GUSTZ & DENNISTON
[2019] FamCA 16
•22 January 2019
FAMILY COURT OF AUSTRALIA
| GUSTZ & DENNISTON | [2019] FamCA 16 |
| FAMILY LAW – CHILDREN – Parentage – artificial insemination – presumptions of parentage – whether same sex couple was in de facto relationship at time of artificial conception procedure – witness credibility – whether the procedure was consented to by the applicant – Family Court of Australia in Canberra exercising its cross-vested jurisdiction from the Supreme Court of the Australian Capital Territory. |
| Births Deaths and Marriages Act 1997 s 15 Family Law Act 1975 (Cth) ss 4AA, 60H, 69S and 69VA Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 9(3) Legislation Act 2001 (ACT) s 169(1) and (2) Parentage Act 2004 (ACT) ss 8, 11 and 19 Family Law Regulations 1984 (Cth) |
| Bernieres & Anor v Dhopal & Anor (2018)57 Fam LR 149 Clarence v Crisp (2016) 55 Fam LR 292 Crosby & Anor v Kelly[1][2012] FCAFC 96 Farnell v Chanbua (2016) 56 Fam LR 84 Fleming v Schmidt [2017] FamCAFC 12 H v P [2011] WASCA 78 Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131 Mason v Mason [2013] FamCA 424 Sinclair & Whittaker (2013) FLC 93-551 |
| APPLICANT: | Ms Gustz |
| RESPONDENT: | Ms Denniston |
| FILE NUMBER: | CAC | 1096 | of | 2017 |
| DATE DELIVERED: | 22 January 2019 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 30 and 31 January 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr G Howard |
| SOLICITOR FOR THE APPLICANT: | Farrar Gesini Dunn |
| COUNSEL FOR THE RESPONDENT: | Ms M Davis |
| SOLICITOR FOR THE RESPONDENT: | Women’s Legal Centre |
Orders
It is declared that:
a)For the purposes of the Family Law Act 1975 Ms Gustz is declared a parent of B, born … 2015.
b)Pursuant to s 19 of the Parentage Act 2004 (ACT) Ms Gustz is declared a parent of B, born … 2015.
It is ordered that:
a)Pursuant to s 15 of the Births Deaths and Marriages Act 1997 (ACT), Ms Gustz be included in the register kept under s 39 of the Births Deaths and Marriages Act 1997 (ACT) as a parent of B, born … 2015.
b)That Ms Gustz serve upon the Registrar General of the Australian Capital Territory a sealed copy of these Orders forthwith.
It is requested that:
a)In accordance with s 16 of the Births Deaths and Marriages Act 1997 (ACT) the Registrar General amend the register accordingly.
It is ordered that the matter is adjourned to 12 March 2019 at 2pm for further directions and for consideration as to whether the balance of the proceedings should be transferred to the Federal Circuit Court.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gustz & Denniston has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC 1096 of 2017
| Ms Gustz |
Applicant
And
| Ms Denniston |
Respondent
REASONS FOR JUDGMENT
These proceedings concern B (the child) born in 2015 to the Respondent. The proceedings concern parenting orders at large for the child, but firstly involve as a preliminary issue the determination of whether or not the Applicant is the child’s parent. This is a matter that has been split off from the proceedings as a whole and is to be determined first.
This issue arises because the parties were in a same sex relationship at the time of the child’s conception by artificial insemination, and at the time of his birth. The parties are in dispute as to whether the Applicant is one of the child’s parents.
By her Initiating Application filed 23 June 2017 the Applicant[1] seeks a declaration pursuant to s 19 of the Parentage Act 2004 (ACT) (‘the Parentage Act’). That provision confers jurisdiction on the Supreme Court of the Australian Capital Territory (ACT) to, under that Act, make a parentage declaration about a child. Pursuant to s 9(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (‘the Cross-Vesting Act’) this Court is vested with the jurisdiction of the Supreme Court in respect of civil matters. Accordingly, this Court is being asked to exercise the jurisdiction of the Supreme Court of the ACT in relation to the Parentage Act.
[1] Amended Initiating Applications were filed on 26 July 2017 and 31 January 2018 but did not change the basis of this portion of the application.
At the same time, despite there being no application to support it, the Applicant seeks a declaration of parentage pursuant to s 60H of the Family Law Act 1975 (Cth) (‘the Family Law Act’). It is apparent, from the case outlines, that each party has prepared her case to meet this second aspect, although it was not the subject of a filed application. Accordingly this aspect of the case will also be dealt with.
The Respondent opposes declarations being made under the Family Law Act or under the Parentage Act.
In the event that a declaration is made under the law of the ACT, the Applicant seeks further remedies under the ACT law that relate to an amendment of the child’s birth certificate.
Given that a portion of the proceedings were being conducted pursuant to the jurisdiction of the Supreme Court, and the uniform evidence law is applicable to that portion of the proceedings, the parties accepted that in the exceptional circumstances of this case it was appropriate that all provisions of the Evidence Act 1995 (Cth) be likewise applicable to the declaration sought pursuant to s 60H of the Family Law Act. Orders were made on 11 December 2017 pursuant to s 69ZT(3) of the Family Law Act to apply the aspects of the Evidence Act 1995 normally excluded by s 69ZT(1).
Pathways
As noted, the Applicant has sought relief under both Commonwealth legislation and ACT legislation. It is necessary to firstly examine what, of the relief sought by the Applicant, is available.
The Applicant nominated three different pathways for the relief that she seeks to be declared as one of the child’s parents. They are as follows:
a)By s 60H(1)(b)(i) of the Family Law Act;
b)By s 60H(1)(b)(ii) of the Family Law Act;
c)By ss 8 and 11 of the Parentage Act and then by s 69S of the Family Law Act.
The first and second pathways:
Section 60H of the Family Law Act provides a scheme for determining parentage where children are born as a result of an artificial conception procedure, as here.
Section 60H is relevantly extracted as follows:
Children born as a result of artificial conception procedures
(1) 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; or
(ii) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;
then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act:
(c) the child is the child of the woman and of the other intended parent;
…
(5)For the purposes 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.
The reference to a prescribed law of a territory includes, pursuant to regulation 12C of the Family Law Regulations 1984, s 11 of the Parentage Act.
Section 11 sets out presumptions as to parentage that arise if a person undergoes a procedure as a result of which the person becomes pregnant and provides as follows:
Presumptions arising from procedure
(1)This section sets out presumptions that arise if a person undergoes a procedure as a result of which the person becomes pregnant.
(2)The person is conclusively presumed to be a parent of any child born as a result of the pregnancy.
(3)If the ovum used in the procedure was produced by another person other than the person’s domestic partner at the time of the procedure, the person who produced the ovum is conclusively presumed not to be a parent of any child born as a result of the pregnancy.
(4)If semen used in the procedure was produced by another person other than the person’s domestic partner at the time of the procedure, the person who produced the semen is conclusively presumed not to be a parent of any child born as a result of the pregnancy.
(5)If the person undergoes the procedure with the consent of the person’s domestic partner at the time of the procedure, the domestic partner is conclusively presumed to be a parent of any child born as a result of the pregnancy.
(6)For subsection (5), a person is presumed to consent to the carrying out of a procedure in relation to the person’s domestic partner, but the presumption is rebuttable.
(7)The presumptions set out in this section apply—
(a)whenever the pregnancy happened and whether or not it resulted from a procedure carried out in the ACT; and
(b)in relation to any child born as a result of the pregnancy, whether or not the child was born in the ACT.
(8)However, this section does not affect the vesting in possession or in interest of any property that happened before the commencement of this Act.
(9)In this section:
procedure means—
(a)artificial insemination; or
(b)the procedure of transferring into the uterus of a person an embryo derived from an ovum fertilised outside the person’s body; or
(c)any other way (whether medically assisted or not) by which a person can become pregnant other than by having sexual intercourse with a person.
There was no dispute as to the applicability of these provisions. They formed the first two of three pathways identified by the Applicant as forming the basis of the Applicant being determined to be a parent.
The effect of these provisions is that if the parties were in a de facto relationship on 14 November 2014 (the time of carrying out of the artificial conception procedure), and, relevantly, the Applicant consented to the procedure, then the Applicant is a parent. Alternatively, if the Applicant was the domestic partner of the Respondent at the time of the procedure and the Applicant consented to the procedure, then the Applicant is a parent.
