YANDERS & JACKLIN
[2011] FMCAfam 57
•24 January 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| YANDERS & JACKLIN | [2011] FMCAfam 57 |
| FAMILY LAW – Same sex relationship, child born during the relationship – conceived naturally – meaning of artificial insemination – whether child is a child of non-biological partner – if not, whether person is concerned with care welfare and development of child – the application of the considerations in s.60CC when not a parent of the child – the issue of parental responsibility when not a parent of the child – mental health issues and impact on spend time with arrangements – need for graduated, whether counselling or ongoing involvement of Independent Children’s Lawyer beneficial. |
| Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC, 60EA, 60H, 60HA, 60HB, 61B, 61C, 61DA, 61D, 61DA, 64B, 64C, 65AA, 65C, 65D, 65DAA |
| Aldridge & Keaton [2009] Fam CAFC 229 KAM v MJR & Anor (1998) 24 Fam LR 656 Mulvany & Lane (2009) FLC 93-404 Potts & Bims and Ors [2007] FamCA 394 Re C and D (1998) 23 Fam LR 375 Re Evelyn (1998) 23 Fam LR 53 Rice and Miller (1993) 16 Fam LR 970; Stevens and Lee (1990) FLC 92-201 Venkatesan & Pawar [2007] FMCAfam 1109 |
| Applicant: | MS YANDERS |
| Respondent: | MS JACKLIN |
| File Number: | BRC 1321 of 2010 |
| Judgment of: | Turner FM |
| Hearing dates: | 8, 9, & 11 November 2010 |
| Date of Last Submission: | 11 November 2010 |
| Delivered at: | Darwin |
| Delivered on: | 24 January 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Linklater-Steele |
| Solicitors for the Applicant: | Carroll Fairon Solicitors |
| Counsel for the Respondent: | Mr Selfridge |
| Solicitors for the Respondent: | Brisbane Family Law Centre |
| Counsel for the Independent Children’s Lawyer: | Mr Middleton |
| Solicitor for the Independent Children’s Lawyer: | TLG Lawyers |
ORDERS
That the child [X] born [in] 2005 live with the respondent Ms Jacklin.
That the respondent have sole parental responsibility for the child and keep the applicant MS YANDERS informed in writing of all long term decisions relating to the child, via the communication book.
That notwithstanding Order (2) that the applicant and respondent be responsible for the day to day care welfare and development of the child whilst the child is in their respective care.
That the applicant spend time with the child as follows:-
(a)Commencing Saturday 29 January 2011, from 9.00am to 1.00pm each Saturday;
(b)Commencing Saturday 12 March 2011, from 9.00am to 5.00pm each Saturday;
(c)Commencing Saturday 23 April 2011 and every alternate weekend thereafter from 9.00am Saturday to 9.00am Sunday;
(d)Commencing Saturday 18 June 2011 and every alternate weekend thereafter from 9.00am Saturday to 5.00pm Sunday;
(e)Commencing Friday 12 August 2011 and every three weeks thereafter from after school Friday to 5.00pm Sunday;
(f)For two (2) hours on each Christmas Eve, at a time to be agreed between the parties, failing which between the hours of 5.30pm and 7.30pm Christmas Eve;
(g)For two (2) hours on each Easter Thursday, at a time to be agreed between the parties, failing which between the hours of 5.30pm and 7.30pm Easter Thursday;
(h)For two (2) hours on the evening before the child’s birthday each year, at a time to be agreed between the parties, failing which between the hours of 5.30pm and 7.30pm;
(i)For two (2) hours on the applicant’s birthday each year, at a time to be agreed between the parties, failing which between the hours of 5.30pm and 7.30pm;
(j)For two (2) one week holiday periods per year in the Queensland Gazetted school holidays, each holiday period to commence from 9.00am Saturday to 5.00pm the following Saturday, such holiday periods to be at times as to be agreed upon between the parties, failing which the holiday periods will be for the last week of the Queensland Gazetted July School Holidays and the second last week of the Queensland Gazetted Christmas School Holidays;
(k)On such other occasions as the parties may agree.
That notwithstanding Order (4) the child shall live with the respondent each year on:-
(a)Mothers day;
(b)Good Friday to Easter Sunday;
(c)Christmas Day;
(d)Boxing day;
(e)The respondent’s birthday;
(f)The child’s birthday;
In the event that the days set out in Order (5) coincide with time to be spent by the applicant with the child pursuant to Order (4) then the respondent must within four weeks provide make up time to the applicant equivalent to the time lost by the applicant in adhering to Order (5).
Changeover is to occur at such places to be agreed upon between the parties failing which the applicant is to collect the child at the commencement of the spend with period from the respondents residence (unless collection is to occur from the child’s school) and the respondent is to collect the child at the conclusion to the spend time with period from the applicants residence.
This order is authority for the applicant or a person nominated by the applicant to collect the child from the child’s school.
That the applicant communicate with the child as follows:-
(a)Commencing Wednesday 2 February 2011 and every Wednesday thereafter by telephone at 6.30pm with the applicant to instigate the call either to the landline number or mobile number as provided by the respondent to the applicant;
(b)On the child’s birthday, Easter Sunday and Christmas Day with the applicant to instigate the call either to the landline number or mobile number as provided by the respondent to the applicant.
That commencing the 29 January 2011, the respondent provide to the applicant a communication book, with the parties to use the communication book to exchange information as to issues regarding the care welfare and development of the child, and in respect to changeover, holiday and make up time arrangements, and any other requirements for the use of the book as set out in these orders.
That by the 29 January 2011, the parties provide to each other full details as to their residential address, their landline telephone numbers and their mobile numbers.
Each party is to notify the other within twenty-four (24) hours of any changes of address or telephone numbers.
The respondent is to inform the applicant in the communication book as to the names, addresses and telephone numbers of the child’s current treating health professionals.
Save and except in the event of a medical emergency in respect of the child, of which the party must inform the other immediately, the applicant must not take the child to a new health care professional without first consulting the respondent.
Each party shall inform the other as soon as reasonably practical, or in any event within twenty-four (24) hours, of any illness, medical condition or other significant health issue which required treatment from a health care practitioner.
The respondent is to inform the applicant in the communication book as to the name, address and telephone number of the education facilities where the child attends.
The respondent is to provide in the communication book at the next spend time with period after receipt by the respondent of copies of all the child’s school reports and school photograph order form.
The parties will not denigrate each other, the party’s partner or family to the child or in the presence or hearing of the child at any time and shall take steps to remove the child from the presence of any other person denigrating the other party.
The applicant is to provide to the respondent via the communication book a letter every two months from her treating practitioner as to the applicant’s mental health, the first letter to be produced on 29 January 2011.
That pursuant to s.65DA (2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars form part of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Yanders & Jacklin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 1321 of 2010
| MS YANDERS |
Applicant
And
| MS JACKLIN |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by MS YANDERS (also known as Ms Yanders) to spend time with [X] born [in] 2005, the biological child of the Respondent Ms Jacklin.
The applicant and respondent were in a same sex relationship, when the respondent conceived the child in 2004.
After the parties physically separated in mid 2008, (the date of when the relationship ended is in dispute) the applicant spent time with [X], but time ceased in June 2009, when the applicant was refused further time with the child by the respondent.
As a consequence, the applicant initiated the court proceedings which were the subject of this hearing.
Background
The applicant was born in USA and is aged 30 and is currently employed in [omitted].
The respondent was born in Australia and is aged 25 and is currently a stay at home mother.
The respondent moved to [omitted] USA with her family in 2001.
