Altimari & Altimari
[2024] FedCFamC1F 3
•25 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Altimari & Altimari [2024] FedCFamC1F 3
File number(s): CAC 1654 of 2023 Judgment of: GILL J Date of judgment: 25 January 2024 Catchwords: FAMILY LAW – PARENTING – Application for parentage order under the Parentage Act 2004 (ACT) – where the child was born via surrogate – where surrogacy agreement was entered into by one of the parties – where the other party seeks to also be named a parent – where the parties are separated – applicant not within the definition of parent under the Legislation Act 2001 (ACT) – application refused.
FAMILY LAW – PARENTING – Application for leave to apply for adoption as a step-parent pursuant to s 60G of the Family Law Act 1975 (Cth) – applicant not considered a step-parent as parties are no longer in a relationship – application refused.
FAMILY LAW – CROSS VESTED JURISDICTION – application for adoption pursuant to the Adoption Act 1993 (ACT) pursuant to cross vested jurisdiction – matter listed for further directions.Legislation: Family Law Act 1975 (Cth)
Adoption Act 1993 (ACT)
Legislation Act 2001 (ACT)
Parentage Act 2004 (ACT)
Cases cited: Masson & Parsons (2019) 266 CLR 554 Division: Division 1 First Instance Number of paragraphs: 56 Date of hearing: 18 December 2023 Place: Canberra Solicitor for the Applicant: Ms Toombs, Farrar Gesini Dunn Solicitor for the Respondent: Litigant in Person
Table of Corrections 21 February 2024 In paragraph 46, a reference to “s 17(d)” has been corrected to show “s 14(d)”. ORDERS
CAC 1654 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ALTIMARI
Applicant
AND: MR B ALTIMARI
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
25 JANUARY 2024
THE COURT ORDERS THAT:
1.The application for a declaration of parentage under the Parentage Act 2004 is refused.
2.The application pursuant to s 60G of the Family Law Act 1975 is refused.
3.The matter is listed for further directions in respect of the adoption application on 20 February 2024 at 3.00 pm.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 21 February 2024
GILL J
INTRODUCTION
These proceedings concern the status of the applicant Mr B Altimari, as a parent of Y (born 2021). The respondent, Mr Altimari, is the former partner of the applicant and is, at present, the only person designated as a parent of Y, following an order made pursuant to surrogacy legislation in State E.
Both Mr B Altimari and Mr Altimari seek that Mr B Altimari be legally considered to be a parent of Y.
It is uncontroversial that Mr B Altimari has always been treated as, and functioned as, a parent of Y.
Mr Altimari and Mr B Altimari are the parents of another child, X (born 2017).
RELIEF SOUGHT
The applicant seeks, as primary relief, a declaration of parentage under the Parentage Act 2004 (ACT) being made reliant upon the jurisdiction of the Supreme Court of the ACT as vested in this court by the cross-vesting legislation.
The applicant’s fall-back position is the pursuit of an adoption order pursuant to the Adoption Act 1993 (ACT), with, as a precursor to that relief, this court granting leave under the Family Law Act 1975 (Cth) for Mr B Altimari to commence adoption proceedings.
Each of these forms of relief are governed by the terms of the statutes that provide for them. Consequently, each form of relief is reliant upon Mr B Altimari falling within the framework and criteria that have been imposed by the legislature of each jurisdiction.
RELEVANT FACTUAL BACKGROUND
Mr B Altimari and Mr Altimari were in a de facto relationship for much of the period between early 2012 and mid-2022. Despite their separation they share the care of both Y and X.
X was born as a result of sperm from Mr B Altimari, an ovum from Ms C and by a surrogacy agreement in 2016 entered into between Mr B Altimari and Mr Altimari with Ms D and Mr D. X was born in 2017. Subsequently a Parentage Order was made by the State E Supreme Court in favour of Mr B Altimari and Mr Altimari and to the exclusion of Ms D and Mr D.
Mr B Altimari and Mr Altimari separated in July 2018, reconciling in early 2020.
