Baris & Soler
[2025] FedCFamC1F 346
•23 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Baris & Soler [2025] FedCFamC1F 346
File number(s): MLC 15564 of 2024 Judgment of: HARTNETT J Date of judgment: 23 May 2025 Catchwords: FAMILY LAW - PARENTING – Same sex relationship – Where the parties seek a declaration as to parentage –Where the applicant is the child’s biological mother – Where the respondent was registered as the child’s parent in opposition to both parties’ intentions – Declaration that the respondent is not a parent of the child – Registrar of Births, Deaths and Marriages directed to remove the name of the respondent as a parent from the registrable information in relation to the child. Legislation: Family Law Act 1975 (Cth) ss 4AA, 69VA
Births, Deaths and Marriages Registration Act 1996 (Vic) s 20(2)
Status of Children Act 1974 (Vic)
Division: Division 1 First Instance Number of paragraphs: 20 Date of hearing: 7 May 2025 Place: Melbourne (via videolink) Solicitor for the Applicant: Nambiar Hogg Family Lawyers Solicitor for the Respondent: Coote Family Lawyers ORDERS
MLC 15564 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BARIS
Applicant
AND: MS SOLER
Respondent
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
7 MAY 2025
THE COURT ORDERS THAT:
1.Pursuant to section 69VA of the Family Law Act 1975 (Cth), IT IS DECLARED that the respondent is not a parent of the child X born 2024 (‘X’).
2.Pursuant to section 20(2) of the Births, Deaths and Marriages Registration Act 1996 (Vic), the Registrar of Births, Deaths and Marriages is directed that the name of the respondent be removed as a parent from the registrable information in relation to X.
3.Each party be solely entitled to the exclusion of the other, any biological tissues (including eggs, sperms, embryos, ovarian tissue) stored with any in vitro fertilisation clinics or facilities.
4.Otherwise, all extant applications be dismissed and the matter be removed from the list.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 the pseudonym Baris & Soler has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
The proceeding before the Court was that filed by the applicant seeking final parenting orders in respect of the child X born 2024 (“the child”) (“X”). The child is the biological child of the applicant. The child was aged less than one year at the time of the hearing.
The applicant filed an Application for Final Orders on 10 December 2024. Orders numbered 1 and 2 of the orders as sought by the applicant were made by the Court on 7 May 2025, together with an order as sought by the respondent in the respondent’s Response to Initiating Application, filed 24 January 2025. The orders as made by the Court and otherwise the dismissal of the matter were all orders made unopposed by the respondent (as to the orders sought by the applicant) and unopposed by the applicant (as to the order sought by the respondent). Below follows reasons for judgment in support of the making of the orders of 7 May 2025.
MATERIAL RELIED UPON
The applicant relied upon:
(1)Application for Final Orders filed 10 December 2024; and
(2)her affidavit filed 10 December 2024.
The applicant’s Application for Final Orders sought orders in the alternative. The making of orders numbered 1 and 2 as sought were the preferred orders. In the event the Court determined not to make such orders, then the applicant sought parenting orders such that the applicant have sole parental responsibility for the child, for the child to live with the applicant, and consequent further orders which did not include the child spending any time with the respondent. The respondent indicated her consent to those orders if the Court was to determine such alternate orders should be made.
The respondent relied upon:
(1)Response to Final Orders filed 24 January 2025; and
(2)her affidavit filed 24 January 2025.
The respondent made clear in her Response, her lack of opposition to all orders as sought by the applicant.
BACKGROUND
The affidavit filed by the applicant as affirmed on 10 December 2024, and that of the respondent as affirmed on the 24 January 2025, together set out the background to this matter as contained in the paragraphs which follow.
The applicant was born in 1989 in Country B. She immigrated to Australia in 2012. The applicant holds a permanent residency visa. The respondent was born in 1990 in Country B. She immigrated to Australia in 2012. The respondent holds a permanent residency visa. The applicant is employed as a finance professional. The respondent is employed as a professional for C Company. Both parties are in good health.
The parties commenced a dating relationship in or about mid-2021. Their relationship, however described, concluded in or about March 2024.
Throughout the parties’ relationship, the applicant lived in the applicant’s home in Suburb D, of which she is the sole proprietor, and the respondent lived in the respondent’s home in Suburb E, of which she is the sole registered proprietor. The applicant is also the sole registered proprietor of an investment property in Suburb F. Each of the applicant and respondent managed their own financial affairs in respect of their individual ownership of properties. There was no intermingling of their respective finances.
The parties were each responsible for their respective day-to-day living expenses as paid using their personal bank accounts into which each of their individual incomes were deposited. At times, they operated a joint bank account to meet their shared recreational expenses of around $1,000 to $2,000 per month.
The parties did not regularly sleep at each other's residences on weekdays, in circumstances where the respondent did not wish to commute from Suburb D to her workplace, and the applicant worked from her home office in her Suburb D home. The parties spent most weekends together at one or other of their homes. Regardless of their living arrangements, the parties maintained a sexual relationship throughout.
