FREEMAN & BOWMAN
[2015] FamCA 141
•2 March 2015
FAMILY COURT OF AUSTRALIA
| FREEMAN & BOWMAN | [2015] FamCA 141 |
| FAMILY LAW – CHILDREN – declaration of parentage – where the parties were in a same-sex relationship – whether parties were in a de facto relationship at the time of the artificial conception procedure – where there is no appearance by the respondent – where the respondent has filed material in the proceedings. |
| Family Law Act 1975 (Cth) s60H |
| APPLICANT: | Ms Freeman |
| RESPONDENT: | Ms Bowman |
| FILE NUMBER: | BRC | 9969 | of | 2013 |
| DATE DELIVERED: | 2 March 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 2 March 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Balzamo |
| SOLICITOR FOR THE APPLICANT: | David Hunter Solicitors |
| SOLICITOR FOR THE RESPONDENT: | No appearance |
Orders
IT IS DECLARED THAT
Pursuant to s 60H of the Family Law Act 1975 (Cth) the child B born … 2011 is a child of the Applicant and Respondent.
AND IT IS ORDERED UNTIL FURTHER ORDER THAT
That part of the Application in a Case filed 15 December 2014 by which the Applicant seeks interim parenting orders is adjourned to a date to be fixed.
The Applicant has leave to file and serve written submissions within seven (7) days in relation to any further order sought.
In the event that the child B returns to Australia, each of Ms Freeman born … 1988 and Ms Bowman born … 1988 and their servants and agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child B, a male born … 2011 from the Commonwealth of Australia.
In the event the child B returns to the Commonwealth of Australia, he is thereafter restrained from leaving the Commonwealth of Australia.
It is requested that the Australian Federal Police give effect to the preceding order by placing the names of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist for a period of two years.
Upon expiration of the period referred to in Order 6 and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child or children’s names from the Watchlist.
The parties have liberty to apply on the giving of 48 hours’ notice in writing.
AND IT IS FURTHER ORDERED
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
IT IS NOTED
If after the expiration of the period set out in Order 6 above any parent seeks that the child’s name remain on the Watchlist for a period beyond the period specified that party must file and serve an application and an affidavit setting out the evidence which supports that application in the Family Court of Australia or the Federal Circuit Court of Australia.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Freeman & Bowman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 9969 of 2013
| Ms Freeman |
Applicant
And
| Ms Bowman |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
The court has before it an application for a declaration pursuant to section 60H of the Family Law Act 1975 (Cth). It arises out of the following circumstances.
The parties to this proceeding were in a relationship and lived together from about January 2011 until their separation in late December 2012. During that time B was born, namely in 2011. He is now, therefore, about three years and three months of age.
The application is sought on the basis of a fulfilment of the terms of section 60H of the Act. Section 60H(1) of the Act provides as follows:
If
(a)a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent), and
(b)either
(i)the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure,
(ii)…
then whether or not the child is biologically a child of the woman and of the other intended parent, for the purpose of this Act
(c)the child is a child of the woman and of the other intended parent; and
(d)if a person other than the woman and the other intended parent provided genetic material – the child is not a child of that person.
I have deliberately restrained my reference to the terms of section 60H(1) to those aspects of it which are particularly relevant to this particular case. Extrapolating then, the section would require a declaration recognising that the applicant is a parent of the child if he was born to Ms Bowman as a consequence of the carrying out of an artificial conception procedure while Ms Bowman was a de facto partner of Ms Freeman and Ms Bowman and Ms Freeman consented to the carrying out of the artificial conception procedure and any other person who provided genetic material – in this case, the person to whom I will refer as “the donor” for the purpose of these reasons – consented to the use of the material in an artificial conception procedure.
It is clear on the evidence before me that the child was born as a result of the carrying out of an artificial conception procedure. It is also clear, I think, on the material provided to me, that the donor of such genetic material consented to its use in an artificial conception procedure.
The questions then requiring determination are whether:
a)at the time the child was born, Ms Freeman and Ms Bowman were in a de facto relationship, in the sense that Ms Bowman was a de facto partner of Ms Freeman; and
b)both Ms Bowman and Ms Freeman consented to the carrying out of the artificial conception procedure.
The determination of these outstanding issues occurs against a background where, during these proceedings, Ms Bowman filed a Response on 24 July 2014, in which she positively sought a declaration that the child is not a child of Ms Freeman and has filed two affidavits: the first on 24 July 2014 and the more recent on 23 September 2014.
It is clear, then, that she has been aware of the existence of the proceedings and has taken the steps, in the manner I have outlined, to participate in them.
When the matter first came before me on 3 February 2015, I was concerned to ensure that Ms Bowman was again made aware of the ongoing nature of the proceedings, particularly given the fact that a Notice of Ceasing to Act was filed by her former legal representative on 28 October 2014.
Consequently, I required, as part of the Order made on 3 February 2015, that Ms Freeman take steps to forward the material relied upon and a copy of the Order made that day to Ms Bowman via email - that being the only remaining method by which the court was aware communication could take place between the parties.
The terms of that order have been complied with. It is clear from the affidavit filed by the applicant’s solicitor today that, consistent with the terms of that order, email correspondence was directed to Ms Bowman. Accordingly, I am persuaded that she has had notice of these proceedings, including of the adjourned hearing today, as a consequence of compliance with the order made on 3 February 2015.
