: | 4 October 2016 |
| Date of Last Submission: | 4 October 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 17 October 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms M Dickson |
| Solicitors for the Applicant: | Susan Litchfield Solicitor |
| Counsel for the Respondent: | Ms A Horvat |
| Solicitors for the Respondent: | Judith Jordan |
ORDERS
Until Further or Other Order:
The child X born (omitted) 2012 (hereinafter referred to as X) live with the respondent mother Ms Pearson.
The child Y born (omitted) 2008 (hereinafter referred to as Y) live with the applicant mother Ms Wall.
The child X spend time with Y and the applicant mother Ms Wall as follows:
(a)On alternate weekends from 10.00 am Saturday until 6.00 pm the following Sunday commencing 22 October 2016;
(b)On alternate Wednesdays from 4.00 pm until 7.00 pm commencing 19 October 2016;
(c)On Christmas Day between 10.00 am and 6.00 pm;
(d)On (omitted) 2017 between 1.00 pm and 6.00pm.
The child Y spend time with X and the respondent mother Ms Pearson as follows:
(a)On alternate Saturdays from 10.00 am until 6.00 pm commencing 29 October 2016;
(b)On alternate Wednesdays from 4.00 pm until 7.00 pm commencing 26 October 2016;
(c)On Christmas Eve between 10.00 am and 6.00 pm;
(d)On (omitted) 2017 between 1.00 pm and 6.00pm.
The children be exchanged to give effect to these orders at any location as agreed between the parties and failing agreement to be at (omitted), Adelaide.
Each party is restrained and an injunction issues restraining each of them from:
(a)denigrating, harassing, abusing or assaulting the other in the presence of or within the hearing of either Y or X or both of them or permitting any other person to do so;
(b)discussing these proceeding directly with either Y or X or both of them or within their hearing or permitting any other person to do so
Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the children Y born (omitted) 2008 and X born (omitted) 2012 and to facilitate such appointment the parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
The further hearing of the matter be listed for directions on 16 March 2017 at 9.30 am.
IT IS NOTED that publication of this judgment under the pseudonym Wall & Pearson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 1693 of 2016
| MS WALL |
Applicant
And
| MS PEARSON |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to these proceedings are Ms Wall and Ms Pearson. I mean neither of the parties any disrespect but I will refer to them as “Ms Wall” and “Ms Pearson” respectively in these reasons for judgment. This is the nomenclature, which they themselves have adopted in their affidavit material.
The proceedings concern interim parenting arrangements for two children – Y born (omitted) 2008 and X born (omitted) 2012.
It is Ms Wall’s position, at both the interim and final stage, that both Y and X should live with her. She proposes that Y should spend time with Ms Pearson, subject to his wishes, from 10.00 am until 5.00 pm, each Sunday.
So far as X is concerned, Ms Wall proposes that she (X) should spend time with Ms Pearson each week from 10.00 am Thursday until 5.00 pm the following Saturday. Ms Pearson wishes X’ name to be placed on the airport watch list and for arrangements to be made for her to be enrolled at the (omitted) Primary School, for the commencement of her reception year, in 2017.
Ms Pearson, at the interim stage wishes the court to make orders that would see Y living with Ms Wall and X living with her. After the involvement family therapy and other court based interventions designed to examine the overall dynamic of the family, she proposes that the children should live with both her and Ms Wall, in a manner which either the parties agree upon or the court determines, but which will amount equal time or something approaching it.
Ms Pearson also seeks orders to determine financial issues arising from the same sex relationship between the parties. In this context, she seeks the referral of the proceedings to a court based process of conciliation, following the parties exchanging relevant financial information. As will be expanded upon, in due course, this aspect of the case has implications for Ms Wall’s parents.
The proceedings to date have been highly contested and emotionally fraught. Regrettably, the parties are unable to agree on anything of substance. Ms Wall wishes Ms Pearson’s application for property settlement to be dismissed by the court.
At an earlier stage of proceedings, the parties were referred to a Family Dispute Resolution Conference, pursuant to the provisions of Section 11F of the Family Law Act, which authorises the court to seek advice, about the particular family concerned, from a family consultant. The family consultant involved in this case was Ms K, who interviewed the parties separately on 30 September 2016.
In her resulting report to the Court, Ms K wrote as follows:
“…the parties in this matter do not have an effective form of communication nor a cooperative co-parenting relationship. Both parties presented in genuine in their prospective, although both parties held polar opposite perspectives about the matter.”
I agree with this sentiment. The parties’ position and evidence are polarised. In these circumstances, it falls to the court to make interim or provisional arrangements for the care of the two children concerned, against a background of crisis and controversy.