Each of these is then reliant upon the definitions of de facto relationship and domestic partner.
De facto relationships are defined by s 4AA of the Family Law Act as:
Meaning of de facto relationship
(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 (see subsection (6)); 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.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2)Those circumstances may include any or all of the following:
(a)the duration of the relationship;
(b)the nature and extent of their common residence;
(c)whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g)whether the 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;
(i)the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A court determining whether a de facto relationship exists is 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.
(5)For the purposes of this Act:
(a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
...
The dictionary of the Parentage Act indicates that ‘domestic partner’ is defined by s 169(1) of the Legislation Act 2001 (ACT) as “someone who lives with the person in a domestic partnership”. A domestic partnership is defined by s 169(2) as:
(2) In an Act or statutory instrument, a domestic partnership is the relationship between 2 people, whether of a different or the same sex, living together as a couple on a genuine domestic basis.
Example—indicators to decide whether 2 people are in a domestic partnership
1.the length of their relationship
2.whether they are living together
3.if they are living together—how long and under what circumstances they have lived together
4.whether there is a sexual relationship between them
5.their degree of financial dependence or interdependence, and any arrangements for financial support, between or by them
6.the ownership, use and acquisition of their property, including any property that they own individually
7.their degree of mutual commitment to a shared life
8.whether they mutually care for and support children
9.the performance of household duties
10.the reputation, and public aspects, of the relationship between them
Note: An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see s 126 and s 132).
It may be observed that there are strong similarities in the statutory concepts and language used for each definition. Each is determined by whether the parties were living together “as a couple” and “on a genuine domestic basis.”
The similarities between pathway 1 and pathway 2
It is useful at this stage to note that, because of the content of s 11 of the Parentage Act, pathways 1 and 2 for all practical purposes overlap.
Both pathways require, insofar as is relevant here, a de facto relationship at the time of the procedure per s 60H(1) of the Family Law Act. Both require consent, either per s 60H(1)(b)(ii) of the Family Law Act or per s 11(5) of the Parentage Act. Both provisions provide for a presumption in relation to consent, per s 60H(5) of the Family Law Act or s 11(6) of the Parentage Act. The Parentage Act requires, additional to the requirement for a de facto relationship contained at s 60H(1) of the Family Law Act, that the parties were in a relationship whereby the Applicant was the Respondent’s “domestic partner”. The definition of de facto under the Family Law Act and “domestic partner” under the Parentage Act is of sufficient similarity as to mean that a finding in relation to one constitutes a finding in relation to the other.
The consequence of this similarity is that if the Applicant is a parent pursuant to s 60H(1)(b)(i) of the Family Law Act, then she is also a parent pursuant to s 60H(1)(b)(ii) of the Family Law Act.
Both these pathways raise two clear issues, the nature and extent of the parties’ relationship at the time of the procedure, and whether the Applicant consented to the procedure.
As was identified by the Full Court in Clarence v Crisp,[2] citing with approval the statement of Murphy JA in H v P,[3] a de facto relationship:
... is inherently terminable at any time, and continues to exist only insofar as the indicia which give the relationship its ... character continue to exist.
[2] (2016) 55 Fam LR 292 at [51].
[3] [2011] WASCA 78 at [56].
While each of the definitions is conditioned on the parties living together, it was observed in Clarence & Crisp:[4]
… Since one of the matters in in the checklist is "the nature and extent of [the parties'] common residence", it inexorably follows that it is possible for a couple to be in a de facto relationship without residing in the same home on a full-time basis.
[4] (2016) 55 Fam LR 292 at [46]
The task of determining whether a de facto relationship subsisted on the date the child was conceived requires an analysis of all the circumstances relevant to the particular relationship under consideration. The Family Law Act provides that "no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship", and ensures that regard is had to all the circumstances; not just those which changed on the date the relationship allegedly came to an "end".[5] As stated by the Full Court in Fleming v Schmidt,[6] the Court is entitled to have regard to any circumstances considered necessary, attach any weight to said circumstances as deemed appropriate, and no particular finding in relation to any circumstance is necessary to an overall conclusion as to whether a de facto relationship exists.
[5]Clarence v Crisp (2016) 55 Fam LR 292 at [53].
[6] [2017] FamCAFC 12 at [12].
In this context, the statements of Fitzgerald J in Lynam v Director-General of Social Security,[7] approved by the Full Court in Sinclair & Whittaker,[8] are apposite, that:
Each element of a relationship draws its colour and its significance from the other elements, some of which may point at one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
[7] (1983) 52 ALR 128 at 131.
[8] (2013) FLC 93-551 at [55].
It may be observed that the Family Law Act and the authorities call both for close attention to the considerations laid out in the legislation, but in the understanding that none are necessarily determinative, and that it is their collective effect that determines whether a de facto relationship was in existence.
Consent
A requirement under both ss 60H(2)(b)(i) and 60H(2)(b)(ii) is that the person who has not given birth to the child consented to the procedure. Under (i) findings as to consent are in the context of a presumption in favour of consent provided for by s 60H(5). Under (ii) findings as to consent are supported by a presumption provided for by s 11(6) of the Parentage Act.
An argument was mounted that the use of the term “other intended parent” in s 60H of the Family Law Act imports a requirement that the person undergoing the procedure consents to the other becoming a parent. However, the phrase does not carry that implication in the context of s 60H. The phrase is used in place of the longer description contained in s 60H(1)(a) of “was married to, or a de facto partner of, another person.” The longer phrase embodies the whole meaning of the phrase used to replace it, “other intended parent.” “Other intended parent” is no more or less than an analogue of the longer phrase. If a person meets the description of either “married to, or a de facto partner of”, then that person is the “other intended parent”. No additional requirement in respect of what is grafted into the provision by the use of the term “other intended parent”.
3rd pathway – determination of parentage pursuant to the ACT legislation
The Applicant nominated a third pathway through which she says that it may be determined that she is a parent of the child. This pathway was in reliance upon s 8 of the Parentage Act.[9] While there is some lack of clarity about the reliance on this provision, it being referred to in the Applicant’s submissions in reply as relating to remedies under ACT law, its inclusion in the primary submissions of the Applicant as one of the three pathways calls for its consideration as to whether it can be a method by which parenting is determined for the Family Law Act.
[9] [38] Applicant’s submissions
Section 8 provides as follows:
Presumption arising from domestic partnership
(1)A person is presumed to be a parent of a child if the person was in a domestic partnership with another person who gave birth to the child at any time during the period beginning not earlier than 44 weeks, and ending not later than 20 weeks, before the birth of the child.
(2)This presumption applies whether the child was born before or after the commencement of this Act.
(3)However, this section does not affect the vesting in possession or in interest of any property that happened before the commencement of this Act.
Hence s 8 provides for a presumption to be applied by the Supreme Court of the ACT under Division 2.4 of the Parentage Act. Given the cross vested jurisdiction of the Supreme Court of the ACT it is argued that a declaration is available by the application of s 8 under the Parentage Act. Presumably then, the argument is that by virtue of the operation of s 69S of the Family Law Act such declaration would then be conclusive as to parentage under the Family Law Act and would in turn enable a declaration pursuant to s 69VA of the Family Law Act.
Section 69S provides as follows:
Presumptions of parentage arising from findings of courts
(1)If:
(a)during the lifetime of a particular person, a prescribed court (other than a court of a prescribed overseas jurisdiction) has:
(i) found expressly that the person is a parent of a particular child; or
(ii) made a finding that it could not have made unless the person was a parent of a particular child; and
(b)the finding has not been altered, set aside or reversed;
the person is conclusively presumed to be a parent of the child.
(1A)If:
(a) during the lifetime of a particular person, a court of a reciprocating jurisdiction within the meaning of section 110 or a jurisdiction mentioned in Schedule 4 or 4A to the regulations has:
(i) found expressly that the person is a parent of a particular child; or
(ii) made a finding that it could not have made unless the person was a parent of a particular child; and
(b)the finding has not been altered, set aside or reversed;
the person is presumed to be a parent of the child.
(2)If:
(a)after the death of a particular person, a prescribed court has:
(i) found expressly that the person was a parent of a particular child; or
(ii) made a finding that it could not have made unless the person was a parent of a particular child; and
(b)the finding has not been altered, set aside or reversed;
the person is presumed to have been a parent of the child.
