Lorre & Anor and Gronow & Anor

[2010] FamCA 417

FAMILY COURT OF AUSTRALIA

LORRE AND ANOR & GRONOW AND ANOR [2010] FamCA 417

FAMILY LAW – CHILDREN – Best interests

Family Law Act 1975 (Cth) ss 60CA, 61DA(1), 61DA(4)

Simpson & Brockman [2010] FamCAFC 37

FIRST APPLICANT: Ms Lorre

SECOND APPLICANT: Mr Farre

FIRST RESPONDENT: Ms Gronow

SECOND RESPONDENT: Mr Gronow

FILE NUMBER: CAC 649 of 2010

DATE DELIVERED: 11 May 2010

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 11 May 2010

REPRESENTATION

COUNSEL FOR THE FIRST & SECOND

APPLICANTS:

Mr J. Naumann

SOLICITOR FOR THE FIRST & SECOND

APPLICANTS:

Walsh & Blair Lawyers

SOLICITOR FOR THE RESPONDENTS: Self-represented litigants

Orders

1. Ms Lorre (also known by her married name as Ms Farre) and Mr Farre will have equal shared parental responsibility for M born on … November 2009.

2. M will live with Ms Lorre and Mr Farre.

3. There will be no order formally in relation to the time that M may spend with Ms Gronow or Mr Gronow or both of them. 

4. Mr Farre and Ms Lorre be permitted to sign any application necessary for a passport for M and all requirements for the consent of Ms Gronow and Mr Gronow be dispensed with.

5. For the purposes of giving effect to this order Mr Farre and Ms Lorre may provide to the appropriate officer of the Department of Foreign Affairs & Trade, Passport Operations, Passports Branch a sealed copy of these orders.

6. Otherwise this matter is removed from the pending cases inventory and all extant applications are finalised.

IT IS NOTED that publication of this judgment under the pseudonym Lorre and Anor & Gronow and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 649 of 2010

MS LORRE AND MR FARRE

First & Second Applicants

And

MS GRONOW & M GRONOW

First & Second Respondents

REASONS FOR JUDGMENT

1. In this matter, the orders I am being asked to make are orders under Part VII of the Family Law Act 1975 (Cth) which relate to matters pertaining to children. Under s 61DA(1) of the Family Law Act 1975 (Cth), I am required to apply a presumption that it is in the best interests of the child, in this case M, for her parents to have equal shared parental responsibility for her.

2. That presumption is rebuttable, in particular and relevantly in these circumstances, under s 61DA(4) of the Family Law Act 1975 (Cth), if the Court is satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. To say that in this situation M’s parenthood, in terms of the complicated definitions of that word “parent” under the pieces of legislation that govern the circumstances of her conception and birth, is a comparative understatement. Irrespective of whether or not Mr and Mrs Gronow might, under the terms of the Family Law Act 1975 (Cth) constitute M’s parents, I am satisfied that the presumption that they should have between them equal shared parental responsibility for M is appropriately rebutted.

3. I make that determination based on the circumstances relating to M’s conception and birth and, in particular, the fact that all parents in these circumstances contemplated that the arrangements after her birth would be that Mr Farre and Ms Lorre would be the people who would have, effectively, the parenting responsibilities for M.  As between Mr Farre and Ms Lorre, it seems clear to me that there should be equal shared parental responsibility, again drawing upon the circumstances of M’s conception and birth, and the arrangements that have entered into between the parties.  In reaching that conclusion, I draw also on the material that is set out in the affidavits that have been filed in these proceedings.

4. In terms of the other matters relating to M, I am obliged to regard her best interests as being my paramount consideration.[1] In this situation, I am assisted by the fact that unlike most matters that appear before me, all of the people involved are united in seeking the same result and in reaching agreement through a series of quite significant personal sacrifices to bring about a situation where M will have the best opportunity she might reasonably have in life with two people who are clearly dedicated to her welfare and who love her dearly.  The primary considerations I am nevertheless obliged to take into account are the benefit to M in having a meaningful relationship with both of her parents[2] and the need to protect her from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.[3] 

   [1] Family Law Act 1975 (Cth) s 60CA.

