BM & DA
[2007] FMCAfam 770
•28 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BM & DA | [2007] FMCAfam 770 |
| FAMILY LAW – Child bearing expenses – s.67B, definition of parent, s.60H. CHILD SUPPORT – Artificial conception – definition of parent where finding child conceived via artificial conception procedure – declaration under s.107(4) of the Child Support Assessment Act 1989. |
| Family Law Act1975 (Cth), ss.60H, 67B Child Support Assessment Act 1989 (Cth), ss.5, 24, 25, 25A 29 (2), 107(4) Status of Children Act 1996 (NSW), s.14 |
| B & J (1996) FLC 92-176; 21 Fam LR 186 Collector of Customs v Agfa Guvaert Limited (1996) 186 CLR 389 Re Mark (2003) FLC 93-173 Re Patrick (2002) FLC 93-096 |
| Mother: | BM |
| Respondent: | DA |
| File number: | PAM1186 of 2006 |
| Judgment of: | Henderson FM |
| Hearing dates: | 18 December 2006 & 25 July 2007 |
| Date of last submission: | 25 July 2007 |
| Delivered at: | Parramatta |
| Delivered on: | 28 September 2007 |
REPRESENTATION
| Solicitors for the mother: | Ms Butt of Louise Butt Lawyers |
| Counsel for the Respondent: | Ms Gillies |
| Solicitors for the Respondent: | Konstan Lawyers |
THE COURT ORDERS THAT:
The mother’s application for child bearing expenses under section 67B of the Family Law Act1975 in respect of the birth of the child Gloria Morris (not her real name) born 12 March 2006 be dismissed.
The mother’s Application for a Departure Order be dismissed.
THE COURT DECLARES THAT:
Under section 107(4) of the Child Support Assessment Act 1989 Beatrice Morris is not entitled to an administrative assessment of child support from David Adams in respect of the child Gloria Morris born 12 March 2006.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 1186 of 2006
| BM |
Mother
And
| DA |
Respondent
REASONS FOR JUDGMENT
1.The matter of BM & DA was heard by me over two days. The hearing commenced on 18 December 2006 and was concluded on 25 July 2007. The transcript of the proceedings on 18 December 2006 was ordered and provided to myself and the parties. The mother was represented by Ms Butt, Solicitor, and the Respondent was represented by Ms Gillies of Counsel.
The Applications before the Court
2.The mother’s Application was in three parts. The first was her Application filed 10 March 2006 seeking orders that the Respondent pay child birth maintenance to her under section 67B of the Family Law Act 1975 (the FLA Act).
3.The second was an order for parentage testing.
4.The third was a Departure Order from an administrative assessment of child support.
5.The order for parentage testing was made and was carried out. The results show that the Respondent is the biological father of the child, Gloria Morris born 12 March 2006. It is agreed the mother is her mother.
6.The mother’s Application for a departure from an administrative assessment of child support cannot succeed as there has been no administrative assessment of child support issued in respect of Gloria.
7.The Respondent sought the mother’s Application be dismissed.
8.The Respondent also sought a declaration under section 107(4) of the Child Support Assessment Act 1989 (CSA Act ) that the mother is not entitled to an administrative assessment of child support from him as he is not the parent of the child.
Issues
9.The mother asserts that the Respondent is the child’s father and her parent as she was conceived through sexual intercourse on the night of 24th June 2005. As such the mother says she is entitled to child birth expenses from him pursuant to section 67B of the Family Law Act1975 and is entitled to ongoing child support. The mother says how the child was conceived is not the issue as the respondent is her biological father.
10.Although the Respondent is the biological father of the child he disputes how that came to be. He contends the child was not conceived as a result of intercourse between him and the mother but by an artificial insemination procedure.
11.He asserts the last occasion the parties had sexual intercourse was on 15 April 2005. Gloria was born in March 2006. This would be a gestation time of 11 months from the date the respondent asserts was the last occasion of sexual intercourse. Thus he says the child was not conceived from this sexual intercourse.
12.The Respondent’s claim is that if the child was conceived by an artificial conception procedure he is not a parent or father within the meaning of the FLA Act or a parent under the CSA Act
13.Suffice to say this matter will ultimately turn on whose evidence I accept.
Agreed facts
14.There is no dispute that the Respondent has the capacity to pay any order for lump sum child bearing expenses as sought by the mother or ongoing child support for the child.
15.It is agreed that the mother requested the Respondent undergo a blood test on 24 June 2005, that the mother accompanied the Respondent to the doctor’s rooms to undergo the blood test, that the test could not be taken at that time and that the Respondent underwent the blood test the next day.
16.The Respondent agrees that he and the mother had an opportunity to engage in sexual intercourse on the night of 24 June 2005 as asserted by the mother. The Respondent denies this occurred.
17.
It is agreed that at the request of the mother, the father produced two sperm samples at his home on 29 June 2005 and another on
1 July 2005 and gave those samples to the mother.
18.The Respondent’s case is that the mother used the samples to artificially inseminate herself and that this is the procedure that resulted in her pregnancy and Gloria’s birth.
19.There is no dispute that the parties have never married nor have they ever lived together. They had a sexual relationship.
20.The mother agreed that the child was a pre-term child and the subpoena material reveals the child was born at some 37.3 weeks gestation period. This makes her conception around late June 2005 a date consistent with each party’s evidence.
21.The Respondent is the biological father of the child. What is in dispute is how it is that he came to be the child’s biological father.
22.The Respondent has always maintained he could not be the father and readily consented to DNA testing.
The documents relied upon by the parties
23.For the mother I read:
(a)Financial Statement filed 10 March 2006 and 22 November 2006;
(b)Affidavits filed 10 March 2006, 22 November 2006 and 24 November 2006; and
(c)Affidavit of the mother’s friend, Clare Ruth Bowden, filed 22 November 2006.
24.For the Respondent I read:
(a)Response filed 20 November 2006;
(b)Affidavit filed 20 November 2006; and
(c)Financial statement filed 1 December 2006.
