FAMILY COURT OF AUSTRALIA
| MASSON & PARSONS AND ANOR | [2017] FamCA 789 |
| FAMILY LAW – CHILDREN – Parental responsibility – Where the applicant is the biological father of the elder child and has a strong and secure attachment with the younger child – Where the younger child was conceived via artificial insemination program using an identifiable donor – Where the applicant sought shared parental responsibility between all three parties – Where the respondents sought that they share parental responsibility to exclusion of the applicant – Where communication between the applicant and respondents has deteriorated due to the conflict – Concluded shared parental responsibility between the three parties would expose the children to damaging conflict – Concluded the respondents will consult with the applicant and keep him advised in a scrupulous and accurate way – Ordered the respondents have equal shared parental responsibility for any major long term decisions and notify the applicant. FAMILY LAW – CHILDREN – Definitions – Who is a parent – Where the court was asked to determine who is a legal parent of the elder child – Where the term parent is not exhaustively defined by the legislation – Where the parties sought declarations of parenting under s 69VA of the Act – Concluded the applications made under s 69VA are misguided as the biological relationships are not in dispute – Where the applicant provided genetic material for the express purpose of fathering a child – Where the applicant believed he would take on the responsibilities of parenthood together with the respondent – Concluded the intention of a party to artificial insemination is a factor to be taken into account – Concluded the applicant is a legal parent of the eldest child – Whether the respondents were in a de facto relationship at the time of carrying out the artificial conception procedure – Where there was insufficient evidence to conclude the respondents were living together – Where there was no intermingling of finances or common assets – Where the applicant had no knowledge of the respondents’ relationship – Concluded the respondents were not in a de facto relationship – Concluded the legislative requirement for “other intended parent” pursuant to s 60H of the Act is not met FAMILY LAW – CHILDREN – Relocation – Where the respondents sought to relocate to New Zealand with the children – Where the children enjoy an extremely positive, close and secure relationship with the applicant – Where the children have a close and secure attachment with the applicant’s mother and partner – Where the respondents overlook that the applicant and his family are part of the children’s family – Where relocation would devalue, for the children, members of the family that have great emotional significance – Concluded the children’s relationship with the applicant, the applicant’s partner and the applicant’s mother would not be maintained at the present level if relocation occurs – Ordered the children live with the respondents in Australia |
| Family Law Act 1975 (Cth), ss 4, 4AA, 60CC,… |
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- AGLC
- Masson & Parsons & Anor [2017] FamCA 789
- Case
- [2017] FamCA 789
- Decision Date
CaseChat Overview and Summary
The court was required to determine several key legal issues. These included who constituted a legal parent for the elder child, particularly in the context of artificial insemination and the intention of the parties at the time of conception. The court also needed to consider whether the respondents were in a de facto relationship at the time of the artificial conception procedure, as this was relevant to legislative requirements for "other intended parent" status. Furthermore, the court had to assess the children's best interests regarding parental responsibility, residence, and the potential relocation of the children to New Zealand, considering the children's relationships with all parties involved.
Cleary J reasoned that while the biological relationships were not in dispute, the applicant's intention to father a child using his genetic material was a crucial factor in determining legal parentage under the relevant legislation. The court found insufficient evidence to establish a de facto relationship between the respondents. Regarding parental responsibility, the court concluded that shared parental responsibility between all three parties would expose the children to damaging conflict. Consequently, the court ordered that the respondents have equal shared parental responsibility for major long-term decisions, with an obligation to consult and keep the applicant informed. The court also determined that the children's residence should be with the respondents in Australia, finding that relocation to New Zealand would negatively impact the children's relationships with the applicant and his family.
The court ordered the discharge of all prior parenting orders. The respondents were granted equal shared parental responsibility for major long-term issues, with specific obligations to notify and consider the applicant's views. Day-to-day decisions were allocated to the party with whom the children were residing at the time. The children were ordered to live with the respondents in Australia, and the respondents were restrained from relocating the children to New Zealand without the applicant's consent. The court also made detailed orders regarding the children's time with the applicant, including provisions for school holidays and special occasions, as well as orders concerning communication, travel, and specific issues such as medical information and school involvement. Applications for declarations under s 60H and s 69VA of the Family Law Act 1975 were dismissed.
Orders
Orders of the court
1.
That all prior parenting orders in relation to B born in 2007 and C born in 2008 (together referred to as “the children”) are discharged.
Parental Responsibility
2.
That SUSAN PARSONS and MARGARET PARSONS (“the Respondents”) have equal shared parental responsibility for the children in respect to major long term issues.
3.
That the Respondents, or either of them, shall, notify ROBERT MASSON (“the Applicant”) of any long term issue arising for decision making in respect to either or both of the children and thereafter shall:
3.1 Advise the Applicant of their proposed decision;
3.2 Invite the Applicant to express his views and any proposal he wishes to put forward to them, within a reasonable period of time (nominated by the Respondents), for response;
3.3 Genuinely consider the response of the Applicant;
3.4 Advise the Applicant in writing, as soon as practicable, of the decision taken.
4.
The Respondents shall have responsibility for making day-to-day decisions concerning the care, welfare and supervision of the children and also about any issue that is not a major long term issue, without reference to the Applicant, when the children are in their care.
5.
The Applicant shall have responsibility for making day-to-day decisions concerning the care welfare and supervision of the children and also about any issue that is not a major long term issue, without reference to the Respondents, when the children are in his care.
6.
The Respondents and each of them are restrained from applying to amend B’s Birth Certificate without the prior written consent of the Applicant.
7.
The Respondents shall not enrol the children in any extra-curricular activity that occurs during the time spent by the children, or either of them, with the Applicant, unless they have obtained his prior written consent.
Residence
8.
