COURT DECLARES APPLICANT WITH STANDING TO SEEK INTERIM ORDERS CONCERNING TIME SPENT WITH HER FORMER LESBIAN PARTNER’S CHILD

JARDEN & EASTWOOD

FAMILY COURT OF AUSTRALIA

[2020] FamCA 211

This case is an application for interim orders filed by the Applicant, who was the biological mother’s former lesbian partner, who sought for time to spend with the child.

FACTS:

Ms Jarden (the Applicant) filed an Initiating Application wherein she identified herself as the Applicant mother of X (the child), conceived by an artificial conception procedure and born on 2019.  Ms. Eastwood (the Respondent), the Applicant’s former lesbian partner, is the biological mother of the child.  

When the parties met, the Applicant was married.  However, their relationship can be described as an intimate, affectionate, playful and loving one. The parties got engaged in June 2018.  The Applicant then thought of getting a divorce after their engagement. 

The Respondent had long standing desire to have a child even before the parties met.   After an IVF cycle in August 2018, the Respondent conceived the subject child.  Both women were very much involved in the arrangements of the conception of the child, then celebration of his birth. However, sometime after the child was born, their relationship ended.  The Respondent realized that she had been in a controlling and manipulative relationship what she did not wish to raise the child in. 

The Applicant sought for interim orders to be made for time on a regular basis including at special times.  On the other hand, the Respondent submitted that the Applicant does not have standing but in the event the Court finds that she does, and then that the Court should make no parenting orders until all issues in dispute have been heard and determined.  The Respondent also challenged the Applicant’s fitness, due to mental illness, to care for the child.

ISSUE:

Whether or not the Applicant is an “intended parent” and whether or not she had standing to bring the application.

HELD:

It is compelling evidence of the Applicant’s commitment, interest and concern in the child and an expectation at least on her part, that she would be responsible together with the Respondent for parenting the child.  The evidence supports a finding that both women were very much involved in the arrangements of the conception of the child, then celebration of his birth.    The Court found that the Applicant is a person with a concern for the welfare, care or development of the subject child pursuant to s 65C(c) of the Family Law Act 1975 (Cth).[1]   She, therefore, has the standing to make an application for parenting orders. As yet, there has been no determination whether the Applicant is a parent of the child or any allocation of parental responsibility. 

By law, the Respondent, who is a parent of the child, has all the duties, powers, responsibilities or authority which, by law, all parents have in relation to children. An order for time for the Applicant does not alter the parental responsibilities of the Respondent.  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 a child.  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, expressly provided for in the order or necessary to give effect to the order. 

On deciding on the matter of the interim order sought by the Applicant, the consideration is a balance between the need to restore or create a relationship between the Applicant and the child against the possibility that she takes a significant role in his life and the need to protect the child from distress through the building up of a loving relationship with the Applicant only to have that relationship terminated depending on the outcome of the trial.  The Court found that a short period of time weekly, one hour on the first two occasions and thereafter blocks of two hours, will introduce the child to the Applicant and maintain through short enjoyable encounters, an affectionate link with her but one that would not devastate the child if he lost it.

Finally, the Court observed the very high level of animosity and distress between the parties.  The Court finds that the parties should consider engaging with professional help to understand the perspective of the other party, focus on the needs of the child, and negotiate a way forward until the matter has been heard and determined.  Orders were made providing for time at a contact centre which on current indications, is still operative, but in the event that it is not or becomes unavailable then the parties will be required to organize private supervision arrangements.

[1] Who may apply for a parenting order:

                   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.