The parties met in 2003 and began a relationship in the first half of 2004, although the date the de facto relationship commenced is in dispute.
In June 2004, the respondent’s family returned to Australia.
In September 2004, the child [X] was conceived by the respondent.
The father is Mr S, an acquaintance of the respondent.
The applicant maintains that the pregnancy was planned, whilst the respondent maintains it was as a result of a one-off sexual encounter.
In December 2004 the parties moved to Australia as a de facto couple.
In March 2005, the applicant’s visa expired.
On [date omitted] 2005, the child [X] was born.
In October 2006, the respondent submits that the de facto relationship ended although the parties continued to live under the one roof.
In the second half of 2007, the applicant was investigated by the Department of Immigration and Citizenship.
The respondent and her family assisted the applicant in ensuring the applicant remained in Australia, admitting that false information was provided to the Department of Immigration and Citizenship.
The parties physically separated in May/June 2008. The applicant maintains that this is the date the de facto relationship ended.
In June 2008 the applicant attempted suicide and was hospitalised overnight.
From June 2008 the applicant spent time with [X], although the extent of time and how time is spent is in dispute.
In September 2008, the applicant sought further medical assistance for her mental health.
In May 2009, the applicant commenced a de facto relationship with
Ms O.
The applicant continued to see [X] until all time was ceased by the respondent on 29 June 2009.
In late 2009, the applicant’s relationship with Ms O ended and the applicant sought further medical assistance for her mental health.
The applicant initiated proceedings to spend time with [X] in February 2010.
Orders sought
The orders proposed by the applicant are that the child live with the respondent, that the parties have equal shared parental responsibility, and after a lengthy graduated time regime to re-establish her time with the child, that the applicant have alternate weekends from Friday to Monday, holiday time and special events time with the child. Orders are sought for telephone time once a week. Orders are also sought in respect to dispute resolution if the parties can’t reach agreement on long term issues and that each party attend a parenting course.
The orders proposed by the respondent are that the child live with the respondent and that the respondent have sole parental responsibility for the child. Initially no proposed orders were provided by the respondent allowing any time with the child.
At the conclusion of the trial the respondent provided draft orders to be considered in the event the court made a spend time with order in favour of the respondent setting out extensive build up times and then weekend from Friday to Saturday once a month. Apart from telephone time once a week, no orders were sought for holiday or special time with the child. In addition the respondent seeks orders for medical evidence to be provided by the applicant as to her mental condition, that counselling occur for the respondent to assist in reintroducing the child, and the parties attend a parenting course.
The orders proposed by the Independent Children’s Lawyer are that the respondent have sole parental responsibility but keep the applicant informed of all long term decisions, and give the opportunity for the applicant to express a view, for the child to live with the respondent, for build up time, then alternate weekends, holiday times and special events time with the child. Further orders are sought for the Independent Children’s Lawyer’s involvement for another six months, for the parties to attend a parenting course and for dispute resolution.
Evidence
Both parties are legally represented.
In respect to applicant I have read and considered the following documents:-
a)The initiating application filed 10 February 2010;
b)The affidavit of applicant filed 12 October 2010;
c)The affidavit of applicant filed 22 October 2010;
d)Case outline filed 5 November 2010, which included the draft orders being sought by the applicant.
The applicant gave evidence and was cross examined.
I found the applicant to be a credible witness and her responses to be honest and direct.
In respect to the respondent I have read and considered the following documents:-
a)The response filed 4 May 2010;
b)The affidavit of respondent filed 4 May 2010;
c)The affidavit of Ms O filed 30 August 2010;
d)The affidavit of respondent filed 13 October 2010;
e)The affidavit of Mr S filed 26 October 2010.
f)Case outline
g)Written submissions
h)Written proposed draft orders
Three witnesses gave evidence on behalf of the Respondent:-
a)the respondent herself;
b)Ms O, the former partner of the applicant; and
c)Mr S, the biological father of the child [X].
All witnesses were cross-examined.
As to the respondent’s evidence, her strong views as to the applicant not having any right to have anything to do with [X], and her conviction that [X] would not benefit from any relationship with the applicant, shone through consistently in her responses and no doubt at times tinged her evidence whereby she downplayed her faults and magnified those of the applicant.
Further her evidence was littered with inconsistencies, and for whatever reason important evidence was not included in her affidavit material but came out unexpectedly in her oral evidence.
Witnesses such as family members that could have added credence to some of the allegations raised by the respondent did not provide supporting affidavits nor were not called, although the family members were present in court for the hearing.
Whilst overall I find the respondent to be a credible witness, her black and white approach to this matter resulted in her not always being child focussed in her delivery of evidence.
As to Ms. Driscoll, I give no weight to her evidence.
Not only did her evidence fail to provide me with any accurate insight as to the applicant’s relationship with [X], it was inconsistent, at times over dramatic and appeared to be motivated by revenge.
As to Mr S, his evidence was of limited weight.
It established that he is the father of [X], and supported the respondent’s version of events of how the child was conceived.
As to his future with the child, that was unclear, and in any event, I find that this does not impact on whether the applicant should have time with the child.
In respect to the Independent Children’s Lawyer I have read and considered the following documents:-
a)Case outline filed 5 November 2010;
b)Proposed written minutes of orders sought.
The Independent Children’s Lawyers involvement in this matter was of great assistance to the Court.
I also read and considered the Family Report prepared by Mr E which was released in August 2010.
Mr E was cross examined by all parties.
I give significant weight to the report and refer to his evidence in greater detail throughout the judgment.
In considering the matter, I have had regard to all of the material filed, all documents tendered, all oral evidence and to the submissions made by the parties.
Findings of fact are made on the balance of probabilities, having regard to the evidence and my observations of the parties and witnesses.
In what follows, statements of fact constitute findings of fact.
The law
Children’s issues are contained in Part VII of the Family Law Act 1975 (Cth) (“the Act’).
The power of the Court to make a parenting order is provided for in s.65D.
Section 64B(2) provides that a parenting order may deal with one or more of the following:
(a) the person or persons with whom a child is to live;
(b) the time a child is to spend with another person or other persons;
(c) the allocation of parental responsibility for a child;
(d) if 2 or more persons are to share parental responsibility for a child – the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e) the communication a child is to have with another person or other persons;
(f) maintenance of a child;
(g) the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i) a child to whom the order relates; or
(ii) the parties to the proceedings in which the order is made;
(h) the process to be used for resolving disputes about the terms or operation of the order;
(i) any other aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
A parenting order can be made in favour of a parent or another person as provided for in s.64C:-
A parenting order in relation to a child may be made in favour of a parent of the child or some other person.
As to who may apply for a parenting order is provided for in s.65C:-
A parenting order in relation to a child may be applied for by:
(a) either or both of the child's parents; or
(b) the child; or
(ba) a grandparent of the child; or
(c) any other person concerned with the care, welfare or development of the child.
Pursuant to s.60CA and s.65AA, in deciding whether to make a particular parenting order, the Court must have regard to the best interests of the child as a paramount consideration.
In determining what is in the best interests of the child, I must, firstly, consider the objects of Part VII and principles underlying the objects are set out in s.60B:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In ascertaining what is in the best interests of the child, I must look to the primary and additional factors, as set out in s.60CC (3).
The primary considerations are:-
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations are:-
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(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;
(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;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(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;
(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;
(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;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
Section 60CC(4) provides:-
Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
The framework for determining the nature of the parenting order to make is contained in s.61DA:-
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption of shared parental responsibility applies then the application of s.65DAA is triggered, which provides for the court to consider the child spending equal or substantial or significant time with each parent.