   [2] Family Law Act 1975 (Cth) s 60CC(2)(a).

   [3] Family Law Act 1975 (Cth) s 60CC(2)(b).

5. The Full Court of the Family Court of Australia in Simpson & Brockman[4] (Coleman, Warnick & May JJ) considered the issues surrounding the wording of the Family Law Act 1975 (Cth) which makes reference to the application of Part VII to a child’s parents and the considerations that should be taken into account in circumstances where – and I use this term without any critical element to it – there has been artificial conception, or there has been an artificial procedure to produce conception. In this situation, in my opinion, there is a benefit ultimately to M in having some form of relationship with Mr and Mrs Gronow. I am satisfied on the material that I have in front of me in the affidavits, which has been in part explained by the oral comments of the parties today, that that relationship will be appropriate in the unusual circumstances of this matter.

   [4] Simpson & Brockman [2010] FamCAFC 37, [42] to [48] (Coleman, Warnick & May JJ).

6. There is, in my opinion, contained within the arrangements set out by Mr Farre and Ms Lorre, a clear understanding of the need to deal with the psychological implications for M in her understanding of her background in due course. Other additional considerations which are prescribed under s 60CC(3) of the Family Law Act 1975 (Cth) that I am to take into account are substantially irrelevant, except I will make comment about the following: First, I am satisfied that the physical arrangements and the support, both intellectually, emotionally and physically, that can be provided by Mr Farre and Ms Lorre are appropriate.[5]  Second, I am satisfied that the proposed nature of the relationship with M with both Mr Farre and Ms Lorre is entirely appropriate.[6]

   [5] Family Law Act 1975 (Cth) s 60CC(3)(f)(ii).

   [6] Family Law Act 1975 (Cth) s 60CC(3)b)(ii).

7. I am also satisfied that the more attenuated relationship that is contemplated between M and Mr and Mrs Gronow is also appropriate in the circumstances.[7]  I understand and accept that there is willingness on the part of Mr Farre and Ms Lorre to facilitate and encourage a continuing close relationship between M and each of them.[8]  In the wording of the Family Law Act 1975 (Cth), the reference is to a “parent”, but in accepting the reasoning set out by the Full Court in Simpson & Brockman to which I have previously referred, it is also appropriate for me to consider that in the context of the unique circumstances of this matter, and I do so and make a positive finding in relation to that.

   [7] Ibid.

   [8] Family Law Act 1975 (Cth) s 60CC(3)(c).

8. There are no practical difficulties[9] relating to any time that M might spend with either of her parents except in relation to the possibility that Mr Farre may be posted overseas in which case it seems to me to be inevitable that it would be preferable that Ms Lorre and M should be able to accompany him, hence the appropriateness of the third order that is being sought this day.

   [9] Family Law Act 1975 (Cth) s 60CC(3)(e).

9. I am satisfied having: read the history of Mr Farre and Ms Lorre and their attempts to have a child of their own; considered the arrangements that have been put in place in this matter;  considered the care with which each of the people involved has undertaken the task that he or she has accepted and the advice that has been sought; and considered the professionalism with which each of the parents has approached this situation, that there is adequate capacity on the part of all of the relevant people to provide for the best interests of M into the future.

10. I am satisfied as to the attitude of Mr Farre and Ms Lorre to M and to their responsibilities as parents,[10] and I accept that in the context although the Family Law Act 1975 (Cth) refers to the child’s parents, that it is appropriate that I should take account of their particular attitude. I also note, and note with approval, though an odd sort of approval in these circumstances, that to the extent that Ms Gronow is the mother of M, that her attitude to her responsibilities has been appropriately discharged in the arrangements between the parties. There are no other factors which, in my opinion, are appropriate for me to consider in reaching the conclusion I do, that I should make orders substantially in the form that have been sought.

    [10] Family Law Act 1975 (Cth) s 60CC(4).

11. I wish you all good luck.  I read with interest the background and the matters that you have entered into.  I believe you have approached the matter with a great deal of care and love.  It is important for M at some point in the future that she realises what a wonderfully charmed existence she has as a chosen child in these circumstances.  I hope it all works out very well for you all.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Legal Associate: 

Date: 28 May 2010