Madsen and Kaplan
[2012] FMCAfam 251
•22 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MADSEN & KAPLAN | [2012] FMCAfam 251 |
| FAMILY LAW – Children – the applicant seeks interim orders that he spend time with a child – where the mother maintains that the applicant is not the child’s father – where the applicant refused to undergo parentage testing – where the reason for this was given as a cultural issue – whether notwithstanding this refusal a finding should be made that the applicant is the child’s father based on the presumptions set out in sections 69P, 69Q and 69R of the Family Law Act – held that on the evidence those presumptions were rebutted – discussion of issues of parental responsibility – application refused. |
| Family Law Act 1975, ss.60B, 60CC, 61B, 61C, 64, 65C, 65CA, 65D(1), 69, 69P, 69Q, 69R, 69U, 69Y(2) United States Constitution amend XIV |
| Troxel v Granville 530 U.S. 57 (2000) VR v RR (2002) FLC 93-099 |
| Applicant: | MR MADSEN |
| Respondent: | MS KAPLAN |
| File Number: | CAC 1301 of 2011 |
| Judgment of: | Brewster FM |
| Hearing date: | 27 February 2012 |
| Delivered at: | Canberra |
| Delivered on: | 22 March 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Stagg |
| Solicitors for the Applicant: | Legal Aid Office ACT |
| Counsel for the Respondent: | Mr Hubert |
| Solicitors for the Respondent: | Capon & Hubert |
ORDERS
That the applicant’s application for interim orders contained in his application filed 12 September 2011 is refused.
That this matter is adjourned for directions on 12 April 2012 at 10.00am.
IT IS NOTED that publication of this judgment under the pseudonym Madsen & Kaplan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 1301 of 2011
| MR MADSEN |
Applicant
And
| MS KAPLAN |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by Mr Madsen seeking orders which would permit him to spend time with a child Y. Y was born on (omitted) 2009 and is therefore aged 2 years and 8 months. The mother has another child Z who was born on (omitted) 2011.
Both parties are from the (omitted). As will be seen (omitted) culture will play a significant part in this case.
This matter concerned the applicant’s interim application and was dealt with “on the papers”, that is there was no cross examination of the parties. It is difficult to make findings of fact in such a hearing. Under these circumstances I have assumed that the applicant’s version is accurate. The mother has a different version of some important matters. For example she says that the parties never lived together after the child’s birth and she denies that she asked the applicant to care for the child when she travelled to (omitted). If there is to be a final hearing it may be that her version will be accepted.
Background
The parties commenced a relationship in 2007. At first they were not living together. The applicant lived in Sydney and the mother in Canberra. The applicant would visit the mother in Canberra a couple of times a month. However they did live together in Sydney between July and December 2008 when Y was conceived. They were not living together when she was born, the mother having returned to Canberra. This was apparently not indicative of a problem with the relationship but because under (omitted) culture a wife who is pregnant with her first child will return to live with her family during the term of the pregnancy.
The parties married in September 2008. I do not have any details of the precise date or where they were married. The applicant’s application in fact indicated that the parties were not married but the mother accepts that the parties entered into what she termed “an arranged marriage in (omitted) culture” in September 2008. No marriage certificate has been filed and in due course it might be appropriate for such a certificate to be filed.
In September 2009 the applicant moved to Canberra. The relationship broke down in April 2010 when Y was about 9 months of age.
The applicant states that the mother refused to let him spend time with the child after the relationship ended but that he was able to spend brief periods of time with her when the mother had left her in the care of relatives. In November 2010 the mother left for (omitted). The father says that she offered to have him care for the child and he did indeed look after her for one night. However he says that he realised that this was logistically impossible and he gave her into the care of an uncle of the mother’s. He says that he was permitted to see Y for some hours each day whilst the mother was in (omitted).
The mother returned to Australia in January 2011 and the applicant says that contact then ceased until June. Then following a Legal Aid Conference there was an agreement for supervised contact. Pursuant to this agreement he saw the child from 11.00am until 4.00pm on the 18th of June and for about 30 minutes on the 28th of June.
This litigation commenced when the applicant filed an application on 12 September 2011 seeking both final and interim orders concerning spending time with the child. The matter came before me on 25 October 2011. The mother claimed that the applicant was not the child’s father. I ordered parentage testing. I did not make any orders for contact but suggested that the parties though their lawyers arrange for the applicant to see the child between that date and the date when the results of the testing would become available. Following negotiations the mother agreed that the applicant could spend supervised time with the child for one hour each alternate Thursday. This arrangement commenced operation on 17 November 2011.