Application of the law
Before considering whether it is in [X]’s best interest to spend time with the applicant, I must firstly determine whether the applicant, who is not biologically related to [X], has the ability to bring an application under Part VII requesting orders in respect to the child.
Is [X] regarded as a child of the applicant and is the applicant regarded as a parent of the child as a result of the de facto relationship with the respondent?
Section 60EA defines a “de facto relationship” for the purposes of Part VII as follows:-
For the purposes of this Subdivision, a person is the de facto partner of another person if:
(a) a relationship between the person and the other person (whether of the same sex or a different sex) is registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section; or
(b) the person is in a de facto relationship with the other person.
There is no dispute that the parties were in a de facto relationship at the time of the child’s conception.
Pursuant to s.60HA (1) a child is deemed to be a child of the de facto partners if:-
(1) For the purposes of this Act, a child is the child of a person who has, or had, a de facto partner if:
(a) the child is a child of the person and the person’s de facto partner; or
(b) the child is adopted by the person and the person’s de facto partner or by either of them with the consent of the other; or
(c) the child is, under subsection 60H(1) or section 60HB, a child of the person and the person’s de facto partner.
As the child is not a child of the applicant and not a child adopted by the applicant, then consideration must be given to s.60H(1) and s.60HB.
Section 60HB applies to surrogacy and does not apply.
Section 60H(1) states:-
(1) If:
(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent ); and
(b) either:
(i) the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or
(ii) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;
Artificial conception procedure is defined in s.4(1) to include:-
(a) artificial insemination; and
(b) the implantation of an embryo in the body of a woman.
Artificial insemination is defined in the Macquarie Dictionary as:-
“A method of inducing pregnancy by artificial introduction of viable sperm into the canal of the cervix”
The applicant submits that as it was a planned pregnancy with Mr S acting as a sperm donor only, then the child was conceived through artificial insemination, therefore making [X] a child of the applicant and the applicant as the other intended parent.
The respondent submits that it was an unexpected pregnancy and not planned and that the child cannot be treated as a child of the applicant and therefore the applicant cannot be considered as a parent to the child.
I give no weight to the argument of the applicant, and I find that the child is not a child of the applicant in accordance with the legislation, nor can the applicant be seen as a parent to the child.
The fact is, whether the pregnancy was planned or not, the child was conceived naturally, and therefore as s.60H(1) does not apply, then s.60HA(1) cannot apply.
I now must consider whether the applicant has the capacity to apply for a parenting order.
In order for the applicant to be able to apply for a parenting order, the applicant must be a person concerned with the care welfare or development of the child pursuant to s.65C(c).
Is the applicant a person concerned with the care welfare and development of [X]?
The court has long recognised that persons other than the biological parents of a child can play an important role in a child’s life.
In Re C and D (1998) 23 Fam LR 375 Nicholson CJ and Baker J said at [4.3]:-
“… Hannon J held on the evidence … correctly observing that …:-
Persons significant to the life of a child are not confined to those who are biologically related to the child, in the same way that the existence of a family is not determined by biological considerations.”
The criteria as to whether a person involved in a child’s life can apply for an order is contained in s.65C(c) which allows a person to apply if “concerned with the care, welfare or development of the child”.
This section was thoroughly examined by Burr J in KAM v MJR & Anor (1998) 24 Fam LR 656 at [5.1.1 – 5.1.5] :-
“Any person may file an application for a parenting order.
A parenting order may be made in favour of a person other than a parent (sec 64C).
In order to proceed beyond the mere making of the application, the Applicant for a parenting order must demonstrate that they are a ''person concerned with the care, welfare or development of the child''. In my view this imposes a threshold test, it being a test to be determined on the individual facts and circumstances of each case.
That the degree or strength of the nexus or concern with the care, welfare or development of the child is again an issue for determination in each case, depending upon the facts and circumstances of each case. For example, as mentioned earlier in my reasons, it may be appropriate for a complete stranger, say in the form of an aunt who resides overseas, to be granted a parenting order by this Court in the event of the death or incapacitation of the child's parents. The nature and degree of her concern with the care, welfare or development of the child in that case, would be defined and determined by entirely different circumstances than those which exist in this matter. I do not find the authority to which Ms Vanstone referred me, to be of benefit or assistance in the context of Part VII of this Act where the Court must regard the best interests of the child as the paramount consideration (sec 65E). There may well be circumstances in this Court where a mere ''interest in'' or ''concern about'' the child in question is sufficient to satisfy the threshold test. Once the threshold stage has been passed, the individual facts and circumstances of the matter again must be viewed in order to determine whether or not a parenting order is appropriate and in the best interests of the child, as would be the nature and form of any such order.
The specific wording of sec 65C(c) appears to require demonstration of a concern with only one of the issues of care, welfare or development. …”
In Venkatesan & Pawar [2007] FMCAfam 1109, Altobelli FM observed at [9]:-
“... what is interesting about these cases is the common feature. That is that there has to be some relationship between, or involvement with, the child in a meaningful sense in order that the person who makes the application can have standing…”
I must now consider whether the applicant was concerned in any way with the care welfare and development of [X], and the nature of the relationship [X] has had with the applicant.
I now turn to the evidence provided as to the relationship between [X] and the applicant firstly from the date of birth to physical separation in June 2008 and secondly as between June 2008 and June 2009, when time ceased.
Whilst the dates of commencement and conclusion of the de facto relationships are in dispute, it is not necessary for a finding to be made in this regard as it is not disputed that the parties lived together in some capacity whether as partners, friends or flatmates from the date the child was born in June 2005, until physical separation in June 2008, namely the first three years of the child’s life.
The applicant deposed to co-parenting [X] together with the respondent, playing an active role in the care of [X] during these three years including changing nappies, feeding, playing, and assisting with her day to day care.
For the first two years of [X]’s life, the applicant did not work and stayed home with the respondent.
When the applicant commenced work in November 2007, she gave evidence that she continued to assist with [X].
The respondent paints a very different picture, deposing to the applicant playing a very minor role in the care of [X] limited to the occasional assistance with play and feeding.
The respondent likened the applicant’s role as that of an “aunt”.
Whilst I am not prepared on the evidence to find that the applicant’s involvement with [X] was as high as co-parenting, I struggle to see how it could be as minimal as depicted by the respondent.
Until the applicant became employed in August 2007, the parties both stayed at home with the child [X].
In a website posting made by the Respondent when [X] was a toddler, the Respondent wrote:-
“Hi, I’m [Ms Jacklin], I’m 21 years old at present. I have a gorgeous girlfriend, [Ms Yanders]. We’ve been together a little over three years. We have a beautiful little daughter together who is almost two”.
I do not accept the respondent’s explanation that this was a lie to limited people in respect to the immigration “stuff” as the posting on the website.
I find that the respondent had viewed the relationship of the applicant and [X] as parent and child, albeit that is not her position now.
The respondent now refers to the applicant as an “aunt” type figure and in cross-examination conceded that the applicant had been a person who had been fairly significant in [X]’s life.
Whether as an Aunt or something greater, it is evident that for the first three years of [X]’s life, the applicant was a constant presence for the child, and developed a bond with the child.
For the following year after separation, the applicant spent time with [X], sometimes in the presence of other family members.
Therefore for the fourth year of [X]’s life, the applicant continued to be involved with the child, strengthening that bond.