These difficulties are compounded by the fact that the relevant hearing arises at an interim stage, at which the hearing concerned must necessarily take place in a truncated form, which does not allow the court to make findings of fact about disputed evidentiary matters.
This case is replete with such evidentiary controversies, the most significant of which concerns who of the parties has been the primary provider of both emotional and physical succour for both children concerned. In the jargon of social scientists – who has been the primary carer of Y and X?
The other significant factual issue concerns the nature of the parties’ relationship. From Ms Pearson’s perspective, she was the victim of significant family violence, during the relationship, which emanated from Ms Wall. On the other hand, it is Ms Wall’s perspective that Ms Pearson has a reactive and difficult personality, which has resulted in her flipping out emotionally, when the parties separated, causing her to behave in a manipulative fashion, which is not helpful to the children concerned.
The parties and those representing them, and indeed the Court itself, has recognised that this is a matter of some complexity, both in a legal and evidentiary sense. In these circumstances, sensibly, in my view, it has been agreed that the following procedural orders should be made:
·The parties attend a financial conciliation conference;
·The parties exchange mutual informal discovery of all relevant documents, including valuation evidence;
·The children be independently represented in these proceedings; and
·A family assessment report be prepared, by a suitably qualified psychologist, to be agreed by the parties and at their joint expense, as soon as is reasonably practicable.[1]
[1] Shortly before delivery of judgment I was advised that the parties had agreed upon Ms L as the family report writer and she would be able to see the parties in mid-November.
The parties have agreed that the family assessment report should be prepared by one of Ms C; Ms L, Ms J; or Ms H; each of whom is a very experience psychologist, who regularly undertakes expert assessment work for the Court. However, at best, a report from any of them will not be available until the first quarter of 2017.
In her report to the Court, Ms K was unable to recommend any specific arrangements for the care of the two children concerned and, as previously indicated, the parties themselves fundamentally disagree about these issues. Ms K was only able to recommend that a family assessment report would be required in order to enable the Court:
“…to better understand the allegations and relationship dynamics in this matter and the impact of these on the children’s emotional wellbeing and their care arrangements.”
Accordingly, at this stage, in the absence of such a report, the Court is at a significant disadvantage in determining what a likely to be the optimal arrangements for the two children concerned. However, notwithstanding these evidentiary issues, it is the responsibility of the court, as best it can, to fashion what it considers to be the best outcome for Y and X, at this stage of proceedings.
Background
Ms Wall is the biological mother of Y. No name is entered on the child’s birth certificate against the heading “father”. Y is in grade 3 at (omitted), Primary School. Ms Pearson is the biological mother of X. Ms Wall is entered on X’ birth certificate as her “co-parent” in lieu of the entry for “father”.
It was not legally possible, at the time of Y’s birth, for Ms Pearson to be entered in a similar fashion, on his birth certificate, to the entry for Ms Wall on X. The parties began to cohabit in mid-2004. They are both in their early forties. Ms Wall is a (occupation omitted), whilst Ms Pearson is a (occupation omitted).
For most of the parties’ relationship, they have shared accommodation, with the children, at a house situated at (omitted), Adelaide. The property is registered in the name of Ms Wall’s mother. Ms Wall’s parents live next door to the (omitted) property, in an extension which is attached to it and which was constructed, at some expense, during the parties’ relationship.
It is common ground between the parties that the relationship between them came to an end, in difficult circumstances, on 13 March, 2016. At this time, Ms Pearson drove away from the (omitted) property, with X. Since that time, X has continued to live predominately with Ms Pearson; whilst Y has continued to live predominately with Ms Wall.
There is no dispute between the parties that both Y and X were conceived artificially, through sperm provided by separate donors. The donors are each known to the parties and have been identified in Ms Pearson’s affidavit material. In addition, Ms Pearson has indicated her view that Y and X have biological siblings, by virtue of their relationship with at least one of the donors concerned.
This circumstance potentially raises complex issues, which turn on the application of s.60H of the Family Law Act 1975 and the context in which the donors concerned provided the sperm, which resulted in the conception of the two children concerned.
I will return to this issue when discussing the relevant legal provisions. The parties themselves elected not to agitate these issues. Pursuant to s.60H(4) a sperm donor is not a parent of a child conceived through an artificial conception procedure.
It is the tenor of both parties evidence that the children have been treated as siblings and regard each other as such. Both Ms Wall and Ms Pearson refer to themselves “co-parents”. Both parties agree that Y is an emotionally sensitive child, who suffers from severe eczema, which is exacerbated by emotional stress.