The matter came back before me on 6 December 2011. At that stage the applicant had not filled out the necessary forms for parentage testing to be conducted and accordingly the mother withdrew her consent to the contact arrangement. There has been no contact between the applicant and the child since that time.
The applicant has never undergone parentage testing and the court has been informed that he will not do so. In an affidavit filed on 21 February 2012 he gave the reasons for this. I have added in brackets words that were obviously inadvertently omitted.
10. Ms Kaplan and I lived together in Sydney between July and December 2008. During this time Ms Kaplan fell pregnant. In accordance with (omitted) culture, when Ms Kaplan found out she was pregnant Ms Kaplan and I went to her mother in Canberra and told her Ms Kaplan was pregnant. Under (omitted) culture, when a mother is pregnant with her first child, she returns to her family until the time the child is born. Ms Kaplan then stayed with her mother until Y was born. (Y is the name the father calls Y). During the time that Ms Kaplan stayed with her mother I set up a house for our family in Canberra. I was present at Y’s birth and am named as the father on her birth certificate. Shortly after Y was born Ms Kaplan and Y came to live in our new family home. They remained there until separation in April 2010.
11. During the time that Ms Kaplan and I were living in Sydney we were living with my cousin and his family. At this time Ms Kaplan was with other members of my family pretty much at all times. I am not saying it would be impossible for her to have seen another man but I cannot see how she could have had an ongoing relationship without the knowledge of myself or my family where we were living. There just wasn’t enough time when she was away from me or other family members.
12. Ms Kaplan knows that I will not take a DNA test because of (omitted) cultural beliefs. I understand that if I do not take the test the (court) can have me declared to not be Y’s father on the basis of not doing a test. (I) am concerned that is Ms Kaplan’s aim.
13. According to (omitted) culture when a man and woman marry the man takes on full responsibility for the woman and any resulting children. In (omitted) culture a marriage is more than just a man and woman wanting to be together. Marriages are generally arranged between families and communities and are a bringing together of two communities or families creating new bonds between communities and sometime (sic) healing rifts between communities. Decisions about marriage are made between the elders of families. Payment of dowry is common and signifies the status of the marriage in our culture and also the social status of the persons getting married. The decision to marry is therefore a decision of the whole of both communities. Children of the marriage are the furthering of the community and are part of the considerations in determining dowry and responsibility. Any decision to end a marriage is also a decision of the whole community and has ramifications beyond simply the husband, wife and children.
14. It is within this cultural context that I have refused to subject myself to a DNA test. The simple reason for my refusal is that questioning fatherhood is taboo in my culture. To submit to a parentage test would be seen as an extremely insulting, shameful and destructive act in my culture. The basis of dowry is that the husband is taking on the responsibility not so much for his wife but for the raising of any children produced by the marriage. In my culture, to question fatherhood is to question the whole basis upon which family structures in (omitted) are based. While it might seem like a simple thing to say, it basically comes down to “you just don’t do it in (omitted) culture”.
15. Questioning of parentage and divorce cause great distress in communities and have caused rifts resulting in tribal warfare in (omitted). My father has written a statement where he tries to explains (sic) the importance of the issue in our society. Annexed hereto and marked with the letter “A” is a copy of his statement. My father lives in (omitted) and has not been able to do a formal affidavit.
16. When I married Ms Kaplan, under my (omitted) cultural heritage I took on full responsibility for any children which came in the marriage. While I believe I am the biological father of Y realise of course that it is possible that I am not. Under (omitted) culture biological or genetic parenthood is largely irrelevant. As Ms Kaplan and I are married, Y is my child regardless and I have the responsibility to give her the best upbringing possible. In our culture this idea of family extends to creating a responsibility for any child born during the marriage. As Ms Kaplan and I are still married this would include Ms Kaplan’s child, Z even though I (am) by no means certain that I am (the) child’s biological father. I realise that this is not how Australian law works.
17. As I understand it, an Australian Court has to make a decision which is in the best interest of a child. I understand that myself, Ms Kaplan and Y now live in Australia and are subject to Australian law. While we are part of Australian culture, we also continue to have our (omitted) heritage and culture. Y will live in the (omitted) culture as well as “mainstream” Australian culture. As a result any decision this court makes will impact how myself and Ms Kaplan, but more importantly Y, are considered and treated within the (omitted) community. If I have the paternity test and it were to show that I was not Y’s biological father Y would then be considered illegitimate. This would affect the way she was treated within our community. Further, it would cause huge difficulties, and possible violence between families and communities in (omitted).