(3)In this section:
“prescribed court” means a federal court, a court of a State or Territory or a court of a prescribed overseas jurisdiction.
It is this argument that is the subject of contest as to applicability. The contest regards whether s 60H covers the field as to the determination of parentage in the case of artificial insemination and so excludes the operation of the general parentage provisions. A further contest is whether, even if it does not, the Court should decline to exercise the jurisdiction under the Cross-Vesting Act. The second contest will be dealt with later in this judgment.
The Respondent points to the decision of the Full Court in Bernieres & Anor v Dhopal & Anor,[10] (“Bernieres”)where, in dealing with a case of commercial surrogacy, it was determined that s 60H and s 60HB of the Family Law Act prevail over the general provisions relating to parentage, presumptions as to parentage and declarations of parentage.
[10]Bernieres & Anor v Dhopal & Anor (2018) 57 Fam LR 149
If this is the case, the reliance to establish parentage upon the Parentage Act and s 69S is not available and would not enable parentage to be determined other than in accordance with s 60H.
A careful reading of Bernieres is called for. While the enactment most directly under consideration there was s 60HB, the case there involving surrogacy, the Full Court was also required to deal with s 60H on the basis that the surrogacy involved artificial insemination. The Full Court drew a parallel between the provisions relating to surrogacy at s 60HB and the provisions relating to artificial insemination at s 60H.
In Bernieres as here, the Applicants sought a declaration of parentage pursuant to s 69VA. The Full Court agreed by with trial judge, Berman J’s, analysis that s 69VA provides no independent head of power.
In dealing with the operation of s 69VA, the Full Court said as follows at [50]:
[49] Section 69VA provides as follows:
DECLARATIONS OF PARENTAGE
69VA As well as deciding, after receiving evidence, the issue of the parentage of a child for the purposes of proceedings, the court may also issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.
[50]This section is in that part of the Act (Pt VII) where a number of general provisions dealing with parentage, presumptions and declarations of parentage appear, and the obvious question is whether specific sections such as ss 60HB and 60H prevail over these general provisions where they conflict. The answer to that question is assisted by the rule of statutory construction known as generalia specialibus non derogant. That provides that if there is a specific section or sections of the Act that apply, then that section or those sections prevail, particularly where, as here, the specific sections, namely s 60HB and the amended s 60H were enacted after the general (Commissioner of Taxation v Hornibrook (2006) 156 FCR 313; 236 ALR 468; 97 ALD 299; [2006] FCAFC 170).
The Full Court accepted what had been said by Chief Judge Thackray in Farnell v Chanbua[11] where he observed that ss 60H and 60HB would be rendered meaningless if they did not displace the operation of the more general presumptions in relation to parentage.
[11]Farnell v Chanbua (2016) 56 Fam LR 84
Similarly the Full Court accepted the tentative view expressed by Ryan J in Mason v Mason[12] where her Honour said:
However, it is my preliminary view that for the purposes of the Act, the 2008 amendments evince an intention by Parliament that the parentage of children born as a result of artificial conception procedures or under surrogacy arrangements will be determined by reference to those provisions and not the general parentage provisions.
[12]Mason v Mason [2013] FamCA 424
The effect of this reasoning is that, for the purposes of the Family Law Act parentage falls to be determined solely by reference to s 60H of that act and not by virtue of the application of s 69S, or any of the other presumptions contained Division 12 of Part VII, and accordingly, not by virtue of the operation of the law of the ACT except in so far as it is incorporated into the operation of s 60H.
Accordingly, the third pathway is not available to enable a declaration as to parentage under the Family Law Act.
The key factual matters for determination are thereby whether the parties were living together “as a couple” and “on a genuine domestic basis” at the time of the procedure and whether, if they were, the Applicant consented to the procedure.
Material relied upon
Applicant Mother[13]
[13] Applicant’s Outline of Case Document filed 20 October 2017
1.Affidavit of Mr M filed 23 June 2017
2.Affidavit of Ms Gustz (with Exhibit Book) filed 1 September 2017
3.Affidavit of Mr N filed 1 September 2017
4.Affidavit of Ms O filed 1 September 2017
5.Reply affidavit of Ms Gustz (with Exhibit Book) filed 29 September 2017
6.Affidavit of Mr P filed 29 September 2017
Further material relied upon
1.Affidavit of Ms Gustz filed 23 January 2018
2.Financial statement filed 23 January 2018
Respondent Mother[14]
[14] Case Outline filed 27 October 2017
1.Affidavit of Ms Denniston filed 15 September 2017
2.Affidavit of Ms Q filed 21 July 2017
3.Affidavit of Ms R filed 15 September 2017
4.Affidavit of Ms S filed 15 September 2017
5.Affidavit of Ms T filed 15 September 2017
Further material relied upon
6.Affidavit of Mr L filed 4 December 2017
7.Financial statement filed 18 January 2018
8.Affidavit of Ms Denniston filed 23 January 2018
9.Affidavit of Ms V filed 23 January 2018
10.Affidavit of Ms R filed 23 January 2018
Notice to admit facts (and authenticity of documents)[15]
[15] Served but unsealed
The applicant served on the respondent two notices to admit facts and relied upon the answers given by the respondent. The terms of the two notices and answers are set out below.
1.You and [Ms Gustz] commenced a relationship in or about February 2014.
[16]Response - I say the Applicant ([Ms Gustz]) commenced dating in approximately February 2014. We did not move in together until approximately 1 April 2016.
[16] As contained in the Notice Disputing Facts filed by the Respondent on 21 July 2017
2.You and [Ms Gustz] separated in or about March 2017.
Response - I deny we separated in March 2017 and say we separated in approximately December 2016.
3.You and [Ms Gustz] had a sexual relationship.
Response - I admit we had a sexual relationship.
4.You and [Ms Gustz] had a mutual commitment to a shared life.
Response - I say we did not have a commitment to a shared life. We did not share finances, did not own joint property and [Ms Gustz] was not a parent of the child. I say I raised the child as a single parent and [Ms Gustz] and I agreed that we would ‘see how we went’ and reassess this at a later stage. We only lived together as a couple for approximately 9 months.
5.On or about 14 November 2014:
(a)You and [Ms Gustz] attended Canberra Fertility Centre located in the Australian Capital Territory;
(b)You underwent a procedure;
(c)The procedure involved the transferring of an embryo into your uterus derived from an ovum fertilised outside your body;
Response - I admit [Ms Gustz] attended my egg transfer procedure at the Canberra Fertility Centre on approximately 14 November 2014.
(d)[Ms Gustz] consented to the procedure;
Response - I dispute that [Ms Gustz] consented to the procedure;
(e)You and [Ms Gustz] had been in a relationship for approximately 9 months;
(f)You and [Ms Gustz] had a mutual commitment to a shared life; and
Response - I dispute that [Ms Gustz] and I had a mutual commitment to a shared life.
(g)You considered [Ms Gustz] to be your domestic partner.
Response - I dispute that [Ms Gustz] was my domestic partner.
6.As a result of the procedure in Item 5 above, you became pregnant.
Response - I admit I became pregnant as a result of the egg-transfer procedures.
7.On 24 January 2015 you:
(a)Posted a status update on Facebook announcing your pregnancy;
(b)Tagged [Ms Gustz] in the Facebook post; and
(c)Included [Ms Gustz] in a photo in the Facebook post.
Response - I admit I did post a status on facebook in accordance with Item 7.
8.On 25 March 2015 you and [Ms Gustz] attended a midwife appointment.
Response - I deny [Ms Gustz] and I attended a midwife appointment together on 25 March 2015.
9.On 3 May 2014 you and [Ms Gustz] attended a midwife appointment.
Response - I deny [Ms Gustz] and I attended a midwife appointment on 3 May 2015. I say I did not have an appointment on that day.
10.In or about May 2015 you and [Ms Gustz]:
(a) Attended [E] Hospital;
(b) Undertook parenting classes together;
(c) Introduced yourself to the class as a couple; and
(d) Had a mutual commitment to a shared life.
Response - I deny [Ms Gustz] and I introduced ourselves as a couple, and had a mutual commitment to a shared life in approximately May 2015. I admit we undertook parenting classes together at E Hospital.
11.On 27 June 2015:
(a) You and [Ms Gustz] had a baby shower;
(b) You and [Ms Gustz] received joint cards; and
(c) Had a mutual commitment to a shared life.
