Wilson & Anor and Roberts & Anor (No 2)
[2010] FamCA 734
•19 August 2010
FAMILY COURT OF AUSTRALIA
| WILSON AND ANOR & ROBERTS AND ANOR (NO. 2) | [2010] FamCA 734 |
| FAMILY LAW – CHILDREN – With whom a child spends time – Arrangement between two sets of homosexual partners that the child would be raised by all four adults – Best interests of child |
| APPLICANTS: | Mr Wilson and Mr Farmer |
| RESPONDENTS: | Ms Roberts and Ms Boston |
| FILE NUMBER: | MLC | 8071 | of | 2009 |
| DATE DELIVERED: | 19 August 2010 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Dessau J |
| HEARING DATE: | 15 February 2010, 11 May 2010, 18-21 May & 24-27 May 2010, 15 June, 17-18 June 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANTS: | Ms Stoikovska |
| SOLICITOR FOR THE APPLICANTS: | Pearsons Barristers & Solicitors |
| COUNSEL FOR THE RESPONDENTS: | Mr Sweeney |
| SOLICITOR FOR THE RESPONDENTS: | Harvey Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr O’Connell |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
That all previous parenting orders be discharged.
That the child E born … July 2008 shall live with the Respondents Ms Roberts and Ms Boston.
That the Respondents shall have sole parental responsibility for the child.
That each of the Applicants namely Mr Wilson and Mr Farmer spend time with the child as follows:
(a) On Tuesday 24 August 2010 and Thursday 26 August 2010 from 8:00 am until 12:00 pm;
(b) That the time referred to in paragraph 4 (a) herein be supervised by Mr G Roberts or Ms PR.
(c) Thereafter for a period of 12 weeks:
(i.) Each alternate Sunday from 8:00 am until 12 pm commencing 29 August 2010; and
(ii.) Each alternate Thursday from 8:00 am until 12:00 pm commencing 2 September 2010
(d) Thereafter for a period of 12 weeks:
(i) Each alternate Sunday from 10:00 am until 5:00 pm;
(ii) Each alternate Thursday from 8:00 am until 12:00 pm;
(e) Thereafter until the child turn 3 years:
(i) Each third Saturday and Sunday from 10:00 am until 5:00 pm;
(f) Upon the child turning 3 years of age for a period of 8 weeks from 12:00 noon Saturday until 12 noon Sunday every third weekend;
(g) Thereafter from 10:00 am Saturday until 5:00 pm Sunday each third weekend;
(h) Upon the child commencing school each third weekend from 5:00 pm Friday until 5:00 pm Sunday;
(i) On Father’s Day from 10:00 am until 5:00 pm commencing in 2011 and each year thereafter;
(j) In the event that the Applicant’s time falls on Mother’s Day then time shall be suspended on 10:00 am on Mother’s Day;
(k) On Christmas Eve from 10:00 am until 5:00 pm in 2010 and each alternate year thereafter;
(l) On Boxing Day from 10:00 am until 5:00 pm in 2011, 2013 and 2015;
(m) Upon the child commencing school for four nights in the term school holidays by agreement and in default of agreement the time shall commence on the first Saturday of the holidays at 10:00 am and conclude at 5:00 pm on the first Wednesday of the holidays;
(n) Upon the child commencing school for one week of the long summer holidays by agreement and in default of agreement from 10:00 am on 2 January until 5:00 pm 9 January;
(o) Upon the child completing grade 1 for a period of two weeks of the long summer holiday by agreement and in default of agreement:
(i) From 10:00 am 2 January until 5:00 pm 16 January in 2016 and each alternate year thereafter; and
(ii) From 10:00 am on Boxing Day until 5:00 pm 9 January in 2017 and each alternate year thereafter.
(p) On a date near the child’s birthday for a period of three hours by agreement and in default of agreement on 31 July each year for a period of three hours as agreed and in default of agreement from 1:00 pm until 4:00 pm if a non school day and from 3:30 pm until 6:30 pm if a school day;
(q) In the event that the Applicant’s time falls on the child’s birthday such time shall be suspended at 5:00 pm the day before the time and the Applicants shall have make up time from either before or after the time;
(r) Upon the child commencing school the weekend time referred to herein shall be suspended during all school term holidays and the long summer vacation; and
(s) As otherwise may be agreed.
That changeover shall occur at the front entrance to the R Centre in Melbourne or as otherwise may be agreed.
That the Respondents are permitted to travel with the child overseas pending the operation of Order 7 as follows:
(a) From 20 September 2010 until 4 October 2010 inclusive;
(b) For a period of four weeks during February/March 2010;
(c) For a period of four weeks pending the operation of Order 7 herein and such period can be taken consecutive or separately;
(d) The Applicants be provided with make up time with the child with half to be taken prior to the travel and half to be taken after the travel.
(e) The time with arrangements shall resume as if the travel had not occurred save for the requirement of make up time and does not effect the graduation of the time;
(f) During the travel the Respondents are to enable the child to phone/Skype the Applicants on the day they would normally have the child; and
(g) The Respondents are to provide the Applicants with contact details for the child whilst they are away.
That the Respondents be permitted to relocate with the child at the commencement of 2012. The Respondents shall advise the Applicants thirty days prior to any relocation of their intention to relocate and provide contact details including telephone number and address.
That upon the Respondents relocating pursuant to Order 7 herein the Applicants namely Mr Wilson and Mr Farmer spend time and communicate with the child as follows:
(a) For a period of two blocks of two weeks in the country in which the child is residing by agreement and in default of agreement in January and July each year at times advised by the Applicants 30 days prior to the proposed time;
(b) By Skype once per week;
(c) In the event that the Applicants elect to relocate to reside in the same country overseas as the child is residing then they shall have time pursuant to Order 4 herein; and
(d) As otherwise may be agreed between the parties.
That in relation to the time referred to in paragraph 8 (a) herein:
(a) The first four blocks of two weeks time the Applicants spend with the child shall in the first week be day time only and at such times as to accommodate the child’s schooling if relevant and in the second week there be two periods of overnight time.
(b) In 2014 the applicants spend time in the first week in day time and in the second week for four nights.
(c) In 2015 the applicants spend daytime in the first week and overnight in the second week.
(d) Thereafter pursuant to paragraph 8 (a).
That the Applicants shall be responsible for the cost of travel associated with paragraph 8 herein.
That the parties keep each other advised of their current contact details including telephone numbers and address within 24 hours of any change.
That the Applicants do all things and sign all documents as may be required from time to time to enable the Respondents to obtain a passport for the child.
That each party shall keep the other informed of any significant medical issues and/or treatment when the child E is in their respective care.
That the Respondents to provide to the Applicants copies of the child’s school reports.
That the applicants keep the respondents informed of all contact details including addresses when taking the child on holiday including the time referred to in paragraph 8 (a) and 9, and including in week-end time.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That otherwise all existing applicants shall be dismissed and the case removed from the List.
IT IS NOTED that publication of this judgment under the pseudonym Wilson and Anor & Roberts and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 8071 of 2009
| MR WILSON AND MR FARMER |
Applicants
And
| MS ROBERTS AND MS BOSTON |
Respondents
REASONS FOR JUDGMENT
INTRODUCTION
Ms Roberts gave birth to E two years ago. He has at all times lived with her and her partner Ms Boston. E’s biological father Mr Wilson and his partner Mr Farmer want to spend substantial time with him. The women say it would be contrary to the child’s best interests.
The ICL’s view is that the child should spend time with the men.
The women also seek sole parental responsibility for E, and the right to relocate overseas, primarily for career opportunities for Ms Roberts. The men seek shared parental responsibility with the women, and that E not be relocated overseas.
The ICL supports the women’s proposal for parental responsibility to be solely with them. She also supports the child’s relocation, but not before he attains the age of five (in 2013).
Until late in the case the men had also sought orders for the child to move to live with them. Their reasons for that, and the withdrawal of their application, shall be discussed below. In addition, they had wanted Mr Wilson to be included on E’s birth certificate, but ultimately that order was not pursued.
Little E is appropriately oblivious to the arguments, polarised positions, and the socio-political issues abutting his conception, as well as his parenting in a single-sex family, debates as to what constitutes a nuclear family, agreements and expectations as to his care, and the legal terminology for and/or the legal status of these various adults.
As it is for all children, it is E’s best interests that are by law the paramount concern of the Court. It is not what is fair to the various adults around him. And although parents and carers naturally have hopes and dreams for their children, and the right to make many fundamental choices and decisions as to how they will be raised, if their hopes or choices collide with the child’s best interests, it is the latter that must prevail.
Although much of what I need to consider as to E’s best interests is common to all children, to ignore the circumstances surrounding his conception and family constellation would risk an over-simplification of complex relationships, dynamics and arrangements. Complexities are not unique to single sex couples, but particular issues as to the arrangements, the negotiations, the expectations, and the legal framework for his care were all played out graphically in this case. Much of the evidence revolved around whether there was or was not a compact between the adults to fully and equally co-parent the baby. Of course E now exists as a person, and is not a commodity covered by contract. The adults’ intentions, however, are a relevant consideration amongst all the complexities in this case.
BACKGROUND
E’s biological father, Mr Wilson, is a 41 year old policy officer, and a former nurse. He has been in a relationship with Mr Farmer for 12 years. They have lived together for the last 10 years. Mr Farmer is aged 43.
E’s biological mother, Ms Roberts, is a researcher and is aged 40. She lives with Ms Boston, a 39-year-old freelance consultant. They have also been in a relationship for about 12 years and lived together for 10 years. Since about April 2009, Ms Boston has been involved in an IVF program. Between August 2009 and the present hearing, she had undertaken five implantations, using anonymous donor sperm, but had not conceived.
E was born in July 2008. Ms Roberts and Ms Boston, having decided that they wanted a child, approached their friends Mr Wilson and Mr Farmer in about 2006. Ultimately, an agreement was reached for the men to donate sperm on a month about basis. The extent and detail of the agreement between the adults, particularly on the topic of co-parenting the baby, is an area already identified as being in hot dispute.
For current purposes, the following is clear. E has always lived with the women in Melbourne. The men relocated from Queensland to Melbourne several weeks before his birth, to be close to him. They purchased a home and obtained employment in Melbourne. From the time of E’s birth, they were seeing him regularly in the women’s home, at first for short periods three times per week. From early 2009, they were caring for him two full days’ per week and seeing him on one other evening.
Within months of E’s birth, the parties were disagreeing about how their responsibilities and his time would be allocated across the households. They undertook mediation. By June 2009 the mediation broke down. The women told the men that E was upset and unsettled from his two days with them, so henceforth they could see him only five hours’ per week.
Mr Farmer and Mr Wilson initiated proceedings in the Federal Magistrates' Court on 9 September 2009. The case came before Hughes FM on 21 September 2009. Her Honour made interim orders for E to resume spending two days’ per week with the men, for mediation, a Family Report from Mr P, and a final hearing in March 2010. In the meantime, that mediation failed, the relationship between the men and the women worsened, and the case was transferred to this Court in December 2009.