Both Ms Wall and Ms Pearson accept that Y has been emotionally distraught, since March 2016 and has difficulty separating from Ms Wall, although Ms Pearson believes that Ms Wall tacitly encourages the child’s distress, in order to maintain his emotional dependences upon her.
In contrast, the parties each describe X as a confident and outgoing child. In this context it is Ms Wall’s evidence that X has a strong emotional connection to her and to her (Ms Wall’s) parents, who regard X as their grandchild; and particularly to Y, whom X regards as her brother.
The parties have each filed numerous and lengthy affidavits, in which they have recounted their competing views regarding the nature of their relationship together and what has been the practical and emotional reality of this relationship for Y and X.
As one would expect of two intelligent and creative individuals, each assisted by a skilled lawyer, the level of emotional intimacy and detail in their documents is extreme and compelling. What however is most striking about these affidavits is the almost total dichotomy between them.
It is Ms Wall’s position that she has been the primary carer for both Y and X for the majority of time that we have had the children, but particularly in the last twelve months or so. During this period, she alleges that Ms Pearson has been immersed in her career and has habitually prioritised her work over responsibilities for caring for the children.
It is also Ms Wall’s evidence that she has been the main provider of financial support for the children, whilst Ms Pearson has been financially irresponsible, preferring to spend her time and money socialising and drinking to the detriment of the children. It is her case that she puts the children to bed and was more responsible for preparing the children’s meals.
Ms Wall expresses herself as being perplexed by Ms Pearson’s behaviour, since separation. She asserts that she cannot understand why Ms Pearson has no insight into the distress and possible long term emotional damage, which she is doing to X by separating her from her (Ms Wall) and Y. In this context, it is Ms Wall’s evidence that X has clearly indicated her preference to come home to the (omitted) property.
Ms Wall categorises Ms Pearson as a selfish person, who lacks insight into the consequences of her behaviour for both Y and X. She also portrays Ms Pearson as a person, who is not properly focused on the parenting needs of the children, preferring to develop her career prospects and social interests.
Ms Wall’s case can be summarised in the following extracts from her affidavit material:
“My life is committed to the children. I am very attached to both Y and X. While I am not X’s biological mother, I am attached to her as if I were and I believe that she is to me.
I have probably spent less than 7 nights in total away from each of the children prior to the breakup. I rarely go out at night and like to wake up early with the children. I rarely drink alcohol and I have never taken illicit drugs.
… I do not believe that Y and X are spending enough time together to maintain their relationship between themselves or their friends. They have been raised as brother and sister. They have never been apart and have a strong bond of brother and sister between them, which I believe is at risk with the current arrangement continuing. X is not maintaining a meaningful relationship with me or her grandparents. Y is not able to maintain any meaningful relationship with Ms Pearson, although I say Ms Pearson has not asked me to see Y at any of the times that she has dropped off or collected X”.[2]
[2] See Ms Wall’s affidavit filed 10 May 2016 at paragraphs 100-101 & 106
It is Ms Pearson’s case that she has been subjected to consistently coercive and controlling behaviour, which amounts to family violence, from Ms Wall for a significant period of time leading up to the parties’ separation. She alleges that Ms Wall has an irrational jealousy of her success as a (occupation omitted) because she herself is a failed one.
Ms Pearson further asserts that she was subjected to constant demeaning by Ms Wall and her parents and there was a power imbalance in the parties’ relationship, which arose because of their different values and the emphasis Ms Wall placed on her financial superiority. Essentially, Ms Pearson asserts that she was bullied and outnumbered by the Walls, in whose house she lived, subject to significant emotional and financial disadvantage.
Prior to the parties’ final separation, they attended a camping excursion, with the children and friends, in the (omitted). During this excursion, Ms Pearson alleges that she was subject to harassment and a sexual assault by Ms Wall, which crystallised her long standing view that she needed to leave the relationship, which had ceased to be a functioning one for a lengthy period of time.
It is Ms Pearson’s evidence that it was she who provided the vast majority of care for the children concerned, cooking their meals and attending to their needs, particularly so far as X was concerned. Her evidence is that she pursued her (occupation omitted) activities, in the evenings, after the children had gone to bed, so that she could be engaged in their care.
Ms Pearson assets that Ms Wall is unhealthily emotionally enmeshed with both children, but particularly Y. She agrees that X is discomforted, from time to time, at handovers, but refutes any suggestion that she is anything other than happy in her current circumstances. In particular, Ms Pearson disputes that X has expressed any wish to return to live with Ms Wall and Y permanently.