Mr E observes at [71] in the Family Report:-
“Indications are that [X] had a relationship experience whether this should be understood as contemporaneously also being a care or parenting experience, where she had regular contact and dealings with Ms Jacklin, and the Jacklin family, as well as
Ms Yanders, from her mid-2005 birth to early-mid-2009.”
Further at [76 ] Mr E reports:-
“The report does note however, that Ms Jacklin and Ms Yanders, were significant figures in each others lives, from early-2004 to early-2009, as friends, housemates, lovers, partners and/or adults with whom [X] lived and/or separately or jointly spent time.”
At [78] Mr E concludes:-
“Setting aside the descriptors of parent, mother, friend and/or aunt, indications are, that from mid-2005 until some time in 2009, Ms Yanders was a part of [X]’s relationship and/or care landscape, while Ms Jacklin was at the epicentre of the girl’s relationship and care experience. Indications are that, to varying degrees, prior to 2009 Ms Jacklin included Ms Yanders in the child’s care and relationship network and, from sometime in 2009, she adopted a stance to exclude her”.
I am therefore satisfied on the evidence of the applicant that the applicant has met the threshold test as referred to by Burr J in KAM v MJR & Anor(1998) 24 Fam LR 656, and is a person concerned with the care welfare and development of the child [X], and on that basis has capacity to bring an application for children’s orders pursuant to s.65C (c).
Before considering what time the applicant is to spend with the child, the issue of parental responsibility needs to be addressed.
Parental responsibility
The applicant is seeking an order for equal shared parental responsibility whereas the respondent is seeking an order for sole parental responsibility.
The presumption of equal shared parental responsibility in respect to parents as set out in s.61DA does not apply as a finding has been made that the applicant is not a parent for the purposes of the Act.
However parental responsibility orders can be made in favour of a person who is not a parent.
Section 64B(2) provides that a parenting order may deal with:-
(c) the allocation of parental responsibility for a child;
(d) if 2 or more persons are to share parental responsibility for a child – the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
Parental responsibility is defined in s.61B as:-
“In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”
The effect of a parenting order which allocates parental responsibility is outlined in s.61D:-
(1) A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
(2) A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a) expressly provided for in the order; or
(b) necessary to give effect to the order.
It is submitted by the applicant that an order for equal shared parental responsibility should be made in her favour as she co-parented the child [X].
Whilst a finding has been made that the applicant is a person concerned with the care welfare and development of [X], it is unclear from the evidence the extent of the parental responsibility undertaken by the applicant during the first three years of the child’s life when the parties lived together.
It is observed by Mr E at [80]:-
“Clearly Ms Jacklin is the biological and emotional mother, while Mr S is the biological father but is neither a psychological or an emotional father. Indications are that Ms Yanders was the other available and involved emotional and or psychological parent or parent-figure, while the details of the dimensions and quality of her connection to [X] are in dispute.”
Further at paragraph [81] of the report:-
“The report is challenged on the matter of recommendations regarding sole or shared parental responsibility as it seems that Ms Jacklin has largely been the parent who has taken sole or primary responsibility for managing crucial aspects of [X]’s health, education, religious, family, friendship and relationship matters and that Ms Yanders has largely accepted and complied with this.”.
In the year after separation when the applicant was spending some time with the child, the respondent continued to exclusively carry out parental responsibilities for the child.
Since time ceased in June 2009, the respondent has had the sole care and has made all decisions for [X].
In addition to their being no evidence of any active role of the applicant in the parental responsibility or decision making for the child in the past, it is unlikely with the complete lack of communication between the parties and the strong feelings of animosity demonstrated by the respondent towards the applicant during the trial, that there is little, if not, any chance of the parties having the ability to co-operate together in the future in respect to making decisions for [X].
Whilst is recommended by Mr E that family dispute resolution may assist if shared parental responsibility is ordered, I find that in this matter where the respondent is so strongly opposed to the child spending any time with the applicant, and with her staunch views towards the applicant, that family dispute resolution would be of little assistance, and that any order for shared parental responsibility is more than likely to lead to further court proceedings.
I find therefore that it is not in the best interests of the child, for an order to be made for the applicant to have any shared parental responsibility with the respondent, and accordingly the applicant should retain sole parental responsibility.
Is it then necessary for the court to make a live with order and a sole parental responsibility order in favour of the respondent mother?
In the recent decision of Aldridge & Keaton [2009] Fam CAFC 229 the Full Court considered whether it was necessary for the trial judge in that matter to make orders as to where the child is to live and the parental responsibility to the parent, when, the trial judge had determined that parental responsibility was solely with the parent, and the issue in dispute was time with only.
At [114] the Full Court states :-
“We accept it was unnecessary for Pascoe CFM to make an order that the mother have sole parental responsibility for the child, or that she live with her, by reason of the mother’s undisputed position as the child’s sole parent recognised in s 61C(1), however we note the mother does not seek to have those orders set aside. We do not accept however, merely because the mother had sole parental responsibility, that no order for the child to spend time with or communicate with the applicant was the only available outcome.”
As the respondent in this matter is seeking orders for the child to live with her, and for her to have sole parental responsibility, then in these circumstances, these orders have been made.
The respondents position that as the mother, and as the respondent is not a parent to the child, then time with the child should not be available to the respondent.
The respondent is seeking an order that the respondent spend no time with the child.
Her reasoning for seeking the order was explained to Mr E and captured in his report at [30]:-
“Ms Jacklin’s care proposals are for [X] to live with her, to have sole parental responsibility, and for there to be no contact between the girl and Ms Yanders. She contends that this arrangement is congruent with [X]’s needs and best interest, and invites the understanding that Ms Yanders does not and never had a parenting role or relationship with the child.”
At [35] of the report:-
“Ms Jacklin is very clear that she sees no basis for the Court matter and ancillary processes such as the report, based in her belief that Ms Yanders has no legitimate reason to present herself as being a parent or parent-figure in [X]’s life.”
Further at [42]:-
“Ms Jacklin asserts that [X] has 1 mother, not 2, one parent not 2 or 3, and that she is the child’s exclusive parent and parenting figure. Her stance is that Ms Yanders should have no contact with and no say in relations to [X].”
What is apparent from the evidence is that the respondent has no understanding that as the biological mother of the child, that does not automatically give her the right to preclude from the child’s life, a person who has been concerned in the care welfare and development of the child.
The real test that must be applied is whether it is in the child’s best interests to have time with that person.
In Re C and D (1998) 23 Fam LR 375 it was stated that at [10.10]:-
“This court made it clear in Rice and Miller (1993) 16 Fam LR 970; (1994) FLC 92-415 and more recently in Re Evelyn (1998) 23 Fam LR 53; FLC 92-807 that the biological parent does not stand in any preferred position and that fact does not in any way impinge upon the principle that the best interests of the child are paramount.”
In Stevens and Lee (1990) FLC 92-201, a case decided prior to the current Part VII provisions, Kay J said at 78,384:-
“There then comes a second stage, if I may place matters in degree of appropriateness, where a child has a long and well-established relationship with a person other than the parent. This can be a grandparent; it can be a cousin; it can be a godparent; it can be the next door neighbour; it can be the babysitter; or it can be a step-parent. In those cases, if the Court is satisfied that the relationship is of significance to the child, that a bond exists and that the child will suffer detriment if the bond is severed, the degree of suffering then has to be weighed against the degree of hostility which exists in the custodial parent.
In those circumstances, if the Court is satisfied that the welfare of the child will be best served by continuing the association the child has with the person the parent does not desire the child to associate with any longer, the Court will not hesitate but to continue the relationship. However, it starts from a different premise than it does with non-custodial parents, that is, when it starts dealing with people who are not natural parents, the Court does not necessarily commence from the assumption that access is going to be good for the child.”