It first came before me on 15 February 2010. An interim application filed by the women suggested two urgent issues. One related to their desire to take the child overseas for Ms Roberts to take up a work opportunity. Ultimately that was not pursued at that time. The other related to suspending the men’s time with the child, the women having unilaterally stopped it several weeks earlier.
I temporarily suspended the men’s time and ordered a further report from Mr P. I also ordered an early hearing. My reasons for suspending their time in no way indicated a concluded view that it was contrary to the child’s best interests to have a relationship with the men. My reasons, given at the time, inevitably overlap with the issues I am considering in this case and I shall refer to them later as relevant.
There can be no dispute that E’s primary attachment is to the women, with whom he has always lived. The reality is that, not for want of trying on the men’s part, E has at times spent only short periods with them, at other times longer daytime periods with them, but in recent months, no time at all.
MATERIAL RELIED UPON
Mr Wilson and Mr Farmer relied upon the following:
·Their Amended Initiating Application filed 27 April 2010
·Mr Wilson’s affidavit filed 27 April 2010
·Mr Farmer’s affidavit filed 27 April 2010
·The affidavit of Ms T filed 27 April 2010
·The affidavit of Ms S filed 27 April 2010
·The affidavit of Ms C filed 29 April 2010
·The affidavit of Ms J filed 28 April 2010.
The witnesses Ms T, Ms S, and Ms J were not required for cross-examination.
Ms Roberts and Ms Boston relied upon the following:
·Their Response filed 21 September 2009
·The affidavit of Ms Roberts filed 27 April 2010
·The affidavit of Ms Boston filed 27 April 2010
·The affidavit of Dr A filed 27 April 2010
·The affidavit of Ms H filed 27 April 2010
·The affidavit of G Roberts filed 27 April 2010
·The affidavit of Mr R filed 27 April 2010
·The affidavit of Ms O filed 27 April 2010
·The affidavit of Mr L filed 27 April 2010
·The affidavit of Mr Y filed 27 April 2010
·The affidavit of Mr G filed 12 May 2010.
Only the women and Dr A and Ms H were required for cross-examination.
The ICL relied upon:
·The affidavit of Mr P filed 6 May 2010, and his oral evidence.
Mr Farmer and Mr Wilson had filed an affidavit by Dr K, a psychologist. She counselled the four parties between March and June 2009. The parties agreed that they saw her voluntarily for six sessions. The men said the sessions ended when Ms Roberts and Ms Boston withdrew from that process. Ms Roberts disagreed that was why they ended. I favour the men’s account. At around the time the mediation stopped, the women unilaterally reduced the time the men spent with E. That lends support to the men’s account that the women were no longer willing to discuss the arrangements.
Mr Sweeney, for the women, objected to Dr K’s affidavit on the basis that it was prohibited under s 131 of the Evidence Act 1995 (Cth), as referring to communications:
“…made between persons in dispute, … in connection with an attempt to negotiate a settlement of the dispute; …”
It was agreed that s 69ZT(1) of the Family Law Act, dealing with Less Adversarial Trial proceedings, in no way ousted the application of s 131 of the Evidence Act.
Mr Sweeney submitted that the parties’ communications with Dr K were an attempt to negotiate a settlement of this dispute. He argued that the communications related to various aspects of parenting about which the parties could not agree, and the means by which they could communicate about their disagreements, that is, the broad nature of this dispute.
Ms Stoikovska for Mr Wilson and Mr Farmer submitted that the particular counselling undertaken by Dr K was of a different nature.
In her report dated 27 April 2010 Dr K had noted:
“I can confirm that all parties came to counselling with the intention of understanding and resolving some of the conflictual relationship issues that were impacting on all parties’ prior understanding and commitment to co-parent the child [E]. All 4 of them wish to establish a structural communication process in order to refine the arrangements for co-parenting purposes, including details of the time [E] would spend with each of the parties and to also clarify the parental responsibility issues in detail, such as diet, sleep, financial support etc…”
Dr K said that she made it clear to all the parties that she was not a “Family Law Mediator”. She noted that the intention was to “resolve some of the relationship and communication issues”.
Ms Stoikovska submitted that Dr K was simply “facilitating a discussion”, that is, a discussion as to how to discuss issues, rather than an attempt to negotiate a settlement of a dispute.
I was satisfied that it was a distinction without a difference.
“Dispute” is not defined in the Evidence Act, but s 131(5)(a) provides that a reference to a dispute:
“…is a reference to a dispute of a kind in respect of which relief may be given in an Australian or overseas proceeding…”
It is clear that provision is not limited to disputes specifically relating to the litigation in which the evidence is sought to be adduced. (See Jacobson J in Korean Airlines and Australian Competition and Consumer Commission (Number 3) [2008] FCA 701 at [67].)
The breadth of the interpretation of a dispute for these purposes must be founded on the importance of encouraging people to resolve disputes by negotiation. That principle is sacrosanct in all civil disputes. Its need is highlighted in family law, given the frequent necessity for on-going relationships between the parties, and the benefits for children if they can be spared the rigours of litigation. Parties need to be encouraged to discuss disagreements and the best way to resolve them. They need to be able to do so in an open manner, unconcerned that confidences will be revealed to a court. It is a fundamental aspect of public policy that underpins the privilege of such communications.
I ruled that I was satisfied that s 131 of the Evidence Act precluded the men from adducing Dr K’s evidence of what was said in the sessions.
The issue as to this evidence arose again on day six of the trial. Ms Stoikovska then submitted that evidence of what was discussed with Dr K should be admitted on the basis that she had become aware that Ms Roberts had herself sworn, in several parts of several affidavits, as to matters that were discussed in those sessions. Counsel referred to the exceptions set out in s 131(2) of the Evidence Act, in particular that as some of the communications had already been tendered or disclosed, and as the evidence was reasonably necessary to enable a proper understanding of the other evidence that had been adduced, it should be admitted.
I again refused to allow the evidence. These were matters that could have and should have been raised before me in the earlier argument on the topic. Moreover, the affidavits of Ms Roberts referred to by Ms Stoikovska were not before me. And I was not satisfied that without Dr K’s evidence I would be in any way misled or unable to understand all the evidence.
RELEVANT LEGAL PRINCIPLES
Parenting orders generally
Section 60H of the Family Law Act was repealed and replaced by a new s 60H, by the Family Law Amendment (De Facto Financial Matters and other Measures) Act in 2008. It relates to children born as a result of artificial insemination. E was born before the amendment commenced on 21 November 2008, but it is clear that the amendment relates to a child born before that date.
Before the amendment, there was debate and disagreement as to the definition of a “parent” for the purpose of the Family Law Act.
The provisions of the new section are clear. Ms Roberts and her de facto partner Ms Boston, having consented to the carrying out of an artificial conception procedure, are E’s parents. To remove any doubt, s 60H(1)(d) provides that if any other person provides genetic material, the child is not the child of that person. Accordingly, Mr Wilson is not deemed to be a parent. It follows, that Mr Farmer is also not E’s “parent”.
Importantly, a person who is not a parent may still apply for a parenting order, if “a person concerned with the care, welfare or development of the child” (see s 65 of the Act).
At the start of this case, the women did not concede that the men were persons concerned with E’s care, welfare or development. There was therefore no concession that the men could apply for a parenting order. It was not surprising that some days into the trial a contrary concession was made by the women. It was always unavoidable.
In Aldridge and Keaton (2009) FLC 93-421, Bryant CJ, Boland and Crisford JJ considered the appropriate approach in dealing with an application for parenting orders brought by a person other than a parent, a child, or a grandparent. At paragraph 83, the Full Court set out a two-step approach, for the Court to first decide if the applicant is a person concerned with the care, welfare or development of the child, and secondly to consider the orders in the best interests of the child.
In Aldridge and Keaton, the Full Court made it clear that this consideration may lead to an order for parental responsibility, an order a child live with, spend time and/or communicate with the person, or no order at all. Their Honours noted that s 65C does not prescribe a hierarchy of applicants. The application must be determined under s 60CA, guided by the objects and principles in s 60B(1) and s 60B(2), and based on consideration of relevant matters under s 60CC(2) and s 60CC(3) of the Act.
Section 60CA provides that in deciding a particular parenting order, the best interests of the child is the paramount consideration.
Section 60B(1) of the Family Law Act 1975 sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:
“(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):
“(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
Sub-sections (2) and (3) of s 60CC set out the primary and additional considerations for the Court in determining what is in the child’s best interests. I shall return to the detail below.
As to the application of s 60CC to non-parents, I note the Full Court’s decision in Donnell and Dovey (2010) FLC 93-428. In that case Warnick, Thackray and O’Ryan JJ observed that s 60CC maintains “clear distinctions” between a parent and a non-parent. They observed that s 60CC(2)(a), as to maintaining a meaningful relationship with the child, relates only to “parents”. However, their Honours went on to say that it did not give rise to any difficulty in ensuring that all relevant matters are taken into account, in that:
“…In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent. As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant mattes are given appropriate weight.”
The Full Court described the various factors contained in s 60CC(2) and (3) as “a series of sign posts” for the Court in exercising its very wide discretion, and noted:
“…the legislature has recognised that it cannot provide an exhaustive set of sign posts as the destination is uncertain and the routes by which it may be reached are as infinite as the factual circumstances that present themselves in court rooms every day.”
The Full Court then dealt with the “catch-all” provision in s 60CC(3)(m) “which ensures the Court can take into account every factor that may assist in reaching the right destination.” The provision refers to “any other fact or circumstance that the Court thinks is relevant.” The Full Court pointed out that s 60CC(3)(m) is contained within the set of factors deemed to be “additional considerations” and therefore any matter not captured by s 60CC(2) cannot be a “primary consideration”, regardless of how important it may be in determining the outcome.
It had noted however that although the benefit to the child of a meaningful relationship with a non-parent could never be a “primary consideration” under the Act, that did not mean, of itself, that it would be of any “less significance” than the benefit to the child of a meaningful relationship with a parent.
Relocation
In 2006 the Family Law Act 1995 was substantially amended by the Family Law Amendment (Shared Parental Responsibility) Act.
In Goode & Goode (2006) FLC 93-286, heard shortly after the amendments came into effect, the Full Court outlined a pathway to be followed when considering parenting applications (see para 65). Although that case concerned interim matters, and did not contain an application for relocation, the pathway was considered and approved in many subsequent relocation cases.
Relevantly, the Full Court noted in Goode that s 60CA, as to the paramountcy of a child’s best interests, was not changed by the amending Act. However, it did provide a substantially different context in which to consider such an application, through amended objects (s 60B(1)), amended principles underlying those objects (s 60B(2)), and amended considerations in s 60CC.
The amending Act changed the focus of the objects from ensuring that “children receive adequate and proper parenting … and … that parents fulfil their duties, and meet their responsibilities concerning the care welfare and development of their children” to ensuring that “children have the benefit of both of their parents having a meaningful involvement in their lives …”.
