Lorn & Brynn
[2024] FedCFamC1F 108
•1 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lorn & Brynn [2024] FedCFamC1F 108
File number: MLC 14524 of 2023 Judgment of: HARTNETT J Date of judgment: 1 March 2024 Catchwords: FAMILY LAW – PARENTING – Parenting Declaration. Legislation: Family Law Act 1975 (Cth) ss 60H, 69VA Division: Division 1 First Instance Number of paragraphs: 16 Date of hearing: 29 February 2024 Place: Melbourne Solicitor for the Applicant: Kelly & McHale Family Lawyers The Respondent: Litigant in person ORDERS
MLC 14524 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS LORN
Applicant
AND: MS BRYNN
Respondent
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
29 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Pursuant to section 60H of the Family Law Act 1975 (Cth), the Court finds that the children X, born 2022, and Y, born 2023 ("the children"), are children of the Applicant MS LORN, born 1984, and the Respondent, MS BRYNN, born 1981.
2.Pursuant to section 69VA of the Family Law Act 1975 (Cth), the Court hereby declares that the Applicant MS LORN, born 1984, and the Respondent, MS BRYNN, born 1981, are the parents of X, born 2022, and Y, born 2023.
3.The Applicant is authorised to apply to the Registrar of Births, Deaths and Marriages Victoria to include the details of the Respondent, MS BRYNN, born 1981, as registrable information on the Register of Births, Deaths and Marriages AND IT IS REQUESTED the Registrar of Births, Deaths and Marriages to forthwith alter the registrable information on the Register by including the details of MS BRYNN, born 1981, as the other mother of X, born 2022, and Y, born 2023.
4.All extant applications be otherwise dismissed and the matter removed from the list.
AND IT IS DIRECTED THAT:
A.The Applicant forthwith supply a sealed copy of these Orders to the Registrar of Births, Deaths and Marriages AND IT IS REQUESTED that the Registrar give effect to these Orders and to any application made to the Registrar pursuant to them.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Lorn & Brynn has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
INTRODUCTION
This proceeding commenced by Initiating Application filed by the applicant biological mother (“the applicant”) on 11 December 2023, the respondent mother (“the respondent”) being the other intended parent pursuant to s 60H of the Family Law Act 1975 (Cth) (“the Act”).
The respondent filed a Response to Final Orders filed 31 January 2024. In her Response, the respondent sought the same orders as those sought by the applicant. There is one affidavit of evidence before the Court, that affidavit being filed on 24 February 2024 and affirmed by the respondent.
RELEVANT FACTS
The respondent was born in 1981, she is aged 42 years of age and is the non-birth mother of X born 2022 aged 2 years and Y born 2023 aged under one year (collectively “the children”).
The applicant is the biological parent of the children. The applicant was born in 1984 and is aged 39 years of age.
The parties commenced their relationship in 2021, they have not separated and remain in a committed de-facto relationship.
The children live with both the applicant and the respondent.
The children were conceived by in vitro fertilisation (“IVF”) with a sperm donor who is a known donor who gave his consent to the use of his genetic material. The children have the same biological father.
Otherwise, the relevant facts are set out in the affidavit of evidence of the respondent, are as follows:
Chronology and Method of Conception
…….
10. [Ms Lorn] and I were not in a relationship when [Ms Lorn] initiated IVF and signed consent forms, [in] 2018.
…
12. [Ms Lorn] and I commenced our relationship [in] 2021. At this time [Ms Lorn] informed me of her wish to have children. We continued our relationship in agreement that [Ms Lorn] would continue to undergo IVF. I expressed my support and agreement.
13. [In] 2021, [Ms Lorn] underwent an egg collection procedure. I expressed my support.
14. Afterwards these eggs were fertilised with sperm from a known donor. [X’s] embryo was created in this procedure.
15. [In] 2021, [Ms Lorn] underwent an embryo transfer. I was supportive and consented to this. [X] was then conceived via this process.
16. [In] 2022, [Ms Lorn] gave birth to [X]. I was present during the birth as [Ms Lorn’s] partner.
17. [In] 2023, [Ms Lorn] underwent a second egg transfer with my consent and agreement. It was on this date [Y] was conceived.
18. [In] 2023, [Ms Lorn] gave birth to [Y]. I was present during the birth as [Ms Lorn’s] partner.
Birth certificates
19. [Ms Lorn] has applied for birth certificates for both boys. She is listed as the sole parent on the birth certificates.
MATERIAL RELIED UPON
The applicant relied upon:
(1)Initiating Application filed 11 December 2023; and
(2)affidavit of the respondent filed 24 February 2024.
The respondent relied upon:
(1)Response to Final Orders filed 31 January 2024; and
(2)her affidavit filed 24 February 2024.
The orders sought by the parties are the Orders made by the Court on 29 February 2024.
CONSIDERATION
Section 60H of the Act is as follows:
(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; and
(d) if a person other than the woman and the other intended parent provided genetic material--the child is not the child of that person.
(2) If:
(a)a child is born to a woman as a result of the carrying out of an artificial conception procedure; and
(b)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman;
then, whether or not the child is biologically a child of the woman, the child is her child for the purposes of this Act.
(3) If:
(a)a child is born to a woman as a result of the carrying out of an artificial conception procedure; and
(b)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of a man;
then, whether or not the child is biologically a child of the man, the child is his child for the purposes of this Act.
(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.
(6) In this section:
“this Act” includes the applicable Rules of Court.
Section 69VA of the Act is as follows:
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.
I am satisfied the parties were in a de-facto relationship at the time of the children’s birth, and that the parties and the known sperm donor consented to the use of material in the artificial conception procedure wherein the applicant was the biological mother.
The evidence supports the making of a declaration of parentage as sought by the parties and for the respondent’s details to be included in the Births Deaths and Marriages Registry.
This is a happy occasion for the parents of the children, children whose best interests are promoted by their living with their acknowledged parents.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 1 March 2024
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