CASE LAW UPDATE: Martine & Carmona FCFCOA (at Melbourne) [2024] - three parent families and parental responsibility

This case demonstrates how a Court will deal with shared parental responsibility, shared care arrangements, and time arrangements where there has been a breakdown of the primary relationship in a three parent family. Notably, it shows a broad and flexible approach by the Court to the s60CC best interest factors and, although the section is referred to prior to recent amendments, the new approach appears to have been applied. There has been a recognition of the child’s unique circumstances, a strengthening of his voice in decisions that affect him, and his needs and best interests are squarely placed at the centre of the Court’s promotion of collaborative parenting and decision-making.

This case sets out what parties need to consider prior to entering into the world of donor conception. It highlights the importance of good and thorough advice for all parties to minimise the risk of dispute escalating like it did in this case. It also highlights the importance of good agreements throughout the journey, updated along the way, to help guide families, and to ensure that the best interests of the child always remain the paramount consideration.

Link to full transcript: Martine & Carmona [2024] FedCFamC2F 800 (27 June 2024) (austlii.edu.au)

Summary of the case and the issues in dispute:

Background

Ms M and Ms C entered into a relationship in 2007 and began living together. The couple decided to have a child and began the process of finding both an egg donor and a sperm donor. A friend donated the eggs. In or about mid-2009 they met Mr H, who agreed to donate sperm.

The child, X, was conceived via IVF, carried by Ms M, and born in 2014.

Agreement

It was agreed between the parties that “our intention is that the mums will be the primary care parents and the dad will be involved with the child but in a secondary role.”  

This was recorded in a document titled Parenting Issues Version 10. The document also provided for overnight stays with Mr H when the child reached six months of age, and for time to be spent with Mr H every second weekend from the age of 5 years.  

The document was not executed, but it did expressly show the Court the implied terms of the agreement between the parties and what their contemporaneous intentions were.

In accordance with their agreement, Mr H met X at the time of his birth in 2014, spent time with him and Ms C about once a week for the first 8 months of X’s life, and then overnight time with him.

From the age of around 4 and a half X spent time with Mr H every third weekend as the relationship between Ms M and Ms C had by this point broken down and each mother wanted a weekend with X separately.

Separation

In late 2019, after a period of living separately under one roof, Ms C moved out of the former family home she shared with Ms M and took X with her. Ms M alleged that Ms C had abducted the child. Ms M commenced legal proceedings, seeking an injunction that the child not be removed from Australia (as Ms C had been born in the UK).

Commencement of Legal Proceedings

In 2020, Consent Orders were entered into stipulating that Ms M and Ms C both have equal shared parental responsibility and that X live in an equal shared care arrangement between them on a week-about basis (and each also had some specified time with the child during the weeks they weren’t with him).

Obviously these Orders did not contemplate the complete parental relationship in a manner that would finalise legal matters for this family, and so began a further turbulent period.

At the time the Orders were made, Mr H placed temporary accommodation on Ms C’s property which allowed him to spend flexible time with X. Whilst this was stated to have occurred every third weekend in accordance with their ongoing agreement, and it meant less travel time for X, the amicable nature of the relationship between Ms C and Mr H obviously became an additional source of discord with Ms M, and consequently further disruption for X.

  • Ms M sought sole parental responsibility.

  • Mr H sought that he be added to proceedings and that Ms C have sole parental responsibility and Ms M spend time with the child every alternate weekend.

  • Ms C amended her response seeking that X live with her and spend time with both Ms M and Mr H.

  • On 16 July 2020 the Court joined Mr H, and Consent Orders resulted which stipulated that X live week-about between Ms M and Ms C, and spend time with Mr H during the times he is with Ms C.


Psychiatric and Therapeutic Assessments

Psychiatric assessments of all parties, as well as the child, followed in 2021, with the expert finding that -  

“…Ms M seemed to be meeting the intellectual needs, social needs, health needs and day to day emotional needs of X, but [she] is lacking insight into X’s emotional well-being by not acknowledging how Mr H is a significant person in X’s life which needs to continue for X’s overall emotional wellbeing. Ms C appeared to be lacking insight into X’s overall emotional needs, but appeared to meet his day to day emotional needs, his intellectual needs, social needs and health needs. X’s overall emotional needs remain in jeopardy given the conflict between Ms M and Ms C as well as between Ms M and Mr H.”

Further therapeutic family therapy sessions were ordered in late 2022, the transcript showing that -

‘X listed the priority in which he wanted to go to the three houses, first with Mr H, second with Ms C and third with Ms M; and

X said “when I am 10 I can make my decision as to where to go and when”’.