As the Full Court in Goode’s Case observed (at 80, 901):
“… it can fairly be said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children…”
Relevant to this case, I note that the principles underlying the objects, set out above, also emphasise the child’s right to spend time, and to communicate on a regular basis with “other people significant to their care, welfare and development.”
There have been a number of significant Full Court decisions addressing the issue of relocation since Goode’s case.
In Taylor and Barker (2007) FLC 93-345 the Full Court made it clear that a relocation proposal must be considered in the context of the making of the necessary findings in relation to the relevant s 60CC matters, but also with a consideration of s 65DAA as to a child spending equal or substantial and significant time with each parent, if an order for equal shared parental responsibility is being made.
In Marsden and Winch (No.3) [2007] FamCA 1364, the Full Court considered the relationship between the “primary considerations” and the “additional considerations” (relevant in the case before me as to the parenting orders in general, as well as the issue of relocation).
The Full Court noted:
“77.… it is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. …
78.…it is not a question of other factors being needed to “displace” one of the primary considerations. Rather, his Honour was obliged to take into account all of the relevant considerations identified in the legislation, giving each of them such weight as he thought appropriate in arriving at the result most likely to promote [the child's] best interests. In doing so, he was of course obliged to place particular emphasis on the “primary considerations”. This is not only because the legislature has identified them as “primary” but also because they are manifestly of the utmost importance in determining what outcome will best advance a child's best interests.”
Marsden and Winch was commented upon favourably by the Full Court in Mulvany & Lane (2009) FLC 93-404. In that case, the Full Court considered an application by a mother to relocate a child to Hong Kong. Shortly before trial, DNA tests had revealed that the father was not in fact the child’s biological father. The substantive issue of the husband’s appeal was that the Federal Magistrate had erred in the primacy put on the importance of a meaningful relationship between the child and the mother, as opposed to him as a “non-parent”.
The Full Court accepted that the father was not a “parent” within the meaning of the Act, but held the FM erred in the way he allowed that conclusion to affect his process of reasoning.
The Full Court said (at 83,450):
“76. It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
77.It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. Whilst the list of considerations is lengthy, no list could ever encompass all the matters that experience demonstrates could be of relevance. This is no doubt why Parliament has included the catchall consideration in s 60CC(3)(m), namely “any other fact or circumstance that the court thinks is relevant”. By this device, judicial officers may consider any matter which (within the reasonable range of discretion) could touch on the child's best interests.”
Their Honours held that the FM had erred in finding the “primary consideration” of the child having a meaningful relationship with the mother (as the only parent under the Act) as the decisive factor in allowing the relocation.
On 3 March 2010, the High Court handed down its decision in MRR v GR (2010) FLC 93-424. The principal consideration in that case was the emphasis that a court should put on the “reasonable practicality”, in all the circumstances of a case, of a child spending equal or significant and substantial time with each parent. Specifically, the High Court considered ss65DAA(1)(b). As stated above, s65DAA requires a consideration of whether a child spends equal time or substantial and significant time with each parent when it has been determined that there will be equal shared parental responsibility. It will only be relevant in this case if I find in favour of the men as to equal shared parental responsibility.
THE ISSUES
The contentious issues can mostly be analysed under the umbrella of the s 60CC provisions relating to E’s best interests. First, I propose findings in relation to what was or was not agreed about E’s parenting and care before and after his conception, and after his birth, because it was the focus of so much of the evidence.
Agreements about E’s parenting
The parties spent considerable parts of their affidavits, evidence and cross-examination setting out what had been agreed and/or expected as to E’s upbringing. No agreement can provide a simple answer to the current conundrum. E’s best interests must of course prevail and his current best interests could dictate arrangements quite different from any agreed in the past. Nevertheless, the circumstances surrounding his conception, birth, and early care, are relevant both as to what was intended at various times, and as to what has been said was intended, and how that relates to the parties’ credit when it comes not only to these but also other important issues.
Mr Farmer and Mr Wilson have been consistent in saying that it had been agreed and they expected and wanted to take a very significant role in co-parenting E as two of four parents for him.
Ms Roberts’ and Ms Boston’s position was much less clear. Their primary position, maintained to a greater or lesser degree – expressed at different times, to different experts, and in different parts of the evidence given in court – was that they have seen themselves as E’s parents, in a “nuclear family”, with the men having performed no more than an incidental role, and not directly relevant to E’s well-being. At other times and in other parts of the evidence they said they saw the men as “parents”, as “fathers”, as “important to” and expected to be “actively involved” in E’s life, save that conflict now made it an untenable prospect.
The women have been consistent about two things. First, that they never agreed to E living equal time in the two households (although a comment by Ms Roberts to her therapist Ms H, referred to later, may cast doubt upon that). Secondly, that the level of conflict between them and the men now rendered any contact at all with E contrary to his best interests.
The background to the “arrangement” to conceive a child together was that Ms Boston and Mr Wilson have known each other for about 17 years. In the course of their friendship, they came to know Ms Roberts and Mr Farmer as each-other’s partners. It seems that each couple had wanted to be parents, had explored various options, and during 2006 had started discussing the prospect of the men being “known donors”.
Mr Wilson’s account in his affidavit was that from the first conversation, when the women had raised the prospect of the men simply being “donors” and the women parenting the child, the men explained that they wanted to be fathers, actively involved in the life of a child. He said that they asked the women to consider a co-parenting arrangement whereby all four adults would be equally involved in the child’s care. He said that in early 2007 the women contacted them and said that they agreed to a co-parenting arrangement. He said that discussions were then based on the understanding of an equal shared-care arrangement whereby ultimately the child would spend 50% of his time in each home.
It is agreed that there were discussions, between the four adults, including in particular a so-called “baby summit” meeting at the men’s home in Sydney in February 2007.
On Mr Wilson’s account, they agreed to have other children together, that Ms Roberts would carry the first child, Ms Boston the second, and that Mr Wilson and Mr Farmer would provide their sperm on alternate months.
Mr Wilson swore that it was agreed that the men would relocate to Melbourne within six months of the child’s birth, that during the first six months the child would only spend short periods with them at the women’s home, but thereafter he would be with them on two full days per week while Ms Roberts was at work, and they would visit him on another evening each week. He said it was agreed that when the child was aged one, the men would spend more time with him, and that the time would progressively increase to an equal time arrangement. He said there was an agreement to share the costs of raising the child, and further that the parties would attend informal counselling or mediation to discuss on-going child arrangements and to provide a framework for the further children they hoped to conceive together.
In his affidavit, Mr Farmer endorsed Mr Wilson’s evidence about the arrangements.
In her affidavit, Ms Roberts gave quite a different account of the arrangement. She swore that she and Ms Boston had discussed using the men as sperm donors in late-2005. She said they chose them because of “the flexibility” they seemed to have with donation, because they were old friends, and because they lived in a different city. She swore that as “known donors” they might maintain a relationship which may develop when the child was old enough. However, from the start she and Ms Boston were very clear that they did not want a “co-parenting arrangement”. On her account, they were also very clear from the start that they would be the child’s parents, and were open only to the men having “some minimal involvement”.
She swore that initially the men had said that they would be happy to donate sperm with no involvement, but they had also said they “may” be interested in involvement. The four of them agreed to talk about it more. The women flew to Sydney several times between April 2006 and April 2007, for discussions.
Ms Roberts said that the earlier conversations were exclusively with Mr Farmer as he seemed “more enthusiastic” about having a connection with a child. She described Mr Wilson as “very withdrawn from the topic”. She swore that was of little concern to the women as they “assumed [Mr Wilson’s] sperm would not be viable”. As she described it, he had undergone aggressive drug therapy to counter hepatitis C a few years earlier, and he had also been a regular marijuana user.
Throughout her affidavit Ms Roberts emphasised that in those early discussions Mr Wilson was adamant about remaining in Sydney, and although the men indicated they were interested in some involvement with “the child/children”, not living in Melbourne would “preclude any significant involvement”.
Ms Roberts swore that during 2006 the men started talking about possibly moving to Melbourne and that prompted more serious conversations as to the level of their involvement. She said she and Ms Boston agreed they could have “more involvement” in the child’s life if they were eventually to move to Melbourne. She said that she and Ms Boston however were extremely cautious about that, not wanting a child “split” in any way, and that they emphasised to the men that they hoped to live overseas for extended periods, that being “crucial” to Ms Roberts’ research and career.
Ms Roberts said that once it was established that the men were seriously considering moving to Melbourne, they discussed the possibility of the men “assisting with child-care” possibly two days a week, when she returned to work. She said she and Ms Boston were hesitant about Mr Wilson’s suggestion that they might have “occasional overnights” later in the child’s life. At paragraph 41 of her trial affidavit she swore:
“…It was always intended and agreed to that the child would live with and be the child of [Ms Boston] and I. The role that they were to play (assuming all factors were met) was very much an incidental role.”
Ms Roberts said that they made it perfectly clear to Mr Wilson that a 50/50 time arrangement was “absolutely unacceptable”, and they were adamant that no arrangements could be etched as they would need to be driven by the child’s needs and well-being. She denied that they had agreed to any specific time arrangements in advance of the child’s birth, other than the two days “child-care” when she returned to work. She said that whilst prior to the child’s birth they discussed “the possibility of co-parenting”, nothing specific was ever agreed.
Ms Roberts swore that at the baby summit meeting in February 2007, she and Ms Boston made it clear that “as the child’s parents” they intended to be on the birth certificate. She said the men did not want to be on the birth certificate as they did not want to be pursued for child support.
Ms Roberts said that in the course of 2007 she found Mr Wilson was proving to be “a difficult person” with whom to discuss issues, and she felt a concern about his “changing expectations”. She said that Mr Farmer in particular assured the women that the level of their involvement would be up to the women, driven by the child, and would not restrict the women working overseas.
In her trial affidavit, Ms Boston swore that before the child was conceived, it was the women’s intention to have the men involved in his life, in a relationship “akin to an extended family member”. She said that even from before the birth, the men sought to raise the issue of co-parenting with them, and the women made it clear that the co-parenting the men envisaged was not agreeable to them.
There was ample evidence to support the men’s account over the women’s account as to the arrangements surrounding the child’s conception and the expectations of the family constellation. The men’s accounts were largely consistent throughout the case, whereas the women gave various, and at times inconsistent accounts, as to what had been agreed with the men. For reasons that I shall explore further, generally I found the men’s evidence more forthright and reliable than that of the women, who were more prone to exaggerations, unsubstantiated claims, and reconstructions to suit their case. Of the two women however, Ms Boston was the less immoderate, and the more capable of tempering her evidence.
I found Ms Roberts’ account exaggerated and melodramatic. By way of illustration, and I shall return to further detail as relevant below, she several times referred to “extreme violence” in the relationship between the men and women. That was simply not sustained on the evidence. Similarly, both women repeatedly referred to extreme and insurmountable conflict between the parties. Their case was based firmly on that conflict and its disastrous effect on Ms Roberts’ mental health and E’s well-being. Again, for reasons that I will explore in detail below, I found that to be disingenuous.