However, Ms Pearson accepts that X is attached to Ms Wall and, as a consequence, she need to spend regular periods of time with her (Ms Wall). From Ms Pearson’s perspective, the same is true of Y and her. However, because of his emotional dependence on Ms Wall, Y is not able to spend time with her (Ms Pearson) comfortably because of his anxiety at his likely perception, if he goes willingly to her (Ms Pearson), he will have betrayed Ms Wall. As previously indicated, she asserts that Ms Wall encourages this state of affairs to satisfy her own emotional needs.
Given the emotional complexity of this situation, it is Ms Pearson’s perspective that the only viable outcome for the children is for the two parties to work towards a shared care arrangement, for Y and X, which will evolve out of a process of supported family therapy. Her position is encapsulated in the following portion of her affidavit material:
“I want us to work towards a shared care arrangement for our two children. However it is now obvious that this can only be achieved after intensive counselling and therapy for Ms Wall, Y and X and I. Any contact will need to be supervised in the interim. After counselling I think it needs to be incrementally staged so that the children can go between the two houses without any of the current drama….Close and depend familial relationships are part of the Wall philosophy of life. Hence, our family lived with Ms Wall’s family. I feel that Y is experiencing Ms Wall’s grief and Y needs to be able to spend time with me without fear he is letting Ms Wall down as I do have a very close relationship with him. He was our first born. Y and I have a unique and special relationship and I want it to continue for both our sakes.
X and I have a very close relationship… I accept that X is attached to Ms Wall. Provided with the assistance with family therapy we can resolve our differences in terms of the children’s arrangements and what they are told, I would be willing for her to spend more time with Ms Wall as long as it is reciprocal and I get to spend more time with Y.”[3]
[3] See Ms Pearson’s affidavit filed 25 July 2016 at paragraph 103-104
Following the parties’ separation, on 13 March 2016, they attended at a private mediation, a few days later. At this stage, both had instructed solicitors to act on their behalf. Clearly, at this stage, emotions between the parties were tense. In addition, Ms Pearson had a long standing arrangement to travel to (country omitted), for a family holiday. Ms Pearson was born in (country omitted) and her closest family continue to live there.
On 16 March 2016, against this difficult background, the parties ostensibly agreed that X would live with Ms Pearson: whilst Y would live with Ms Wall. It was further agreed that Y would spend time with Ms Pearson each Friday from after school until 5.00 pm the following Sunday; whilst X would spend time with Ms Wall from the conclusion of kindergarten on Tuesday until 5.00 pm the following Wednesday.
This arrangement apparently broke down because of Y’s reluctance to spend time with Ms Pearson, particularly overnight time. It was also Ms Wall’s perception that Ms Pearson was not encouraging X to spend time with her. This was the background to Ms Wall commencing proceedings on 11 May 2016.
It seems probable that her application, for both children to live predominately with her, has exacerbated the already difficult emotional situation between the parties, a state of affairs which has been further intensified by Ms Pearson’s application for property settlement, which has implications for Ms Wall’s parents, given the fact that they are legally involved in the (omitted) property.
The proceedings first came before the Court on 27 July 2016. Given that the parties had previously been involved in a consensual family dispute resolution process and further given my impression that both were likely to share a disposition, which leaned towards a preference to avoid situations in which outcomes were imposed upon them, by an external authority, I considered that it was likely to be desirable for the parties to be referred to a family dispute resolution process.
Through this process, I hoped that both Ms Wall and Ms Pearson would be encouraged to focus on what was best for Y and X and so achieve a negotiated outcome, in the short term. This has proved to be a naïve expectation, on my part. If anything, the parties’ respective positions appear to have become more polarised rather than less so, since the family dispute conference.
On 27 July 2016, pending the family dispute resolution conference, I invited the parties and their respective counsel to see if they could agree to some regime, which saw the children spending reasonable periods of time with each other and the other party concerned, in a manner which reduced, as far as possible, any potential distress for the children particularly Y.
Against this background, it was agreed that Y would continue living with Ms Wall; whilst X would continue living with Ms Pearson. It was further agreed that Ms Wall would spend time with X, each Saturday from 9.00 am until 1.00 pm; and Y would spend time with Ms Pearson each Saturday from 1.00 pm until 5.00 pm. The children were to be exchanged at a café close to the (omitted) property.
In addition, the parties agreed to be mutually restrained from denigrating or harassing the other in the presence or hearing of the children or permitting any other person so to do. The parties also agreed not to discuss these proceedings with the children concerned.