Response - I deny [Ms Gustz] and I had a baby shower on the 27th June 2015. I say my friend threw me a baby shower and [Ms Gustz] did not attend. I deny we had a mutual commitment to a shared life. I admit we received joint cards.
12.As a result of the pregnancy in Item 6 above, you gave birth to [B] (“the child”) on … 2015.
Response - I admit I gave birth to the child on … 2015.
13.[Ms Gustz] cut the child’s umbilical cord.
Response - I admit [Ms Gustz] cut the child’s umbilical cord.
14.the child’s middle name “…” was chosen by reference to the name of [Ms Gustz]’s relative.
Response - I say the child’s middle name ‘…’ was chosen as it was a name I liked. I admit that I did consult [Ms Gustz] about baby names and the name ‘…’ coincidentally had meaning to [Ms Gustz].
15.You and [Ms Gustz] mutually cared for the child.
Response - I admit [Ms Gustz] and I both cared for the child.
16.You and [Ms Gustz] mutually supported the child.
Response - I admit [Ms Gustz] and I both supported the child.
17.You registered with the [public service] as [Ms Gustz]’s de facto partner.
Response - I admit I was registered with the [public service] as [Ms Gustz]’s partner.
18.You registered the child with the [public service] as [Ms Gustz]’s son.
Response - I admit the child was registered with the [public service] as [Ms Gustz]’s dependant.
19.In or about March 2016 you and [Ms Gustz] selected a property together known as [K Street, Suburb A], in the Australian Capital Territory (the Suburb A property). The title and mortgage is registered in [Ms Gustz]’s sole name.
Response - I deny [Ms Gustz] and I selected a property together. I admit the title and mortgage of the [Suburb A] property is registered in [Ms Gustz]’s sole name.
20.In or about March 2016 you, [Ms Gustz] and the child all moved into the [Suburb A] property together.
Response - I say we moved into the [Suburb A] property on approximately 1st April 2016.
21.On or about 19 May 2017 you moved out of the [Suburb A] property.
Response - I say I moved out of the [Suburb A] property on approximately 17th May 2017.
22.On or about 19 May 2017 you left the child in [Ms Gustz]’s care.
Response - I admit I left the child in [Ms Gustz]’s care on or about the 19th May 2017.
23.On or about 20 May 2017 the child remained in [Ms Gustz]’s care.
24.On or about 21 May 2017 you collected the child from [Ms Gustz].
25.On or about 23 May 2017 the child stayed overnight with [Ms Gustz].
26.On or about 26 May 2017 the child stayed overnight with [Ms Gustz].
27.On or about 30 May 2017 the child stayed overnight with [Ms Gustz].
28.On or about 2 June 2017 the child stayed overnight with [Ms Gustz].
29.On or about 6 June 2017 the child stayed overnight with [Ms Gustz].
30.On or about 9 June 2017 the child stayed overnight with [Ms Gustz].
31.On or about 11 June 2017 you advised [Ms Gustz] you would be ceasing her time with the child.
32.On 13 June 2017 you received correspondence from Farrar Gesini Dunn on behalf of [Ms Gustz].
33.On 16 June 2017 you advised that you were seeking legal advice.
34.On 27 June 2017 you received correspondence from Farrar Gesini Dunn on behalf of [Ms Gustz] including a request for [Ms Gustz] to see the child on his birthday.
35.On 28 June 2017 you were served with an Initiating Application.
36.On 8 July 2017 you received a request from [Ms Gustz] to see the child on his birthday.
37.On 13 July 2017 you received correspondence from Farrar Gesini Dunn on behalf of [Ms Gustz] including a request for [Ms Gustz] to see the child on his birthday.
38.… 2017 was the child’s second birthday.
39.You permitted [Ms Gustz] to spend time with the child on his birthday for approximately one hour at a McDonalds Restaurant.
40.On 17 July 2017 you received correspondence from Farrar Gesini Dunn on behalf of [Ms Gustz] including a request for [Ms Gustz] to see the child on a regular basis.
Response - In relation to item 23 to 40, I admit all these items.
Notice to admit facts (and authenticity of documents)[17]
[17] Served but unsealed
1.You and [Ms Gustz] ([Ms Gustz]) were in a relationship for more than 2 years.
Response - I admit the Respondent ([Ms Gustz]) and I were in a relationship for more than two years. [18]
[18] As contained in the Notice disputing facts filed by the Respondent on 18 August 2017
2. As at 14 November 2014, you:
a)Were in a committed relationship with [Ms Gustz];
Response - I deny [Ms Gustz] and I were in a committed relationship
b)Were in love with [Ms Gustz];
Response - I admit I was in love with [Ms Gustz]
c)Had given [Ms Gustz] a key to your house;
Response - I deny I had given [Ms Gustz] a key to my home
d)Had told your friends you and [Ms Gustz] were in a relationship;
Response - I admit I told friends I was in a relationship with [Ms Gustz]
e)Had introduced [Ms Gustz] to your family;
Response - I admit I had introduced [Ms Gustz] to my family
f)Had told your family you and [Ms Gustz] were in a relationship;
Response - I admit I had told family [Ms Gustz] and I were in a relationship
g)Had a sexual relationship with [Ms Gustz];
Response - I admit I had had sexual intercourse with [Ms Gustz]
h)Saw [Ms Gustz] on average 5 to 6 days per week;
Response - I deny I saw [Ms Gustz] on average 5 to 6 days per week
i)Spent on average 4 to 5 nights per week at each other’s homes;
Response - I deny I spent on average 4 to 5 nights per week at each other’s houses
j)Had a mutual commitment to a shared life with [Ms Gustz];
Response - I deny I had a mutual commitment to a shared life with [Ms Gustz]
k)Planned to be parents together with [Ms Gustz];
Response - I deny I planned to be a parent with [Ms Gustz]
l)Had consulted [Ms Gustz] about baby names;
Response - I admit I consulted with [Ms Gustz] about baby names
3.As at 23 February 2015, you:
a)Had celebrated your 1 year anniversary with [Ms Gustz];
Response - I admit [Ms Gustz] and I celebrated our one year anniversary from the date we met;
b)Were in a committed relationship with [Ms Gustz];
Response - I admit [Ms Gustz] and I were in a committed relationship as far as we were not seeing other people. I say we were seeing how things progressed;
c)Were in love with [Ms Gustz];
Response - I admit I was in love with [Ms Gustz];
d)Had given [Ms Gustz] a key to your house;
Response- I admit I had given [Ms Gustz] a key to my home over the 2014 Christmas holidays so she could feed my cat. She then returned the key to me in mid January 2015. I would also feed [Ms Gustz]’s animals and did not retain a key to her house;
e)Had introduced [Ms Gustz] to your family;
Response - I admit I had introduced [Ms Gustz] to my family;
f)Had told your friends you and [Ms Gustz] were in a relationship;
Response - I admit I told friends I was in a relationship with [Ms Gustz];
g)Had told your family you and [Ms Gustz] were in a relationship;
Response - I admit I had told family [Ms Gustz] and I were in a relationship;
h)Had a sexual relationship with [Ms Gustz];
Response - I admit I had had sexual intercourse with [Ms Gustz];
i)Saw [Ms Gustz] on average 5 to 6 days per week;
Response - I deny I saw [Ms Gustz] on average 5 to 6 days per week;
j)Spent on average 4 to 5 nights per week at each other’s homes;
Response - I deny I spent on average 4 to 5 nights per week at each other’s houses;
k)Had a mutual commitment to a shared life with [Ms Gustz];
Response - I deny I had a mutual commitment to a shared life with [Ms Gustz];
l)Planned to be parents together with [Ms Gustz];
Response - I deny I planned to be a parent with [Ms Gustz];
m)Had consulted [Ms Gustz] about baby names.
Response - I admit I consulted with [Ms Gustz] about baby names.
4.You gave birth to [B] (“the child”) on … 2015.
Response - I admit I gave birth to the child on … 2015.
5. [Ms Gustz] gave the child his first bath.
Response - I admit [Ms Gustz] gave the child his first bath.
6. On or about 26 July 2015 [Ms Gustz] gave the child his first shower.
Response – I admit [Ms Gustz] gave the child his first shower.
