Lewis & Stone
[2025] FedCFamC2F 594
•12 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lewis & Stone [2025] FedCFamC2F 594
File number: MLC 15941 of 2024 Judgment of: JUDGE BLAKE Date of judgment: 12 May 2025 Catchwords: FAMILY LAW – Children - interim parenting orders sought - where the child conceived through artificial conception procedure - where applicant and respondent are listed on the birth certificate - where the respondent seeks declarations that the parties were not in a de facto relationship as contemplated by section 60H of the Family Law Act and seeks to rebut the presumption of parentage under section 69R of the Act - where the Court cannot determine at an interim hearing whether the parties were in a de facto relationship or whether the presumption in section 69R is rebutted - where the presumption of parentage under section 69R should be taken to operate in an interim hearing - best interests considerations applied - where Court found not in the best interests of the child to spend time with the Applicant. Legislation: Family Law Act 1975 (Cth) s 60CA, 60CC, 60H, 69R, 90RD Cases cited: Franklyn v Franklyn [2019] FamCAFC 256
Frontera & Gibbons [2015] FamCA 701
Goode v Goode (2006) 206 FLR 212
Sofia & Treacy [2022] FedCFamC1F 777
Division: Division 2 Family Law Number of paragraphs: 26 Date of hearing: 7 May 2025 Place: Melbourne Solicitor for the Applicant: Mr Horsfall, Southern Legal Group Counsel for the Respondent: Mr Mellas Solicitor for the Respondent: Lakey Law Pty Ltd ORDERS
MLC 15941 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LEWIS
ApplicantAND: MS STONE
Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
12 MAY 2025
THE COURT ORDERS THAT:
1.The Applicant’s application for interim orders to spend time with the child X born in 2023 as set out in her Amended Application filed 1 May 2025, and Outline of Case filed 2 May 2025, be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
This matter concerns the interim parenting arrangements for X born in 2023 (‘child’). Ms Lewis (‘Applicant’) seeks orders that she be permitted to spend professionally supervised time with the child each Saturday for a period of three hours and that at the conclusion of such time, a report from the supervisor be prepared and filed with the Court. She seeks these orders on the basis that she is a parent of the child.
The Application is opposed by Ms Stone (‘Respondent’). She submitted that the Court should make not make any order for the Applicant to spend time with the child on two bases. First, that the Applicant is not a parent of the child, having regard to the terms of section 60H of the Family Law Act 1975 (Cth) (‘Act’). Second, that it was not in the best interests of the child for the Applicant to spend time with the child.
The Applicant relied on her Amended Application, her affidavit of 1 May 2025, her case outline, and documents tendered and accepted into evidence during the proceeding. The Respondent relied on her affidavit of 22 April 2025, the affidavits of Ms B and Ms C (‘Ms C’) filed 22 April 2025, documents tendered in the proceeding, and her case outline.
IS THE COURT ABLE TO DEAL WITH THE APPLICATION?
In her Amended Response, the Respondent sought, inter alia, the following interim orders:
1That pursuant to s. 90RD of the Family Law Act (1975), it be declared that the Applicant and Respondent:
(a) were not in a de facto relationship.
(b) do not have a child of the relationship.
2.That pursuant to Section 60 H of the Family Law Act 1975 (Cth), the Applicant is not a parent of the child [X] born [in] 2023 (hereafter referred to as [X]).
Both parties accepted that the Court could not make the orders sought above on an interim basis. That is plainly correct. The Court cannot make findings of fact in an interim hearing. The proceeding is listed for a Compliance and Readiness hearing before a Judge on 17 June 2025 and at that time, it seems likely that the question of whether the parties were in a de facto relationship, as well as the question that arises under section 60H of the Act, will be set down for trial.
The Applicant submitted, however, that the Court could and should nevertheless proceed to consider an application for parenting orders. The Applicant is registered as the child’s parent on her birth certificate, and section 69R of the Act creates a presumption that if a person’s name is entered as a parent of a child in a register of births of a State, the person is presumed to be a parent of the child. The Respondent’s position was that any application for interim parenting orders ought not be entertained until the question of whether the Applicant was a parent of the child was resolved. On the issue of the Applicant being registered as a parent of the child on the child’s birth certificate and the presumption that arises under section 69R of the Act, the Respondent referred me to the decision of Sofia & Treacy [2022] FedCFamC1F 777 (Carter J) (‘Sofia’). There, Carter J was dealing with the issue (on a final basis) of whether the parties were in a de facto relationship at the time the child in that matter (‘X’) was conceived as a result of an artificial conception procedure. Carter J noted that the determination of whether the parties were in a de facto relationship had significant implications for the operation of section 60H of the Act to the facts of the case before her. Further, in Sofia, both parents were listed on X’s birth certificate. At paragraph [120] of her reasons, Carter J noted that while she did not exclude the evidence regarding X’s birth certificate, the events concerning the birth certificate and its issue did not throw light upon the nature of the relationship at the time of the artificial conception procedure which had occurred many months earlier. At paragraph [121], Carter J considered she did not need to determine the factual dispute between the parties as to how the applicant in that case came to be included on the birth certificate.