18. Currently the whole of both communities accept me as being Y’s father and her status and wellbeing in the community is assured. If I subject myself to the test and it by chance shows I am not her biological father her status is lowered in our culture and the basis upon which the marriage between myself and Ms Kaplan was arranged and proceeded is fractured. At the very least it would cause a major dispute about repayment of dowry and future responsibility for her care leading to possible conflict between the two families. At worst Y and Ms Kaplan could be ostracised from our community regardless of my personal wishes in the matter. While this is a decision that Ms Kaplan can make for herself, I believe it is unfair for her to make such a drastic decision on the future wellbeing of our daughter.
19. From my personal point of view I do not need to know if am biologically Y’s father. I accept the possibility that I cannot be 100% certain that I am her father but I believe I am. Regardless of what a test shows, in the truest sense I am her father. I will continue to love her and, will continue to have the moral and cultural privilege of ensuring that she reaches her full potential.
Notwithstanding that parentage testing has not been undertaken Mr Stagg who appeared for the applicant urged that I make a finding that the applicant is Y’s father. In this respect he relies on three presumptions contained in the Family Law Act. The first is contained in section 69P which provides that where a child is born to a woman when she is married to a man that man is presumed to be the father of the child. He also relies on section 69Q which applies a presumption of parenthood if, in effect, the parties were cohabitating at the time of conception. He also relied on section 69R which provides that if a person’s name appears on the child’s birth certificate as the father that person is presumed to be the father.
The mother maintains that the presumptions have been rebutted. She says that she has never believed that the applicant was Y’s father. She says that she was in another relationship with a man she knows only as Mr M when Y was conceived. She says that the father had previously been married for seven years and there were no children of that marriage. She says that his former wife has re-partnered and now has children. Further she relies on a letter sent by Dr K to Dr G dated 13 October 2008. The precise circumstances as to how this came to being is not explained but I can safely infer that the applicant was concerned as to whether he was infertile and sought a medical test. The relevant part of the letter reads as follows:
We performed a testicular biopsy on Ms Kaplan (this obviously in its context means the applicant Mr Madsen) at (omitted) Day Surgery and there was no sperm in the testicular biopsy. We did send a sample of it for histology and again no spermatogenic cells were found and I have told this to Mr Madsen and told him the best way forward is to go for sperm donation.
I am entitled to draw inferences from the applicant’s refusal to undergo parentage testing. See section 69Y(2) of the Family Law Act. Mr Hubert who appeared for the mother urged on me that I should draw an inference that the refusal was because of a consciousness that the result would prove he was not Y’s father. This might be an inference that I would draw at a final hearing but I decline to do so now. I accept for the purposes of this case that the applicant’s refusal to undergo parentage testing was culturally based. For the purpose of this interim decision I draw no inferences from the refusal.
As I have indicated in interim proceedings it is often difficult to make findings of fact. However in this case I am satisfied that the presumptions I have referred to above are rebutted. It is plain from the letter from Dr K that the test performed on the father showed him to be incapable of fathering a child. Mr Stagg opposed my making a definitive declaration that the applicant is not the father on the basis that he might seek medical advice as to whether a test of this nature is conclusive evidence that his client is infertile. I will therefore not make a definitive declaration at this stage. However I point out that rebutting the presumptions in section 69 does not require proof beyond reasonable doubt but only proof on the balance of probabilities. See section 69U. The bare possibility that, notwithstanding the findings of the biopsy, the applicant could father a child does not mean that the presumptions are not rebutted.
I therefore propose to proceed on the basis that the applicant is not Y’s father.
The question then arises as to whether I should make orders which would permit the applicant to spend time with the child.
The applicant is seeking what is called in the Family Law Act a parenting order. Section 64B sets out the matters that may be dealt with in a parenting order and these include the issue of a person spending time with a child. Section 65C provides that a parenting order may be sought by, inter alia, any person concerned with the care, welfare or development of the child concerned. It is not contended that the applicant is not such a person. Section 65D(1) provides that the court may “make such parenting order as it thinks proper.” Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child the court must regard the best interests of the child as the paramount consideration. However whilst it is the paramount consideration it is not the sole consideration. In this case, as will be seen, I have taken into account the issue of parental responsibility. I will come to this later in this judgment.