7. You have celebrated Father’s Day as “[Ms Gustz]’s Day”.
Response – I admit I have celebrated father’s day as ‘[Ms Gustz] day’.
8. You refer to [Ms Gustz]’s mother [Ms W Gustz] as the child’s “Nanny”.
Response – I admit I refer to [Ms Gustz]’s mother as the child’s ‘Nanny’.
9. You refer to [Ms Gustz]’s father [Mr X Gustz] as the child’s “Poppy”.
Response – I admit I refer to [Ms Gustz]’s father as the child’s ‘Poppy’.
10. You refer to [Ms Gustz]’s sister [Ms Y] Gustz as the child’s “Aunty [Y]”.
Response – I admit I refer to [Ms Gustz]’s sister as ‘Aunty [Y]’.
11.On or about 28 December 2016, you, [Ms Gustz] and the child attended the [Z Town Festival] together.
Response - I admit [Ms Gustz] and I attended the [Z Town festival] together on 28 December 2017 [sic].
Primary factual issues
The key factual matters to be determined at this point of the trial are whether there was a de facto relationship between the parties in place at the date of conception, 14 November 2014, and whether the Applicant consented to the IVF procedure at the time of conception.
The Respondent said that a key aspect of her case was that she had never intended both her and the Applicant to be parents. It may be observed that whether or not the Applicant is to be regarded as a parent is not contingent upon whether the Respondent intended such an outcome.
However, the Respondent’s views as to whether the Applicant would become a parent are relevant in that they may throw light onto the nature of the relationship between the parties, for example whether it was a relationship of a mutual commitment to a shared life between the parties. In that respect the Respondent says that she regarded the Applicant as supporting her desire to become a parent. She asserted that it was always clear that she would be the parent and the Applicant would not.
It was also submitted for the Respondent that what was required in terms of consent by the Applicant was more than a consent to the procedure being conducted. The terms of the provision restrict the need for consent to the fact of the procedure. They carry no implication that the consent is to be to anything broader than that.
It was accepted by the Applicant that the Respondent had made the decision to undergo IVF prior to her relationship with the Applicant. She had made clear to the Applicant early in their relationship that she wanted to have a child. The Respondent told the Applicant that she would have a child whether or not she was with a partner. The Applicant expressed reservations regarding IVF, and at that point had not determined that she wanted to have children.
The fact of the Respondent’s decision to have a child was neither indicative of, nor contingent upon the Applicant being a de facto or domestic partner.
Credibility
Before dealing with the nature of the relationship it is necessary to deal with issues of credibility, as, in a number of respects the parties’ evidence is at odds and determinations are reliant upon an assessment of credibility. In dealing with the nature of the relationship below, a number of examples are identified that are relevant to an assessment of credit. They involve examples of changes in evidence, and involve examples of conflict in evidence. In this case these raise a significant issue as to the reliability of the Respondent in dealing with the subject matter of the relationship. Each demonstrated example of unreliability on her part reflected an understatement or denial of matters that went to the assessment of the relationship.
What was the nature of the relationship?
The parties met in about February 2014 via a dating site. The Respondent said that the relationship was an “on and off” one, and that at the commencement she was keen to keep things “casual”. She denied that there was any agreement that she and the Applicant should be exclusive as at February 2014. In March 2014 the Respondent took the Applicant to a birthday dinner that she celebrated with friends. She asserts that this was not because she then regarded the Applicant as her girlfriend, but rather because it was a get together with members of the gay community of which the Applicant was a member. She accepts that the Applicant knew no one at that function other than her. The Respondent accepted that the same night she sent a text message to the Applicant expressing that she thought that she and the Applicant were meant for each other. She denied that there was any sense of permanence of relationship that was represented by this text.
Whatever label is placed upon it, this marks an early step in the progression of the relationship.
In support of the notion that the relationship was not initially serious, the Respondent asserted that she and the Applicant, early in their relationship, discussed the fact that they still were not over their previous ex-partners. It is a matter that could point to the relationship not being serious, or could point to a willingness to share personal matters early in the relationship.
The Respondent accepted that a sexual relationship commenced between herself and the Applicant sometime between February and April 2014 (she thought April 2014). The sexual relationship continued through and beyond the child’s birth. While there was some dispute as to whether this aspect of the relationship had commenced in February or April 2014, this is not a matter that requires resolution. It was a relationship that was sexual by April 2014.
While, by April 2014, the Respondent accepted that she had access to the Applicant’s home in the absence of the Applicant, she denied that this was because the Applicant had provided her with a key or because they had exchanged keys. Rather, she said that she was aware of where the Applicant kept a spare key to the home and used that to access. She accepts that at some stage she provided keys to her home to the Applicant, provided with a note referring to the keys to her heart. She does not believe that this occurred until the end of 2014. The Applicant says that keys were exchanged in April 2014.
However, under cross examination the Respondent accepted that she had keys to the Applicant’s home by October 2014, as evidenced by a string of messages identifying that the Respondent was coming over and would let herself into the Applicant’s home when the Applicant was in the shower.
This predates the critical date of the procedure.
In April 2014 the Respondent saw her general practitioner, Dr AA and sought a referral for IVF treatment.
By April 2014, the parties were starting to interact with each other’s families. In April 2014 the Respondent’s sister sent a friend request to the Applicant, expressing that it was the new way to meet the family. Further in April 2014 the Applicant and Respondent went on a trip to Victoria together where the Applicant introduced the Respondent to her sister. The Respondent was unable to recall whether that was an introduction as her girlfriend. In July 2014 the Applicant and Respondent travelled together to Queensland where the Applicant met the Respondent’s family. The Respondent says that she introduced the Applicant to her family as someone that she was seeing. She denied introducing her as her “partner”, asserting that she did not use such a word. Despite this assertion, in cross-examination she had accepted (as contained at exhibit A2) that on 13 February 2015 she had referred to the Respondent on Facebook as her “partner”.
The bolstering of her account by the denial of the use ‘partner’, a term that the Respondent demonstrably did use, points to some caution being exercised as to her credibility.
On 1 July 2014 the Respondent had her first appointment with the specialist, Dr BB regarding the IVF treatment. In the letter to the general practitioner Dr BB notes the Respondent as single. She identified that there was a three month cooling off period before treatment could begin.
On 12 July 2014 the Respondent attended the clinic and provided information for the client history sheet. No partner is recorded and the marital status is expressed as single.
In July 2014 the Respondent went as a partner with the Applicant to a function).
In July 2014 the Respondent told her friend, Ms V, that she doubted the relationship with the Applicant would work out long term.
The Respondent described that it was her view that her plans to have a baby, and the Applicant’s unwillingness, was one of the barriers to them having a closer relationship. On her account, their relationship was on and off.
In July 2014 the parties broke up. They noted that the relationship was hard and appeared to both hold the view that it was too early in the relationship for it to be hard. One of the problems in the relationship centred on the Respondent’s desire to have a baby, and the Applicant’s reluctance. The Respondent thought that she needed to decide not only whether she wanted to be with the Respondent, but also whether she wanted to parent with her. They continued to discuss what would happen with their relationship, concluding early in August 2014 that the Applicant needed to determine what her position would be regarding having children.
In early August 2014 they decided to remain as friends. However, shortly after that the relationship was back on foot. The Respondent accepted that she and the Applicant regularly told each other that they loved each other. For example in August 2014[19] there were references to love and to the Respondent saying that she could not imagine a world without the Applicant in it.
[19] Applicant’s first exhibit book pp 21 and 23
The Applicant says that on the weekend of 12 August 2014 she went away with some of her friends on a ski weekend and discussed with them the issue of having a baby. She says that this weekend marked her change in attitude where she became committed to the idea that she and the Respondent would have a baby together. The Respondent denied that this was the case.
It is notable that in relation to what the Applicant says was a pivotal event, being an event in which she apparently spoke to those around her regarding the issue and came to a conclusion of commitment on her part, the Applicant brought no corroborative evidence from those who were around her. It is necessary to see whether this asserted change is otherwise supported in the conduct of the parties.
The Applicant, in August 2014, sent the Respondent roses and a toy monkey, she says in celebration of the decision. She says that the card provided stated “Here’s a little monkey for us to practice with until our own little monkey arrives”. The Respondent disputes this, saying the card said “1 (referring to the number of roses) for every month since we first met.”