In Aldridge & Keaton [2009] FamCAFC 229, a fact situation which has some similarities to this matter, the Full Court at [75] states:-
“Children who have been brought up in these new forms of family may be children who fall within s 60H. There will also be children who, while not conceived with the consent of the co-parent (or as described in the legislation the “other intended parent”), have effectively been treated as a child of the relationship of a same-sex couple. Such children may be the biological child of one parent born, before the same-sex relationship commenced, but whose substantial parenting experience has been from each of the same-sex “parents”. More commonly, they may have been conceived as the result of a private agreement with a known donor and without formal consent documentation. These children’s best interests are the paramount consideration to be taken into account, not the circumstances of their conception or the sex of their parents.
In summary, in dealing with any parenting application by a person interested in the care, welfare or development of a child, a court will determine that application applying the relevant provisions of Part VII to determine whether making (or not making) a parenting order would be in the child’s best interests.”
Further at [81]:-
“As is clearly demonstrated in the case law, each parenting case turns uniquely on its own facts (see for example Mulvany & Lane). The Act does not contain a specific provision requiring consideration of no order unless in the best interests of the child as does s 1(5) of the Children Act 1989 (UK). Rather it requires the making of orders which promote the child’s best interests as the paramount consideration. In some cases, which we accept are likely to be infrequent, the best interests criteria may dictate a child live with a person to whom they are not biologically related and for that person to have an order for parental responsibility.”
And at [83]:-
“(i) a two step approach is appropriate in dealing with an application for parenting orders brought by a person other than a parent, a child, or a grandparent. In other words is the applicant a person concerned with the care, welfare or development of the child (step 1) and if so, what order should be made in the best interests of the child. 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 that no such order be made (step 2);
(ii) s 65C does not prescribe a hierarchy of applicants. The application falls to 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)”
Consideration must now be given to the relevant sections of the Act that address what must be taken into account in determining whether it is in the best interest of [X] to spend time with the applicant.
Considerations to be taken in determining what is in the best interest of a child where the application is made by a person other than a parent
As this is not a dispute between parents, and as a number of sections of the Act refer to parents, it must now be determined what parts of the Act are applicable when determining a spend time application by a person who has been concerned with the care welfare and development of a child.
This question was considered by Finn J in Mulvany & Lane (2009) FLC 93-404 at [15] & [16]:-
“It is indeed unfortunate that given the now very detailed provisions of Part VII and the acknowledgement in that Part of the important roles that persons who are not natural parents of a child can have in a child’s life (see, for example, s 60B(2)(b)), that the legislation does not give some clearer indication of the weight to be attached to the child’s relationship with a person other than his or her parent, compared with the child’s relationship with the natural parent in the determination of proceedings between a parent and a person other than a parent.
As the legislation currently stands, and assuming that it is correct that “parent” means only a natural or adoptive parent, it would seem that in a case such as this, the court can only reach its determination in parenting proceedings on an application of s 60CC(2)(b) (protection from harm) and of the additional matters in s 60CC(3) so far as they expressly or impliedly refer to a person other than a parent.”
This position was supported by the Full Court in Aldridge & Keaton [2009] FamCAFC 229 at [74].
Further at [112] the Full Court states:-
“The flexibility afforded by s 60CC(3)(m), and the ability to deal with aspects of the application under s 60CC(3)(f) involving a party who was not a parent was explained by Moore J in Potts & Bims and Ors [2007] FamCA 394 at paragraph 8 (see also Mulvany & Lane at paragraphs 76 and 77 per May & Thackray JJ). Although the passage from Moore J’s judgment is lengthy, we think it accurately encapsulates the relevant legal principles to be applied when determining a parenting application which involves a non-parent/s. It is as follows”:
“The provisions about children’s arrangements are to be found in Part VII of the Family Law Act 1975. The concept of best interests of the child is at the heart of it and that is designated to be the paramount consideration in making any parenting order. Some Part VII provisions refer to ‘parent/s’ which, given the word’s ordinary meaning and in the absence of an expanded definition or some other descriptor such as ‘party’, means a number of sections do not apply when assessing ‘best interests’ in proceedings that are not between parents but between a parent and a non-parent [eg. relative]. Section 60B(1) and (2) set out the objects of Part VII and the principles underlying them. However, a number are expressed to apply to ‘parent/s’ and so are excluded in proceedings of the latter kind. For example, paragraphs 60B(1)(a), (c), and (d) fall away and what remains is paragraph (b); namely, the object of protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Similarly, paragraphs 60B(2) (a), (c) and (d) fall away as underlying principles and there remains paragraph (b); namely, [‘except when it would be contrary to a child’s best interests’] ‘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)’. With objects and underlying principles as a guide, the determination of what is in a child’s best interests requires the court to consider both ‘primary considerations’ and ‘additional considerations’ set out in s 60CC. But again the use by the legislature of the word ‘parent/s’ in a number of those considerations operates to exclude those factors in proceedings between a parent and non-parent. Falling within that group is the primary consideration in paragraph 60CC(2)(a) and the additional considerations at paragraph (c), (e), and (i). However, that does not mean those considerations are to be ignored if the facts of the case raise them as issues because they can be addressed under other considerations such as paragraph (f) [capacity to provide for needs] or, if nowhere else, under paragraph (m) [any other fact or circumstance relevant]. On that same analysis, the presumption of equal shared parental responsibility imposed by s61DA and, if it applies and the order is to provide for equal shared parental responsibility, consideration of the child/ren spending equal time or substantial and significant time, as set out more particularly in s65DAA, are not prescribed pathways in the reasoning process towards a best interests conclusion in proceedings between a parent and non-parent. Nonetheless, the particular applications may make it necessary to address those outcomes in any event.”
Applicable Primary Considerations
Need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
In addition to the argument that there is no basis upon which the applicant should spend time with [X], the respondent submits that the child is at risk of harm in the care of the applicant.
The risk falls within three categories:-
i)There has been family violence perpetrated by the applicant,
ii)The child has been neglected, in respect to her eczema, and pant soiling and having been left in the care of others whilst spending time with the applicant,
iii)The applicant suffers mental illness which may an impact on the applicant’s ability to care for the child and her behaviour may have an impact on the child.
Family Violence
There are no current domestic violence orders in place, nor has there ever been a domestic violence order.
The respondent deposes to the separate incidents of violence during the relationship:-
i)That sometime during 2005 and/or 2006 the applicant became “violent and aggressive” and blamed the respondent as she “had no family here….no friends”
ii)That at one point a phone and photo frame was thrown by the applicant at the respondent.
iii)In 2008, the applicant “shoved” her into an ironing board which resulted in the parties physically separating.
Evidence has not been provided that [X] was the subject of or exposed to this violence.
Further there is no evidence to suggest that the applicant is in a violent relationship with her current partner Ms T.
Whilst I accept that there may have been tension between the parties that may have resulted in less than acceptable behaviour, there is nothing in the evidence to support the concern that should [X] spend time with the applicant, that the child would be at risk from physical or psychological harm from being subjected to, or exposed to family violence.
I therefore give no weight to this submission.
Neglect
The respondent deposes to ceasing the applicant’s time with [X] in June 2009 because [X] was being returned with soiled pants, suffering eczema and allergies, and that the applicant had left [X] in the care of a housemate.
It is conceded by the respondent that during her early years [X] regularly suffered from eczema, and from time to time required medical treatment and that the eczema was exacerbated by her diet and her surrounds.