25.Exhibits tendered were as follows:
(a)Respondent’s Exhibit 1: Pages 55 – 58 of a Local Court transcript of a hearing on 21 February 2006 in relation to Apprehended Violence Order proceedings;
(b)Respondent’s Exhibit 2: Documents provided under subpoena by Dr Peter Nakhle;
(c)Respondent’s Exhibit 3: Documents provided under subpoena by Prince of Wales Hospital in relation to treatment of the mother during the relevant period; and
(d)Mother’s Exhibit 1: Pages 52 – 54 of a Local Court transcript of a hearing on 21 February 2006 in relation to the Apprehended Violence Order proceedings.
The relevant law for a declaration under section 107(4) of the Child Support (Assessment) Act 1989
26.The matter is unusual. If I accept the mother’s evidence that Gloria was conceived through sexual intercourse on the night of 24 June 2005 the Respondent is the child’s’ parent and father for the purposes of the FLA Act and a parent under the CSA Act.
27.If I do not accept the mother’s evidence regarding Gloria’s conception and prefer the Respondent’s evidence then the law is complex.
28.Where a child is conceived by an artificial conception procedure an artificial definition of parent is applied for child support and for Family Law purposes under section 60H of the FLA. The definition applied has nothing to do with biology. If a child is conceived by sexual intercourse then the usual meaning of a parent applies and biology is the defining issue.
29.The father seeks a declaration that he is not a parent from whom child support can be obtained. The mother seeks no declaration. Thus in respect of that application the father has the burden of proof.
30.However for the child bearing expenses’ application the mother has the burden of proof that the Respondent is a father from whom such expenses can be obtained.
31.Only a parent or carer has a liability to pay child support under the CSA Act Section 24 states :
(1) Application may be made to the Registrar for administrative assessment of child support for a child only if:
(a) the child is:
(i) an eligible child; and
(ii) under 18 years of age; and
(iii) not a member of a couple; and
(b) except in a circumstance referred to in subsection (2), either or both of the following subparagraphs applies or apply in relation to the child:
(i) the child is present in Australia on the day on which the application is made;
(ii) the child is an Australian citizen, or ordinarily resident in Australia, on that day
32.Under section 25 of the CSA Act the mother may apply for child support as she is an eligible carer and she is under section 25A (2) a parent of the child. The mother has not made any application for child support.
33.The Respondent is not a carer and can only be liable to make payments for child support if he is at law a parent. Prima facie he would appear to be so as he is the biological father of Gloria.
34.However the Respondent disputes he is a parent as he says the child was conceived through an artificial conception procedure.
35.Section 29(2) of the CSA Act is the operative section and the relevant part of the section is:
29(2) A person may apply to the Registrar under this section for administrative assessment of child support for a child if:
(a) the person is an eligible carer of the child; and
(b) the person is seeking payment of child support for the child from a person who:
(i) is a parent of the child; and
(ii) satisfies the residence requirement in subsection (3) on the day the application is made.
36.The mother claims the respondent is the parent of the child
37.The definition of a “parent” under the CSA Act is at section 5:
(a) when used in relation to a child who has been adopted--an adoptive parent of the child; and
(b) when used in relation to a child born because of the carrying out of an artificial conception procedure--a person who is a parent of the child under section 60H of the Family Law Act 1975.
38.Thus the definition of parent under section 60H of the FLA is the definition for child support purposes .Section 60H is a follows:
(3) If:
(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure; and
(b) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of a man;
then, whether or not the child is biologically a child of the man, the child is his child for the purposes of this Act.
39.What does this section mean?
40.A leading decision on the meaning of section 60H of the Family Law Act 1975 is that of His Honour Justice Fogarty in B & J (1996) FLC 92-176; 21 Fam LR 186.
41.The facts of that matter were that the Applicant applied for a declaration pursuant to section 107(4)(c) of the Child Support (Assessment) Act 1989 that he was not, under s.26 of that Act, ''a person from whom payment of child support was entitled to be sought'' for the relevant children.
42.The Respondent seeks the same declaration.
43.The Applicant in B&J had willingly provided semen to the mother and her female partner for insemination and two children were born as the result of those procedures. In 1995 the Department of Social Security, as it then was, requested payment of suppport be sought from the Applicant otherwise the mother’s pension would be appropriately reduced. Upon receiving an assessment from the the Agency he brought his application for a declaration.
44.Justice Fogarty found that for the purpose of the CSA Act section 60H of the FLA Act provided an exhaustive definition of parent.
45.To be a prent under section 60H both limbs of section 60H(3) had to be satisfied namely that:
i)the child was born to a woman as a result of an artificail conception procedure and
ii)the child is a child of a man under the prescribed law of a state.
46.His Honour said :
“it is not clear whether the provisions of s 60H do not enlarge, rather than restrict, the categories of persons who are regarded as a child's parents. In the case of the Assessment Act, it is the word ''means'' which makes it clear that the provision is exhaustive.
Prima facie, s 60H is not exclusive for the purposes of the FLA Act, and so there would need to be a specific provision to exclude people who would otherwise be parents. Relevantly here, that means the donor of the genetic material.”
47.His Honour found the Applicant was not a parent for child support purposes and gave the declaration. His Honour further found that a person who is not a child support parent may still be a family law parent for some purposes. His Honour called for some legislative clarification which is yet to be provided.
48.If I ultimately reject the mother’s evidence that the child was conceived by sexual intercourse on the night of 24 June 2005 then for child support purposes the Respondent can only be a parent if he comes within the definition of a parent under section 60H of the FLA Act.
49.To determine whether Gloria can be regarded as a child of the Respondent under the second limb of section 60H, I must turn to the prescribed law which is the Status of Children Act 1996 (NSW).
50.Section 14(2) of the Status of Children Act 1996 (NSW) says :
If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using any sperm obtained from a man who is not her husband, that man is presumed not to be the father of any child born as a result of the pregnancy.
51.Section 14(3) extends the definition to couples in a de-facto relationship who engage in artificial conception procedures.
52.Section 14(4) states that any presumption arising under sections 14(1)-(3) of the Status of Children Act 1996 is irrebuttable.
53.If I accept the Respondent’s evidence that Gloria was conceived by an artificial conception procedure he is not a parent within the meaning of section 60H of the FLA Act as he is not the mother’s husband nor her de-facto and is presumed by the relevant prescribed law not to be the father.
54.If the Respondent is not the child’s parent under section 60H of the FLA Act then he is entitled to the declaration sought and the mother will be unable to claim any child support from him.