Given my concerns about the Respondent’s credibility, I accept the Applicant’s account on this matter.
Importantly, from shortly after this weekend (the earliest identified example being in September) the manner that the Respondent described the pregnancy changed. It was suggested to her that she commenced to use words such as “our”, “we”, “us” and spoke of having the baby together. Although she did not initially recall this, a number of examples were identified. Messages between the parties on 16 September 2014[20] include an exchange between the parties where the Applicant says “I love you so much, even though it’s probably the scariest thing I’ve ever felt, whenever I think about you having a baby I feel so excited.” The Respondent replies “sittn here thinkn the same thing!”. She continues to say “thinkn about us and this baby I mean XX” further “just made me smile… Thinkn about you holding the little one while I make us a cuppa! LOL I think we’d be a cute lil family :)”. The Respondent denied that this showed that both she and the Applicant were excited at the possibility of having a baby together. Her response to this matter sits uncomfortably with the terms of the messages.
[20] Applicant exhibit book 1 pp 25 and 26
The Respondent then conceded that at this point she envisaged that they would be together for the baby and would have a family together with that child. She accepted that the Applicant was both excited about the baby and was now fully supportive. She accepted that the Applicant was, at that stage “fully supportive” of the Respondent having the baby, despite her previous reservations.
From August to November 2014 the Respondent made payments toward the IVF treatment (approximately $10,000 less Medicare rebate). She did not ask the Applicant to contribute to the payments. The Respondent discussed with the Applicant her choice of sperm donors. She asserts that the Applicant did not wish to discuss it. The Applicant denies this.
On 17 September 2014 there was a text exchange between the parties regarding how little they were seeing each other at this time, concluding with the Respondent saying “well that’s why we don’t see each other much xx.”
On approximately 30 September 2014 the Respondent signed the request form for recipients of donor sperm. There was no signature by the Applicant as her partner.
On 10 October 2014 the Applicant made a Facebook post of a parenting, or series of parenting articles.[21] The Respondent replied to the Applicant’s post saying “U seem awfully interested in parenting articles lately. Something U wanna tell us???” When asked if this was tongue-in-cheek the Respondent initially answered that it was not, and that she was probably trying to find out if the Applicant was now interested in the possible child. She then accepted that it was somewhat tongue-in-cheek and that what she was seeking was a public declaration from the Applicant of what she knew privately, being the Applicant’s interest in having the baby together. Again, the Respondent’s initial denial, later corrected, gave reason to be cautious regarding her credibility.
[21] Applicant exhibit book 1 pp 30 to 31
In re-examination, the Respondent sought to depart from this explanation, stating that what she knew privately was not that the Applicant wanted a baby together, but that the Applicant was deciding whether she wanted to be in a relationship with the Respondent and was sometimes interested and sometimes not so interested in having a baby. This marked change in explanation further undermined the credibility of the Respondent.
The parties disputed how often they were spending time with each other during the period to the end of October 2014. It was accepted that during this period the Applicant was busy, undertaking study that finished at the end of October. On the Respondent’s case, they saw each other primarily on weekends, sleeping over 1-2 nights per week on average from April 2014 to February 2015.
The Applicant said that, in the period of August to November 2014, it was overnight 2-3 nights per week (the Applicant had earlier asserted it was more than that). The Applicant also asserted that, apart from when the parties were in separate cities due to travel, they saw each other 5 to 6 days per week. The Respondent disagreed.
The variability in the Applicant’s evidence about the overnight stays leads me, on this aspect, not to prefer her evidence over that of the Respondent.
In October 2014 the Respondent sent a message to the Applicant containing a picture of an “ethical engagement ring”.[22]
[22] Applicant’s second exhibit book p14
A birth plan was prepared by both the Applicant and Respondent. In that birth plan the Respondent was to be the person to make all decisions. In the event of her incapacity to do so she nominated the Applicant as the decision maker. They also recorded that one of them was to be with the child at all times.
In October and November of 2014 the Respondent attended the IVF on ten separate occasions, alone, as she progressed through the steps in the IVF cycle.
On 14 November 2014 the Respondent attended the clinic for egg collection. The Applicant attended for this procedure and took her back to the Applicant’s home afterwards.
The Applicant spent most of the day with the Respondent. Following the procedure she took the Respondent to the Applicant’s home, put a blanket on her, and they watched a movie together. The Respondent accepted that these were the action of a caring and considerate partner.
By this time the Respondent accepted that she and the Applicant were in an exclusive, romantic and sexual relationship in which they loved one another, and had told each other so. She accepted that they had been on holidays together, had told each other’s families about the relationship and had met each other’s families. Further, the Respondent accepted that by this time they had discussed “our baby”, their family, had discussed that the baby would call the Applicant “my [Ms Gustz]” and had discussed baby names.
On 27 November 2014 the Respondent discovered that she was pregnant. She told the Applicant “we are having a baby” she further told her “that should make you smile”. It is difficult to place any construction on this other than that the Respondent knew that the Applicant was supportive of having a baby, and that it was something that in some sense they were sharing together.
The Respondent sought to explain this away, saying that the Applicant was not committed to this process, and opposed IVF, and that posed a long-term problem in the relationship. She then said that she had told the Applicant this in order to cheer the Applicant up. If the Applicant was opposed to the IVF this makes no sense, and again acts to undermine the Respondent’s credibility.
The message, on the contrary, indicates that the Respondent knew that the Applicant was excited about the baby and excited about having a baby together. The Respondent accepted that the position was that they were having a baby together.
Shortly after this the Applicant arranged with the Respondent to set aside a Sunday morning to discuss their relationship. The Applicant characterised this as merely being a “tune-up” rather than being indicative of problems in their relationship.
The Respondent asserts that at about this time there was a discussion between them where the Applicant said that she could not commit to being with the Respondent long term, feeling like she was being put in this position by the pregnancy. The Applicant denied that such a conversation took place and said there was also discussion regarding whether the Applicant would be the support person for the birth.
Given my reservations about the credibility of the Respondent, I prefer the Applicant’s account of this conversation.
In considering events occurring after this time it is important to bear in mind that the critical date is the date of the procedure, 14 November 2014. What occurs after that date is only relevant insofar as it throws light upon the nature of the relationship at the time of the procedure.
On 30 November 2014 the Respondent sent a message to the Applicant saying that she wanted to raise a baby with the Applicant.[23] On 19 December 2014 the Respondent messaged the Applicant with a picture of the ultrasound saying “look at what we are cooking baby.”[24]
[23] Applicant exhibit book 1 p 40
[24] Applicant exhibit book 1 p 43
In December 2014 the Respondent told Ms V that the parties were just going to see where their relationship goes and that the Applicant could walk away at any time.
On 23 December 2014 the parties exchanged messages regarding the prospect of living together.[25]
[25] Applicant’s second exhibit book p23
The parties spent a significant part of December and January apart, with the Applicant travelling to New Zealand for part of the time, the Respondent to Queensland.
On the second day of the trial the Respondent was taken to examples of the parties referring to the baby and to parenthood after discovering that the Respondent was pregnant.
On 21 January 2015 the Respondent sent a message to the Applicant suggesting a birth announcement. The announcement was to contain a picture with three pairs of shoes, two adult shoes and one child’s shoes. Subsequently in 2015 the Respondent posted a birth announcement on Facebook referring to “baby [Denniston] coming … 2015”, with an ultrasound, and above that a picture of the feet and shoes of each of the Applicant and Respondent with a pair of child’s shoes between them. On 25 March 2015, having found out that the baby would be a boy the Respondent messaged the Applicant saying “we’re going to have a son”, on that same day the Respondent posted to Facebook with a picture of the ultrasound and the caption “that’s my boy”.[26]
[26] Applicant exhibit book 1 p 60
On 8 February 2015 the Respondent sent a message to the Applicant referring to the baby as “our orange”.
The parties variously discussed, via messages, circumcision and disciplinary methods. They discussed what each of their sets of parents would be called with the Applicant’s to be called Nanny and Poppy and the Respondent’s to be called Grandma and Poppa. They discussed what name the child might have.
When giving an explanation for this conduct, the Respondent said that she merely had a hope that she and the Applicant would get to “that place”, being a place where they were in a relationship where they would parent together. Given that the Respondent accepted that they had decided together to have a baby and wanted to raise that baby together, and that the posts reflected that she assumed that the Applicant would “probably” be in her life, her explanation of a hope that they would get to “that place” is difficult to accept as an explanation for the messaging.