On the last occasion that [X] was in the care of the applicant in June 2009, the respondent was concerned as the eczema was present on [X]’s face.
The respondent claims that even though the child was only with the applicant during the day, that the respondent was neglectful in what she fed [X], or in her surrounds that triggered the eczema attack.
The respondent upon [X]’s return did not take the child for medical attention for the eczema on her face.
There was no medical evidence before the court as to the causes of [X]’s eczema.
Further [X] no longer suffers from eczema.
[X] also no longer has toileting problems.
The issue of the child being left with other persons whilst in the care of the applicant is addressed later in the judgment.
I therefore give no weight to the concerns raised as to the alleged neglect of the child by the applicant.
Mental Health
The respondent submits that the applicant has serious mental health issues which have been significantly “downplayed” by the applicant that will impact on her ability to look after [X], therefore putting [X] at risk.
Whilst I agree that the applicant’s affidavit material is brief on this issue, under cross-examination I find that the applicant’s responses to questions put to her in respect to her mental health were honest and comprehensive.
The applicant admits that she has been suffering from forms of psychological illness for over ten years, although the official diagnosis of depression was only made after her suicide attempt in June 2008, which occurred after the parties physically separated.
Prior to meeting the respondent and whilst living in USA the applicant had taken anti-depressants, but was not on any medication at the time the parties met.
The respondent was aware of the applicant’s mental health history at the commencement of the relationship.
The respondent had also had her own issues, having suffered from an eating disorder in her teenage years which required a period of hospitalisation and some medication.
The applicant resumed taking anti-depressant medication, prescribed by her general practitioner in 2008 when the relationship was deteriorating.
In June 2008, the applicant overdosed on her medication which resulted in her hospitalisation.
Since this incident the applicant has been receiving counselling and has on occasion presented herself to hospital for further assistance.
The applicant continues to be on medication, and seeks help when needed and has put appropriate strategies in place by way of support.
There is nothing in the evidence which supports the respondent’s submission that [X] is at risk whilst in the care of the applicant, due to the applicant’s psychological health.
Evidence reveals that shortly after the applicant experienced her worse mental health episode in June 2008, the respondent allowed the applicant to spend time with [X], firstly when the applicant was staying with the respondent’s sister and then on weekends when the applicant moved to her own residence.
Further the applicant gave evidence that a number of her recent depressive episodes have been as a result of not spending time with [X] and the stress of the court proceedings.
Whilst there has been a history in USA of the applicant ceasing her medication without the recommendation of a health practitioner, I accept that the applicant has since 2008, strictly followed medical advice.
The mental health of the applicant has improved significantly since that date and is likely to improve further as the court process has come to an end and I find that the child would not be at risk if orders were made for the applicant to spend time with the child.
I therefore give no weight to the respondent’s submissions in respect to this issue.
I further give no weight to the allegation of the respondent which was raised in cross-examination and briefly to the report writer, as to the applicant self harming. This was not supported by the medical notes, the applicant chose not to include it in her affidavit as she thought it “irrelevant” and this evidence was never put to the applicant in cross-examination.
Similarly, I give no weight to the unsubstantiated submissions by the applicant that the respondent suffers bipolar disorder.
Relevant Additional Considerations
Children’s Views
[X], aged five and a half, chose not to interviewed by Mr E and her views were not captured.
Nature of the child’s relationship with the parties
It is not in dispute that the child has a healthy and loving relationship with the respondent.
Whilst the applicant maintains that she has a strong bond with [X], the respondent was of the view that [X] had no real relationship with the applicant.
At the time of the preparation of the family report it had been over twelve months since the applicant had seen or spoken to the child.
Despite the vocal display of the respondent to her parents in the presence and hearing of the child as to what arrangements were to be put in place for adult-child observations, when approached by Mr E during a separate meeting with the report writer, the child when asked whether it was Ok for her to play with the applicant said yes.
The report writer observed at [53]:-
“There was no indication of disquiet or distress for the child when Ms Jacklin removed herself from the FR rooms and
Ms Yanders joined [X] at the rooms.”
And at [54]:-
“The child appeared to readily accept Ms Yanders joining and playing with her and Ms Yanders was noted to allow [X] to choose activities and toys and to ask permission to join in play and to give her a hug and a kiss. The child seemed to recall a number of aspects of past interactions with Ms Yanders and presented as being comfortable and at ease with her. They talked about school, friends, films, games, jewellery, clothes, shoes and people. There were some shared memories, laughing and talk about spending time and having a future visit. [X] appeared to be relaxed and to enjoy time with Ms Yanders and separated without any visible difficulty when Ms Jacklin returned.”
And at [56]:-
“[X] displayed no marked shift in her play pattern and her disposition when with Ms Jacklin, in comparison to when she had been with Ms Yanders”.
Further [X] had recollection of the parties relationship as captured by the report writer at [59]:-
“[X]’s perception is that Ms Jacklin and Ms Yanders, whom she has not spoken with for more than 12 months “say not nice things” about each other. “In the home corner Mummy phone [Ms Yanders] and ringing and talking”.
When Mr E asked [X] what she liked about the adults, in respect to
Ms Yanders, [X] offered at [59]:-
“She’s nice. She is a building….building for a house……painting a blue one”.
Mr E in his “Summary Discussions and Recommendations” at [74] comments:-
“There are no indications of disquiet or discomfort for [X] in separating from Ms Jacklin and joining with Ms Yanders. Setting aside Ms Jacklin’s allegations of contended 2009 neglect of aspects of care of the child by Ms Yanders there seems to be no impediment to adult-child contact between them revealed through [X]’s attitudes or behaviours.”
In cross-examination, the respondent was dismissive of the Family Report.
The respondent stated that she didn’t really understand it and she wasn’t sure that Mr E was considering what was in the best interests of the child.
The respondent stated that Mr. E didn’t understand his role, that he demonstrated bias and that had a “preconceived judgment” of her.
I find that Mr E in his report and in cross-examination provided a comprehensive, informative and totally professional view and perspective to his matter, and I give his evidence significant weight.
I find that the child [X] has through her actions and the observations of the report writer, demonstrated a memory of the applicant which supports that she had and continues to have a bond with the applicant, which is able to be nurtured and maintained with an order to spend time with the applicant on a regular basis.
I further find that the gradual introduction of time between [X] and the applicant would be in the child’s best interests.
The likely effect of any change in the child circumstances
The respondent is concerned that there are already enough people in [X]’s life with her partner and her extensive family, and that regular time with the applicant if ordered by the court would interfere with these relationships.
I disagree.
However I am mindful of ensuring that the time ordered for the applicant to spend with the child must be in the child’s best interests.
I therefore find that the applicant, as a person who has been concerned with the care welfare and development of the child, that after the gradual increase, that one weekend every three weeks is sufficient to maintain and develop this relationship, and provides sufficient times for the child to spend time with her family and other persons significant in her life.
I further find that the child would benefit from holiday time and time around special events with the applicant.
The capacity of the applicant and respondent to provide for the needs of the child
The applicant has not raised any issues as to the respondent’s capacity to meet the needs of the child.
Mr E in the family report suggests that the respondent may want to engage a professional to meet with her and then with her and [X] to assist in informing [X] about her parenting circumstances including in relation to her father Mr S and the applicant. This is a decision for the respondent to make, and court orders have not been made to address this issue.
I have addressed in the primary considerations the concerns of the respondent as to the applicant’s capacity.
I find that the applicant has the capacity to meet the needs of the child.