It is Ms Wall’s position that Ms Pearson did not enter the negotiations in a bona fide manner, which was focussed on the children. From her perspective, it is highly undesirable that the children spend so little time together and the artificial bifurcation in their lives has been perpetuated.
Ms Wall presented as emotionally distraught throughout the proceedings. She has filed further and extensive material, in which she has vehemently refuted her characterisation by Ms Pearson, as a violent and controlling person, who suffers from a variety of psychiatric conditions. Further, she rejects the categorisation of her parents, as financially controlling and bullying individuals, so far as their involvement with Ms Pearson has been concerned.
It is Ms Wall’s evidence that Y is becoming more anxious about and more resistant to spending time with Ms Pearson. She alleges that he will hide prior to the time scheduled for him to spend time with her. Ms Wall has reiterated her concern that Ms Pearson’s actions in restricting X from spending time with her and Y are emotionally detrimental for X.
Ms Pearson agrees that handovers have been extremely difficult but asserts that their behaviour has not been assisted by Ms Wall’s actions, both before and at handover. Both parties continue to assert that the other has a raft of psychological issues and related personality problems.
Legal Principles applicable
Part VII is the part of the Family Law Act 1975, which deals with the law relating to arrangements for the care of children. The chief means by which the court deals with such arrangements is through the making of a parenting order [Family Law Act s.64B].
Amongst other things, a parenting order may deal with any aspect of a child’s care, welfare and development or any aspect which relates to the exercise of parental responsibility for that child.
Pursuant to s.65C, either or both of the child’s parents or any other person concerned with the care, welfare or development of the subject child may apply for a parenting order.
The expression “parent” is not definitively defined in the Act, other than it can include an adoptive parent of a child [see Section 4]. In Tobin v Tobin[4], a case concerned with child maintenance, the Full Court adopted an orthodox dictionary definition of parent, holding the natural meaning of the word was “a person who has begotten or borne a child”.
[4]Tobin v Tobin (1999) FLC 92-848 at 85, 938
I note he context in which this decision was made and that it is now somewhat dated. However, in lay terms, Ms Wall is the parent of Y; and Ms Pearson is the parent of X. Clearly, each is interested in the care interest and development of both children and therefore entitled to apply for a parenting order, in respect of both children, pursuant to the provisions of s.65C. However, given the overall structure of Part VII, whether a party is a parent or otherwise of the child or children concerned, is potentially of some moment.
As was noted in by Cronin J, in Groth & Banks,[5] the statutory context, as provided by Part VII of the Family Law Act, is one in which biology is the “determining factor”. In particular, both ss.60B and 60CC speak in binary parental terms, indicating the importance of both a child’s parents and the significance, to the child concerned, of a relationship with each of his or her parents.
[5] Groth & Banks [2013] FamCA 4 30 at [14]
Accordingly, in my view, it is important at this juncture for the Court to delineate, with as much precision as is possible, what is the legal status of each party in respect of the children concerned, notwithstanding it is the assumption of both parties that they are the parents of both children.
Pursuant to s.69R there is a rebuttable presumption that if a person’s name is entered, as a parent of the child, in a register of births, that person is a parent of the child. As a consequence of this presumption and the entry of Ms Wall’s as a co-parent of X, she is to be regarded as X’s parent.
Due to the nature of Y’s birth certificate and the state of the law, when he was born, this statutory presumption does not apply to Ms Pearson, so far as he is concerned. As such, the legal position, so far as he is concerned, is more complexed. Ms Pearson has expressed the view that Ms Wall has used this legal lacuna to her advantage.
The term family is not defined in Act which purports to prescribe the law in respect of it. It is trite but true nonetheless that families come in all manner of forms and combinations and, as a consequence, it is imprudent for anyone to have any prescriptive concept or preconceived notion of what the term entails.
The parties speak of themselves as being co-parents for both Y and X. I accept that this description reflects their mutual perception that Ms Pearson is a parent to Y; whilst Ms Wall is a parent to X. As such, notwithstanding the current acrimony between the parties, they regard themselves as a family, albeit one which is separated, to some degree, at present.
It is also clearly the case that the parties regard themselves as having been de facto partners of one another. Pursuant to s.60EA of the Act, individuals are de facto partners if the relationship between them is registered under an applicable state law. Ms Pearson has deposed that the relationship between the parties is so registered pursuant to applicable South Australian legislation, although I have not been provided with formal evidence in this regard.