Although the women tried to minimise it, there was ample evidence that, running parallel to negotiations between the parties as to E’s care and upbringing, Ms Roberts was also grappling with her own relationship with Ms Boston and the balance of power between them, with the stressful overlay of Ms Boston having started IVF treatment within months of E’s birth and against Ms Roberts’ wishes, as well as adjusting to parent-hood, and returning to work. The effect of these issues on Ms Roberts’ mental health were largely dismissed by the women. They continued to lay blame on the men, even though Ms Roberts’ own counsellor’s notes were replete with references to other stressors.
An illustration of “reconstruction” in Ms Roberts’ evidence was when she claimed that Mr Wilson was “so distant” in the course of discussions about conceiving a child, suggesting that it was never envisaged that he would take an active role with the child. That claim simply did not ring true when held up against the other evidence. His prominent role in the baby summit book, where he did most of the writing, stood out as a major marker of his level of very considerable interest and active involvement in planning for the baby. I note too that it was subsequently Mr Wilson who the women found far too pushy and wanting too much involvement. That distinction cannot simply be explained by a change of heart on his part. The evidence combined is far more suggestive of someone who was actively involved from the start.
Moreover, I do not accept that Ms Roberts and Ms Boston chose to proceed to conceive the child with this “distant” man, on the basis that they suggested, namely that they did not believe his sperm was viable in any event. It is absolutely clear that Ms Roberts, heading towards her late thirties, was keen to conceive and give birth to a child. That she would reduce her chances by 50%, by choosing to use sperm every second month that she did not believe was viable, defies belief. To claim now that they did not believe Mr Wilson could father a child strikes me as a reconstruction to suit their case, that is, to distance the biological father.
When Ms Stoikovska put to Ms Roberts that it was the women’s case that they “always intended to be a nuclear family” and that they (the men) had “insinuated their way in”, Ms Roberts agreed with that. However, when met with some obviously insurmountable pieces of evidence in support of the men’s version, Ms Roberts changed that evidence and the evidence in her affidavit, conceding that it had been envisaged that the men would be more than “incidental”. In other parts of her evidence, Ms Roberts conceded that the women had always said that the men were to be “fathers” and “parents”, and they had told them that, and the men were to be “involved…very involved.”
Both women moved considerably from their affidavit position of the men as “incidental” or like “extended family members”. Both conceded that they had agreed that the men would be very involved, that in good faith they were treating the men “in some ways” as parents, and they called them “fathers”. Ms Roberts said that involving them in two days of what she continued to refer to as “child-care”, was a “fair way to offer them a good deal of time.”
Ms Roberts consistently claimed that the women had never envisaged the child living on a 50/50 basis between the two households. However when confronted with Ms H’s notes of 18 March 2008, to the effect that she, Ms Roberts, was saying that she and Ms Boston were now both anxious about having “committed to 50/50 parenting”, whilst remaining firm that she did not agree to splitting the child 50/50, Ms Roberts then said that the agreement was “nebulous”, that she did not even know what they had committed to.
When confronted in cross-examination with the fact of a change in their evidence, both women at various times effectively pleaded in mitigation that the terminology was “excruciatingly difficult” or unclear, or arrangements naïve. That too was disingenuous. However difficult the language, the women had conveyed a very clear impression in their affidavits in describing an intention for the men to undertake an “incidental” role or a role akin to no more than “extended family members”. The difficulty for them was that the evidence clearly showed to the contrary.
There is ample evidence to support the men’s version of a shared intention of integral involvement as a “family”, raising E together.
It comes first in the form of what is headed the “Baby Summit” book, at least the part before 6 January 2008, after which it became more of a diary kept by the men. In itself, the fact that the baby summit discussions were held at all, supports the men’s more than the women’s account. Were the agreement as clear as the women’s affidavits would have had me believe – that they were to parent the child, and that the known donors were to be incidental – there would have been little need for the meeting at all, let alone a detailed discussion of the wide-ranging parenting issues that clearly took place in the course of that meeting, as well as in surrounding discussions.
The book also put an end to any suggestion of a lack of interest on Mr Wilson’s part. Ms Roberts and Ms Boston cannot have it both ways. They cannot claim on the one hand that he showed no interest, and that on the other hand he took the running in making these notes (and the subsequent diary), both of which show a substantial level of interest.
The women struck me as selective in the parts of the baby summit book with which they agreed or disagreed. What they could not distance themselves from was that each of them had written notes in the book. In addition, many of the things noted accurately reflected what had occurred or would occur later.
For example, discussions about Ms Roberts’ diabetes and the effect on a pregnancy, were noted. The reality was that Ms Roberts was genuinely concerned about that. She and Ms Boston had specifically sought medical advice. A commitment to travel and reference to the women’s desire to live and work overseas was noted. The evidence made it clear that the women had indeed held those dreams dear. It was envisaged that Ms Roberts would have a caesarean birth. That is what occurred. There was an emphasis on supporting Ms Roberts for the first year, particularly the first six months after the birth. That was reflected in the approach of the men having only short periods of time with E in the first six months after his birth. There was a note of the two women’s names being on the birth certificate, Ms Roberts as mother, Ms Boston as informant. That is what occurred. There were notes recording the need to use “an external person” for conflict or discussion of very serious issues. Certainly, as soon as such discussions were needed, the parties did bring in an external person in the form of a mediator. There were notes about “other offspring”, and it became clear that it was something Ms Roberts and Ms Boston were pursuing within months of E’s birth.
Although at one point in her evidence Ms Roberts claimed that a number of things might have been added to the book – that it was “doctored” – ultimately she referred to only one entry, under the heading “post first year after birth” where it was written:
“[Mr Farmer] very happy to be house-father for children.
- Child begins gentle living in two homes.”
It appeared that Ms Roberts objected particularly to that last sentence. She claimed it was written in different ink from the other parts of the book. That was something that I could not find in the absence of expert evidence. In any event, her specific objection only to that sentence, suggested that the part of the book recording discussion was otherwise largely accepted by her as genuine, but that the women interpreted various parts differently from the men.
Ms Roberts could not deny that her handwriting existed on one and a third pages of the book. First, under a heading written by her as “Roles”, she noted:
“- any stupid questions/fears
- “Primary Parent” – [Mr Wilson]
- “Father” role largely after the first year.
- “Papa” – [Mr Farmer]Means – co-locating – shared living
[Mr Wilson] arrangement – ½ time living arrangements
‘Dad’* contributing financially
- changing nappies
- sport events/school council
[Mr Farmer] - not necessarily having them live
‘Papa’- doing lots of daytime care
[Ms Boston]- Primary – day to day hanging out
MA- 60/40 maybe? depending on demands
[Ms Roberts] Primary Parent – busy
[illegible]Day to Day decisions
- whoever has care.
Principle - LISTENING- Larger decisions are subject to conversations and then voting.”
I am satisfied that her notes give a clear indication as to the nature of discussions, and show an intention well beyond these men simply being incidental to E’s life. That view is fortified by Ms Roberts’ note that “day to day decisions” would be made by “whoever has care” and that “larger decisions” would be “subject to conversations and then voting”.
Both women said the reference to “voting” was simply a joke. They were both adamant it would be impossible to decide a child’s needs by voting. I agree. However, whether it was written from naivety or as a joke, I do not believe that it undermines the essence of what was being discussed and written, that is, that these four people would be an integral part of E’s life.
Ms Roberts then made notes under the heading “Financial contribution”. The notes suggest that in the first year there would be no contribution unless she and Ms Boston asked. That reflects what the men said was agreed, and why beyond a particular payment, they made no other financial contribution in that time. It records that the women would pay for their own flights. That also reflected what did occur.
The notes under Ms Boston’s hand also support the men’s account. She was the one who noted how any conflict was to be handled. Having referred to an external person being brought in to resolve conflict or the discussion of very serious issues, she noted that everyday conflicts would be resolved through discussion, there would be “no bitching or disrespecting each other in front of children” and that they should “spend time liking each other”.
Ms Boston then made notes under a heading “Disability”, noting that none of them wanted to have an intellectually disabled or seriously physically disabled child. She noted it would ultimately be the choice of the pregnant woman whether or not to abort, however “no one” would be “expected to ‘wear’ the consequences.” It was noted that “decisions to abort or carry to term will be made in the context of much discussion.”
Ms Boston’s notes in relation to disability were significant for several reasons. First, they show the involvement of all four adults. This was not a case where the men simply donated sperm for the women’s baby with the shared intent that the men would then be incidental, like more distant relatives, uncles or friends. It was unlikely that people in those roles would take an integral part in discussions about an abortion.
It is also significant because the women had tried to suggest that Mr Wilson had said that he did not know if he could parent a disabled child. What was implied was that they (the women) would have loved and cared for any child born to them, but that Mr Wilson never showed the same level of commitment. It was in my view an unworthy suggestion.
If Mr Wilson made such a comment, it did not necessarily mean that he would abandon the baby. It could reflect the sorts of concerns and doubts that many a would-be parent would have. In any event, the notes appeared to reveal a much wider discussion as to how to cope with the knowledge that a child would be intellectually or physically disabled. To note that the pregnant woman might choose an abortion appeared to acknowledge a general anxiety about a disabled child, a not unreasonable concern, that evidently reached beyond just Mr Wilson.
In his written submissions, counsel for the women suggested that the entries in “the baby book” were “from time to time, enlightening but ought not to be taken literally.” Ironically, he later relied on the baby book entry in relation to an agreement the women would be allowed to travel.
There was no suggestion that I should regard this book as the basis of any formal agreement between the parties, nor intended as precise Minutes of their discussions. But even in short note form, it reflected discussion, consideration, and participation by all four adults at a level and in a manner supporting the men’s account that the four of them were setting about parenting a child together. I note there was a reference to equal time in each household but I cannot find there was a specific agreement about that.
There were also other “markers” that support the men’s account of what was intended. I note that during the pregnancy the women gave them a copy of an ultrasound video, the men moved to Melbourne around the time of the child’s birth, they were present at the hospital at the time of his birth, they drove the women and E home from hospital, and they had keys to the women’s house. The parties were in constant discussions and negotiations about the child’s care, and E was placed into the men’s care for two days’ per week when Ms Roberts returned to work early in 2009.
In addition, the men paid the women about $1,000 when E was three months’ old. I accept their evidence that it was a reckoning between the parties, balancing the monies the men had expended on moving to Melbourne and the monies expended by the women around the child’s birth. I accept the men’s evidence too that the women thereafter did not ask for money.
It was opportunistic that in evidence the women sought to criticise the men for a lack of financial support, and to rely on that fact as a sign that the men were never to be truly involved as parents. And to imply, as did their counsel in final submissions, that Ms Roberts’ return to work in any way arose due to financial constraints that the men “did not ameliorate…in any way” (see para 32), was unfair and unfounded on the evidence.
The men said that the child’s name was another indication of their close involvement. They said he was named “E” for Mr Farmer’s brother “E”, a middle name “T” for Mr Wilson’s father, a second middle name “W” for Ms Boston’s favourite uncle, and then Roberts for Ms Roberts. The women denied it, and said that they chose E’s name, and when they told the men, it was a “coincidence” that the connections were there.