As has been made clear by pronouncements of eminent justices of the High Court, such as Kirby J in Allesch v Maunz (2000) 203 CLR 172, all that is necessary is that a party be afforded an opportunity to participate in a proceeding in which orders adverse to that party’s interests may be made. As his Honour sets out – and I summarise very roughly – it does not matter whether a party, through a decision of their own (whether avoidance, ignorance or otherwise) chooses not to participate: it is not the participation that is required but, rather, the affording of the opportunity to participate that is necessary in order to satisfy a requirement that parties, whose interests may be adversely affected, are properly afforded natural justice and procedural fairness.
As I’ve said, I’m well satisfied that this has been the case here. Additionally, the actions of the respondent in filing the material and a Response clearly confirm her, at least previous, participation in these proceedings.
The declaration sought – if I may return to that – then rests upon a finding that Ms Bowman and Ms Freeman consented to the carrying out of the procedure: all other matters, save for the existence of a de facto relationship at the time of the child’ birth, having been already determined.
The applicant gives evidence as to the nature of the relationship between the parties from January 2011 until December 2012. Her evidence clearly establishes that she provided financial support to the respondent and, after his birth, to the child. It further outlines the living arrangements between the parties, and the fact that, on her evidence, they held themselves out in public after the child’ birth as being partners in a de facto relationship.
The term “de facto relationship” is defined in section 4AA of the Family Law Act as follows:
(1)A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other, and
(b) the persons are not related by family, and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Additional assistance is provided to the Court in its determination of whether parties have a relationship as a couple by subsection (2) of that section. The matters which are to be included in a consideration about the existence or otherwise of a de facto relationship between two persons include the following:
(a)the duration of the relationship;
(b)the nature and extent of a common residence;
(c)whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support between the parties;
(e)the ownership, use and acquisition of property;
(f)the degree of mutual commitment to a shared life;
(g)whether a relationship is or was registered under a prescribed law of a state or territory as a prescribed kind of relationship;
(h)the care and support of children; and
(i)the reputation and public aspects of the relationship.
It is clear from subsection (3) of the section that no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether parties have a de facto relationship. The Court is, pursuant to subsection (4), entitled to have regard to such matters, and to attach such weight to any matter as may seem appropriate to the court in the circumstances of the case, in determining whether a de facto relationship existed between parties.
It seems to me on the evidence that I can be well persuaded the parties were in a de facto relationship at the requisite time. In arriving at this conclusion, I have had regard to the applicant’s evidence as to the time during which the parties were living together, the degree of financial support provided by her to the respondent and to the child after his birth; that during the time of their co-habitation they exhibited – perhaps albeit, as it turns out, in a transitory manner – a degree of mutual commitment to a shared life and that they held themselves out as being part of, and in, a de facto relationship in which the child was a part.
As I understand the material filed by the respondent, she raises some suggestion that the applicant did not consent to the carrying out of the artificial conception procedure which led to the child’s birth. That is a matter that is disputed by the applicant whose evidence is to the effect that she was, at all times, supportive of, and a part of, what she describes as a joint and mutual decision to have a child, and that she carried out, in a sense, her part of that agreement between the parties by providing financial and emotional support and by agreeing to support the applicant in her communications with the donor.
Even on the respondent’s material, it is clear that she considered her prospects (for want of a better word) of persuading the donor to provide genetic material to be enhanced if she was in a position to be able to hold herself out as being part of a couple. So much can be gleaned from reference to paragraph 20 of her affidavit filed 23 September 2014 where she says the applicant:
was aware that the opportunity for [her] to obtain a successful donor would be enhanced if [the parties] were a couple. As a consequence of [her] statement that [she] would move out, the applicant agreed that she would help [her], to a limited degree, in obtaining a donor.
Whilst the respondent continues in that paragraph to assert that the applicant stated on numerous occasions that she did not want the responsibility of a child and particularly – according to the respondent – not the financial responsibility of the same, it is clear that, on at least repeated occasions, the respondent relied upon the assertion that she and the applicant were a committed couple in a relationship as providing a foundation to persuade the donor to provide the genetic material ultimately provided.
In addition to that, there is contained in the affidavit material, as referred to by Counsel for the applicant, the references by the respondent to, and usage of the term, “we” - no doubt intended, or at least highly likely to be intended, to convey that the respondent was part of a relationship at the time she was seeking the provision of genetic material.
Additionally, in relation to the determination of whether the other intended parent - here the applicant - consented to the carrying out of the artificial conception procedure, I must take into account the contents of section 60H(5) which is as follows:
For the purpose of subsection (1), a person is to be presumed to have consented to an artificial conception procedure being carried out unless it is proved, on the balance of probabilities, that the person did not consent.
I am not persuaded here that the respondent has proved, on the balance of probabilities, that the applicant did not consent to an artificial conception procedure being carried out. I have arrived at that determination based on the reasons I have already expressed, the evidence to which I was taken by Mr Balzamo - being evidence originating in communications authored by the respondent herself - and the evidence given by the applicant in the affidavits relied upon as part of this proceeding.
I am, therefore, satisfied that the child was born as a result of the carrying out of an artificial conception procedure while the respondent was a de facto partner of the applicant and that both the applicant and the respondent consented to the carrying out of the artificial conception procedure.
As I have already determined that the donor consented to the use of the genetic material in an artificial conception procedure, the consequence of these findings is that, pursuant to section 60H(2), the child is a child of the applicant for the purposes of this Act. I make a declaration accordingly.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 2 March 2015.
Associate:
Date: 10 March 2015
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