Although neither party chose to provide extensive evidence in respect of the issue, it is common ground that both Y and X were conceived as a result of an artificial conception procedure [see Section 4]. Ms Pearson has deposed that different individuals provided the sperm, which led to the conception of firstly Y and then X. The respective identity of these individuals has been delineated in Ms Pearson’s affidavit material.
This factual situation invokes the provision of s.60H(1) of the Act, which reads as follows:
“Children born as a result of artificial conception procedures
(1) If:
(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent ); and
(b) either:
(i) the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or
(ii) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;
then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act:
(c) the child is the child of the woman and of the other intended parent; and
(d)if a person other than the woman and the other intended parent provided genetic material--the child is not the child of that person.
(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.
(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.”
In my view, s.60H(1) of the Act operates to extend the definition of the parent, in circumstances involving an artificial conception procedure. In my view, it is clear that the expression other intended parent utilised in this section is intended to denote that such a person is a parent, for the purposes of the Family Law Act and, as such, biology is not the determinative factor in determining parentage, in such cases.
At this interim stage, notwithstanding the lack of evidence about the issue, I am satisfied that the parties were in a de facto relationship, as defined by s.60EA at the time Y was conceived. Again, although the evidence is unclear, it seems to be the case that Ms Pearson was aware that Ms Wall had approached a mutual male friend to assist her in an artificial conception procedure and as such, she (Ms Pearson) consented to this.
Accordingly, I am satisfied that pursuant to the provisions of s.60H(1)(c) Y is the child of Ms Wall (his birth mother) and of Ms Pearson (the other intended person), given the two were in a de facto relationship and Ms Pearson consented to Ms Wall undergoing an artificial conception procedure, albeit one which was apparently informal in its nature.
In my view, this approach accords with the factual matrix arising in this case. Both parties regard themselves as being parents of each of the children concerned. In my view, their stance, in this regard, is supported by the legal provisions in the Family Law Act, particularly s.60H, which authorises the Court to make a declaration that a non-biological person is a legal parent of any child concerned.
Pursuant to the provisions of s.65D, the Court is empowered to make whatever parenting order it considers “proper”. I am satisfied that it is proper to make parenting orders in this case, in respect of a raft of issues relating to the two children concerned. In addition, pursuant to Section 64B, parental responsibility can be allocated to two or more persons.
The best interests of any child concerned are the paramount or most important consideration [Section 60CA] in making any parenting order. The matters, which the court must take in account, in deciding how a child’s best interests are to be served, are set out specifically in the Act, at s.60CC.
Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in s.60CC(2)(a)(b) namely:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of s.60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
These primary considerations are stressed through the provisions of s.60B(1) & (2) of the Act, which contain a list of aims and principles, which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes.
The list of objects or aims of the legislation is set out in s.60B(1). They are as follows:
“(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.”
The principles, which underpin these objects, are set out in s.60B(2) and are as follows:
“(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).”
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in s.60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.
Pursuant to s.60CC(3)(m) the Court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The Court’s duty is to deliver individual justice, for the child affected, in every case.[6]
[6] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the Court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[7] As such the various factors, in s.60CC, are inclusive but not exclusive of one another.[8]
[7] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[8] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
The fundamental task for the Court is to determine, bearing in mind all the considerations contained in s.60CC and bearing in mind the goals and principles contained in s.60B, what is the best outcome for any child concerned, both now and in the future.
This hearing takes place at the interim stage. As a consequence, it takes a different form to that which occurs at the final hearing stage. At the interim stage, the hearing necessarily takes place in a truncated form, and more often than not, at an early stage of proceedings, before there has been time for a detailed and independent expert assessment of the family concerned to be made.
The final hearing stage allows a more detailed examination of the evidence, including cross examination of various witnesses concerned. It is at this stage, the court is better placed to make findings of fact about contested evidentiary issues. Although the nature of the hearing is different, the same legal principles apply at both the interim and final stages.
In Goode & Goode[9] the Full Court of the Family Court has indicated that in a truncated interim hearing, such as this one, the court should endeavour to analyse the factual situation, focusing on what is agreed whilst bearing in mind that it cannot make findings of fact about all manner of disputed things.
[9] Goode & Goode (2006) FLC93-286
Rather, the Court should focus on what is agreed or what appears to have been the situation, in respect of prior care arrangements for the children concerned. In this context, it should analyse what findings should be made in respect of the relevant s.60CC factors.
Given the importance, which the applicable legislation places on the co-involvement of parents, in their children’s lives and development, there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 s.61DA].
The presumption contained in s.61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [s.61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [s.61DA(4)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [s.61DA(3)].