Both parties are agreeable to orders to attend parenting programs, although it was not evident as to why such programs were specifically required in this matter.
In my experience often the timing and nature of the parenting programs become fodder for contravention applications.
In order to avoid further litigation, these orders have not been included, but I encourage both parties to undertake these programs.
Family Violence
The concerns as to family violence have been addressed in the primary considerations, and I find that the child is not at risk of family violence if time is spent with the applicant.
Whether it would be preferable to make the order that would be least likely to lead to further proceedings
It has been suggested by both the Family Consultant and the Independent Children’s Lawyer that there be the involvement of the Independent Children’s Lawyer or a Counsellor to facilitate any orders for time, especially the graduated time.
I have already indicated in respect to the issue of parenting responsibility, my reservation as to how any dispute resolution may assist in view of the respondent’s staunch opinion of this matter.
The respondent also has demonstrated her dismissive attitude to people in authority such as her expression of how easy it was to defraud the Department of Immigration and Citizenship and to people with expertise such as her negative attitude regarding Mr E.
I am not prepared to order the continued involvement of such a precious resource as the Independent Children’s Lawyer, nor am I going to rely on the respondent to follow the direction of a Counsellor in order to comply with and progress with an order for graduated time.
The orders made are specific, and to an extent dependent on the co-operation of the respondent with the applicant, but failing which, there are orders in the alternative.
Further as there were no concerns raised by Mr E as to [X] adapting to a build up of time, I find it unnecessary for there to be third party involvement to facilitate the graduated time.
Any other fact or circumstance that the court thinks is relevant
Much time was spent in the course of the trial on many issues which on their face may have appeared highly relevant, but in essence provided little assistance to the court in determining what orders would be in the best interests for [X].
For the sake of completeness reference is made to these issues.
The Applicant’s immigration to Australia
The applicant overstayed her visa when she moved to Australia resulting in her going into hiding for a number of months.
When the Department of Immigration and Citizenship located the applicant, both the applicant and the respondent lied to the Department in order for the applicant to obtain permanent status.
Further the respondent submits that members of her family also provided falsified documentation in support of the application.
Affidavits or evidence were not provided by the respondent’s family members on this issue.
The applicant states that the lies were limited to how the child was conceived, and that the basis for these lies was to avoid issues in respect to social security payments.
The respondent states that the lies were more comprehensive and extended not only to the details of the conception of the child, but an elaborate hoax was created as to the importance of the role of the applicant in the child’s life, including the fabrication of emails, and mothers day and other cards, so that the Department would accept that the applicant was a co-parent to [X], and that the parties were in a committed exclusive same sex de facto relationship.
The reasons why the parties lied also differed.
The applicant maintains that they lied so that the applicant could remain in Australia as the partner of the respondent and the parent to [X].
The respondent states that she felt sorry for the applicant and as a friend, wanted to assist her.
I accept that both parties lied, and whilst the extent of the lying is in dispute, that it was conducted for one sole purpose namely to ensure that the applicant remain in Australia, for whatever reason.
I have not however taken into account this capacity to lie when considering the evidence provided to the court by either party.
The evidence has been approached on the premise that the parties are credible witnesses.
I further find that the capacity of the parties to lie does not in any way impact on the decision the court must make as to what is in the best interest of [X].
Reason why court proceedings were commenced by the applicant
The applicant submits that the court proceedings were commenced as the applicant wishes to re-establish and maintain a relationship with the child.
The respondent submits that the applicant has no interest in the child and has commenced proceedings to secure permanent residency in Australia.
Further the respondent holds the belief that the applicant has no real interest in [X] but the idea of [X].
To illustrate the respondents strong views on these issue I refer to the following extract from cross-examination by the applicant’s Legal Counsel Mr Linklater-Steele:-
“Respondent “I was the sponsor for her application to be a resident in this country. I believe that in order for her to stay in this country, she has to be a parent figure to [X]”.
Mr Linklater-Steele “So your theory - your theory is still that my client needs an order of the court to see this child she has no relationship with, in order to stay in the country?”
Respondent “Yes I do”
Mr Linklater-Steele “Right. And a graduated regime of seeing the child, that’s just a game, some sort of invention?”
Respondent “No, I actually did continue her to have a relationship with [X]”
Mr Linklater-Steele “No. That’s her invention. She is not going to follow through?
Respondent “No, I believe she will stay in Australia, yes”
Mr Linklater-Steele “Well to- so she is not doing it for the welfare of [X]?”
Respondent “I do not believe so - no”
Mr Linklater-Steele “No. So you don’t think [X] will get anything out of it at all?”
Respondent “No I don’t””
The respondent is very dismissive of the applicant’s feelings towards [X] as supported by further responses in cross-examination where the respondent stated that the applicant did not love [X], and that she likes the idea of [X] and the novelty of [X] only and that the attempts to take her life had nothing to do with [X].
As to the issue of a court order being required by the applicant to remain in Australia, the evidence does not support the respondent’s assertion that the court proceedings and court order are necessary to ensure permanent residency.
On 1 December 2008, the Department of Immigration and Citizenship wrote to the applicant informing her of her permanent residency status.
This letter is included in the bundle of documents produced by the Department on 7 June 2010 in answer to a subpoena and subsequently tendered at the hearing as Exhibit “G”.
The respondent admits that at this time she was still good friends with the applicant and was told by the applicant of the letter, although she not aware of the contents, but that her understanding was that it was temporary status for two years.
Whilst that may have been the understanding of the respondent, I do not accept that the respondent maintains that belief when the true contents of the letter which indicate permanent status of the applicant has been available for inspection by her solicitors since June this year.
I therefore give no weight to this submission.
As to the true intentions of the applicant, I found her in evidence to be genuine in her wishes to re-establish and develop a relationship with the child.
It was further observed by the report writer at [43] of the Family Report:-
“She (the applicant) presents as being overall, cooperative with the report process in being prepared to be lead through the interviews and responding to the questions about pivotal issues and events, doing so in a manner which comes across as reflecting some goodwill and acceptance of scrutiny of her, as well as Ms Jacklin. Ms Yanders is very clear and she sees the Court matter and ancillary processes such as the report as being necessary and legitimate, based on her belief that she has been a parent or parent-figure to [X]”.
I therefore cannot give any weight to the respondent’s assertions that the applicant is not child focussed in her intentions in making the application.
Circumstances regarding the conception of the child
Three versions have been presented to the court as to how [X] was conceived.
The applicant maintains it was a planned pregnancy, with the father
Mr S role being the donation of sperm.
The respondent and Mr S maintain that it was as a result of a short relationship and a “one off” sexual encounter.
The third version which both parties admit was fabricated for the purposes of the Department of Immigration and Citizenship is that the respondents drink was spiked and the child was conceived through an uninvited sexual encounter by an unknown person.
It was admitted by the respondent in cross examination that although the pregnancy wasn’t planned between the parties, that once the respondent decided to have the child that it was accepted as part of their de facto relationship.
Mr E predicated his recommendations that the child was planned or accepted as part of the adult relationship partnership.
I find, that whether the pregnancy was planned or not, the pregnancy and the subsequent birth of the child [X] was embraced by the applicant as part of their de facto relationship.
I therefore make no findings as to how the child was conceived, except that the child was not conceived by way of artificial insemination.
Mr S
As to how and why Mr S became a witness in these proceedings remains a mystery, even after the comprehensive cross -examination of both parties as to their communication with Mr S leading up to the trial, and the extensive cross-examination of Mr S.