The women said that “…” was a name that they liked, but that "E" was the Italian derivative, and it was an affectionate joke within the family that Ms Roberts’ father thought he had Italian heritage. “E” was also the name of a family friend of Ms Boston’s father and an uncle of Ms Roberts. They said Mr Farmer’s brother was called E, but he did not like it and chose to use a different name. Ms Roberts said they chose T because her grandmother had wanted 10 boys but had had three girls. She had wanted to call a boy, T. Ms Roberts said that she was not fond of the name but that Ms Boston was extremely fond of it. She also said that it was spelt differently from Mr Wilson’s father’s name. W, they agreed, was Ms Boston’s uncle, and Roberts of course the birth mother’s name. Ms Roberts added that E had four names because her father has four names.
Mr Farmer’s account as to the shared decision about E’s name was undermined to the extent that he said the name was discussed at a particular time when it simply could not have been. However I am satisfied that Mr Farmer, whilst shaky on dates and times, was not being untruthful.
Whether the four adults together arrived at the names, or the women discussed names with the men to dovetail with the various connections, I cannot be certain. However I reject as improbable that the women unilaterally chose names, which, without any recourse to the men, so coincidentally related to connections with them.
Correspondence between the parties also supported a much closer arrangement between the four adults than the women would have me believe.
On 30 June 2008, Ms Roberts wrote an email to the men and Ms Boston. I will return to it in detail for other purposes. For present purposes it is important to note that it started:
“Hey guys,
Just wanted to catch you before you head off on your journey toward parenthood – that is toward here! It’s also terribly exciting and terrifying at the same time, I assume you’re in as much shock and awe as we are – maybe more, maybe less??”
In the letter she referred to “our pending family merging.” At one point she referred to “the deal about how it was all going to go”, that is that initially the men were not coming to Melbourne for the first six months (reflective of notes in the baby summit book). She referred to there being “heaps to talk about before we get into the whole parenting thing”. Finally, and perhaps a sign of a burgeoning change of heart, she wrote:
“The arrangement is a given, but how we work it out is an issue of on-going relationship with four people who are going to change a lot. And I think I got a head-start on that.”
On 17 February 2009, when the men were taking over E’s care two days’ per week, Ms Roberts sent them an email, referring to E sleeping well, and saying “Go Team [B],” B being a pet-name they all used for the child before he was born.
On 7 April 2009, in an effort to resolve difficulties that had arisen, Ms Boston wrote to Mr Wilson (Ex W7) clearly referring to “family” in terms that included the men, when she wrote:
“Dear [Mr Wilson],
I am writing to you with an offer. It is an offer made with warmth and a little trepidation.
I was wondering if you would go out to dinner with me. I thought that perhaps we could go out somewhere lovely, drink some wine and remember why we like each other and don’t, under any circumstances, talk about the problems between us (or anything remotely related).
I want [E] to grow up surrounded by a family who have healthy relationships and care about each other. I have no idea how to create this family but this is one small attempt.
Please feel free to say no if this is something you don’t want to do.
[Ms Boston]”
Mr Wilson replied in a similarly conciliatory tone, also referring to “family”, when he wrote:
“Hi [Ms Boston],
Your bravery is to be applauded! A lovely & generous offer, one I am happy to accept.
Not focussing on differences but rather on commonality, over good food & a glass on [sic] wine, is a great way to begin to grow our family not only for [E] but also for ourselves.
Thanks for taking this step.
We could have dinner this Friday night perhaps?
[Mr Wilson]”
A final illustration can be seen in the email sent by Ms Roberts to the other adults as late as on 8 May 2009. It was in the following form:
“Hi all,
I wasn’t sure how to broach this so I though I’d send it via email and let people think about it – there is time.
So, my absolute dream job has come up in London. Its […], adn [sic] it s [sic] very liveable salary. I know that I’m unlikely to get a ‘yay, let’s all go to London’ response, but I have watched many excellent jobs go by and I though it was at least important that I ask people to consider it with this one. This is unlikely to come up again, until the person who gets it leaves, and that can be 20-30 years in [these] jobs.
I know there are a million things to consider – for [Ms Boston] and me also – and that this is not ideal time or location for you guys (I assume they’d want me to start next year at the latest.) But of course with everything that’s just gone on, it is precisely ideal timing for me.
The closing date is 21st May for apps. So we can leave it til [sic] mediation or some other discussion time.”
That reflects what had prevailed until that point at least, which was a shared understanding that significant decision-making and life events in relation to the child involved the men. Ms Roberts was not just telling the men of her plans to take the child to London. She was asking for them to “consider” the plans. She referred to the timing and location, and that she understood it was “not ideal” for them. The email was not that long ago.
I am satisfied that there was a good deal of “reconstruction” by the women as to the discussions and understanding before the baby’s conception. I am satisfied that a very great level of involvement by the men was envisaged. It may have been naive or idealised, but I am satisfied that it was the shared intention to together start a family of several children.
I am satisfied that although there had been much “blue sky” discussion of plans, that even included the parties eventually sharing a house with their children, the baby summit or discussion in February 2007 represented more than generalised “brainstorming”, was not just “a casual thing”, and was not just a note prepared by Mr Wilson. It was obviously a reflection of detailed discussions with the input of all four adults, and of intentions of a shared parenting arrangement, albeit not a finalised agreement as such, nor one with every detail finally cemented in place.
I am satisfied that the women experienced an evolving change of heart. They said it was because of E’s incapacity to cope with the arrangements, the pressures of the men’s demands, the conflict, the violence and the litigation. They said these pressures intruded upon their nuclear family and severely undermined Ms Roberts’ emotional well-being. I am satisfied however that the women started to have a change of heart in the latter part of the pregnancy, evolving thereafter, and not exclusively or even mainly for the reasons described by them.
Dealing first with the pregnancy, Ms Roberts and Ms Boston travelled to Queensland (where the men were then living) to see the men five weeks into Ms Roberts’ pregnancy. Some weeks later, Mr Farmer travelled to Melbourne to see them. Otherwise, there was no face-to-face time together until just before E was born. Ms Roberts implied a criticism, particularly of Mr Wilson, in that regard. That was odd, juxtaposed with her evidence that he was only ever to play an incidental role in the children’s lives. It was not a criticism that could be levelled against someone “incidental”. In any event, I am satisfied that it was always intended that the men would most likely move to Melbourne but not necessarily until the child was born. The clear arrangement was that during the first six months the men’s role would be quite secondary to the role of the women, while E was bonding with his biological mother and being breast-fed. What occurred though was different.
Just weeks before the birth, the men advised the women that they had decided to move to Melbourne immediately. Although there was no intention to be insensitive, with the benefit of hindsight, their timing was poor. Ms Roberts, 8½ months into the psychological, emotional and physical journey of pregnancy, was suddenly notified that the men would be living nearby. At the same time, they were asking to attend an ultrasound with her, and the birth, and she says that they were asking her to change the date of the caesarean to fit in with Mr Wilson’s work commitments. As to the latter, the men say that was never said seriously. For reasons I have already given, I accept their evidence over the women’s.
In any event, already there had been issues between the men and the women as to whether a previous ultrasound should be posted on Facebook, and whether the baby’s sex should be disclosed before birth, so there was, by that late stage of pregnancy, some emerging sensitivities surrounding differences between the adults.
The email of 30 June 2008 (Exhibit M2), already referred to, poignantly set out how Ms Roberts was feeling. She wrote it to the other three adults. It was evident that she was tired at that end of the pregnancy, overwhelmed by physical and emotional changes, and daunted at the prospect of the “pending family merging” and about “the arrangement” and how the four people “who are going to change a lot” will “work it out”. Her email gave some insight into her feelings when she wrote:
“I feel like it’s been an incredible journey (for lack of a better word) and I feel that because you are going to come on in and have some needs about [E] too then we need to re-familiarise ourselves with each other. I know the claims for you are about [E] but, you see, him and I are not separate people at the moment – and I won’t feel like we’re going to be separate for a while…”
Ms Roberts wrote of it taking time to get used to the men being in Melbourne, and her dismay at the timing of their move so late and close to the birth. She finished the email with:
“So, iun [sic] the end this whole email is really abut asking you guys – if you can’t hurry up and get here – then to slow down before you ask stuff of me and maybe before you assume that its [sic] all already there. I know that maybe for you it is, but 8 months, 15 kilos, 2million tears and worries, 70+ hours of therapy, the weird feeling of having another person growing inside you and I’m a bit of a different person than I was – a lot in a good way but we’re yet to knowhow this will play. The arrangement is a given, but how we work it out is an issue of ongoing relationship with 4 people who are going to change a lot. And I think I got a head start on that.”
Here was a woman who had been undertaking psychotherapy for at least 11 years at that point. She was diabetic and had to contend with the challenges that presented to the pregnancy and birth. She was about to be a first-time new mother. It is possible that all the idealistic notions of sharing a child were beginning to appear less attractive.
The evidence satisfied me that from the time of E’s birth, Ms Roberts was grappling with separation from him, and who should have time and contact with him. I heard of issues in hospital as to who held the baby and who was permitted to have “skin-to-skin contact” with him. There was apparently even some conflict between Ms Roberts and her mother in relation to that. There were issues as to when she would have visitors, and whether Mr Wilson and Mr Farmer were “visitors” or something dearer. She asked them not to come in on a particular day when she was tired. That was not unreasonable. That they responded adversely, and were anxious that they were regarded as visitors, and not something more, was equally understandable.
E was obviously dearly wanted and loved by his mothers. They were overwhelmed by the emotions of parenthood as well as the adjustment, and were grappling with issues as to role definition between themselves. From the notes of Ms Roberts’ therapist, Ms H, those issues appeared to be quite profound. It seems there was a good deal of discussion, conflict, rancour, insecurity and mixed emotions in the mothers’ household.
E was also dearly wanted and loved by the men. Although they had agreed to be respectful of the bonding time between mother and child, and to only have short visits with him in those early months, they were frustrated by what they perceived effectively as a power-play, whereby the women, Ms Roberts in particular, kept them at arms length from their baby. They recounted, for example, having to ask the women to leave the room so that they could just spend some time alone nursing their son and enjoying him with each-other. The women were going to be in another part of the home so there was no reason to be alarmed or concerned for E’s welfare. Then, in around September 2008, in the course of a shared week-end away, there was discontent when the men wanted to give E his bath but the women insisted it was Ms Boston’s exclusive role and the men were “not allowed”.
The tone was set within the first few months’ of E’s life, with a mostly unspoken tussle developing between the women and men. By October/November 2008, they started some counselling. One area of agreement was that the counsellor chosen at that point was inappropriate for the task. It was no-one’s fault that the first round of counselling did not assist them.
As to those early months, I am sympathetic to both sides. Despite what I am satisfied was a shared vision of parenting the child together, the reality when E was a real person was quite different. Ms Roberts had previously had no understanding of the intensity of emotions that she would feel for her baby. She struggled to share him, with her own partner, let alone with the men. She and Ms Boston were grappling with issues as to Ms Boston’s role with the baby, and the impact of the child on the women’s relationship. The men on the other hand were constantly disappointed by their exclusion, and the peripheral role that they were being made to play, contrary to their agreement and expectation.