Relevant law for child bearing expenses’ under section 67B of the Family Law Act 1975
55.Turning now to the mother’s claim for child bearing expenses under section 67B of the FLA Act. Relevantly that section is as follows:
The father of a child who is not married to the child's mother is, subject to this Division, liable to make a proper contribution towards:
(a) the maintenance of the mother for the childbirth maintenance period in relation to the birth of the child; and
(b) the mother's reasonable medical expenses in relation to the pregnancy and birth; and
(c) if the mother dies and the death is as a result of the pregnancy or birth, the reasonable expenses of the mother 's funeral.
56.The FLA Act does not define “parent” nor “father.” Section 67B uses the word “father” while section 60H uses the word “parent”.
57.The Status of Children Act 1996 uses the word “father.”
58.The Respondent is the child’s biological father.
59.The questions to be answered in part are .Is the respondent as the child’s biological father liable for child bearing expenses? Prima facie it would appear he is.
60.Does the definition of parent under the FLA Act have any relevance to this issue?
61.How are these sections to be read together and these issues resolved?
62.The ultimate question is whether the definition section of s.60H of the FLA Act of parent is exhaustive in terms of who is a parent and/or mother/father for child bearing expenses. His Honour Justice Fogarty in his obiter in B v J indicated section 60H may not be exhaustive for the purposes of the FLA Act and that a biological father of an artificially conceived child maybe a parent under the FLA Act.
63.If I accept his Honour’s obiter namely, that the definition is not exhaustive then this may result in a biological father of an artificially conceived child being liable for child bearing expenses under the FLA Act yet not liable for Child Support under the CSA Act.
64.I will need to assess the facts of this matter before reaching a conclusion.
Brief chronology
65.On 27 November 1974 the mother was born.
66.On 11 June 1976 the Respondent was born.
67.On 15 April 1998 the mother commenced working for Qantas.
68.In August 2003 the parties met.
69.On 6 March 2004 the parties commenced a sexual relationship.
70.In October 2004 the mother tells the Court she ceased fulltime employment and commenced part-time employment with Qantas.
71.From November 2004 until 1 April 2005 the mother resided in Narellan with her mother.
72.On 15 February 2005 the mother told the Respondent that she was pregnant.
73.On 10 March 2005 the mother attended hospital and had a DMC procedure carried out by Dr Hill.
74.On 10 March 2005 the Respondent asserts the mother told him her pregnancy had been terminated by the procedure. This is denied by the mother.
75.On 1 April 2005 the mother moved with her children to a townhouse in Botany.
76.On 15 April 2005 the Respondent asserts he last had intercourse with the mother.
77.On 16 April 2005 an incident occurred at the home of the mother where some violence was perpetrated and the Respondent was charged under Apprehended Violence Order legislation and this matter was heard in February 2006. The mother asserts her feet were fractured by the Respondent
78.The mother asserts she met with the Respondent on two or three occasions after the alleged assault.
79.On 23 April 2005 the mother says she had her pregnancy confirmed.
80.On 19 June 2005 the mother sent the Respondent an email seeking information regarding his family medical history.
81.On 24 June 2005 the parties attended a medical centre in Bondi together to enable the Respondent to undergo a blood test. The blood test did not take place. A blood test was carried out the next day.
82.The mother agrees she requested the Respondent undergo the test to check for genetic abnormalities of her alleged unborn baby.
83.The mother asserts she and the Respondent had sexual intercourse the evening of 24 June 2005. This is denied by the Respondent.
84.On 29 June 2005 the mother collected a semen sample from the Respondent at his home she says for the purposes of genetic testing.
85.On I July 2005 at the mother’s request the Respondent provided her with a second semen sample which she again said was for genetic testing.
86.The mother agreed no genetic testing was ever carried out on either semen sample.
87.In July 2005 the mother said the relationship between her and the Respondent ceased.
88.On 12 March 2006 Gloria Morris was born.
89.23 March 2006 was the due date of delivery of the child.
The oral evidence before the Court
Mother’s evidence
90.Both parties agreed that they had had a sexual relationship commencing about 6 March 2004. The Respondent asserts the sexual relationship ended on 15 April 2005. The mother asserts it continued until 24 June 2005.
91.The mother admits she obtained two semen samples from the Respondent in late June and early July 2005. The Respondent says the only consent he gave to the mother was to have genetic testing carried out on the two samples.
92.The mother admits she asked the Respondent for two semen samples and told him she was to have the samples genetically tested but that no testing was carried out.
93.In paragraph 38 of the mother’s affidavit she states that she found out she may have been pregnant on or around 23 April 2005 and said to the Respondent “I think I may be pregnant.” The mother asserts that this pregnancy was confirmed in a pregnancy test on 23 or 24 April 2005.
94.The mother said she had some heavy bleeding in late May or early June 2005 but did not discover until some time after she collected the second semen sample from the Respondent on 1 July 2005 that she had probably miscarried at that time. The mother’s evidence was:
“As it turned out, I was told in July that when I had been bleeding in late May/early June that’s when I had miscarried.”
95.Whether I accept this evidence and the mother’s belief that until July 2005 she still believed she was pregnant is one of the key matters in the mother’s case.
96.The mother did not attend any medical practitioner at the time of her bleeding in late May early June 2005 to confirm whether she had miscarried.
97.The mother agreed that the Respondent flew back from Melbourne on 10 March 2005 and saw her in hospital. This was the night after the DMC. She did not tell the Respondent that Dr Hill had told her if she had been pregnant at the time she would no longer be pregnant after the procedure. Dr Hill reported that
“We had the devils’ own job getting her discharged from hospital. She did not want to be discharged. I think there is a level of functional overlay and some treatment is needed.”
98.I accept the parties continued a sexual relationship after the DMC procedure. The mother gave evidence in the Apprehended Violence Order proceedings that she was as at 19 June 2005, somewhere between 9 and 13 weeks pregnant. This would be a conception date between 20 March 2005 and 17 April 2005. This is a time frame clearly falling between the dates the Respondent agrees he and the mother continued to have sexual intercourse.
99.The mother was asked by Ms Gillies:
“So you concede, don’t you, that the baby you gave birth to, Gloria, was born a little before her due date.”
100.
The mother conceded Gloria was born about 37.3 weeks gestation on 12 March 2006, the due date being 23 March 2006. This then means Gloria’s conception date was late June/early July 2005.