The fact is that prior to court proceedings Mr S was not aware of being the biological father of [X] and his name does not appear on the birth certificate.
Further Mr S was not a party to the proceedings.
Since the court proceedings, and having being notified of his now being a father, the child has only recently been told of Mr S’s existence, and nothing has been put into place as to when and how
Mr S will develop a relationship with his daughter, and whether he will financially assist in her upbringing.
Mr S’s recent knowledge of being the father does not in any way impact on the courts determination as to whether an order for [X] to spend time with the applicant is in [X]’s best interest, and it is for this reason I have given this evidence very limited weight
Further I do not give any weight to Mr S’s position that the applicant should not spend time with the child.
Mr S has no independent knowledge of either the parties’ relationship, or their respective capacity to care for the child, his only basis of knowledge being sourced from information provided to him by the respondent.
Payment of child support by the applicant
The applicant maintains that for a year after separation the sum of $600.00 was paid per month by way of cash to the respondent for child support for [X].
This is denied by the respondent.
As to text messages relation to unpaid monies owing from the applicant to the respondent, such messaging occurring around the time that time with the child was ceased by the respondent, it was submitted by the respondent that this was in respect to an unpaid loan and has nothing to do with child support.
There was insufficient evidence put to me by either party as to the nature of these money transactions and again in any event this has no bearing as to whether the child should spend time with the applicant, and therefore I give this evidence no weight.
The length of the de facto relationship
As to when the de facto relationship commenced and when the de facto relationship ceased is in dispute.
I find it unnecessary to make a finding as to the commencement and conclusion of the relationship as it is an accepted fact that the applicant was in a relationship with the respondent at the time [X] was conceived and that the applicant lived with the respondent and [X] from the date of birth until May/June 2008.
A finding has been made that during this time the applicant was concerned in the care welfare and development of [X].
Applicant’s leaving the child in the care of others
It is alleged by the respondent that the applicant left the child with an acquaintance named [omitted] when the child was last with the applicant and this together with other reasons, resulted in the respondent’s decision not to allow any more time by the applicant with the child.
The respondent did not witness this first hand, but the incident was told to her by her mother.
Her mother did not file an affidavit, nor did she give evidence.
It is denied by the applicant that she left the child in the care of others.
In the absence of any evidence in support by the respondent, I give no weight to this submission.
The introduction of the child to the applicant’s new partner
The applicant resides with her de facto partner Ms T.
The respondent argues that the child should not be exposed to someone she doesn’t know, although it was borne out in evidence that the child relates well to adults and has a number of adults that assist in her care.
Further since the parties ceased physically living together, the respondent has commenced a new relationship with Ms M, and whilst they do not live together, Ms M spends two to three nights a week at the respondent’s home.
The applicant gave evidence during cross-examination that Ms T whilst she has no children of her own has nieces and nephews and is a certified nanny.
The applicant acknowledges that if time is re-established with [X] that she would get her into a routine first and would take the time to slowly introduce her to Ms T.
No specific evidence was given by the respondent as to concerns with respect to Ms T and any negative impact that she may have on the child.
I find that there is no basis for this concern, and further I find that the applicant will take the necessary steps to ensure that the introduction to her partner Ms T will occur in a timely and appropriate manner, and that there is no need to make a specific order in this regard.
The fear of the applicant absconding with the child
At the time of the Family Report interviews the respondent refused a request from the report writer for the applicant to have a couple of hours with [X] during the report writing process.
The reason for the refusal was that the applicant may abscond with the child.
In cross-examination the respondent expressed her fear that the child will be taken by the applicant if time resumed, and stated that threats had been made to her, her brother and her sister, by the applicant that she would take the child.
Details of these threats were not outlined in the respondent affidavit and neither the sister nor the brother provided evidence either orally or by affidavit to support this submission.
Further at no time during the year after physical separation when the applicant was spending time with the child was the child withheld by the applicant.
I therefore give no weight to this submission.
Alleged sexualised behaviour of the child after being in the applicant’s care
Again, whilst not included in her affidavits, the respondent stated in cross-examination that for two months leading up to when she ceased allowing time for the applicant with the child, and for a couple of weeks thereafter, the child demonstrated sexualised behaviour such as getting on top of people, rubbing herself and trying to kiss people using her tongue which the respondent put down to the applicant’s promiscuity.
The respondent did not seek any counselling for the child, nor did she report her concerns to any authorities.
The respondent submits that she raised the issue with her doctor in July 2009, but no evidence was provided from the doctor.
This allegation was not put to the applicant.
I therefore give no weight to this submission
Conclusion
This hearing was a difficult one, not only because of the complexity of facts, but the large number of issues brought before the court, most of which deflected from rather than reflected on the relevant matters requiring findings by the court in determining what is in the best interests of [X].
Further, it was evident that the respondent is unrelenting in her distrust and dismissive attitude towards the applicant, seeing no merit or basis whatsoever in her application, and insistent that any relationship by the applicant with [X] will not be of any benefit on any level to the child.
Mr E summarises the respondent’s presentation at [35] of the report:-
“She (the respondent) presents as being overall, begrudgingly cooperative with the report process in that, while she is prepared to be led through the interviews and to respond to the questions about pivotal issues and events, she almost palpably bristles and exudes resentment at scrutiny of her and is markedly more relaxed and less defensive when focussing on Ms Yanders.
Ms Jacklin is very clear that she sees no basis for the Court matter and ancillary processes such as the report, based on her belief that Ms Yanders has no legitimate reason to present herself as being a parent or parent-figure in [X]’s life.”
The only time the respondent let down her guard from her steely resolve was when questioned by the Independent Children’s Lawyer as to whether she would abide by court orders granting time with the child to the applicant, and what she would do to put them in place.
The respondent gave evidence that she will abide by the orders and put the necessary arrangements in place, and I accept this evidence
I have no doubt the respondent loves [X] and wants what’s best for [X].
But her coldness towards the applicant and her complete lack of acknowledgment of the involvement of the applicant in the first four years of [X]’s life, begs question as to just how child focussed the respondent is.
Further to hint that perhaps her current partner, with whom the respondent is not residing, may adopt [X], shows a level of immaturity in the respondent when it comes to adult relationships and the impact it may have on [X].
This was not lost on Mr E.
When the report writer was asked to explain the following comment in his report – “The report is unable to endorse a shift in the assignment of parenting roles to reflect a shift in adult relationships.” Mr E provided the following explanation in cross examination:-
“I’m basically saying colloquially that they’re not interchangeable parts or roles that the child had regardless of any interpretations or judgments others want to bring; a beginning history that had two parents, those two parents as I take it to be are Ms Jacklin and Ms Yanders, and the change in one or either adults relationship circumstances, to me, should not translate to the replacement or insertion of another party or partner as the new parent. I think I was also mindful that there had been some five acknowledged significant adult relationships with Ms Jacklin to date at age 24 and without perhaps extrapolating from that, at the back of my mind I’m thoughtful that there may be further shifts or changes in her own adult relationship circumstances that she won’t necessarily anticipate or we would hope wouldn’t occur for her but may well, at her age, take place.”
In making the orders I have taken into account the concerns of the respondent together with the recommendations of Mr E and the Independent Children’s Lawyer for a graduated time regime.
The applicant was a person who for the first four years played an important role in the child’s life, that role being cut short by the respondent unilaterally ceasing all time in June 2009.
The orders made provide the applicant with an opportunity to re-establish and nurture this relationship, a relationship which I find would be in [X]’s best interests to have and maintain.
I certify that the preceding three hundred and two (302) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate:
Date: 24 January 2011
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