For the purposes of this case when assessing what is in the child’s best interests I propose to have regard to section 60B and section 60CC. Section 60B sets out the objects of the Act insofar as it addresses children’s matters and the principles underlying those objects. Section 60CC sets out a number of matters I am required to consider when assessing what is in a child’s best interests.
It is notable that neither of those sections deals to any great extent with people other than a child’s parents. Section 60B(1), which sets out the objects of the Act, is in the following terms:
The objects of this part are to ensure that the best interests of children are met by:
(a)Ensuring that children have the benefit of both their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;
(b)Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
It is notable that this sub-section refers to parents but not to other people.
The principles underlying those objects are set out in section 60B(2) which reads as follows:
The principles underlying these objects are that (except where it is or would be contrary to a child’s best interests):
(a)Children have a right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare, and development (such as grandparents and other relatives); and
(c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)Parents should agree about the future parenting of their children; and
(e)Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
I note that paragraph (b) refers to people other than a child’s parents. It is curious that this is said to be a principle underlying objects which do not include such people however nothing hangs on this.
As I have indicated section 60CC sets out a number of matters I am required to take into account in determining what is in the child’s best interests. The section is divided into primary considerations and additional considerations. There are two primary considerations. The first requires me to consider the benefit to the child of having a meaningful relationship with both of the child’s parents. The child having a meaningful relationship with a person other than a parent is not a primary consideration. The second addresses issues of violence. The mother alleges violence on the part of the applicant towards her but I cannot make a finding as to this and do not take it into account.
The additional considerations are set out in section 60CC(3). The paragraphs in that sub-section relevant to this case are as follows:
Paragraph (b) requires me to consider the nature of the relationship of the child with:
i)Each of the child’s parents; and
ii)Other persons (including any grandparent or any other relative of the child).
This is often an important consideration when dealing with an application by a step-parent to be able to spend time with a child. Where a step-parent has lived with a child of a party to the relationship for a significant time a close bond often grows between the step-parent and the child. This frequently results in orders being made permitting a step-parent to spend time with the child even though this is opposed by the child’s biological parent or parents. In this case however I can safely infer that there would not be the type of close relationship between the applicant and the child as would occur in the hypothetical case I have postulated. I can infer that the applicant is a person known to the child and the child may well be pleased to be in his company. However I can infer that, at least as compared to the type of relationship in the example I gave, the relationship is not likely to be an important one for the child.
Paragraph (f) requires me to consider the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs. I have no reason to doubt that the applicant could meet both these needs save for one matter which I will refer to in paragraph 32.
Paragraph (g) requires me to consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
As I have indicated both the applicant and the mother are of (omitted) origin. It is to be expected that the child will be imbued with (omitted) culture. It would be unfortunate if this were not the case. However there does appear to be some difference between the parties in relation to how each views this culture. For example the mother does not agree that parentage testing is inappropriate under (omitted) culture.
As I understood Mr Stagg he urged me to have regard to (omitted) culture in making a decision in this matter. However I do not propose to do so. The mother is (omitted) and, one assumes, familiar with the (omitted) culture. She can bring up the child in accordance with her perceptions of that culture. She should not however be required to comply with any aspect of that culture which she considers to be inappropriate. If her position is contrary to (omitted) culture that is a position which she is entitled to take. She is entitled to call in aid Australian laws and the Western traditions and culture that underlie those laws. This court should not impose (omitted) culture on the mother against her will. Nor, for reasons I will explain, on the child against her mother’s will.
When I consider the best interests of the child and reflect on the parts of the applicant’s affidavit I have quoted I have some concerns as to the consequence of the child’s spending time with the applicant. The mother does not believe that the applicant is the child’s father and it can be expected that she will inform the child of this. She does not believe that the applicant should be in a position of loco parentis to the child. The applicant on the other hand believes that he is the child’s father and in any event he believes that even if he is not the biological father he is the child’s father for all intents and purposes. It would be unrealistic to expect him to keep this from the child. We therefore have the situation of the child being given mixed messages by the applicant on the one hand and the mother on the other.
Paragraph (m) requires me to consider any other fact or circumstance that I think relevant. Such facts and circumstances will emerge in the balance of this judgment.
As I have indicated in my opinion a significant aspect of this case is the issue of parental responsibility. Parental responsibility is defined in section 61B of the Act as meaning all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Section 61C(1) provides, in effect, that in the absence of a court order to the contrary (and there is no such order) each of the parents of a child who is not 18 has parental responsibility for the child. In this case for all practical purposes it is the mother and the mother alone who has parental responsibility.