A date after the Respondent says they last had sexual intercourse
101.
Clearly Gloria was not the child the mother says she was between
9 and 13 weeks pregnant with on 19 June 2995. Had the mother been pregnant with Gloria on 19 June 2005 she would have been born somewhere towards the end of December 2005.
102.Had the mother given birth to a child in December 2005 the Respondent would have had great difficulty asserting he was not a parent of the child, as he admits he last had sexual intercourse with the mother on 15 April 2005.
103.The mother said she went to see Dr Kate Talbot, a genetic specialist, on 22 June 2005. Dr Talbot advised her that she and the Respondent should have certain blood tests in relation to problems the mother said she had experienced in her previous pregnancies. This was some weeks after the mother said she had had heavy bleeding. The mother says she believed she was still pregnant at this time.
104.The mother’s explanation for requesting genetic testing is in paragraph 44 of her affidavit where she says she formed the belief that the Respondent may have been using marijuana. There is no objective evidence for the basis of this belief.
105.As a consequence of this belief she become concerned as to the effect such drug use may have on the baby. The mother had asked the Respondent for a blood test which he readily agreed too.
106.Before the results of the blood test were known the mother asked him for a semen sample. The mother admitted in her affidavit she lied to the Respondent on 28 June 2005 in a text message when she said “You need to do one to two more tests” and that she lied to him about the hospital requesting a semen sample. The mother gives no explanation for these lies.
107.The mother’s explanation of this request before the blood test results were known is that she did not think the Respondent would agree to have another blood test. The mother admitted genetic testing could have been carried out from a blood test and that the Respondent had readily agreed to and undergone a blood test.
108.The mother gave no satisfactory explanation why she believed the Respondent would not undergo a further blood test but would more readily give her a semen sample. This is all the more extraordinary when the mother was alleging the Respondent had seriously assaulted her in on 16 April 2005 and Apprehended Violence Order proceedings were ongoing.
109.I do not accept the mother’s explanation for the lie she perpetrated on the Respondent at that time and I do not accept her explanation for her conduct.
110.The mother admitted she helped the Respondent to produce a sperm sample on 29 June 2005. In his oral evidence, the Respondent agreed that the mother assisted him to ejaculate which is contrary to his affidavit. He said it made it easier for him if she was there. This is the only inconsistent evidence the Respondent gave.
111.The mother says she and her young son arrived at the Respondent’s home at around 8:55am on the morning of 29 June having dropped her daughter at school, and that she left the Respondent’s home at about 9:25am. The mother asserts that returned home at 10am that morning.
112.The mother said that only after she obtained the sperm sample and returned home did she begin the process of finding a laboratory to carry out the genetic testing.
113.She went home, looked up the yellow pages and rang two or three places. The mother said she was told the sperm had to be transported to the facility in under an hour, preferably 40 minutes, from when it was obtained and that the cost was approximately a couple of thousands of dollars.
114.The mother’s friend Clare Miller was at her home on both occasion after she had collected the semen samples.
115.On the first occasion the mother said she told Clare about the cost and transportation time. The mother said to Clare: “this is now a waste I’m going to have to chuck it”. The mother says she does not recall whether she put it down the sink, in the bathroom or down the toilet. She claims she walked into the bathroom with Clare, and Clare watched her dispose of it, she thought, down the sink.
116.The mother sent a text message to the Respondent at ten minutes to eleven that same morning “I’ve got some bad news; they said it’s not enough”. On the mother’s own evidence she again lied to the Respondent.
117.The Respondent replied he could give a further sperm sample on Friday otherwise he was unavailable due to work commitments.
118.The mother sent the Respondent a text message “Just rang the hospital and they said Friday morning is ok but it must be Friday”. Again the mother admitted she lied to the Respondent. The mother’s explanation for lying is that she thought that if she told the Respondent the truth, then he would never agree to give her the sperm sample. I was unclear from the mother’s evidence what truth she was referring to.
119.On 1 July 2005 the mother went to the Respondent’s home to obtain a second sample. She arrived at his home at about 9am and it is agreed she assisted the Respondent to produce the sperm sample.
120.The mother says in paragraph 52 of her affidavit the Respondent said to her “This is not the last time we are going to have any sexual interactions together. There will be many more to come. We’ve got this baby coming”. The Respondent denied this comment but agrees they talked about the baby coming.
121.It is clear that from the Respondent’s point of view that in late June/early July 2005 he believed the mother was pregnant.
122.The mother said she left the Respondent’s home at Queens Park at about 10:20am, having collected the semen sample some time between 9a.m. and 10:20a.m. For reasons that I am unable to fathom, the mother says she went back to her home, passing a laboratory at Botany and again commenced the process of ringing up to find out what to do with the semen samples.
123.The mother said she was again quoted a couple of thousand dollars for testing and said to Clare “I can’t afford it. I don’t have that kind of money. I don’t understand how it could be that much. I’ll have to get rid of another one”. That she walked into the bathroom and threw the semen sample down the toilet and ran water in the jar to wash it out.
124.On the mother’s own affidavit evidence, it is clear that after the first occasion she took the semen sample she knew:
(a)The time that was needed from collection to testing was under one hour and preferably 40 minutes; and
(b)The likely cost of testing.
125.It is apparent to me that from the mother’s own evidence and knowledge of the genetic testing procedure after the first sample was collected that she had no intention of having the second semen sample genetically tested. She was at the Respondent’s home for in excess of one hour and twenty minutes after collecting the sample when she knew the time frame was at best one hour. Secondly the mother had no way of affording this expensive procedure.
126.I am satisfied the mother perpetrated a fraud on the Respondent when she gave him her reasons for collecting his semen on the second occasion.
127.It is common ground that the Respondent did not want to be a father and did not want the mother to keep the child he believed she was carrying on 29 June 2005 and 1 July 2005. It is common ground that they had discussed these issues including adoption. On one occasion after such discussions the mother said she sent the Respondent a text message “Not that you care because you want me to get rid of the baby, just letting you know I am going to the hospital”. The mother admits she lied to the Respondent and was not going to the hospital.
128.The testing of the mother’s oral evidence confused the issues for me even further.
129.It turned out Doctor Talbot was not a genetic specialist. She is a counsellor. This is consistent with Dr Hill’s recommendation that the mother needed some help. The mother admitted in her cross examination that she sent a long list of possible genetic diseases to the father via the internet and was asking him about his family history.
