CRISP & CLARENCE - [2015] FamCA 964

FAMILY COURT OF AUSTRALIA

CRISP & CLARENCE

[2015] FamCA 964

FAMILY LAW – PARENTAGE – where the parties underwent an in-vitro fertilisation procedure (IVF) – where the applicant is the biological progenitor of the child – where there was a donor sperm – where the respondent is the surrogate mother – where the respondent opposes any finding that the applicant is a parent – where the issue for determination is whether the applicant is a parent of the child either by reference to state legislation or the Family Law Act 1975 (Cth) – where the child was born in South Australia but the fertilisation procedure occurred in another state – where if it is found that the parties were in a de facto relationship then the child will be considered a child of the respondent and the applicant.

FAMILY LAW – DE FACTO RELATIONSHIP – consideration of whether a de facto relationship existed – where the date of separation is in dispute – where it is found that notwithstanding the physical separation of the parties the de facto relationship endured and continued beyond the date of conception.

FAMILY LAW – CHILDREN – parental responsibility – where the parties live in different states – where it is ordered that both parties have shared parental responsibility for the child – where it is ordered that one party have sole parental responsibility of the child in respect of education and health – where it is ordered that the child live with the respondent and spend gradually increasing time with the applicant.

Acts Interpretation Act 1954 (Qld) – s 32DA
Family Law Act 1975 (Cth) – s 4AA, s 60B, s 60CA, s 60CC, s 60H, s 61DA, s 65DAA, s 121
Family Law Regulations 1984 (Cth) – reg 12CAA
Family Relationships Act 1975 (SA) – s 10A, s 10B, s 10C(3), 11A
Status of Children Act 1978 (Qld) – s 19E, s 19F

AMS v AIF (1999) 199 CLR 160
Bullivant & Holt [2012] FamCA 134
Cadman & Hallett (2014) FLC 93-603
Donnell v Dovey (2010) FLC 93-428
Dundas & Blake [2013] FamCAFC 133
Ellison & Karchanit (2012) Fam LR 33
Groth & Banks (2013) 49 Fam LR 510
Hunt v Minister for Immigration and Ethnic Affairs (1993) 113 ALR 509
Jonah & White (2012) FLC 93-522
Lipman v Lipman (1989) 13 Fam LR 1
Mason & Mason & Anor [2013] FamCA 424
Mazorski v Albright (2008) 37 Fam LR 518
MRR v GR (2010) 240 CLR 461
Pavey & Pavey (1976) FLC 90-051
Re Mark: An Application Relating to Parental Responsibility (2003) FLC 93-173
Re Patrick (2002) 28 Fam LR 579
Roy v Sturgen (1986) DFC 95-031
Todd & Todd (No 2) (1976) FLC 90-008
Weston v The Public Trustee (1986) DFC 95-032

APPLICANT:

Ms Crisp

RESPONDENT:

Ms Clarence

FILE NUMBER:

ADC

3416

2013

DATE DELIVERED:

9 November 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

20, 21, 22 and 23 April 2015 and 24,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CRISP & CLARENCE

Details

AGLC: CRISP & CLARENCE [2015] FamCA 964
Case: [2015] FamCA 964
Decision Date: 9 November 2015

CaseChat Overview and Summary

The case of Crisp & Clarence concerned a dispute between the applicant, the biological progenitor of a child conceived via IVF using donor sperm, and the respondent, the surrogate mother. The central issue before Berman J was whether the applicant qualified as a parent of the child, either under state legislation or the *Family Law Act 1975* (Cth). The child was born in South Australia, but the IVF procedure took place in another state. A further consideration was whether the parties had been in a de facto relationship, which would impact the child's legal status.

The court was required to determine two primary legal issues: first, whether the applicant was a parent of the child, and second, whether a de facto relationship existed between the parties, particularly in light of a disputed date of separation. The court also had to consider the parental responsibility and living arrangements for the child, given the parties resided in different states.

Berman J found that a de facto relationship had endured beyond the date of conception, notwithstanding a physical separation. This finding was crucial in establishing the applicant's parental status. The court ultimately ordered shared parental responsibility for the child, with the respondent having sole responsibility for the child's education and major long-term health decisions, subject to consultation with the applicant. The child was ordered to live with the respondent, with gradually increasing time to be spent with the applicant. The court also made detailed orders regarding the child's time with each parent, including provisions for travel, communication, and the amendment of the child's birth registration to name the applicant as a parent.

Orders

Orders of the court

That all previous parenting orders are discharged.

That the applicant and the respondent have shared parental responsibility for the child Y born … 2012 (“the child”).

That the respondent have sole parental responsibility in respect of the child for the following:

(a) the child’s education both current and future; and

(b) major long term issues in respect of the child’s health.

Prior to making a decision in the exercise of the respondent’s sole parental responsibility for the child’s health and education pursuant to these orders, the respondent shall:

(a) advise the applicant in writing as to any decisions being made;

(b) seek her written response about that decision permitting her sufficient time to property consider the decision;

(d) advise the applicant in writing as soon as reasonably practicable of the result of the decision;

(e) if there is any emergency situation that does not reasonably permit the respondent to consult with the applicant in advance, the respondent will make any decision that is in the child’s best interests (to address that emergency) and will as soon as is reasonably practical notify the applicant of the emergency, the advice provided and of the decision made.