What that mis-match of needs and desires at that point set up was behaviour on both sides that compounded the problem. I shall deal with that behaviour later in the course of these reasons.
I turn now to the s 60CC provisions. As noted, some of those provisions refer only to “parents”, whilst others require me to consider the role of “other persons”. For convenience, and without in any way confusing the different emphasis in the Act in relation to “parents” and “other persons”, where appropriate for ease of reading, I shall also consider some of the “other facts or circumstances” pursuant to s 60CC(3)(m) within the framework of the specific considerations set out in the Act.
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
There is no question that E has a meaningful relationship with Ms Roberts and Ms Boston.
Mr Wilson and Mr Farmer both agree that it is very important for him to continue that meaningful relationship with his mothers. The women’s perspective was that by seeking a change in E’s residence, it was clear that the men did not genuinely respect his attachment to the women.
Although I am satisfied that the men’s late concession that E should continue to reside with his mothers was the only reasonable course open on all the evidence, in particular the expert evidence, the context of their application is important in assessing whether criticism of them is warranted.
Their application followed the extreme account in the women’s affidavits, and in their descriptions to experts, as to Ms Roberts’ psychological state and incapacity to cope, Ms Boston’s difficulties in calming and containing her, and E’s profound distress. It was not unreasonable that those descriptions prompted the men’s concerns for E’s welfare in the women’s household. Although it still may have been preferable for no residence application to have been made, or for it to have been withdrawn earlier in the evidence, I am satisfied it was genuinely founded on the particularly dramatic account by the women.
I have no doubt the men’s application added fuel to the fire, but it was a fire ignited by the women’s evidence as to violence and aggression on the men’s part, the extremity of Ms Roberts’ reaction, and E’s distress. Against that backdrop, I cannot be critical of the men for having felt genuine concern about E’s well-being in the women’s home.
Where the two couples now differ is as to whether E needs a meaningful relationship with the men. The women said he does not: that the men are now effectively irrelevant to him. They said that if he asks about his father in later years, they will take advice. He could meet him. They were unclear about the timing.
The opinion of the Family Report writer, Mr P, was that “the best outcome” for E was to have a relationship with all the people who are important in his life. Mr P added that:
“…quite literally [E] is comprised of two people, and at some point in [E’s] life he is going to have to work out how this all fits so he feels whole, so that he doesn’t have a part of himself that cannot come to some point of acceptance about the other part of himself.”
In his evidence, Mr P emphasised that from E’s perspective, the best outcome would be for him to have a relationship with all these adults who love and care about him. At one point in his evidence Mr P said:
“…Maybe an unreasonable and necessarily biased view through [E’s] eyes is, well, maybe they [the four adults] just need to build a bridge and get over it, you know. I know you’ve got all your stuff, got all your problems, you’ve got all your history and you’ve got all of that, but that’s not really his problem.”
Mr P added that from E’s perspective it “may be fair that he be loved by all of them as he can be.” The initial dream shared by the adults “should still have an opportunity to continue”. He put it plainly that “all their stuff is not his problem”, and they do not need to be friends for E to have a relationship with the men. His reference to the women’s “stuff”, as he described it, is referred to in more detail below.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
Common sense, backed by research, dictates that children should be protected from family violence. The question in this case is whether or not E faces a risk in that regard.
Several times during her evidence, Ms Roberts described the relationship with the men as one of “extreme violence”, meaning at the instigation of the men. The first time, she corrected herself, saying that she meant “extreme conflict” but basically got rattled when she thought of “the assault”. I shall deal with “the assault” in a moment.
Subsequently, it was only when I drew to her attention to the fact that she had again used the term “extreme violence”, that she retreated from it. However, the material leads me to conclude that Ms Roberts’ claim of “extreme violence” by the men was not just an absent-minded slip of the tongue. It was a knowing and significant over-dramatisation from an astute and articulate person who unerringly chose her words quite precisely in the course of a long time in the witness box.
The allegation of physical violence arose on 19 October 2009, from an incident when the men went to collect E from Ms Roberts. It arose in the emotionally charged context of events leading up to that day, did not involve violence as purported by Ms Roberts, and was on any view an unfortunate but isolated incident, with flared tempers all around.
When the men went to collect E that morning, Ms Roberts claimed that he needed a longer “transition period”. She wanted the men to wait for 15 minutes. The men said that E was fine, and after three minutes on Ms Roberts’ version, or five minutes on the men’s version, they were leaving with him. E was in Mr Farmer’s arms. Ms Roberts said to put him down.
Her version, related in an application and summons for an intervention order prepared within several days, was as follows:
“… I repeatedly asked him to put [E] down. I reached for [E], but did not touch [Mr Farmer]. [Mr Farmer] moved back and forcefully shoved me with his hip and shoulder, which threw me backwards into the bookshelf. He then put [E] down and left the house but remained outside. I ran out the back distressed and asked a neighbour for help. I called the police. …”
The men’s account of the incident on 19 October 2009 was that they did try to leave with E before a 15 minute transition period had expired. I accept their explanation for that as entirely reasonable. On 21 September 2009, their two days’ per week with E had been reinstated by Hughes FM, after it had been unilaterally reduced by the women in June 2009. A 15 minute transition at handovers was not written into any orders. It arose from an agreement between the parties, based on Mr P’s advice that it could be an appropriate way to transition E between households.
I accept that, recently before this incident, the men had suggested to the women that it was no longer necessary, as E was handling the transitions well. In addition, as the relationship between the adults was strained, sitting together for 15 minutes was not very comfortable. That was starkly brought home by the events of the previous day, 18 October 2009.
In her application for the intervention order, Ms Roberts referred to the events of the day before, as follows:
“…The previous day [Mr Farmer] and [Mr Wilson] attended my residence to collect [E], however [E] was sleeping and I didn’t want them to take him until he was awake and had adjusted to them. We were unable to rouse [E] and I asked them to go get a coffee and we’d let them know when he woke. [Mr Farmer] became agitated. He waited in the house. I said I would prefer if they left. They left and returned 15 minutes later and waited outside for over an hour, staring in the window. They left as [E] woke. My once amicable relationship with [Mr Farmer] has deteriorated since before [E] was born. [Mr Farmer] has harassed us by loitering around and driving past our property. For my safety and well-being and that of my son I don’t want any contact.”
Although Ms H’s notes record salient complaints, worries and doubts, expressed by Ms Roberts over a long period when it could properly be anticipated that Ms Roberts was discussing all the significant concerns in her life, before the 21 September 2009 orders there were only a few references to E being unsettled by the arrangements. Only once did Ms Roberts say that the child was “not doing fine” after time with the men. However, after the September hearing, she emphasised concerns about E’s well-being in significant detail.
The flurry of consultations, assessments and reports, from immediately after the unfavourable decision in September 2009 until the interim hearing in February 2010, when the women asked me to immediately suspend the men’s time with the chil, and now around this hearing, raised the concern that they were gathering evidence to fit within the legal framework they understood would “get rid of the men”. That concern was compounded by their failure to call witnesses, both in the category of close friends and family on the one hand, and professionals involved with E on the other hand, to confirm the profound disturbance described by them, and their failure to film his behaviours as requested. I find that it is probable that they have exaggerated their accounts of his disturbance.
That brings me to the issue of Ms Roberts and her mental health. Immediately after the September 2009 hearing, within only days, she presented to Dr A in an extremely distressed state. She continued to consult with him, and by the time the case first came before me in February 2010, the account of the women, supported by Dr A’s professional opinion, was of her profound distress.
Initially, Dr A found she appeared to be suffering from an “Adjustment Disorder with depressed mood” in the face of the conflict with Mr Wilson and Mr Farmer. He said that shortly before Christmas it became clear that she was experiencing a “Major Depressive Episode”, precipitated by the conflict. He suggested anti-depressants. She did not take up that advice, expressing a concern that it would affect her mental capacities.
Dr A described the orders at that point as being “extremely stressful” for Ms Roberts and Ms Boston. He described the situation as being made worse by their sense that the men did not respect their role as E’s parents and did not give any priority to their views about the child’s care and needs. The women told Dr A that the men just saw E as an object to show off to their friends and relatives, with little regard for him, and little regard for the benefits for him of greater continuity and stability in his care. Ms Roberts told Dr A that she felt she had failed E in being unable to protect him from “the trauma” surrounding his time with Mr Wilson and Mr Farmer.
Although Dr A was not being asked for a Family Report, and had not met the men nor observed them with E, he offered opinions that “the present situation maximises [this] conflict.” He said “the key question” appears to be whether the Court accepts that Ms Roberts and Ms Boston are E’s parents and that together with E and any future children they therefore constitute E’s “nuclear family”. He offered the opinion that if the Court took that view, the benefits for E of his parents being committed to decide with whom he should spend time “appears clear-cut”. If the Court did not support that view, E would be left in the position of the apparently “intractable dispute” between his four parent figures.
Dr A concluded his report saying:
“I have very little doubt that [Ms Roberts’] mental state will improve considerably if her primary role as [E’s] mother and [Ms Boston’s] role as [E’s] other parent is accepted, giving them freedom to make what they believe are the best decisions for [E] in the same way as heterosexual parents are expected to do.”
Dr A’s report of Ms Roberts’ mental state, at a time when his opinion, and more importantly all the evidence was untested, led me to suspend the men’s time with E in February. I also arrived at that interim decision on the basis of Mr P’s report at the time which, amongst a range of options, suggested one option of a temporary suspension. I made it clear at the time that it in no way reflected what might occur, after the benefit of extensive evidence and cross-examination.
Dr A is an extremely experienced psychiatrist and witness. No issue was raised about his integrity. Unlike Dr A however, I have had the benefit of hearing two sides to this story, significantly more material, and its detailed testing.
Of fundamental significance is that Ms Roberts and Ms Boston did not give Dr A a full or genuine account of the men’s parenting role as envisaged by all four, and as carried out to that point. They grossly underplayed the men’s role, giving Dr A the impression that the women had at all times expected that they and E were to form a nuclear family and, effectively, the men were to be, to use words that arose in the evidence, “incidental”. When the fuller account was put to Dr A, although he said he was not “deceived” by the women, he agreed that it painted a different picture from the one painted to him.
I am not critical of Dr A’s opinion in the sense that he acted on what he was told, and what he was told was an inadequate account of this family. He did not have the benefit of hearing from the men or seeing E with them. No doubt Ms Roberts presented in a very distressed state. I have no doubt that she was genuinely upset by the September orders. She had wanted but failed to achieve a different outcome. As I have noted, it was clear enough that after that hearing, she was conscious that she needed to gather evidence.
Ms H also gave evidence about Ms Roberts’ stress arising from her concerns for E. In a report prepared for Ms Roberts’ lawyers in November 2009, Ms H spoke about the “arrangement” Ms Roberts had entered with good-will, whereby four people would be involved in the raising of the child. She referred to the several times that Ms Roberts had raised concerns about E settling into spending time with the men and in particular that on 25 May 2009 she said “[E] is not doing fine when he comes back from the boys”.