One of the incidents of parental responsibility is the parent deciding whom a child should come in contact with. In this case the mother has decided the child should not come in contact with the applicant. The court can override that decision. The question in this case is should it do so?
The significance of parental responsibility was commented on by the Full Court of the Family Court of Australia in VR & RR (2002) FLC 93-099. As I have indicated section 65D(1) of the Act provides that a court may make such parenting orders as it thinks proper. Commenting on this the Full Court at paragraphs 28 and 29 said as follows:
28. The overall framework of the legislation can be seen to provide that both parents have parental responsibility for the child but the Court may take away or diminish an aspect of parental responsibility if it is “proper” to do so.
29. Whilst the word “proper” connotes a very wide area of discretion, in our view it is clear from the legislative scheme that any intervention by the Court in the due performance of an aspect of parental responsibility that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner that parent deems appropriate should be made only where the Court is of the view that the welfare of the child will be clearly advanced by that order being made.
I note also the line of jurisprudence found in cases in the Supreme Court of the United States. In particular I found the majority opinions in Troxel v Granville 530 U.S. 57 (2000) of assistance. Whilst that case must be viewed with caution given that it is essentially a decision on the scope of the 14th Amendment to the United States Constitution nevertheless it recognised that the concept of parental authority extends beyond that Amendment. The court in that case struck down a Washington statute giving grandparents the right to apply for orders that they spend time with their grandchildren. It found that the statute as drafted did not give sufficient deference to the wishes of the parents involved. The majority opinion was delivered by O’Connor J who, omitting citations, said as follows:
The Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” We have long recognized that the Amendment’s Due Process Clause, like its Fifth Amendment counterpart “guarantees more than fair process.” Washington v Glucksberg. The Clause also includes a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests.” Id. At 720………
The liberty interests at issue in this case – the interest of parents in the care, custody, and control of their children - is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago in Meyer v Nebraska we held that the “liberty” protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own”. Two years later in Peirce v Society of Sisters we again held that the “liberty of parents and guardians” includes the right “to direct the upbringing and education of children under their control.” We explained in Pierce that “[T]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” We returned to the subject in Prince v Massachusetts and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom includes preparation for obligations the state can neither supply nor hinder.”
In subsequent cases also we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See eg Stanley v Illinois “It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children’ come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements’”; Wisconsin v Yoder. “The history and culture of Western civilisation reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition”; Quilloin v Walcott “We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected” Parhum v JR “Our jurisprudence historically has reflected Western civilisation concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course.” Santowsky v Kramer discussing “[T]he fundamental liberty interests of natural parents in the care, custody, and management of their child”; Glucksberg. “In a long line of cases we have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specifically protected by the Due Process Clause” includes the righ[t] … to direct the education and upbringing of one’s children” (citing Meyer & Peirce). In light of this extensive precedent it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”
In my opinion the court should pay due respect to decisions made by a parent and, as indicated by the Full Court in VR v RR, only override a decision made by a parent if the best interests of the child clearly require such a step. In this case I am not persuaded that the best interests of Y clearly require me to override the decision of her mother that the applicant should play no part in her life. I am not satisfied that the applicant, to paraphrase section 60B(2)(b), is a person of such significance to the child’s care welfare and development as to require me to override the mother’s decision in this respect.
The next step would normally be to set the matter down for a final hearing. However in this case I cannot see how the applicant’s prospects at a final hearing would be better than at the interim hearing that gave rise to this judgment. It may be that the applicant’s best course, if he wishes to take the matter further, would be to seek leave to appeal my judgment. There are possible grounds for an appeal. It might be thought that I have taken the comments made in VR v RR out of context. That case involved quite different issues than those confronting me. Indeed I cannot recall any case in which a court has used the concept of parental responsibility to resolve an application by a non parent to spend time with a child. The Full Court might think my having regard to the jurisprudence in Troxel to be inappropriate. It might disagree with my treatment of the cultural issues relied on by Mr Stagg. It might disagree with other aspects of my judgment. Naturally I believe that my decision and my reasoning behind it are correct but I am acutely conscious of H L Mencken’s aphorism that a judge is just a law student who gets to mark his own papers.
For this reason I have listed the matter for further directions on 12 April 2012 at 10.00am.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Brewster FM
Date: 22 March 2012
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