130.In the mother’s affidavit she says she went to the Respondent’s home on many occasions after the assault and kept in constant contact with him by way of text message and email. The Respondent agrees this was is the case. He used the words “She harassed me”.
131.The mother collected two semen samples from the Respondent which is contact of a close and personal type. The mother clearly wished to maintain contact with the Respondent despite the Apprehended Violence Order. The mother’s conduct is inconsistent with a person who asserts they are in fear.
132.The Apprehended Violence Order transcript shows the mother was asked a series of questions about her contact with the Respondent:
“You persevered with SMS contact with him even though you had obtained an AVO against him because you hoped to revitalise the relationship?”
133.The mother answered:
“For a while I did”.
134.The mother was asked:
“And even as recently as February this year (2006) you sent his parents an invitation to your baby shower?”
135.She answered:
“Yes, that is correct”.
136.She was asked about an email sent June 2005 asking questions about Mr Adams’ family’s health:
“The reason you sent this long list of questions was that you claimed to be pregnant to him at the time, didn’t you?”
137.She replied:
“That is correct. I was advised to ask him those questions”.
138.She was asked how pregnant she was at the time of 19 June 2005 the date of sending the e-mail in question. She answered:
“I would actually be, it should be in my notes of Dr Nahkaly, then I would have, I thought would have been a couple of months into the pregnancy”.
139.She was asked:
“That could only be a pregnancy that has been conceived before all this happened couldn’t it?”
140.She replied:
“Yes, before he actually did my feet, yes”.
141.She was then asked:
“So it must have occurred some time prior to 16 April 2005.”
142.She answered:
“Possibly.”
143.It was put to her that had she conceived prior to April 2005 and continued with the pregnancy that the baby would have been born well before February 2006. The mother said:
“Yes, the babies were due to be born 21 December 2005.”
144.The mother had a twin conception with Gloria. This pregnancy was due on 23 March 2006. Sadly one of the twins died in September 2005. The mother has never asserted she was due to give birth to twins in December 2005. I was and am confused by that answer.
145.The medical evidence shows the mother sustained an injury to her right toe from the Apprehended Violence Order incident. The mother told me she had broken both feet. Although I am not making a finding on this issue, it is nevertheless a further example of the unreliability of the mother’s evidence.
146.The Apprehended Violence Order proceedings were dismissed as the Court did not accept the mother’s evidence. This was put to the mother. She feigned an inability to understand. She said that she was told the police were not going to proceed with the assault because of a lack of evidence. I said
“That is right. What do you think the evidence is but your testimony?”
147.She said:
“I was told it was because they didn’t have enough evidence”
148.I said:
“That is right. After you gave your evidence there was not enough that is what the prosecution said”.
149.In other words, the Court did not accept the mother’s evidence.
150.The mother may have fallen pregnant in late March/ April 2005. If so the Respondent was the father and parent of the child.
151.The real issue is whether she miscarried in late May early June 2005 and
(a)whether she knew she had miscarried, and
(b)whether she knew she was not pregnant in late June/July 2005 at the time at which she collected the two semen samples.
152.I am satisfied the Respondent believed the mother was pregnant as a result of sexual intercourse between them in March/April 2005 and at the time he gave her the semen samples in late June/July 2005.
The mother’s pregnancies
153.
It is clear from Dr Nahkle’s notes of 7 February 2005 that the mother told him she had last had a monthly period on
26 December 2004. The doctor reports the mother had a period three weeks later, she then had a period two weeks after that, and that she had been bleeding every second day and then every day in the last week. Had the mother been pregnant in January 2005 it was most unlikely she would still be pregnant in February 2005.
154.Dr Nahkle referred the mother to hospital for examination of her pelvic pain, discomfort and bleeding in February 2005. Dr Malcolm, the radiologist notes on 12 February 2005 that the mother was not pregnant. Even with this history the Mother would not admit she must have known she was not pregnant. All she would admit was that it was highly unlikely she was pregnant on 15 February 2005 a date on which she agrees she told the father she was pregnant.
155.I then asked the mother:
“If you did not know, why did you tell him you were pregnant?”
156.She answered:
“Well, he was my partner at the time, I thought that I should discuss something like that with him.”
157.The mother lied to the Respondent. This is a feature of their relationship.
158.Dr Hill reports after the DMC procedure on 10 March 2005 that he believed the mother had a functional overlay problem and needed counselling. The mother agreed Dr Hill had told her is if she had been pregnant on 10 March 2005 she no longer was.
159.Dr Vass’ notes (Exhibit 3), say when the mother saw her on 18 July 2005, she was ten weeks pregnant. If the mother was ten weeks pregnant on 18 July 2005 that would suggest a conception date around 9 May 2005.
160.The mother gave evidence that when she saw Dr Vass in July 2005, the doctor did not ask her for a full history, when her last monthly period was, or when she had last had sexual intercourse. This is in circumstances where the mother agrees with the doctor’s notes that the doctor was concerned she may have had an ectopic pregnancy. I have difficulty in accepting that evidence. These questions must have been asked by Dr Vass.
161.Dr Vass wrote:
Thank you for seeing Beatrice Morris. She is ten weeks pregnant. Ultrasound suggests ectopic pregnancy.
162.It was put to the mother that Dr Vass could not have come to the conclusion that she was ten weeks pregnant unless she had given her that information particularly as the mother suggests that Dr Vass did not ask her about her sexual or menstrual history. In the absence of proper enquires there was simply nothing for Dr Vass to base that opinion upon.
163.I do not know whether Dr Vass’ reporting of the mother being ten weeks pregnant came from her own observations or what the mother told her. The relevance of this is the mother’s credibility and not the pregnancy per se. Whichever, I cannot accept the mother’s evidence on this point either.
164.A series of questions were then asked of the mother concerning her reporting to doctors in September 2005 that she had her last period in mid June 2005. This date arises from the notes of Dr Nahkle, and the Registrar she saw at Prince of Wales Hospital in September 2005 when she discovered one of the twins had died. That information is inconsistent with Dr Vass’ reporting that she was 10 weeks pregnant as at July 2005. If she had had her last period in June 2005 she could not have been 10 weeks pregnant in mid July 2005. I do no accept that the trained professional’s would have written down anything other than what the mother had told them.