In addition to the living and time arrangements, the child’s health, neurodiversity, and vaccination status was also in dispute.

  • Ms M refused to immunise X and refused to vaccinate him against Covid 19.

  • The Court ordered that X be vaccinated.

  • Ms M refused to comply with orders regarding the administration of medication.

    The Court ordered that she comply.

  • The Court took into account and gave weight to the views X gave to the counsellor in relation to his live with and spend time arrangements.

  • It was also noted that Ms M continued to refer to Mr H as the sperm donor and called him Mr H rather than Daddy (as X had always called him) in X’s presence.

February 2023

  • X had changed schools and soon after he refused to go into the care of Ms M.

  • The Court made Interim Orders that X live with Ms C and spend time with Ms M on weekends, and that all parties comply with directions made by medical practitioners and administer prescribed medication.

  • Ms M continued to refuse to give X his medication which stopped him from having medical episodes at school.

April 2023 – Child Impact Report

The Court Child Expert’s report noted that -

  • Ms M and Ms C now presented as unable to prioritise the needs of X over the conflict between them, essentially both fighting over the ultimate prize, being X.

  • Mr H presented as child-focused, and the expert recommended that the Court give strong consideration to Mr H’s proposal that he have sole parental responsibility for X and that, should Mr H be willing, consideration should also be given to X living primarily with him.

June-July 2023

  • Mr H filed an urgent application that he have sole parental responsibility for X and that X remain at his new school, where he was now receiving speech and occupational therapies and counselling after being informed that Ms M had contacted the school and demanded that this engagement cease and that X would no longer be attending school on an ongoing basis.

  • Mr H did not seek that X live with him given X was comfortable and safe living with Ms C, loves his school and his friends, and is happy.

Outcome

The Court noted the following –

  • When deciding what parenting orders to make it is the best interests of the child that is the paramount consideration of the Court.

  • The Court is informed as to what is in a child’s best interests by the primary and additional considerations is section 60CC of the Family Law Act 1075 and in the context of the overarching objects and principles set out in section 60B.

  • Mr H’s legal status becomes relevant to the assessment of the section 60CC considerations.

  • Section 65C(c) of the Act provides that a parenting orders may be applied for by a person concerned with the care, welfare, and development of the child.

  • To characterise Mr H only as a sperm donor and not a person concerned with X’s care, welfare and development would be to ignore many of the facts and circumstances of this case which lead to the conclusion that Mr H is indeed in practical terms a parent of X within the ordinary meaning of the word.

  • The evidence unequivocally supports that Mr H has provided support and care to X since the time of his birth and will continue doing so.

  • Ms M and Ms C do not enjoy any superiority over any other person interested in X’s welfare, namely Mr H. There is no presumption in favour of them over Mr H.

  • Where the provisions of s60B and s60CC of the Act refer specifically to ‘parents’ in the context of objects, principles, and considerations relevant to the determination of a child’s best interests, the legislature did not intend those relevant factors to extend to parties or third parties who are not parents of the subject children.

  • Although some of the factors prescribed for consideration under s60CC(3) of the Act refer only to parents, those factors insofar as they concern a party like Mr H may still be considered under s60CC(3)(m) of the Act and are relevant under whichever provision they are discussed. S60CC(3)(m) provides flexibility and a broad opportunity to consider many diverse matters relevant to the welfare of a child, that is, any of the s60CC considerations.

  • I include Mr H in all of the s60CC(2) and (3) considerations, rather than pursuant to s60CC(3)(m).

The Court found that -

  • there is a benefit to X of have a meaning relationship with all three parents;

  • the conduct and relationships between the parties weighed in favour of X continuing to live primarily with Ms C;

  • it was impractical in the geographical circumstances for an equal shared care arrangement with Mr H but that it was in X’s best interests to spend substantial and significant time with him.

The Court was not satisfied that all 3 parties share parental responsibility and only the ICL sought same.

  • The Court awarded shared parental responsibility to Ms C and Mr H.

  • Ms M was not awarded parental responsibility but was awarded time with X on weekends and in school holidays.

LEGAL NEWS: Family Law Amendment Act 2024 - changes to how the Court will make parenting orders [6 May 2024]

There will no longer be a presumption of equal shared parental responsibility, or a mandatory consideration of any specific time arrangements, reflecting the fact that every family is different. The most important consideration will now be about parenting arrangements that benefit and promote the development and safety of every child, from the point of view of the child rather than the parent. These changes recognise autonomy and strengthen rights in accordance with the UN Convention on the Rights of the Child.