In February 2015 the parties had some discussion regarding further financial support being provided by the Applicant for the Respondent. The Applicant suggested setting out the financial position if they were to move in together.[27] Allied to this was the idea that such an arrangement would provide support for the Respondent and the child. The Respondent would be able to rent her home out and would be financially supported by the Applicant.
[27] Applicant’s first exhibit book p57
However, the Respondent intended to firstly use her maternity leave and Centrelink entitlements. The Applicant denied that the delay in moving in together was because she was not then ready for it. She attributed it to their financial arrangements. She said that the Respondent’s home was too small to move into, and that the Applicant had a lease in place for where she was living.
In February 2015 the Respondent commenced her sessions with the midwife, Ms Q. On 6 February 2015 the Respondent’s support networks are recorded as being “friends, colleagues (sic), mother will come”. No reference is made to the Applicant directly.
In May 2015 the parties attended Birthing Information Sessions together at the E Hospital. The parties also exchanged messages about looking forward to moving in together.[28]
[28] Applicant’s first exhibit book p71
The Respondent went into labour early, being admitted on 14 July 2015. The admission time appears to have been chaotic, with the Respondent, unsurprisingly, having little direct recollection. The Applicant was recorded as “new partner” on the admission form. In accordance with the birth plan the Applicant cut the umbilical cord.
The Applicant went with the child into the Special Care Nursery immediately following birth. The child remained in the hospital for about ten days. During that time the Respondent spent the mornings with him, shared lunch with the Applicant who then spent afternoons with him. The Respondent would then return and stay until about 10 pm. The Applicant gave the child his first bath on day four. The Applicant also gave the child his first shower.
On the child’s last day in hospital the Applicant, Respondent and the child shared a family room.
Late July 2015 the Applicant drove the Respondent to Births, Deaths and Marriages. There the Respondent lodged a birth certificate in her name only.
Some question was raised as to whether the child has been named in a manner to reflect both the Applicant’s and Respondent’s families, in particular his middle name. The Applicant asserts that that reflected her grandmother’s name while the Respondent said it did not. In a book prepared for the child by the Respondent the Respondent records “the name they finally chose for me was [B] because it’s a strong name that also has connections to both Mommies families”. At face value this statement reflects the Applicant’s contention that the child was named for both families. The Respondent however asserted that it was merely a case of poor spelling on her part and was meant to reflect to both of her families.
The Respondent says that the parties discussed that if she died that the child would be cared for by her sister. The Applicant says they discussed the child being with the Applicant and proposed the Respondent making a will to that effect.
Following discharge from hospital, on approximately 24 July 2015, the Respondent and the child returned to the Respondent’s home to live. The Applicant would stay over at the Respondent’s home, and the Respondent would stay overnight at the Applicant’s home with the child.
The Applicant says that in August 2015 the parties started to look for a family home to buy. The Applicant messaged the Respondent saying “we’ll find a home for our family baby…” to which the Respondent replied “that makes me gush with happiness xx”.[29]
[29] Applicant’s first exhibit book p92
In September 2015 the Applicant received a card ‘from’ the child. The Respondent says it was for her birthday. The Applicant asserts that it was for Father’s Day. Whichever it was, the content contemplates the child growing up and being nurtured by the Applicant.
In November 2015 the Applicant suggested moving in together. She bought a home in February 2016 and in April the parties moved in together. It was only at this time that the Respondent relied on the Applicant for financial support.
In December 2015 the Applicant added a secondary credit card to her account for the Respondent.
The Respondent was taken to exhibit A8 being an intake form for relationship counselling completed by her on 6 July 2016. There she described the relationship as de facto and the length of the relationship as two years.
A contentious matter at the trial related to a disputed email of 9 November 2016. The Respondent provided to the Court an email purportedly sent from the Applicant which contained a paragraph where the Applicant expressed her view that she had no rights in respect of the child and would not pursue any. The Applicant denied sending an email in those terms and gave evidence that the email she sent did not contain that paragraph. Each of the parties denied altering the emails either to remove or to add the paragraph.
The Respondent called expert evidence from Mr L. The height of his evidence was that it was possible to alter a sent email. That is it was possible for the Applicant to have sent that email and altered it such as to later remove the paragraph. He did not comment on whether or not it was possible to alter a received email. After making investigations he indicated that it may be possible, on further investigations, to determine how the email was altered. These further investigations did not take place. The height of his evidence goes no further then to reveal the possibility that the sent email was amended without dealing with the issue as to whether or not the received email could have been amended.
It may be observed that, if the Applicant had written such a paragraph, it has limited value for these proceedings. Whether the Applicant recognised that she had any legal rights, or at some stage thought that she would not pursue those, is not determinative itself, nor even of great weight in deciding whether or not she is a parent of the child. The greater significance appears to arise from the ramifications of the credibility of each of the parties.
Each party alleges that the other has fabricated the email to suit their own case. Each party denies that they are responsible for the altered email. I am unable to determine, either on the case of the Applicant that the Respondent is responsible, or on the case of the Respondent that the Applicant is responsible. Neither has established this matter.
At no stage did the parties register their relationship.
In January 2017 the parties moved into separate homes, with the Applicant moving out into rental accommodation.
Conclusion as to the nature of the relationship at the time of the procedure
As identified above, the critical issue is the nature of the relationship at the date of the procedure, 14 November 2014.
As noted by Murphy J, and referred to above, a de facto relationship may be brought to an end at any time and its character is only established by the indicia present at any given time.
The indicia do not form a checklist, nor a scorecard from which items may be marked against each other. Rather they form a list of considerations that must be weighed together to determine whether the relationship meets the description of “a couple living together on a genuine domestic basis.”
In assessing the criteria, and the events that speak to the criteria, the later events occurred after the relevant date, the less salient the events are to determining the status of the relationship at the relevant date. Events leading up to the date, and shortly after, carry greater weight as to what the relationship was at that date, insofar as they point to, or suggest the character of the relationship at the relevant date.
At the relevant date, the relationship was of relatively short duration. The parties had not lived together by the date of the procedure, although each had access to the other’s home in the other’s absence. The parties could not be regarded as having become financially interdependent in any significant sense, and had not acquired mutual property together. Any sharing of household duties was insignificant. They had not mutually cared for or supported children.
The relationship between the parties had become sexual, but perhaps only since April of 2014.
The parties were regularly spending overnight time together, although only averaging 1-2 nights per week.
In terms of the reputational and public aspects of their relationship, a significant aspect was the introductions to each other’s families. The Respondent also accepts that she told her friends that she was in a relationship with the Applicant. There is also some public posting on social media. However, against the relationship being known publicly, the relationship is not identified on a number of the ante natal documents or to the midwife.
A key question relates to the degree of their mutual commitment to a shared life. Much of this issue falls to be determined based upon their degree of mutuality in the idea of having the child together.
The degree of their mutual commitment was a matter that was underplayed by the Respondent. While the Applicant’s account of her change in attitude in August 2014, to then be committed to having a child together, was not supported by the calling of evidence of those who were around her, other matters speak to both the change in attitude and a corresponding change in the relationship between the Applicant and the Respondent.
Importantly what followed this trip was the start of messages between the parties that spoke of having the child in mutual terms. This is not the manner in which the child was discussed on every occasion, but the commencement of discussion of the child in mutual terms marks a significant change in the relationship. This is particularly so when reservations were earlier expressed by the Respondent on the basis of the Applicant’s resistance to having the child.
The significance in the change of attitude by the Applicant can be seen in the manner in which the Respondent informed her of the pregnancy, “we are having a baby” and the subsequent discussion of matters involving the baby, including names, including what the Applicant will be called and what each party’s family would be called by the baby.
The decision to have a child together is a strong indicator of a mutual commitment to a shared life. In many ways it is difficult to conceive of a stronger indicator. Unlike a house a child cannot be sold and the proceeds divided. A child is a step that irrevocably binds people together, in a manner that does not end on the cessation of relationship. An intended child speaks to the nature of the relationship in which the decision to have a child is taken.
These steps took place in the context of an exclusive, romantic and sexual relationship in which the parties both loved each other and had told each other that fact.