165.The evidence of her last period in mid June 2005 is at odds with the mother’s conduct in obtaining blood and semen samples from the Respondent in late June/early July 2005 for the purpose of carrying out genetic testing on her unborn child. It is at odds with her stated belief to me that she believed she was pregnant when she requested the semen samples in late June 2005.
166.The evidence of her last period in mid June 2005 is consistent with Gloria’s conception in late June/early July and does not support the mother’s asserted belief that she believed she still was pregnant in late June/early July 2005.
167.The evidence of her last period in June 2005 supports a finding that the mother knew she was not pregnant in late June/early July 2005 and that and she lied to the Respondent in order to obtain two semen samples.
168.I am satisfied the mother knew she was not pregnant when she obtained the semen samples from the following evidence.
169.The mother was asked in cross examination:
“But you didn’t go to see Dr Nahkle in May after the clotting or after the telephone conversation with him that you might have miscarried?”
170.The mother responded:
“No, not that day”
171.The mother was asked :
“Ma’am, your evidence is that you believed you were pregnant and the pregnancy continued until sometime in May/June 2005.’
172.The mother agreed.
173.The mother was asked :
“But you just answered that you had a huge bleed, clotting and all sorts of things so bad in late May/June that you rang the doctor and he said “I think you have miscarried”.
174.The mother replied:
“He said I possibly miscarried”.
175.The mother was asked why she do not then see a doctor .
176.The mother replied:
“I have had it before with my daughter and my son.”
177.The mother was asked :
“But you go and tell people you are pregnant?”
178.The mother said:
“because I believed I was.”
179.The mother was asked ;
“based on what?”
180.She answered:
“because he said to me if it is still ongoing he said it can go on and on.”
181.The mother asked again why she did not go and have herself checked and she said:
“well I had had that with Luke and Sarah and my little still born baby so I had worse pain so I was okay”.
182.Dr Nahkle has consultation notes for the mother for 26 May 2005, 4 June 2005, 20 June 2005 and September 2005. He does not mention clotting in those notes.
183.The mother wis asked:
“Wouldn’t you want to know if you had been pregnant? You are bringing this application and you have to convince me that your history is accurate.”
184.The mother said:
“But I didn’t have any other bleeding. I only had it for those one or two days, and I didn’t think it just stopped and I thought that ok, maybe it’s like what I had with Luke and Sarah”
185.I then asked :
“But why didn’t you see your doctor. If you are pregnant you don’t do certain things. You don’t eat certain foods, you may not go certain places, you may not be around cigarette smoke, you may not have a glass of wine. Didn’t you want to know?”
186.The mother said:
“At that time, your Honour, I was going through a lot. I was depressed about what had happened. I had two fractured feet. There was just so much going on, I was seeing counsellors. At that time it was not high on my level of priorities”.
187.I asked “What? Whether you were pregnant or not?.
188.She answered:
“The other things with my feet and everything else, the way I was feeling about things was very different.”
189.This position is inconsistent with the mother’s evidence that in late June 2005 she was so concerned about the health of her unborn child that she wanted the Respondent’s semen to undergo genetic testing.
190.The mother was asked when she began to care. She said:
“I saw Emily (not her real name) from the deli centre and she proposed some things to me and put some things into my head and that I should care about the pregnancy, I should care about other things, I should care about this and that, I should care about it”.
191.Ms Gillies put to the mother that it was farcical for her to suggest she was so worried about genetic defects in late June 2005 that she obtained semen samples from the Respondent - a person she said had assaulted her and yet had not checked to see if she was still pregnant after heavy bleeding and clotting in late May/early June 2005.
192.I agree with this submission. The mother’s conduct in late May/ early June 2005 is inconsistent with her conduct in late June. The Mother may have been pregnant when she had her heavy bleeding in late May early/June 2005. The Court will never know.
193.I find the mother was not pregnant when she obtained the semen samples from the Respondent in late June early/July 2005, that the mother could not have believed she was pregnant at that time and that the mother knew she was not pregnant at that time.
194.It is apparent that the mother lied to the father in June 2005 in every aspect of why and for what purpose she needed the semen samples. She was not pregnant and she knew she was not pregnant. That had been confirmed by her clotting and bleeding in late May/ early June 2005, the telephone attendance on Dr Nahkle and her statements later in July and September to other doctors that her last menstrual period had been in mid June 2005.
195.It is clear from cross examination by Ms Gillies that after the alleged assault of 16 April 2005 the mother continued to text message and invite the Respondent over to her home, she wished to meet with him to discuss issues such as the Apprehended Violence Order with him. She invited him over for beef stroganoff on one occasion and, from the evidence as I read it, pursued the Respondent. Had she not text messaged him, rung him, gone to see him, it is highly unlikely that the Respondent would have had anything to do with her.
196.One explanation for her behaviour is that the mother had an ulterior purpose in obtaining the semen samples.
197.It was put to the witness that she had gone to great pains to ensure that she was never left alone with the semen sample. Clare was with her on each occasion at her home and the mother described the trip from the Respondent’s home to her home in great detail.
198.It was put to the witness that the only reason she went to such pains was that she knew the Respondent asserted the last time they had sexual relations was on 15 April 2005, and that from his point of view the only way she could have become pregnant was if she did something with the semen sample without his consent in late June/early July 2005.
199.The mother maintained she obtained the semen sample because she was concerned about marijuana use by the Respondent. It became clear in evidence from the mother herself that she was aware the Respondent had significant problems with his sinuses and that he could not tolerate cigarette smoke. This is but another lie perpetrated by the mother
200.The mother admitted, in cross examination, that she lied to the Respondent to obtain a semen sample on more than one occasion. The mother has lied to the Respondent on many occasions.
201.In the face of the lies the mother admits she has made and my findings of her pattern of lying she asks me to accept her evidence that she and the Respondent had sexual intercourse on the night of 24 June 2005 when this is denied by the Respondent.
202.The Respondent denies sexual intercourse took place although admits opportunity. He and the mother were together due to another of the mother’s lies namely that she needed a sample of the Respondent’s blood for genetic testing of her unborn child. This is a child I have found she could not believe she was still pregnant with in late June 2005.
203.The mother was very keen to continue the relationship with the Respondent. It is fairly clear that one significant way the mother believed the relationship could be maintained was for her to still be pregnant.