The parties disclosed, to only a limited number of people, primarily family members and a small number of mutual friends, that they were in a relationship. Otherwise, they maintained largely separate friendship groups, and did not regularly socialise as a couple. The applicant did not disclose her relationship with the respondent to her work colleagues.
In or about March 2023, the applicant and respondent jointly purchased a real property situate at G Street, Suburb H (“the Suburb H property”). The property was tenanted by them at acquisition, such that they did not reside together in the property. The parties held two joint bank accounts in relation to the Suburb H property, one account into which they received rental income from the tenants (which was applied to the maintenance and other related costs of the property, being shared expenses), and the other from which mortgage payments in respect of their joint borrowings were made.
During 2023, the applicant underwent IVF treatment with J Clinic in Sydney. As part of this treatment, intra-uterine insemination of the applicant was carried out in late 2023, using the applicant’s egg and donor sperm. The applicant became pregnant with the child in or about late 2023.
The parties ceased their relationship in around March 2024. The child was born in mid-2024. The respondent was informed by the applicant as to the birth of the child. The respondent has not seen the child, nor had any involvement with the child since her birth. The respondent was only made aware of the child’s name, birth date and other information when she received the child’s birth certificate as issued in late 2024. Both the applicant and the respondent were listed as the child’s mother.
Following the termination of their relationship, the applicant and respondent executed a Deed of Settlement and Release dated 1 August 2024. That Deed of Settlement and Release dealt with, and concluded, the financial aspects of their relationship and was primarily directed to the Suburb H property. The parties did not seek to argue that they were in a de facto relationship.
CONSIDERATION
Of relevance in this proceeding is that, as part of the applicant’s IVF treatment, she and the respondent both executed, in late 2023, a General Procedure Consent (GPC) form with J Clinic. On that form, the respondent was listed as the applicant’s “partner”. The word “partner” was defined in the GPC as being, relevantly, “a person who you live with as a couple on a genuine domestic basis, irrespective of gender”. Because of the execution by the parties of this document, and the subsequent J Clinic Intra-Uterine Insemination Consent form as signed by the parties and dated late 2023, the Victorian Registry of Births, Deaths and Marriages (“BDM”) informed the applicant, upon her application to be registered as the child’s sole parent, that it was mandatory for the respondent to be listed as a parent since she had consented to the IVF treatment as the applicant’s “partner”. On the evidence of the applicant, during her subsequent discussions with BDM staff, the applicant was advised that the only way to have the respondent removed from the child 's birth certificate was to obtain a court order requiring this to occur. This is because in the circumstances of this matter, pursuant to the Births, Deaths and Marriages Registration Act 1996 (Vic) and the Status of Children Act 1974 (Vic), there is an irrebuttable presumption to register the mother's female partner at the time of the IVF procedure as a legal parent.
The issue before the Court was whether the respondent, at the time of signing the necessary consent forms, was the de-facto partner of the applicant. In its consideration of that matter, the Court accepts the evidence of the applicant and the respondent as to the circumstances existing at the relevant time, and their respective understanding of the term “partner”, including its consequences. Furthermore, the Court observes, these factual matters existed in a context where the applicant did not need to describe the respondent as her partner, to access the IVF procedure. She could have done so without having a partner. The parties were however, focussed on the ordinary and more common meaning of the word, partner, and being, they thought, scrupulously honest. Neither realised the claimed intent and legal ramifications that would flow from the definition of the word “partner” in the GPC form signed by them. They themselves, did not consider that they were in a de facto relationship as now, in a legal sense, understood by them. They had never sought to register their relationship as a de facto relationship pursuant to a prescribed law of any state or territory. They had never acted as if a de facto relationship existed between them. Indeed, to the contrary.
The applicant undertook IVF treatment on the understanding and belief that the applicant would be the sole parent of any child who was born through that process. That understanding and belief was shared by the respondent. Indeed, the respondent has her own biological tissue stored to become a sole parent in the future, if she so desires. Neither party had an intention for the respondent to be registered as a parent on the child’s birth certificate. The fact that occurred, came as a complete shock to them. The applicant is aware that the respondent being removed from the child's birth certificate will mean that the applicant will be unable to claim child support payments from the respondent in relation to the child. Such an obligation for, and connection to, the child, was never contemplated or intended by either of the parties. The applicant has income and financial resources (including family support) well sufficient to provide for the child without any contribution or involvement from the respondent.
CONCLUSION
At the time that the applicant and the respondent signed the GPC and subsequent form, and underwent IVF treatment in late 2023, I find, on all the facts as set out herein, that the parties did not share a common residence and were not living together as a couple on a genuine domestic basis. They were not in a de facto relationship pursuant to section 4AA of the Family Law Act 1975 (Cth).
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 23 May 2025
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