It is this combination of matters that leads to the conclusion that notwithstanding the limited manner of their co-residence, a lack of financial cooperation, and a relatively short relationship, by the time of the procedure the relationship was one of love, sexual intimacy and a joint plan to have a baby such that it may be described as a couple living together on a genuine domestic basis.
Did the Applicant consent to the procedure?
There is a presumption of consent provided for at s 60H(5). The presumption has not been displaced by any evidence and is supported by the evidence of the parties’ mutual intention to have a child, by the Applicant taking the Respondent to the procedure and by the Applicant looking after the Respondent following the procedure.
Conclusion as to parentage
This leaves the conclusion that pursuant to s 60H(1)(b)(i) the Applicant is a parent of the child.
While it is not necessary to proceed to consider s 60H(1)(b)(ii), it may be shortly dealt with. The incorporation of s 11 of the Parentage Act, which is in terms that closely mirror s 60H(1)(b)(i), requires (insofar as the requirements were contentious in this matter) that the Applicant be the domestic partner of the Respondent and that the Applicant have consented to the procedure.
The considerations that led to a determination that the parties were in a de facto relationship would lead to the conclusion that the Applicant was the domestic partner of the Respondent.
Section 11 of the Parentage Act, like s 60H, requires the consent of the domestic partner to the procedure and provides for a presumption that the consent is given. As noted for the operation of s 60H, such presumption is not rebutted.
Accordingly the Applicant would also be considered to be a parent of the child pursuant to s 60H(1)(b)(ii).
Declaratory relief
The Applicant seeks declarations that she is a parent of the child pursuant to s 19 of the Parentage Act, and ss 60H and 69VA of the Family Law Act.
As stated earlier, s 69VA is not an independent head of power. It forms a part of Division 12 of Part VII. That Division is not applicable to this case, the general provisions in relation to parentage and presumptions as to parentage having been displaced by the specific provisions of s 60H.
It is important to identify that these applications take place in the context of a broader suite of applications in relation to the parenting of the child. Amongst those the Applicant seeks an order for equal shared parental responsibility, and that the child live with his parents in a shared care arrangement (although it is unclear what this means). The determination of parentage is an important aspect in the determination of these matters including, whether because it will lead to a presumption being applied in relation to parental responsibility, or because it is relevant to the primary consideration of the benefit of meaningful relationship for the child with his parents, or to apply the s 60CC considerations in the context of the Objects.
Definitively establishing parentage is an important and necessary aspect of determining the parenting orders sought for the child, and for determination of the matter before the Court.
The making of a declaration as to parentage is intimately connected to, and entwined with, the making of parenting Orders. This means that despite the unavailability of s 69VA, the power to make the declaration is available to the Court as an incident of the power to make parenting Orders, whether or not it may be considered to be a parenting Order.
Accordingly a declaration will be made that the Applicant is a parent of the child.
Relief under the law of the ACT
Pursuant to the cross-vesting scheme the Applicant seeks relief under the law of the ACT, for a declaration pursuant to s 19 of the Parentage Act and an Order pursuant to ss 15 and 16 of the Births, Deaths and Marriages Act 1997 for the amendment of the Register.
It was suggested for the Respondent that the exercise of the Territory jurisdiction is discretionary, and that it should not be exercised. In dealing with this aspect the Applicant raised the issue of transfer of the proceedings to the Supreme Court of the ACT (although such was not specifically raised by the Respondent). Both aspects, on the issue of whether the exercise of the jurisdiction is discretionary, will be dealt with.
Section 9(3) of the Cross-Vesting Act provides:
(3) The Federal Court or the Family Court may:
(a) exercise jurisdiction (whether original or appellate) conferred on that court by a provision of this Act or of a law of the Australian Capital Territory or the Northern Territory relating to cross-vesting of jurisdiction; and
(b)hear and determine a proceeding transferred to that court under such a provision.
It should be clear that the Cross-Vesting Act confers the jurisdiction of the ACT Supreme Court upon the Family Court of Australia.This is supported by the analysis of the effect of s 9(3) made by the Full Court of the Federal Court in Crosby & Anor v Kelly[30] where Robertson J found that the Cross-Vesting Act created a new source of original jurisdiction for the (Federal) Court and that:
In my opinion the language of the Act shows that the Act was intended and, for the Australian Capital Territory, continues to be intended to confer jurisdiction on the Federal Court even where, as here, there has not been a transfer of proceedings.
[30]Crosby & Anor v Kelly[30][2012] FCAFC 96
That is, the Cross Vesting Act invests this Court with original jurisdiction in respect of matters arising under the law of the ACT.
While the subsection provides that the Family Court of Australia may exercise jurisdiction, I do not construe this to be the conferring of a discretion beyond what is set out at s 6(4) in relation to the exercise of the jurisdiction. It may be observed that the use of the word may generally speaks of discretion. It is also capable of being used in the sense of permitting something to occur. The second sense is the preferable construction given the principle that jurisdiction, once conferred on a court, is not discretionary, and when invoked must be exercised.
Even if I am wrong in respect to the issue of whether the exercise of the jurisdiction is discretionary, having heard to completion the issue as to whether the Applicant is a parent of the child, and having determined the relevant facts for the determination, a transfer at this stage of the proceedings would be contrary to the interests of justice.
On the issue of transfer, s 6 of the Cross-Vesting Act provides powers to a court to, pursuant to the scheme, transfer proceedings to another court. Section 5(4) provides:
(4) Where:
(a)a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Federal Court or the Family Court (in this subsection referred to as the first court); and
(b)it appears to the first court that:
(i)the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of a State or Territory and it is more appropriate that the relevant proceeding be determined by that Supreme Court;
(ii)having regard to:
(A)whether, in the opinion of the first court, the relevant proceeding or a substantial part of it would have been incapable of being instituted in that court, apart from this Act and any law of the Australian Capital Territory or the Northern Territory relating to cross‑vesting of jurisdiction; and
(B)whether, in the opinion of the first court, the relevant proceeding or a substantial part of it would have been capable of being instituted in the Supreme Court of a State or Territory, apart from this Act and any law of a State or Territory relating to cross‑vesting of jurisdiction; and
(C)the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub‑subparagraph (B) and not within the jurisdiction of the first court apart from this Act and any law of the Australian Capital Territory or the Northern Territory relating to cross‑vesting of jurisdiction; and
(D)the interests of justice;
it is more appropriate that the relevant proceeding be determined by that Supreme Court; or
(iii)it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of a State or Territory;
the first court shall transfer the relevant proceeding to that Supreme Court.
It may be observed that transfer is contingent either upon there being proceedings current in the Supreme Court (there are none) or on a number of other factors, each of which requires a determination that it is in the interests of justice to make the transfer.
In this case, the matter having been heard comprehensively on the issue of parenting, a matter necessary to resolve for the proceedings under the Family Law Act, and also a matter necessary to resolve the proceedings under territory law, the interests of justice do not now point to a transfer.
A second bar to the exercise of the jurisdiction was raised by the Respondent, being the question of whether the Family Law Act covers the field in respect of parentage. For the purposes of the Family Law Act, in respect of artificial insemination, s 60H does. However, generally as to parentage, it does not. The Family Law Act contemplates the operation of State and Territory legislation in the operation of s 69S as it picks up on findings by other Courts to determine parentage. Section 60H itself contemplate the operation of State and Territory law as it picks up aspects of those laws for its own operation. This argument does not tell against the seeking of remedies under the Territory law.
As to the specific relief, s 19 of the Parentage Act provides the power to make a parentage declaration, on application by a person who claims to be a parent of a particular child. The findings that have been made under s 11 of the Parentage Act lead to a conclusive presumption under the Territory law that the Applicant is a parent of the child. A declaration should be made pursuant to the Territory law.
Section 15 of the Births, Deaths and Marriages Act 1997 provides:
The Supreme Court may, on the application of an interested person or on its own initiative, order-
(a) the registration of birth; or
(b)the inclusion of information relating to a birth or a child’s parent in the register.
At present the child’s entry in the register only has the Respondent’s details included as his parent. Given the determination under Territory law that the Applicant is also his parent, it is appropriate that the details be amended so as to include her name as the child’s parent. Orders will be made accordingly.
The matter will be listed for further directions including, should costs be sought by either party, directions for the conduct of any costs hearing.
I certify that the preceding one hundred and seventy (170) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 22 January 2019.
Associate:
Date: 22 January 2019
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