Discussion
Ms Pearson asserts that she has been subjected to coercive and controlling family violence, as defined by s.4AB(1) of the Act. Ms Wall categorically denies that she is a violent or controlling person and has inflicted family violence on Ms Pearson.
What happened on the camping excursion is sensitive and controversial. It has not been reported to any external authority for possible independent verification. In addition, at this juncture of proceedings, I am not in a position to make findings of facts as to whether the particular dynamics of the parties’ relationship amounted to family violence.
It seems probable, however, that in its latter stages, the relationship between the parties was a deeply unhappy one, from both their points of view. If the parties do not come into contact with one another, for any lengthy period of time, it seems improbable that there will be any direct altercation between them, if each is able to maintain a degree of emotional restraint.
I am directed to consider the need to protect children from being either subject to or exposed to family violence. Although Ms Pearson is very critical of Ms Wall’s behaviour, she does not specifically assert that either child has been directly exposed to family violence or is at any risk of suffering abuse or neglect. In all these circumstances, I am not persuaded that protective concerns, for Y and X, should be at the forefront of the court’s considerations.
My impression is that both children are well cared for a cherished. As such, it seems to me that I must give close consideration to the benefits of Y and X having a meaningful level of relationship, with both of their parents, in the difficult and conflicted circumstances, which currently prevail.
In the longer term, it seems more likely than not that both Y and X will benefit by having a meaningful relationship with both Ms Wall and Ms Pearson. However, at this stage, when emotions are still raw from the recent separation, the means to achieve such an outcome appear problematic, particularly in the absence of a family assessment report and given the evidentiary controversy arising about the nature of the relationships between the children and each of the parents concerned.
It seems relatively clear that Y’s most significant relationship is with Ms Wall. Ms Pearson concedes that Ms Wall and Y are very close emotionally – Ms Pearson would assert unhealthily so. Significantly, Ms Pearson also accepts that Y is currently extremely reluctant to separate from Ms Wall and is by nature a diffident child.
X is a more robust and outgoing child. Since the parties separated, it is clear that Ms Pearson has been providing the vast majority of her care. In these circumstances, certainly since March of 2016, Ms Pearson is likely to be the most significant person in X’s life and the main provider of her emotional and physical sustenance.
Both parties agree that Y and X are to be regarded as siblings, notwithstanding the differences in their biological background. Until March of 2016, the two children lived in the same household and necessarily must have engaged in many, many complementary activities. As such, it seems more likely than not, that the children have a significant level of relationship with one another.
In these circumstances, in broad terms, it does not appear likely that it would be helpful to either of them, in emotional terms, for them to lead distinct and separate lives, without some form of engagement with one another. In this context, it is Ms Wall’s position that X is desperate to spend more time with both Y and her.
Pursuant to s.60CC(3)(d) the Court is required to consider the likely effect of any changes in the child’s circumstances, including the likely effect on the child of being separated from either of his/her parents or any other child, or other person, including a grandparent or relative, with whom he or she has been previously living.
At this juncture, each of the children concerned is significantly separated from both a parent and another child, with whom he or she has been living, until fairly recently. In my view, in the difficult circumstances of this case, this is a very significant factor.
However, given Y’s current level of emotional upset, I must be careful about making any precipitous changes in arrangements for his care. In my view, such an outcome has a strong potential to miscarry and cause him more rather than less emotional distress. However, at this juncture, it seems to me that it is likely to be important that the relationship between him and Ms Pearson be maintained as much as is possible.
The same is true so far as X is concerned, in respect of her relationship with Ms Wall. X is likely to be a more emotionally robust child than Y and so more readily able to sustain separation from her current care providing parent.
The parties each approach the case on the basis that the other has a flawed level of insight into the responsibilities incumbent on being a parent and that therefore she is better placed to meet the emotional and intellectual needs of both Y and X [see s. 60CC(3)(f) & (i)].
These are difficult issues to assess at the interim stage. What does strike me, however, is the acrimony and intensity of the dispute between the parties, each is not likely to be helpful to either child, in the longer term.
In this regard, in my view, it is highly regrettable that, as a consequence of actions which appear to have been hastily considered, the lives of both children have been bifurcated. However, it seems probable to me that both parties are able to meet the day to day needs of the children concerned. This is not a case in which it is alleged that there are significant issues relating to risks of abuse or neglect.
I am not in a position to assess, with any degree of exactitude, the capacity of the parties to meet the emotional needs of Y and X. Ms Wall alleges that Ms Pearson’s actions in driving away with X, without warning and without regard as to how she would maintain her relationship with Y and her, which she perpetuated until the present time, indicate that she has no regard for the emotional equilibrium of either child.