204.I find Gloria was conceived some time in late June/early July. I can only make that finding because of her birth. Otherwise I am unable to rely on any evidence given by the mother concerning her history of pregnancy, last menstrual flow, or bleeding.
205.The mother was mortified in the witness box when it was put to her that she used the semen sample to impregnate herself. She said:
“It is absolutely stupid. It is hideous.”
206.It was put to her that she knew that that was the allegation. She said:
“I know you guys may think that, but no, it definitely, definitely did not happen”.
207.It was put to the witness that if it was her intention to take the semen sample for genetic testing on either the first or second occasion, there was no need for her friend Clare to be present and witness what she did. That logic is inescapable.
208.I find the only reason the mother had Clare at her home waiting for her return was so that Clare would be in a position to give evidence of what the mother did, with what Clare believed was a semen sample. However, Clare had no idea whether it was a semen sample or not. The mother told her it was a semen sample. The mother is not a witness of truth.
209.Clare’s evidence was given in an honest and straightforward way. She agreed with Ms Gillies that the mother’s plans for genetic testing of the semen had no prospect of success. The mother had ample time, from when the semen was collected to when she arrived at her home, to do whatever she chose to do with it. There is simply no evidence that what Clare observed being flushed down the toilet was semen.
210.The mother said she needed Clare there so she could leave Luke at home whilst she went to the genetic laboratory to drop off the semen sample. However it was put to the mother why would that be necessary if she was just dropping the sample off for testing. In circumstances where the mother took Luke to the Respondent’s home when the semen was being collected the mother’s answer did not assist at all.
211.It was put to the mother that had she been serious about having the semen sample genetically tested, she would have made enquiries, both as to time and cost of such procedures, well before collecting the sample. The witness did not answer those questions.
212.The mother agreed she could not afford the testing. She was asked why she went back to get a second sample. She answered:
“Because I thought other places I may have been able to go through Medicare, I may have been able to get it cheaper, get a discount being a single mother”.
213.She was asked whether she had made any enquires prior to getting the second sample. The mother answered:
“No, not straight away.”
214.It was put to the witness the testing was never going to happen. The witness answered:
“Well I was definitely living in hope that it would.”
215.She was asked “How? By some process of magic?” The witness replied “I didn’t know what I was doing. I had never done this before.”
216.I find the mother never had an intention to have the semen genetically tested. Clare agreed her plan had no prospect of success.
217.I cannot and do not accept the mother’s story. I am unable to accept her evidence that the last occasion she and the Respondent had sexual intercourse was on 24 June 2005 as I cannot accept any evidence she gives if it is not objectively proven or agreed.
218.None of the mother’s assertions make sense. The mother’s story only makes sense if I accept she collected the semen in order to impregnate herself.
The respondent’s evidence
219.The Respondent on the other hand impressed me as a witness of truth.
220.He has never wanted to be a father and has nothing to do with Gloria. He wanted the child to be adopted. He maintained from the outset it was not possible for him to be her father as the last time they had sexual intercourse was on 15 April 2005 and readily agreed to DNA testing.
221.He was most distressed by the mother’s Apprehended Violence Order proceedings. I accept his evidence that he really wanted nothing to do with the mother after that time. The mother pursued him and he did meet up with her. He said he thought he could talk her out of the Apprehended Violence Order. I accept that evidence.
222.
He said he underwent the tests she asked of him because he wanted to do the right thing by the child if there was anything wrong.
I accept that evidence. I do not understand why he does not want to have anything to do with the child now she is born but I accept that this is his position.
223.He made concessions where there was an inconsistency in his affidavit and oral evidence such as admitting the mother assisted him to produce a semen sample.
Findings in relation to Declaration under Child Support Act
224.The Respondent’s evidence is preferred to that of the mother. The mother is not a witness of truth or credibility. I am unable to accept anything she says unless it is proven by objective evidence. I am concerned that the mother has a problem with the truth and that she has told so many lies to so many people she is unable now to know where the truth lies. I agree with Dr Hill there is some functional overlay with the mother.
225.I am satisfied the mother impregnated herself with the semen she obtained from the Respondent under false pretences and set about a course of conduct to ensure she maintained a relationship with him by carrying and giving birth to his child.
226.I find Gloria was conceived by an artificial conception procedure and thus the respondent is not a parent within the meaning of section 60H of the FLA Act as he is not the mother’s husband nor her de-facto and is presumed by the relevant prescribed law not to be the father.
227.This finding results in the Respondent being successful and entitled to the declaration sought. As a consequence the mother is unable to claim child support from him under the CSA Act.
Claim for child bearing expenses
228.Turning now to Section 67B and the claim for Child Bearing expenses.
229.This section deals with the liability of a “father” not a parent which is the definition for Child Support purposes.
230.Reading from Butterworth’s Australian Legal Dictionary “father” is defined as :
(a)A male parent;
(b)In relation to an adopted child, the adoptive father;
(c)In relation to an ex-nuptial child includes a person who by his acts or words recognises the child as his, or who has been found by a court to be the putative father of the child.
231.The Respondent is not the putative father of this child. The Respondent is the child’s biological father but is he a father for child bearing expenses purposes?
232.This issue only arises because I have found Gloria was conceived by an artificial conception procedure.
233.Justice Fogarty in B& J says:
“In terms of statutory construction, in the absence of a definition, the question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law and that is clear from the decision of Collector of Customs v Agfa Guvaert Limited (1996) 186 CLR 389.”
234.Justice Fogarty said that section 60H of the Family Law Act 1975 is a purposive law. The purpose of the law was to ensure that when artificial conception procedures were carried out that the husband and wife or de facto couple are regarded as the father and the mother of the child, ie. the parents of the child and not the ovum or sperm donor. That is clear from the Status of Children Act 1996.
235.Justice Fogarty says:
“This uniformity of approach is far from coincidental. In July 1980 the Standing Committee of Commonwealth and State Attorneys-General determined that uniform legislation on the status of children born as a result of artificial insemination by donor treatments should be enacted in all Australian jurisdictions, and agreed that the legislation should provide that:
"a husband who consents to his wife being artificially inseminated with donor sperm shall be deemed to be the father of any child born as a result of the insemination;
the sperm donor shall have no rights or liabilities in respect of the use of the semen; and
any child born as a result of AID (artificial insemination by donor) shall have no rights or liabilities in respect of the sperm donor."