Ms H concluded her report saying:
“[Ms Roberts] feels that during the court process, her experience as the mother and as primary carer of her child has not been believed. She therefore feels that her deep concern, that the fracturing of his daily care is not in his best interest in developing healthy attachment patterns, has been dismissed and invalidated.
In summary, [Ms Roberts’] current high level of distress seems to me both understandable and appropriate given the unfortunate and very painful situation in which she finds herself. She is distressed because the hoped-for good relationship between the parties has broken down but more acutely, she feels that the developmental needs of her child are being overlooked and as such, his best interests are not being considered.”
In response to a letter and set of questions sent by Ms Roberts’ lawyer, Ms H wrote another report on 18 April 2010.
In that second report she said that Ms Roberts’ mental health had been relatively stable for some time prior to the pregnancy. Following the court appearance for the interim order, she said Ms Roberts’ psychological state “deteriorated”, and Ms Roberts reported feeling “alternately highly distressed or withdrawn and depressed.” Ms Roberts was particularly worried about the effects of “the intense conflict” between the parties on E. Ms Roberts reported to her that since E stopped seeing the men in late January 2010, his “good nature and easy going temperament” had been restored, and Ms Roberts’ distress had “receded”.
Ms H, in response to a specific question from Ms Roberts’ lawyer, said she had “concerns that any future order for [E] to spend on-going time with [Mr Wilson] and [Mr Farmer] will lead to deterioration in her mental state in the way described.” However she had no concerns as to Ms Roberts’ capacity to care for E.
Ms H has not met the men. She only saw E as an infant when Ms Roberts brought him to some sessions. She has been in a therapeutic relationship with Ms Roberts for very many years. In my view that is significant. I found her somewhat partisan. I do not suggest that she was being dishonest, simply that she was, not surprisingly, exhibiting a professional position empathetic to her very long-standing patient. That rather myopic approach came through in several parts of her evidence.
Ms H was cross-examined about the fact that in her first report she had spelled out “the arrangements” as to the four people raising the child, but by the time of her second report, the arrangement was no longer expressed in that way. When pressed about it in cross-examination, to the effect that she had made that change between the reports, she was defensive, but ultimately had to concede that Ms Roberts had been talking about “a family arrangement” or, she added, “a loose family arrangement”.
In cross-examination, she also had to concede that although her reports suggested that the distress felt by Ms Roberts arose from the conflict with the men, it was not in fact the sole source of her distress. There was great tension between the women about Ms Boston’s IVF treatment. Ms Roberts wanted her to postpone it. Ms Boston would not. There was no reference to it in the report, as overlapping with the issues between the men and the women, nor to the fact that during 2009, Ms Boston was undergoing several cycles of “impregnations”. In September 2009 Ms Roberts was complaining to Ms H that “[Ms Boston] was not earning her keep”. She said she felt “lost with the relationship” and she would not “tolerate her meanness anymore”. When it was put to Ms H that these were other stressors not referred to in her report, she simply answered “apparently”.
Ms H had to concede that on 20 September 2009 Ms Roberts had told her that the legal proceedings were an opportunity to “get rid of the boys altogether”. Ms Roberts was very sure the proceedings would go her way, and that they would “never have this opportunity again”. But there was conflict between the women as Ms Boston did not want to exclude the men altogether. Ms H conceded too that Ms Roberts was in fact not sure that it would be the best for E.
On the day after the hearing, Ms Roberts was telling Ms H that “they” [presumably the Court] consider the parent’s state of mind as relevant. That is when she discussed with Ms H about producing her notes. She also initiated a conversation about the case, re Patrick.
Ms H agreed that Ms Roberts had undertaken some part of a postgraduate course in clinical psychoanalysis. She did not believe that Ms Roberts though was being manipulative with her.
Ms H said that Ms Roberts can use language disproportionate to the actual event, that control is very much a trait that she exhibits and that she can be robust, although on one level she is fragile and can be intensely vulnerable “underneath”.
Although the women’s case was presented on the basis that they were simply seeking assistance with parenting E in the circumstances of his severe distress and Ms Roberts’ distress caused by the men, all the evidence persuaded me of the probability that they were trying to build the case that they could see was lacking in the September 2009 hearing. That is not to say that Ms Roberts was not distressed, nor that E might not have suffered as a result. But her interpretation as to the source of her distress was a very subjective and convenient one, and the one related by her to experts who, without the benefit of hearing the complex matrix of facts that I have heard, would have had little reason to disbelieve her.
These factors mount up to persuade me that the women have been keen to excise the men from E’s life, for them to enjoy what they have idealised and now refer to as their nuclear family without what they perceive as an interruption.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
I am satisfied that for E to move from his primary carers, to live with the men, would have been an untenable change for him. That is no longer an issue.
I am however equally satisfied that E would be able to cope with a return to spending time with the men. Of course such time would need to be reintroduced in an age-appropriate manner, with due sensitivity to the changes for him.
As already noted, I find that the women have exaggerated “symptoms” arising from E’s previous time with them. I note Mr P’s very favourable observations of E with the men and the easy affection shared between them. I note Mr P’s evidence that E is older and at a different developmental stage from when there were early issues and discussion about how to handle him spending time with the men. And I note Mr P’s evidence to the effect that if it is E’s best interests that are genuinely being considered, then his best interests would be promoted by having these loving people, one of whom is as Mr P put it, “part of his make-up”, involved in his life.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
If the adults remain in the same city, then there would be no practical difficulty or expense that would impact on E spending time with the men. They live close to each other.
Communication between the parents is an issue. At present it has broken down. That is not surprising given the evolving “positions” of the parties, and then this hard-fought, long litigation.
The ICL proposed on-going family therapy or counselling. That was not proposed by the experts, nor supported by the parties. I am concerned that although well-intentioned, in the short term it is more likely to sabotage than promote any healing. Emotions are raw at this point, but these are extremely intelligent and resourceful people, capable of arranging help if and when they are willing to participate in it. In any event, if I determine that E should see the men, I would frame the orders so that the adults have as little contact as possible.
The experts were in general agreement that certainty as to the allocation of responsibilities would be helpful in this case. I made it clear in the course of the hearing that I was considering that the women, as E’s primary carers, should be given a clear mandate to make decisions for him. It struck me that the certainty could remove a considerable source of tension, on-going power-plays, and the need to instantly overcome wounds that are still fresh. In addition, it could give the mothers the security they seek in their primary parenting roles.
When I first raised it with the parties, Ms Boston’s demeanour suggested a very positive response. In the body of the court, she was nodding, something clearly visible from my vantage point on the bench. Concerned not to misinterpret her demeanour, I asked her about it when she gave evidence. She explained she had nodded because it was “dead on” that a lot of problems had arisen from a “power struggle”. She said it would have been helpful, but her view now was “bleak” as the relationship was destroyed: there was no trust or respect.
I am satisfied that sadly for children, most parties would leave hotly contested court proceedings with a lack of trust and respect arising from polarised positions and hurtful words about each-other. Although sometimes the conflict is insurmountable, many must and do go on to parent children in any event.
I am satisfied that with minimised overlap between the adults, clarity about the decision-making, and the passage of time, the relationship between the two households can be at least sufficiently workable for E’s best interests to be looked after.
Mr P’s evidence was important on this topic. He emphasised recent research to the effect that the positive impact on a child of quality parenting is more important than the negative impact of conflict. I have no doubt that E receives quality parenting with the women and would be cared for by the men with the same degree of quality.
I am also satisfied that in this case there is a particular opportunity available to the adults and that is that the chemistry between some is not as poor as between others. Ms Boston and Mr Farmer seem to have the potential to bring a calming influence to their partners, and to communicate a little more easily than the other adults are able at present.
Otherwise, as to practical difficulties, I note that if the parents take E overseas for Ms Roberts to undertake the employment in which she is interested, then naturally there would be significant practical difficulties and expenses involved in the men spending time with and communicating with him. I shall deal with that in a moment.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
These aspects have been dealt with as relevant in other parts of these Reasons for Judgment.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This consideration is not relevant in this case.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Litigation takes an enormous financial and emotional toll on the adults involved in it. By way of ripple effect, it must inevitably impact upon the child. I hope that E will be allowed to now enjoy his childhood free from those pressures. From that perspective alone, an order that the men be forbidden to spend any time with him may be the one most likely to close the prospect of litigation. However, it is but one aspect of what I must consider in performing the exquisitely difficult task of weighing all the evidence to arrive at a decision about his best interests.
(m)any other fact or circumstance that the court thinks is relevant.
As I noted at the outset, for ease of reading, I have woven these facts and circumstances – primarily about the men’s role – throughout my reasons.
What I have not woven throughout these reasons is any detailed consideration of the relocation question. That is not to overlook that all the matters considered above are not important to it. They must inform my decision. It does however reflect the way the case was run. There was little evidence about the proposed relocation. That would usually be a source of great concern: it is generally important to know some level of detail of a proposal, to properly assess the impact of moving a child away from his or her other parent. In this case, there are several reasons why I do not feel that concern.
First, both the legal parents would be travelling with E. Of course that in itself does not resolve this issue. As the men are persons concerned with the child’s care, welfare and development, the impact on him of moving away from them cannot be overlooked.
The more significant reason why I am not concerned about the women’s lack of clarity and detail around their proposal is that it is clear that from the earliest discussions about having E, it was on the agenda that they would want to spend some time overseas for Ms Roberts’ career advancement.
True to my finding that the “baby summit” notes reflect what was a consistent shared vision, at least until it started to waiver around the time of E’s birth, and altered thereafter, it was equally well understood and accepted by the men that the women would spend some time overseas.
It has no doubt been a source of suspicion and/or frustration to the men that the women’s travel plans have to some extent waxed and waned, and that elements of their proposals have lacked detail. Most particularly, they must have felt upset that the women have not permitted them to build the relationship with E that would allow him to go away knowing and being attached to them in the way that they would have anticipated when travel plans were first discussed.
Doing my best to piece together the details of the proposal, I note first Ms Roberts’ email of 8 May 2009. She referred to her “absolute dream job” having arisen in London. She indicated that she assumed that she would need to start “next year at the latest”. The closing date for applications was 21 May 2009. She wrote that:
“…This is unlikely to come up again, until the person who gets it leaves, and that can be 20-30 years in [these] jobs.”
That suggested that it was a long-term tenured position.
When the matter first came before me in February 2010, travel was an urgent part of the women’s application. They sought a passport for E, and that they be permitted to remove him from Australia. At the time, Ms Roberts swore that she and Ms Boston wanted to take E overseas between 20 February 2010 and 18 March 2010, for Ms Roberts to present some work in London, and to participate in a conference in Austria. The men had sought make-up time with E. The women had refused. At the time she was swearing her affidavit, Ms Roberts said that it was at that point becoming very late for her to prepare for her research and make required travel and accommodation arrangements. She said that “the trip may not be possible”, but she referred to further opportunities that would arise in the future “including on-going [opportunities] in London.”