In 2020 Mr Altimari entered into a further surrogacy agreement with Ms D and Mr D. Mr B Altimari asserts that only Mr Altimari entered this agreement as they were separated at that time, although he describes that they reconciled prior to the pregnancy. There is some uncertainty as to when they were, or were not, in a relationship. That issue is however not of importance at present.
Mr B Altimari and Mr Altimari anticipated that it would be a simple process for Mr B Altimari to be later determined to be a parent.
Y was born as a result of sperm from Mr Altimari, an ovum from Ms C and by a surrogacy agreement in 2020 entered into between Mr Altimari with Ms D and Mr D. Y was born in 2021. Mr Altimari applied to the State E Supreme Court for a parentage order and late 2021 an order was made determining that Mr Altimari was the parent of Y to the exclusion of Ms D and Mr D.
Mr B Altimari and Mr Altimari subsequently moved from State E to the ACT. Prior to their separation they both cared for Y, and have continued to share his care, each functioning as a parent since their separation in June 2022. X and Y spend seven nights per fortnight with each of Mr B Altimari and Mr Altimari. Mr B Altimari is referred to as “[DadB]” and Mr Altimari as “[DadA]”.
As yet Mr B Altimari has not undertaken the relevant assessments with the ACT child welfare authority that are a necessary precursor to adoption, but will do so in the event that leave is granted as he seeks.
THE STATUTORY FRAMEWORK
Each form of relief sought arises under a statutory provision.
By virtue of the cross-vesting scheme this court holds the jurisdiction of the Supreme Court of the ACT. Provided that court can give the relief sought, this court is empowered to do so.
It is convenient to set out the requirements imposed by each statutory scheme separately, along with identification as to the operation of the provisions.
THE PARENTAGE DECLARATION
Sections 15 and 19 of the Parentage Act 2004 (ACT) empower the Supreme Court of the ACT to deal with applications for, and to make parentage declarations. Section 6 of that Act specifies that the purpose of the declaration is to establish who is a parent of the child.
The notes to s 6 refer then to the definition of ‘parent’ as contained in the Legislation Act 2001 (ACT), where the definition is cast in the following manner:
Parent, of a child, means—
(a) the child’s mother; or
(b) the child’s father; or
(c) someone else who is presumed under the Parentage Act 2004, part 2 to be a parent of the child.
Note A child cannot have more than 2 parents at any one time (see Parentage Act 2004, s 14).
It was submitted that the meaning of parent should be construed in a similar manner to the meaning of ‘parent’ as construed under the Family Law Act 1975 (Cth) in cases such as Masson & Parsons (2019) 266 CLR 554.
That case dealt with the effect of the provisions at s 60H of the Family Law Act that deal with parentage in circumstances of artificial conception. The majority of the High Court concluded that s 60H was “not exhaustive of the persons who may qualify as a parent of a child born as a result of an artificial conception procedure.”[1] Rather, it operated to extend rather than to confine who may be considered a parent under circumstances of artificial conception. They further observed that “parent” was not defined under that Act, but that “a court will not construe a provision in a way that departs from its ordinary meaning unless it is plain that Parliament intended it to have some different meaning.” The term “parent” was taken by the court to bear its ordinary meaning unless displaced by a provision contained within the Act.[2] In that case the appellant met the description of “parent” as a person who, through artificial insemination, provided his sperm, but had done so on the understanding that he would be the child’s parent, and that he would support and care for her, as he had.
[1] Masson & Parsons (2019) 266 CLR 554 [26] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).
[2] Ibid [27]
However, the statutory context of parent in the Legislation Act differs from the context at s 60H of the Family Law Act. The determination of who is a parent is reliant on the scope of the meaning set out in the Legislation Act.
The Legislation Act gives the term ‘parent’ its statutory meaning. The determination of whether Mr B Altimari is a parent must be in accordance with the categories set out in the Legislation Act, which employs two terms that are undefined, “mother” and “father” and extends the definition to include someone established by the presumptions contained within the Parentage Act to be a parent.