236.His Honour, Justice Fogarty points out that section 60H(3) of the Family Law Act 1975 is a:
“subsection that allows for the prescription of a positive (''the child is a child of a man'') but not the prescription of a negative (such as that the donor ''has no rights and incurs no liabilities''). The effect of this agreed position in the States and Territories is that in relation to children who are born as a result of artificial conception procedures in circumstances not covered by (1) there is no male parent who might exercise parental responsibilities or be subject to the liabilities of a parent.”
237.Section 60H(3) of the Family Law Act 1975 (Cth) is complementary with the Status of Children Act 1996 (NSW) regarding the artificial definition of a parent where a child is born as a result of an artificial conception procedure which I have found is the case with Gloria.
238.When read together the sections practically achieve a result which is to deem a non-biological father who is a husband or de-facto of the mother as the male parent or father of the child and by operation of that definition, exclude the biological father as the male parent and father of the child for those purposes.
239.It is obvious the complimentary state and federal legislation was enacted for sound public policy reason. It is vital to ensure that where married or de-facto partners have undergone a successful artificial conception procedure that they are for state and federal law purposes regarded as the parents of, and the mother and father of the child. They, and not the biological mother or father have parental responsibilities and obligations for the child under Sate and Federal Law.
240.The issue of a biological parent spending time with and having a relationship with a child is a separate matter under the FLA Act The matters under sub-section 60CC (2) (3) and (4) of the FLA Act would need to be addressed to ensure a time with order was in the best interests of the child. The artificial definition of a parent is not particularly relevant to such an enquiry.
241.Her Honour Justice Brown in Re Mark (2003) FLC 93-173 held that section 60H of the FLA Act does not purport to be an exhaustive definition of a “parent” but instead enlarges, rather than restricts, the categories of people who may be regarded as the child’s parent including non biological parents.
242.One possible consequence of Justice Brown’s position is that a child may have four parents. That is, the ovum donor, the sperm donor, the birth mother, and the husband or de-facto of the birth mother.
243.I have formed the view that the particular facts and circumstances of this case can be distinguished from those in Justice Guest’s decision in Re Patrick (2002) FLC 93-096, Justice Brown’s decision in Re Mark, and B & J, Justice Fogarty’s decision. In all those matters the artificial conception procedure was carried out consensually and with the express knowledge, purpose and understanding of the semen donor to create a child. That is not the case here. The mother deceived the Respondent at every turn.
244.The mother’s own evidence is that she told the Respondent it was her intention to use the sperm for genetic testing. She did not give the Respondent any other reason for wanting a sample of his semen. No genetic testing was ever carried out by her and I found she never had an intention to carry out genetic testing. The Respondent only agreed to his sperm being used for the purpose of genetic testing.
245.On the particular facts of this matter I find that section 60H of the FLA Act is an exhaustive definition of the Respondent’s rights and obligations for child bearing expenses as the biological father of a child conceived by an artificial conception procedure for the following reasons.
246.The word father in section 67B of the FLA Act must be referable to whether he is also a parent for the purposes of section 60H of the FLA Act.
247.The second limb of section 60H is whether he is a father under a prescribed legislation. The Respondent is not a father under the prescribed legislation.
248.I am further satisfied this is a correct interpretation when I look at the intention and purpose of section 60H being to ensure that, consistent with state legislation, sperm donors have neither the rights nor obligations of parents under relevant laws. The Respondent is in the same position as an anonymous sperm donor consequent upon my findings that the mother perpetrated a fraud on him in obtaining two semen samples in order to impregnate herself.
249.Thirdly the word father can mean nothing other than a male. The word parent connotes both male and female. As females give birth to children the only “parent” who would be liable under section 67B of the FLA Act is the male, be he the biological father from sexual intercourse or the artificially deemed male parent. Thus there was no necessity for section 67B to deal with the liability of a “parent,” it needed only to deal with the liability of a father. The words are interchangeable in this matter.
250.In these circumstances I read “father” under section 67B as a male parent. To read it any other way would not sit with the clear intention of the complimentary state and federal legislative schemes. It is the intention of the state and the federal legislation to ensure that anonymous sperm and ovum donors have neither rights and/or liabilities as a parent and the child has no right or obligation to the biological parent.
251.If as a matter of statutory construction I found to the contrary this would result in a biological father being liable for child bearing expenses under the FLA Act and not liable for Child Support under the CSA Act.
252.It maybe that for the purposes of the FLA Act the finding I have made may be different where the sperm or ovum donor is known to both parents and there has been an agreed and consensual arrangement between them to produce a child. I am not dealing with such a matter. The lack of consent and deceit in this case sets it apart from the authorities I have referred too.
253.On the facts of this case I find the word father in section 67B of the FLA Act to have the same meaning as male parent which is the natural meaning of the word father.
254.I have found that the Respondent is not a parent under section 60H of the FLA Act and I find he is not a father under section 67B of the FLA Act.
255.It was for the mother to satisfy me that the Respondent was a father under section 67B of the FLA Act. She has not satisfied me.
256.I have found the Respondent is not a parent for the purposes of the CSA Act. The consequence of my finding to the contrary would have been a significant financial impost on the Respondent
257.The findings I have made are a significant financial loss to the mother and ultimately the child, as her biological father has no obligation at law to support her because of the circumstances I have found regarding her conception.
258.I do not see I am entitled to lave regard to any notion of the best interests of the child in coming to this decision. My decision is based on matters of proof, which of the party’s evidence I accept and the applicable law.
259.There was little room for discretion once I had determined the facts and applied the law as I saw it other than to consider the justice and equity of my decision.
260.I have determined it would be unjust and inequitable to find the Respondent liable as father under section 67B of the FLA Act on the facts of this matter being in essence the deceit perpetrated upon him by the mother.
261.I was unable to accept the mother’s evidence on any issue unless it was proven by objective evidence or agreed as a fact. The Respondent’s evidence was preferred in all aspects.
262.In those circumstances the mother’s application for child bearing expenses is dismissed.
I certify that the preceding two hundred and sixty-two (262) paragraphs are a true copy of the reasons for judgment of Henderson FM
Associate: D.Ferreira
Date: 28 September 2007
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