For her part, Ms Pearson portrays Ms Wall as an emotionally dependent person, who is using Y as a crutch for herself, thereby not allowing him to mature emotionally and appropriately. These are issues likely to be unteased in the family assessment report.
Given the extreme hostility between the two aspects of Y and X’s family (and I use that term advisedly) it seems difficult to see how the children’s lives can be re-joined, to any significant degree, in the short term, prior to any independent advice from the family assessment reporter concerned.
Certainly, I am not persuaded that it would be in the children’s best interests for me to take what I consider an extreme course of action in respect of X in ordering her to live predominantly with Ms Wall. However, I also acknowledge that there are complex issues raised in the case as a consequence of the different biological origins of the children, within the matrix of the co-parenting regime in which they have both grown up.
At this stage, I do not know if there are subtle differentiations in the nature of the relationship between the parents concerned and each of the children, given these factors. Again these are issues for the family assessment to investigate, prior to any final hearing.
In these circumstances, although there is likely to a significant level of relationship between the two children, who regard each other as siblings, I do not regard it as being in their mutual best interests to be reunited in one or other of the party’s respective household. Accordingly, Y must continue to live predominantly with Ms Wall; and X predominantly with Ms Pearson.
In my view, X’s best interests dictate that she should spend regular periods of time with Ms Wall and Y. I propose that this should be on alternate weekends from 10.00 am Saturday until 6.00 pm the following Sunday. I think it appropriate that there be some overnight time, given the fact that the child has lived in the same environment with Ms Wall and Y until March of this year.
In the other weekend of the fortnight Y needs to maintain his relationship, in difficult circumstances, with Ms Pearson. I accept that it is problematic at this stage to consider overnight time and therefore the period must be shorter than that proposed for X.
I will order that the time be from 10.00 am until 6.00 pm on the other Saturday of each fortnight. Pursuant to this regime the two children will spend time with one another each weekend. This regime can continue throughout school holidays.
It also seems to me that it would be useful if the children touched base with one another each Wednesday evening and had a meal together, with a view to normalising their relationships with each parent. This can rotate, each fortnight between Ms Wall’s home and Ms Pearson’s home. I have been advised that Ms Pearson lives reasonably proximate to Ms Wall in the area of central Adelaide. The time can be between 4.00 pm and 7.00 pm. The intent is that the children will see each other, in one or other of their parent’s home every few days or so.
Ms Pearson has indicated that she is not greatly fussed by Christmas. Christmas Day is significant to Ms Wall and she wishes to spend it in the company of the children, if possible. In these circumstances, I will order that the children spend time with Ms Wall between 10 am and 6.00 on 25 December and with Ms Pearson between the same hours on 24 December, this year.
The children’s birthdays both fall in (omitted) – Y on (omitted) and X on (omitted). In 2017 a Thursday. I will order that the both children spend time with Ms Pearson on (omitted) between 1.00 pm and 6.00 pm; and with Ms Wall on (omitted) between 1.00 pm and 6.00 pm.
The exchange point, unless the parties agree otherwise can continue to be (omitted). I will also continue the injunction made on 27 July 2016, restraining the parties from denigrating the other or discussing the proceedings in the presence or hearing of the children. I will adjourn the matter to 16 March 2017 at 9.30 am following the conciliation conference.
In all the circumstances of the case, particularly the current separation of the children and the extreme levels of mistrust between the parties, in my view, it is not appropriate, at this interim stage, for the presumption of equal shared parental responsibility to be applied.
It is a significant thing to make an order requiring children to be represented in proceedings independently of their parents. Every case is special and necessarily has its own idiosyncratic features. In the current case, each party is an intelligent and ostensibly well motivated individual. Each has been able to pursue a career successfully. There are few allegations of serious antisocial behaviour.
As such, this is not a case where either will have a large documentary footprint, with state based organisations, such as the Police or Child Protection Authorities, which they may not care to have revealed and which an independent lawyer is likely to pursue. In addition the most significant piece of evidence is most probably going to be the family assessment report, which has already been put in train.
The parties are each represented by skilled legal advisers. As such, every issue, which is likely to require examination, will be skilfully delineated for the court. The question remaining is whether the significant level of conflict between the parties and the atypical circumstances surrounding the family warrant such an appointment. I have come to the conclusion that they do. In addition, it is likely to be helpful to the parties if there is an honest broker available to each of them and the court.
For all these reasons, the orders of the Court will be as set out at the commencement of these Reasons for judgment.
I certify that the preceding one hundred and twenty nine (129) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 17 October 2016
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