I indicated to the Respondent that while some of the factual circumstances that arose in Sofia were similar to the present matter, it was not a decision on point and of greater relevance is the decision of Frontera & Gibbons [2015] FamCA 701 (Loughnan J). There, Loughnan J was asked to make interim (not final) parenting orders concerning a child (‘B’) born through an IVF program. The applicant in that matter was seeking additional time with B on the basis that she was a parent (the applicant had been registered as a parent on the birth certificate of B). The respondent opposed any additional time, and also sought a declaration that the applicant was not a parent of B (though the respondent conceded the applicant was a person with a significant interest in the welfare of the child). Loughnan J noted at paragraph [69] that there was a challenge to the applicant’s status as a parent that could not be resolved on an interim basis. Then at paragraph [70], Loughnan J stated as follows:
The applicant submits that notwithstanding the respondent’s challenge, I should rely on the presumption. The respondent and the ICL advocate a cautious approach whereby I treat the applicant as if she is not a parent of the child. I do not understand the sense in which that is a cautious approach. There is a presumption that the applicant is the child’s parent. Although there is a challenge to that presumption it has not been rebutted and may never by [sic] rebutted. The proposal of the ICL and the respondent would in effect, reverse the presumption. In my view the proper approach is to rely on the presumption and apply the s 60CC considerations on that basis.
I put the above to Counsel for the Respondent. He accepted that the Court could entertain an application for interim parenting orders. That concession is appropriate given the statement by Loughnan J. There is a presumption in section 69R of the Act that is in place and in an interim hearing, that presumption operates. Accordingly, I proceeded to hear the application for parenting orders. The question of whether there was a de facto relationship, or whether the presumption in section 69R of the Act is rebutted, is a matter to be determined at a later day.
RELEVANT PRINCIPLES
In determining interim parenting matters, section 60CA of the Act provides that I must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out the matters the Court must consider in determining what is in a child’s best interests. There are general considerations set out in subsections (2) and (2A), as well as additional considerations that apply to Aboriginal and Torres Strait Islander children in subsection (3).
In Franklyn v Franklyn [2019] FamCAFC 256, a Full Court discussed the approach to be taken in interim hearings at paragraphs [72] - [73]. I have endeavoured to approach the matter consistently with what is set out in those paragraphs, and consistent with the guidance set out in Goode v Goode (2006) 206 FLR 212.
FACTS
The following facts are largely not in dispute:
(a)the parties met in 2020. There is a dispute, that cannot be resolved now, about the existence of the relationship between them, or the periods there was a relationship between them;
(b)the Applicant is the mother of two children from a previous relationship;
(c)the child was conceived through an artificial conception procedure and was born in 2023. The Respondent gave birth to the child;
(d)the Applicant was involved in the process leading up to artificial conception, though how she came to be involved and the circumstances of her involvement are disputed, with the Respondent contending that she was coerced into permitting the Applicant to participate in the process;
(e)following the birth of the child in 2023 until July 2024, the Applicant spent regular time with her children at the Respondent’s home. The Applicant contends in this period, she was spending around five nights per week at the Respondent’s home and for the purposes of the hearing before me, it was conceded by the Respondent that the Applicant had spent a ‘fair bit of time’ time at the Respondent’s home; and
(f)the Applicant has not seen the child since July 2024, and ultimately commenced these proceedings in December 2024.
CONSIDERATION
The Respondent in her affidavit makes a number of serious allegations against the Applicant. Those allegations include that the Applicant coerced her into participating in the IVF process, criticised her parenting and care of the child, and smacked the child. The Respondent also alleges that the Applicant committed family violence against her including by causing damage to property of $57,616, verbally abusing her during the relationship, exhibiting aggressive body language, forcing herself sexually upon her, impersonating her to cancel an appointment with her therapist, restraining her, financially abusing her, limiting her communications with others, and threatening self-harm.
Police records indicate that:
(a)there is a final family violence intervention order where the Applicant is listed as the respondent to the intervention order, and the Respondent and child are listed as protected persons. The order expires in late 2026;
(b)there have been six family violence reports where the Applicant is listed as the perpetrator and the Respondent as the affected family member;
(c)in late 2024, police located the Applicant in the Respondent’s backyard. The Applicant had apparently gained entry to the yard via the roof. The Applicant was found to be in possession of a lock pick and pellets believed to be poison; and
(d)the Applicant was fined without conviction in the Magistrates Court in late 2024 for contravening a family violence intervention order.