The manner of expression contained in the Legislation Act should be considered to give a comprehensive meaning to the term parent unless the contrary intention is indicated. That contrary intention is not indicated in the current context.
The meaning given by the Legislation Act to “parent” expands the categories of who may be considered to be a parent. The interplay between the Legislation Act and the Parentage Act takes the meaning of parent beyond a mother and a father to include, for example, persons who, conceiving artificially, or in a relevant relationship with a person conceiving artificially, otherwise may or may not fall within the meaning of mother or father.
Those presumptions are set out at ss 7 to 11 of the Parentage Act, and in general terms cover presumptions arising from marriage, civil union or civil partnership (s 7), presumptions arising from domestic partnership (s 8), presumptions arising from registered information (s 9), presumptions arising from findings of courts (s 10), and presumptions arising from a procedure (s 11).
As to the presumptions arising under s 7, each is reliant upon the child being “born to” a person who is or was within the relevant marriage, civil union, civil partnership. Y was not born to such a person, but was born to Ms D, who was not in such a relationship with Mr B Altimari. The presumption is inapplicable to the current circumstances.
As to the presumption arising unders 8, the presumption is reliant upon a domestic partnership with the person who “gave birth to” the child. Ms D gave birth to Y. Mr B Altimari was not in a domestic partnership with Ms D. The presumption does not apply.
While s 7 employs the phrase “born to” and s 8 employs the phrase “gave birth to” no relevant difference in meaning is identifiable in this case.
As to the presumption arising under s 9, Y’s birth certificate names one parent, Mr Altimari, as his father and identifies no other parent. This forms a presumption that Mr Altimari is Y’s parent.
As to the presumption arising under s 10, by an order of 16 May 2018 the Supreme Court of State E has, by transfer of parentage from Ms D and Mr D to Mr Altimari, determined that Mr Altimari is the parent of Y. This forms a conclusive presumption that he is Y’s parent. The presumption does not extend to Mr B Altimari.
As to the presumption arising under s 11, the effect of such are conclusive presumptions that Ms D and Mr D are the parents of Y.
However, this sets up a conflict in the results flowing from the conclusive presumptions at s 10 and s 11, each providing a different result. Section 13 of the Parentage Act provides for a hierarchy amongst the presumptions that means the presumption at s 10 that Mr Altimari is a parent trumps the presumption at s 11 that Ms D and Mr D are the parents of Y.
Accordingly, Mr B Altimari does not benefit from the operation of any of the presumptions under the Parentage Act.
The question of whether Mr B Altimari is a parent is then reliant upon whether Mr B Altimari meets another description of parent as contained in the Legislation Act, an issue to be determined by the scope of the meaning to be attributed to “father” as contained in the definition of parent.
That term is not defined and may be taken to hold its ordinary meaning.
In his favour are the uncontentious propositions that he has provided care and exercised responsibility for Y in a manner that a parent would. He has not, however, fathered Y in the sense of contributing to his genetic makeup. To the extent that parallels were sought to be drawn with Masson & Parsons, this is not one.
It may also be observed that there are various classes of relationships that may exercise care and responsibility analogous to that of a parent, including step-parents, grandparents and other relatives. Whilst those relationships are undoubtedly important, they are not rendered as mother or father by virtue of those qualities. Similarly, here, the matters relied upon for Mr B Altimari render his relationship parent like, and undoubtedly of critical importance to Y. They do not however make him a father of Y.
CONCLUSION AS TO PARENTAGE DECLARATION
A parentage declaration is not available in favour of Mr B Altimari under the Parentage Act 2004 (ACT). The application will be refused.
THE APPLICATION FOR LEAVE TO ADOPT AND PROPOSED ADOPTION PROCEEDINGS
In the alternative Mr B Altimari seeks leave pursuant to s 60G of the Family Law Act to commence adoption proceedings and seeks an adoption order pursuant to s 9 of the Adoption Act 1993 (ACT).