That the child live with the respondent.

That the applicant and respondent do all acts and things and sign all documents necessary to cause the child’s birth registration details to be amended to ensure the applicant is named as a parent of the child on the child’s birth certificate.

That the child spend time with the applicant from the commencement of these orders as follows:

(a) until 1 December 2016, on the first weekend of a six week recurring cycle from 9 am to 5 pm Friday and from 9 am Saturday to 5 pm Sunday in Adelaide;

(b) from 2 December 2016 to 15 December 2017, on a six week recurring cycle from 9 am Friday to 5 pm Sunday or if the following Monday is a public holiday in Adelaide and at the election of the applicant until 5 pm on Monday;

(i) from 5 pm Friday to 5 pm Sunday in Adelaide SAVE for orders 7 (c) (ii) herein;

(ii) from 5 pm Friday to 3 pm Sunday in Brisbane or Sydney at the applicant’s discretion on four weekends per annum during the school term when the child would be spending time with the applicant pursuant to the six week cycle being weekends in the following periods:

· late February/early March

· late May/early June

· late June/early August

· late October/early November

That should the applicant be unable to spend time with the child with respect to the orders made herein THEN on or before 14 days prior to the commencement of her time with the child the applicant will notify the respondent in writing, by text message or email that she is not able to spend the entirety of the time as provided by these orders with the child and if so what period, if any.

That to give effect to orders that provide the opportunity for the child to travel to Brisbane or Sydney, this shall occur by ordinary domestic airline and save as to any agreement between the applicant and the respondent, the applicant or her parents shall accompany the child on the flight.

10.

That in semester 3, 2016 gazetted Adelaide school holiday period, the child’s time with the applicant pursuant to order 7(a) shall be extended by a further two (2) nights, (four (4) nights in total).

11.

That in December (Christmas) 2016 Adelaide school holiday period, the child’s time with the applicant pursuant to order 7(b) shall be extended by a further three (3) nights (five (5) nights in total).

12.

During the 2nd and 3rd semester of the Adelaide school holiday period (but not the first term 2017) commencing 2017 and thereafter, the child’s time with the applicant shall be as follows:

(a) the first half of the short end of term school holiday periods with the applicant in even numbered years to commence at 5 pm on the last day the child attends school pursuant to her school semester term, with such holiday time to conclude at the mid-point as defined in order 12(c) herein;

(b) the second half of the short end of term school holiday periods with the applicant in odd numbered years to commence at the mid-point in order 12(c) herein, with such holiday time to conclude on the last day before the child would resume her schooling;

(i) if there is an odd number of full days in the school holiday period excluding the last day of school and the commencement day of school, the collection time is to be 10 am on the middle day of the school holiday period;

(ii) if there is an even number of full days in the school holiday period excluding the last day of school and the commencement day of school, the collection time to be 5 pm on the last day of the first half of the school holiday period.

13.

That all holidays including Christmas holidays shall be defined as a period from the conclusion of the last day that the child attends school at the end of the school term until the first day of the child’s next school term.

14.

During the Adelaide Christmas school holiday period commencing December 2017, the child’s time with the applicant shall be as follows:

(a) for a period of two (2) weeks to commence at the mid-point as defined in order 12(c) herein, with such holiday time to conclude at 5 pm fourteen (14) days thereafter.

15.

As and from the Adelaide Christmas school holiday period commencing December 2018, the child’s time with the applicant shall be as follows:

(a) the first half of these holiday periods in even numbered years to commence at 5 pm on the last day the child attends school pursuant to her school semester term, with such holiday time to conclude at the mid-point as defined in order 12(c) herein;

(b) the second half of these holiday periods in odd numbered years to commence at the mid-point as defined in order 12(c)(i) herein with such holiday time to conclude on the second to last day before the child would resume her schooling.

16.

That orders providing for the child to spend time with the applicant during school term periods are to be suspended during all school holiday periods.

17.

That in respect to the applicant’s air travel and incidental expenses associated with her travel to Adelaide to spend time with the child, the applicant shall be responsible for her air travel and incidental expenses.

18.

That in respect to the respondent’s air travel and incidental expenses associated with her travel to Brisbane or Sydney to collect the child at the conclusion of the applicant’s time pursuant to Order 7(c)(ii), she shall be responsible for her air travel and incidental expenses.

19.

Other than as provided for by these orders, the applicant shall be responsible for the travel costs of the child.

20.

On all other occasions other than as provided for by these orders the applicant is responsible for and paying the child’s airfares to and from Adelaide PROVIDED that the respondent is responsible for booking and paying for the child’s airfares from Brisbane or Sydney to Adelaide.

21.

For the purpose of the child spending time with the applicant in Adelaide, all handovers are to occur at the respondent’s residence or at such other place as the parties may agree.

22.