A report provided by the Department of Family, Fairness and Housing (‘DFFH’) under section 67ZBD of the Act notes, in respect of the Applicant, that:
(a)in May-July 2024, ‘Follow-up with services initially indicated concerns around general neglect and further noted some controlling behaviour perpetrated by the [Applicant] toward the [Respondent]’ which the Applicant denied;
(b)in July 2024, it was reported that the Applicant had restricted the Respondent’s access to her phone and counselling services, and that additional concerns have been raised regarding a pattern of family violence perpetrated by the Applicant; and
(c)in respect of the Applicant’s children of a previous relationship, there had been approx. 10 reports received by Child Protection between December 2019 and December 2025, one of which progressed to closure following a Protection Order which resulted in the Applicant’s children residing in her mother’s home for six months in 2020, with reunification occurring subject to the Applicant maintaining engagement with mental health support services.
The Applicant for her part denied many of the allegations of family violence levelled against her. She levelled various allegations of family violence against the Respondent including allegations of assault, abuse and physical assault. The Applicant also makes allegations that the Respondent was domineering, highly critical of her, and has sought to effectively eliminate her from the child’s life.
It is not possible to determine the veracity of the competing allegations of family violence made by these parties. The independent records from Victoria Police and DFFH lend weight, however, to at least some of the allegations the Respondent raises. I attach weight to this independent material, in particular the police records concerning the conduct of the Applicant, and the DFFH records.
The allegations made by the Respondent against the Applicant are serious. The allegation that a child under nine months old was hit by the Applicant is serious. It is of significant concern that the Applicant has been found to have contravened a family violence intervention order, and to have been found on the premises of the Respondent’s home with a lock pick and (seemingly) poison in hand.
There are also questions about the Applicant’s parental capacity and mental health. The DFFH material provides some support for the Respondent’s allegations that the Applicant may be affected by mental health issues, and that her parenting capacity may be affected. The Applicant has produced no evidence that she has maintained engagement with mental health services as suggested by DFFH.
In her affidavit, as well as recounting what has occurred to her, the Respondent deposes to being concerned about her ability to cope emotionally if time between the Applicant and the child was ordered to occur. There is some support for this evidence. The Applicant’s psychotherapist and counsellor, Ms C has filed an affidavit in these proceedings. In that affidavit, Ms C expresses concerns for the Respondent’s welfare if time between the Applicant and the child were to occur. In her affidavit, Ms C notes that the Respondent is scared of the Applicant, and that the Applicant’s well-being needs to be considered and protected given her status as the primary carer. Ms C also notes that the ‘primary predictor of how well a child will go when away from a primary caregiver is corelated with the primary caregivers level of comfort and confidence in the child’s safety when away from the primary caregiver’. While Ms C is not a medical practitioner, I have given these views some weight. It is also noteworthy that the Respondent has been seeing Ms C since August 2024, well before these proceedings were commenced. That points to the Respondent having genuine concerns about her mental health, and actively seeking to address them.
There is not a dispute that from the birth of the child until July 2024, the Applicant spent a substantial amount of time at the home of the Respondent. While that may be the case, there is little evidence from the Applicant as to her day-to-day involvement in the life of the child.
In deciding whether to make interim parenting orders, the Court is also required to take account of ‘anything else that is relevant to the particular circumstances of the child’. The child is approximately 19 months old. The child has not seen the Applicant for approximately 10 months. It is unlikely the child has any memory of the Applicant. Commencing time between the child and the Applicant now will take the form of the child being reintroduced to the Applicant. There may be some benefit in that which the Court is required to take account of, however the following matters need to be considered.
The Respondent is advancing a case that the Applicant is not a parent of the child having regard to section 60H of the Act, and that issue remains unresolved. The Respondent is also advancing a case that the Applicant’s inclusion on the birth certificate (which gives rise to the presumption that the Applicant is a parent) was obtained through coercion, and that issue also remains unresolved. These issues are likely to be set down for trial later this year.
The question that arises from this set of circumstances is whether it is in the child’s best interests to be reintroduced to the Applicant now as the child’s parent when ultimately at some point in the near future, it may be determined that the Applicant is not a parent of the child. It seems to me there is a real risk to the emotional welfare and development of the child if she were to be reintroduced to the Applicant (as a parent) now, only for it later to be found that the Applicant is not her parent. A finding that the Applicant is not a parent would have real consequences for the child potentially not only emotionally, but also in terms of any arrangements for time between the child and the Applicant.
The Applicant has not seen the child now for 10 months and given the child’s young age, it is likely the child has no recollection of her. Where a substantive hearing will shortly be held to determine questions of parentage, there seems little benefit, and much risk to reintroducing the child to the Applicant at this stage. This situation is to be contrasted with a situation in which a person in a similar position to the Applicant has an existing and demonstrable relationship with the child. In such a situation, the considerations may well be different.
For all of the above reasons, I am not persuaded that it is in the child’s best interests to be reintroduced to the Applicant at this time. It is in the child’s best interest that she spend no time with the Applicant (in the circumstances of this case) until such time as the various threshold issues are resolved. Supervision of the child’s time with the Applicant does not reduce the risks that arise in this case, including the risks to the welfare of the Respondent as primary carer, and the risks to the emotional welfare and development of the child of a reintroduction of time which may, at a later stage following the determination of the threshold issues in this case, need to be reconsidered.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 12 May 2025
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