The children shall live with the Respondents.
9.
The Respondents are restrained from establishing a residence for the children in New Zealand without the prior written consent of the Applicant.
Time and Communication
10.
The children shall spend time and communicate with the Applicant as agreed between the parties but failing agreement as follows:
10.1 In 2017 the children spend time with the Applicant in a two weekly cycle as follows:
10.1.1 In week 1 commencing in the first week of the fourth school term, from 9.00 am or the commencement of school on Monday until 9.00 am or the commencement of school on the following Tuesday;
10.1.2 In week 2 from 9.00 am or the commencement of school on Friday until 9.00 am or the commencement of school on the following Monday and the Applicant shall deliver the children back to school on a school day or to the Respondents’ home if a non-school day.
10.2 In 2018 the children spend time with the Applicant in a two weekly cycle as follows:
10.2.1 In week 1 commencing in the first week of each term from 9.00 am or the commencement of school on Monday until 9.00 am or the commencement of school on the following Tuesday;
10.2.2 In week 2 from 9.00 am or the commencement of school on Friday until 9.00 am or the commencement of school on the following Tuesday and the Applicant shall deliver the children back to school on a school day or to the Respondents’ home if a non-school day.
School Holidays
10.3 The children spend time with the Applicant for one half of the Term 1, 2 and 3 school holiday periods, being the first half of the school holidays in odd numbered years commencing in 2019 and in the second half of the holidays in each even numbered year commencing in 2018.
10.4 During the long school holiday at the end of Term 4 in 2017 the children spend time with the Applicant as follows:
10.4.1 From 12.00 pm on 25 December 2017 until 12.00 pm on 29 December 2017;
10.4.2 From 12.00 pm on 8 January 2018 until 12.00 pm on 12 January 2018;
10.4.3 From 12.00 pm on 22 January 2017 until 12.00 pm on 26 January 2018.
10.5 Commencing in 2018, during the long school holiday at the end of Term 4 the children spend time with the Applicant for the second half of the holidays in even numbered years and for the first half of the holidays in each odd numbered year thereafter.
Special Occasions
10.6 Except for 2017, the children spend time with the parties at Christmas as follows:
10.6.1 With the Applicant from 12.00 pm on 24 December until 12.00 pm on 25 December in even numbered years commencing in 2018 and from 12.00 pm on 25 December until 12.00 pm on 26 December in odd numbered years commencing in 2019.
11.
Notwithstanding any other order the children shall spend the weekend which includes Mother’s Day with the Respondents and the weekend including Father’s Day with the Applicant for a period not less than from 6.00 pm on the Saturday evening prior to the relevant day until 5.00 pm on that day.
Changeovers
12.
Implementation of the Applicant’s time with the children shall as far as possible occur at their school but otherwise the Applicant shall collect them from the Respondents’ residence at the commencement of the period and the Respondents shall collect the children from the Applicant’s residence at the conclusion thereof, unless otherwise agreed.
Travel
13.
That unless otherwise agreed, each of the parties may travel with the children interstate or overseas provided that:
(a) The travel occurs when the children are living or spending time with the that party unless otherwise agreed in writing;
(b) If the non-travelling party provides written consent to travel outside of the time that the children would be living/spending time with the travelling party, they may not revoke this consent unless in the case of an emergency;
(c) The party intending to travel with the children provides notice to the other party/parties at least six weeks prior to the travel; and
(d) The party intending to travel with the children provides an itinerary of travel including the contact information and address of each place at which the children will be staying and copies of return airline tickets if applicable.
14.
The non-travelling party is permitted reasonable telephone contact with the children whilst the children are away but the telephone contact should not be so frequent that it interferes with the children’s holiday with the travelling party.
15.
That the Respondents shall hold the children’s passports and deliver those passports to the Applicant upon request and within a period of 48 hours of that request provided that Order 13 has been complied with.
Specific Issues
16.
The parties will inform each other as soon as practicable of any medication prescribed and the instructions for the use of this medication for the children.
17.
The parties are to keep each other informed of any significant health issues concerning the children while in their care including when the children become ill, injured or require hospitalisation.
18.
Each party is entitled to copies of the children’s school reports, bulletins, photographs, artworks or other information from the children’s schools and are able to obtain updates about the children’s progress by way of attendance at the school, by email or telephone communication.
19.
Each party is entitled to attend the children’s school events, performance nights, award ceremonies, sporting events, parent/teacher interviews or other special events which allow for attendance of the children’s family whether or not the children are spending time with them when the event takes place.
20.
Each party is permitted to be involved in the children’s school including but not limited to being a member of the Parents and Citizens Association, and attending the school for the purpose of being involved in meetings, working or volunteering in the school canteen or at school events.
21.
That each party is at liberty to refer themselves in the presence of the children or other persons or in correspondence concerning the children in the manner in which they deem fit, including but not limited to, as a ‘parent’, a ‘mother’, or a ‘father’.
22.
The parties shall refrain from making critical remarks about the other party or member of their family in the presence or the hearing of the children and the parties will use their best endeavours to ensure no third party makes any critical or derogatory remarks about the other party in the presence or hearing of the children.
23.
That the Independent Children’s Lawyer (“ICL”) shall, at a time mutually convenient to the Respondents and the ICL, explain these orders to the children and answer any questions they, or either of them, have.
24.
The Application for a Declaration pursuant to s 60H of the Family Law Act 1975 is dismissed.
25.
The Application for a Declaration pursuant to s 69VA of the Family Law Act 1975 is dismissed.
NOTATION
(A) The Court notes that each of the Respondents, the Applicant and the Applicant’s partner expressed their willingness, during the course of oral evidence, to engage in family therapy with a view to restoring relationships between the parties for the benefit of the children.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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