The respondent is to facilitate the child having Facetime communication with the applicant as follows:

(a) each week on Sunday at 5 pm South Australian time or at such other time as the parties may agree AND on any other occasion as maybe instigated or requested by the child;

(b) on Mother’s Day should this fall on a day when the applicant is not spending time with the child, at 9 am South Australian time;

(c) on the applicant’s birthday should this fall on a day when the applicant is not spending time with the child, at 9am South Australian time;

(d) on Christmas Day should this fall on a day when the applicant is not spending time with the child, at 9 am South Australian time;

(e) on the child’s birthday should this fall on a day when the applicant is not spending time with the child, at 9 am South Australian time.

23.

When the child is spending time with the applicant during school holiday periods, or on Mother’s Day, the respondent’s birthday, Christmas Day or the child’s birthday, the applicant is to facilitate the child having Facetime communication between the respondent and the child at 9 am Queensland time on each of those occasions.

24.

That the applicant will facilitate the child having Facetime communication with the respondent at such other times as may be instigated by the child.

25.

That each party keep the other party informed of changes to the respective parties residential addresses and/or home telephone numbers and/or mobile phone numbers within seventy two (72) hours in writing of any such change.

26.

That the respondent provide to the applicant forthwith the names, contact details and addresses of any and all medical practitioners (the child’s general practitioner and any other health professionals) who are involved in treating or caring for the child.

27.

Both the applicant and the respondent are entitled to receive at their own request in writing and expense any and all information in relation to the health and wellbeing of the child, including but not limited to details of any illness suffered by the child and the treatment required and that this order shall constitute an authority to each of the child’s medical practitioners to provide that information.

28.

That each party inform the other as soon as is reasonably practicable of any significant medical condition, health issue or significant illness suffered by the child and to authorise any treating medical practitioner to give the other parent such information as they may reasonably request pertaining to the condition.

29.

That in the event that the child is prescribed medication or a particular form of treatment which is required to continue into a period when the other parent will be caring for the child any medication or materials required for treatment will be sent with the child along with a description of the condition for which it is required and appropriate discharge or method of treatment.

30.

That in the event that an urgent medical decision must be made by either party and the other parent is not able to be contacted after all reasonable attempts have been made or if a parent fails to respond to a reasonable request for information, the parent caring for the child will make the decision and inform the other parent as soon as is reasonably possible.

31.

That both the applicant and the respondent shall be noted as emergency contacts at the child’s day-care and schools.

32.

That the applicant and respondent authorise the child’s day-care/school to provide to the other parent all information and documents about the child including but not limited to copies of all school reports and any other reports of the child’s progress and behavioural issues and all notices received from the school including newsletters, parent letters and general notices and that this information shall constitute an authority to the child’s day-care/school to provide that information.

33.

That the parties and each of them are able to attend parent/teacher meetings, sporting and/or special events and any other day-care/school activities to which parents are invited.

34.

That each party keep the other party informed of any extra-curricular activities engaged in by the child and each party authorise the other to communicate with and obtain copies of all relevant information concerning those extra-curricular activities from the organisers of same PROVIDED that any extra-curricular activity that is likely to impact upon the other parties time with the child shall be the subject of agreement and that in any event any obligation created by the respondent in respect of extra-curricular activities for the child will not place any obligation on the applicant to attend with the child in respect of the extra-curricular activities unless the activity has been the subject of agreement between the parties.

35.

That the parties be permitted to upload photos of the child to their respective secure Facebook page PROVIDED the particular Facebook page is available for viewing by the immediate and extended families of the parties.

36.

That the applicant and the respondent are restrained and an injunction is granted restraining them from allowing any other party to post information in respect of the child on social media sites or from posting any narrative in respect of these proceedings and the dispute between the parties.

37.

That during the time the child spends with the parties pursuant to these orders the child be permitted to travel with the respondent within Australia during the time the child spends with her AND commencing 15 December 2017 the child be permitted to travel with the applicant within Australia during the time she spends with her.

38.

That the applicant and the respondent and their agents are restrained from taking or sending or attempting to take or send the child from the Commonwealth of Australia unless agreed in writing by the parties.

39.

That neither party denigrate the other, their respective partners, families or friends directly or in the presence or hearing of the child.

40.

That the respondent refrain from discussing with the child these proceedings (SAVE AND EXCEPT for the terms of these orders in so far as to how the orders affect the child).

41.

That the applicant refrain from discussing with the child these proceedings (SAVE AND EXCEPT for the terms of these orders in so far as to how the orders affect the child).

42.

That the applicant and respondent are to forthwith do all such acts and things as are necessary to obtain a passport for the child which shall be held and retained by the respondent unless with the consent in writing of the parties overseas travel with the child is permitted, in which case the passport will be provided to the applicant for the period including travel preparation (but not less than thirty (30) days prior to travel), the period of travel and a period of seven (7) days thereafter whereupon the passport will be returned to the respondent.

43.

That in the case of emergency concerning the child or otherwise provided for in these orders the parties shall communicate with each other by telephone, but in all other circumstances the parties shall communicate by email, text messaging and any other form of communication as may be agreed.

44.

That all proceedings be removed from the pending list of cases.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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