In doing so Mr B Altimari acknowledges that should leave be granted further steps would need to be undertaken in order to support the application, in particular, his placement on the register of suitable people as required by s 14 of the Adoption Act, and the preparation for the court of a report from the Director-General pursuant to s 39D of that Act.
Consideration will be given on the basis that Mr B Altimari would be able to meet these prerequisites if given the opportunity to do so.
REQUIREMENTS UNDER THE TERRITORY LEGISLATION
Section 14 of the Adoption Act sets out a number of requirements for adoption to take place, with the requirements varying dependent upon whether the adoption is by one person or two.
Mr B Altimari’s application is for adoption by him only. This is understandable, given that Mr Altimari is already a parent. However, adoption by Mr Altimari and Mr B Altimari is not available in any event as it would need to be demonstrated both that there had been a domestic partnership between them for at least three years (there has been), and stability of and commitment to that partnership. Mr B Altimari and Mr Altimari are no longer in such a partnership and so such would not be able to be demonstrated. Hence it does not appear to be open for Mr B Altimari and Mr Altimari to jointly apply for adoption of Y.
Mr B Altimari is the only applicant for the adoption. Where there is only one applicant s 14 of the Adoption Act provides that Mr B Altimari must either be a step-parent or not in a domestic partnership. If he is a step-parent then, pursuant to s14(d) of the Adoption Act, he must obtain leave pursuant to s 60G of the Family Law Act.
Step-parent is defined term in the Adoption Act as:
step-parent, of a child or young person, means a person who—
(a) is not a parent of the child or young person; and
(b) whether married or not, has lived in a domestic partnership for not less than 3 years with a parent of the child or young person.
Mr B Altimari meets the first limb as he is not a parent of Y.
The history recited by Mr B Altimari and Mr Altimari supports the notion that, despite their separation, they have lived in a domestic partnership for not less than three years. The definition does not explicitly state that the relationship must be current, and so appears to encompass Mr B Altimari and Mr Altimari’s circumstances despite their separation. If this is so then it appears that Mr B Altimari is a step-parent for the purposes of the Adoption Act. As indicated above, he then requires, pursuant to leave as a step-parent under the Family Law Act pursuant to s 60G.
LEAVE PURSUANT TO S 60G OF THE FAMILY LAW ACT
Section 60G deals with leave for prescribed adopting parents, which are defined at s 4 of the Family Law Act in the following manner:
prescribed adopting parent, in relation to a child, means:
(a)a parent of the child; or
(b)the spouse of, or a person in a de facto relationship with, a parent of the child; or
(c) a parent of the child and either his or her spouse or a person in a de facto relationship with the parent.
Unlike the Territory definition, the implication contained in this definition is relevantly that of a current de facto relationship. It is uncontroversial that Mr B Altimari and Mr Altimari are not in a current de facto relationship. Accordingly, Mr B Altimari is not a prescribed adopting parent for the purposes of the Family Law Act. The consequence of this is that there is no provision through which he might obtain the leave if it is required by s 14 of the Adoption Act.
As Mr B Altimari is not a prescribed adopting parent under the Family Law Act there is no basis for the leave to be given that he seeks pursuant to s 60G, and that application must be refused.
THE REMAINING ADOPTION APPLICATION
The refusal of the application for leave does not finalise Mr B Altimari’s cross vested application for adoption.
However, if Mr B Altimari is a step-parent under the Territory legislation, but not under the Family Law Act, he is unable to obtain a necessary prerequisite to adopt Y. The result is that the path to adoption is barred. It will be necessary to hear the parties further as to the interpretation of the Territory definition of step-parent to consider whether this is so, and to do so prior to causing Mr B Altimari to undertake other steps that may be rendered futile.
It will also be timely to hear from the parties the effects, pursuant to s 43 of the Adoption Act, of Mr B Altimari proceeding with adoption upon the legal status of Mr Altimari’s relationship with Y, to understand whether there may be unintended consequences.
CONCLUSION
The application pursuant to s 60G of the Family Law Act 1975 is refused, and the matter is listed for further directions in respect of the adoption application.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 25 January 2024
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