When Same Sex Parents Split : McClelland & Rhodes [2019]– PARENTING

McClelland & Rhodes [2019] FCCA 357 (27 February 2019)

The Judge agonised with making the decision in this case...

This dispute comprises of whether the applicant should remain having a role in the child’s (aged 5) life.The applicant and the biological mother were in a same sex de facto relationship for 16 years.

The relationship ended before the child’s conception however, they remained residing under the one roof after they broke up additionally, they were still both trying together to succeed in a pregnancy for the biological mother through artificial insemination. They both decided the applicant would have a parental role in child’s life following his birth and they continued to reside together and for both of them to be involved in parenting of the child until he was about 14 months old.

Moving forward, the biological mother eventually wanted to default on this agreement and developed a highly resistant attitude for the applicant spending time with the child.The biological mother became obsessed with the fact she is the child’s biological mother and that the applicant has no biological connection with the child. The biological mother lacks comprehension of the complexity of the case and cant understand why the applicant may even have a possible right to seek parenting orders for the child.

There’s also a little twist...the mother didn’t actually fall pregnant by artificial insemination, she had a sexual relationship with a local man who is married and has other children (confirmed by DNA test) this did not become known to the applicant until proceedings commenced.

Both women were deemed highly capable of meeting the child’s needs, he is developmentally delayed. The child is well loved and has a warm relationship with both women.

FACTS SUMMARY

• Both women were in a same sex relationship, which ended before the child’s conception.
• They both continued residing under the one roof after they broke up and were both trying together to achieve the biological mother a conception mother by artificial insemination.
• They both agreed that they would both parent the child conceived by the mother.
• After eighteen months, the biological mother wanted to default on this agreement and became resistant to the applicant spending time with the child.
• The child is now 5 years, and is developmentally delayed but has a fond, loving relationship with the applicant.
• After proceedings began, the biological mother disclosed that the child had not been conceived by artificial insemination but had been conceived as a result of a sexual relationship with a local man.
• The local man has been confirmed by DNA testing to be the father of the child but has never wished to be a party to the proceedings and spends limited time with the child.
• The ICL supports the applicant for time spent with the child, the Family Report Writer also sympathises with the applicant, however cannot agree with the applicant orders sought.

ISSUE:

• Does the applicant have standing to apply for parenting orders?
• If the applicant does have standing for parenting orders, will it be in the child’s best interest to facilitate time spent with the applicant?

HELD:

Application dismissed. It was ordered that it’s not in the child best interest to continue visitations with the applicant. The Judge provided the applicant an extra two visits with the child before ceasing, so they could both say goodbye to each other.

It was determined the applicant did have standing to bring forth the parenting application pursuant to s 65C(c) of the Family Law Act 1975. The judge asserts that this application cannot be rejected just because the applicant has no biological connection to the child. It was established that due to the involvement of the applicant in the child’s life since his birth, proves the respondent is a person concerned with the care welfare or development of the child.

Furthermore, the Judge determined this matter by applying the child’s best interests as the paramount consideration pursuant to s. 60CC(2)and (3) of the Family Law Act 1975.

The judge rationalises that some of the facts in this case can be comparable to the case ofAldridge & Keaton [2009] FamCAFC 229, where it was determined the applicant could spend regular time with the child. In saying that though the judge asserts that every case has it’s own individual facts to consider, and determined that it would not be in the child’s best interests for the child to spend time with the applicant in this particular situation, due to the biological mother’s hostility towards the applicant that will not change, the high possibility of conflict at changeovers, the mother’s mental health and the distance the parties live apart. It was acknowledged that the child will feel a great loss however, the Report Writer asserts that the child can overcome this and that it wont be detrimental to him in the long term. The Judge and the Family Report Writer expressed significant sympathy for the applicant’s outcome.

#parenting