Then in April 2010, in her trial affidavit, Ms Roberts swore:
“150. I now have been offered a two year [opportunity] in London. [It] begins on the 1st January 2011 and finishes on the 1st January 2013. [Ms Boston], [E] and I hope to go to London in November to organise accommodation and settle in before the research begins. [Ms Boston] will look after [E] while I am researching, but research projects are flexible in their hours and the project will offer me a great deal of time to spend with [E] and [Ms Boston].”
Ms Roberts went on to swear that she has had a long-standing relationship with the organisation in London and had always intended to take up employment there. During that employment she hoped to travel with E. She referred to being on a fixed-term contract with her current employer, due to expire “next year”. She believed a renewal of the contract was unlikely and that it was essential that she develop her career with international experience.
Ms Roberts and Ms Boston also relied on the affidavit of Mr L. He is the head of Ms Roberts’ department and is Ms Roberts’ “manager”. He swore that she is employed in a three-year contract, expiring at the end of 2011. He spoke of the reasons that international experience would benefit Ms Roberts’ career, and he referred to the good standing that employment in London would offer. He spoke glowingly of her work but said he could not “guarantee” her future employment.
Mr L completed his affidavit by swearing that:
“…[Ms Roberts’] experiences in the last two years have been to the detriment to her career and have made it less likely that she will manage to find tenured employment. This is a shame because, with greater international exposure, she has the potential to become [a researcher] of the highest calibre.”
Mr L was not cross-examined. When he referred to Ms Roberts’ “experiences in the last two years”, it is difficult to know whether he was referring to the fact that she gave birth and took time away from her employment, or whether it was because she has had time off for this litigation, or because of her emotional upset, her incapacity to travel, or all or some of these or other reasons.
In the circumstances of people not knowing whether a court will or will not permit a child’s relocation, it is not surprising that they have not cemented the last details of travel and living arrangements. What stood out in this case however was that the women are currently entrenched in some serious processes in Melbourne and were quite dismissive of the difficulties of transferring them to London. One was the very long-term therapeutic relationships they have with their own therapists, although clearly they could make new arrangements in that regard. The glaringly substantial one was Ms Boston’s current immersion in the IVF program. The evidence was meagre as to how that would be continued in London. The women were confident that it could be, but appeared to have made little investigation. The relevance is as to the timing of any trip.
The timing is significant because of the expert evidence from Mr P that it should be “the later the better” for E. The ICL proposed that it should not be until E attains the age of five years.
Counsel for the mothers, in his written submissions, noted that the timing selected by the ICL was “arbitrary” and failed “to take into account not only the current offer of employment but the possible impact on [Ms Roberts’] future career prospects.” The submission continued that even if the court were to order that time be spent between E and the men, there was:
“…no reason why that travel should not be allowed to happen at the commencement of 2011 (or at the latest the start of 2012), and effectively be completed before [E] is due to commence his schooling.”
There was no material from the employer in London as to the details of any employment, of a formal offer, or how long it would remain open. The women’s proposal, that at latest they should be permitted to go at the start of 2012, has within it the implicit suggestion that the employment could be taken up at that point. Clearly Ms Roberts has employment in Melbourne until then. Most pertinently, a departure delayed until the start of 2012 would enable E to re-establish his relationship with the men, if he is to spend time with them.
I am satisfied that E’s best interests dictate that his parents should be able to relocate overseas for Ms Roberts to pursue her career. But there was nothing in the evidence to satisfy me that the trip, to still be successful, could not wait until the start of 2012. Thereafter, if appropriate, E could have regular skype time with the men, and they could visit to spend time with him.
Overseas holidays or short trips are in a different category. Ms Roberts referred to a pending family holiday to celebrate her father’s milestone birthday. She said the family proposed three weeks in Italy in September 2010, but that she and Ms Boston also proposed attending a conference in Sweden, and meeting with colleagues in London.
If E is to be reintroduced to the men in a way that will work consistently and predictably for him (emphasised as important by Mr P) then there will need to be a balance between the women’s capacity to enjoy holiday opportunities, and the need to spend consistent periods in Melbourne for E’s relationship with the men to be satisfactorily re-built before the women embark on a longer overseas stay.
CONCLUSION
The four adults in this case are mature, intelligent, basically very good people, and all perfectly capable of contributing wonderfully to E’s life. The women are currently doing that, and the men are keen to do so.
The evidence satisfies me that the four of them did, contrary to the women’s accounts, set out with a shared decision, as two couples, to create and contribute to the raising of a much-wanted and much-loved child. Although events did not unfold in that idealised way, I am not satisfied that the men’s behaviour, the conflict, or the impact on E was as dire as the women have said. And although satisfied that Ms Roberts was finding it difficult to cope late last year and early this year, I am not satisfied that she presents an on-going risk to E’s physical or emotional well-being, or that she would be unable to cope now if he were seeing the men.
Nor am I satisfied that the major source of Ms Roberts’ distress was, as she claimed, the men. There were in fact many factors at play at the time.
Not surprisingly, none of the adults were prepared for the flood of emotions occasioned by E’s birth. The emotions, the yearning to share and spend time with him, and the allocation of responsibilities was spread in four directions, not just in two. I am satisfied that the women were grappling with the balance of power between them in their own household. I am satisfied that it was difficult for them individually and together to adjust to parenthood, and it was difficult for the men to do so in the circumstances where there was little clarity as to their respective roles.
It simply cannot be overlooked that at a time when emotions were running high, E was very tiny, rapidly changing, and sometimes unsettled, and the parties were in the midst of mediation and negotiations about obviously unchartered territory. At the same time, Ms Boston had set about her own quest for pregnancy through an IVF program. It caused issues between the women, and although they down-played it, I am satisfied it was a substantial financial, physical and emotional undertaking. Ms Boston has not yet conceived when she has dearly wanted to do so. She also down-played her disappointment, emphasising she is already a mother to E. I do not accept at face-value what she said about that. For her to embark upon and continue the rigours of IVF treatment, it is fair to assume her commitment to a successful pregnancy, and a natural disappointment each time it was not achieved. Otherwise, it makes little sense of five attempts – with the attendant financial and emotional expense.
To effectively lay the blame at the feet of the men for any unsettled behaviour on E’s part, and/or Ms Roberts’ distress, is unreasonable. It ignores all those complex factors, and it ignores the complexity of what is so apparent from the outside, and referred to by Mr P so neatly, as the struggle all around for “ownership” of E.
This case is not about the socio-politics of single-sex parents, nor the definition of a nuclear family. This Court deals with a full spectrum of families: parents who have lived together as a unit with children for many years, parents who have met only briefly but through happenstance have parented a child together, heterosexual parents, homosexual parents, parents who have changed gender, parents from a wide range of cultures, and for example, in some medical procedure and other cases, parents who are firmly united in what they seek from the Court. It is always the particular child and his or her particular needs that must be at the centre of a decision.
E is the product of a number of fine people. He is entitled to know about them, to know them, and to know their love of him. The Family Report writer’s evidence made it clear that with E’s genuine interests to the fore, it is hard to see why he should not have the opportunity of these four loving adults within his life. Each can contribute something important to him. To choose the course proposed by the women, that they raise him within what they refer to as “a nuclear family”, that is without knowing the men (until, maybe, some nebulous time in the future) precludes him from knowing and enjoying what is rightfully his.
Of course, intense conflict around time with the men could render it contrary to E’s best interests. However, my finding is that the mothers have not represented the level of conflict truly. I am also conscious of Mr P’s evidence about conflict, referred to above, and also the steps I can take to limit the need for communication and resultant conflict. Fortunately, Mr Farmer and Ms Boston seem a little less intense than their partners, and more capable of calm inter-action.
I have given careful consideration to the impact on E of a decision contrary to his mothers’ wishes. I am satisfied that Ms Roberts, the parent whose mental health has been more of a concern, will cope, particularly with the certainty around parental responsibility, recognition of the women’s role, and the capacity to travel as she perceives her career dictates. None of the experts described her as presenting a risk to E’s well-being, even when she was at the height of her distress.
It is clear that E cannot be successfully parented in an equal division of parenting roles between the four adults. If I were deciding the case on the basis of fairness to the adults, equality would be to the fore. But I am not. Equality is simply untenable. It is frequently difficult enough between two adults. It certainly has not worked across the four adults in any practical manner. I am satisfied that the efforts to create that equality, the fact that it did not work, and the enormous angst generated by all the on-going endeavours to make it work, has ironically brought things undone. As the initial shared ideal of a form of “equality” in parenting has this far failed, it strikes me as contrary to E’s best interests to pursue it now.
The reality for E is that his mothers are his primary attachment figures. It flows logically for him that they should be responsible for making the important decisions about him. And I am satisfied that they need support in their primary parenting, and the Court’s imprimatur to make the decisions on E’s behalf.
I am satisfied that E should have the benefit of the men’s loving involvement in his life, and that it should be a meaningful relationship. I am not satisfied however that it should be at a level, time-wise, whereby the women would inevitably feel that their family unit is severely compromised, nor should their freedom of movement be so restricted that they cannot relocate for the purposes of Ms Roberts’ overseas work.
I do not accept the ICL’s proposal for E to ultimately spend each alternate week-end from Friday to Monday and half school holidays with the men. At the same time, I do want to ensure that E has the benefit of enjoying a loving relationship with these men who clearly adore him, and the capacity to know his biological father. But he is a little boy who through circumstances is and will be ensconced in his household with the women who are two loving parents to him.
I am satisfied that his needs will be met if by the time he starts school, he is spending each third week-end with the men from Friday afternoon until Sunday evening. In the term school holidays he should by then spend four nights with the men, one week in the summer holidays at the end of his prep year and thereafter two weeks in each summer holidays. That in my view will strike the balance between minimising the leisure time he experiences away from his mothers and maximising the opportunity he has to know and enjoy the men’s involvement in his life.
If the women are living overseas, and I do not propose any limit on how long they can have E out of Australia, I would propose weekly Skype contact and the capacity for the men to be able to travel to the UK to spend time with E in two lots of two weeks each year. He will still be very young, so the time he spends with the men may at first be during the day, provided he maintains any kindergarten or school regime. There would be short overnight periods depending what has been phased in before then, building to longer periods. I am satisfied that the men should meet their own travel costs. They will not otherwise be contributing to E’s financial upkeep.
Given the dimensions of this dispute, it is not surprising that I have not been addressed in detail about arrangements surrounding E’s time with the men, including how it can best be reintroduced, and in whose presence to start, how it is to be extended, the dates of the women’s pending holiday and the impact on the re-introduction regime, and many of the details surrounding the time and communication once the women relocate.
I would prefer to set out proposed orders. However it has become clear that I must allow the parties’ input, as a matter of fairness to them, and for me to obtain the information that I require.
I certify that the preceding 341 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Dessau
The 19th day of August 2010
Associate
Key Legal Topics
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Family Law
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Civil Procedure
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