Mathers & Mathers - [2008] FamCA 856

FAMILY COURT OF AUSTRALIA

MATHERS & MATHERS

[2008] FamCA 856

FAMILY LAW – CHILDREN – Application for consent orders –Parties in a same-sex relationship – Meaning of parent – Artificial conception procedure – Each party is biological parent to a child – Order to be made in favour of a parent and a person concerned with care welfare and development for each child – In best interests for children to live with both parties – Consideration of parental responsibility – Orders sought seem to confine parental responsibility to long term issues – Parties to consider reasons and draft orders

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 60H, 61B, 61DA, 64B, 65C, 65DAC, 65G, 69R, 69ZM, 69ZO
Family Law Rules 2004 (Cth) r 6.02
Family law Regulations 1984 (Cth) reg 12C; Schedules 6 and 7

B v J (1996) FLC 92-716
Re Mark: An Application Relating to Parental Responsibilities (2003) FLC 93-173
Re Patrick: An Application concerning Contact (2002) FLC 93-096

APPLICANT:

Ms A Mathers

RESPONDENT:

Ms R Mathers

FILE NUMBER:

BRC

7096

2008

DATE DELIVERED:

16 October 2008

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

Application Considered In Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Not Applicable

SOLICITOR FOR THE RESPONDENT:

Not Applicable

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: BRC7096/2008

MS A MATHERS

Applicant

And

MS R MATHERS

Respondent

REASONS FOR JUDGMENT

On 5 August 2008 an Application for Consent Orders was filed relating to two children H born … June, 2004 and M born … January, 2007.
A Registrar has referred that application to the Court.
The applicant and respondent are in a same-sex relationship that commenced in June 2002 and which has subsisted since.
The applicant is the biological mother of H. The respondent is the biological mother of M.
The parties each and together took a decision to respectively conceive, and together nurture, a child. The decision to have a second child as a “sibling” for the first was also planned.
Each child was conceived by way of donor insemination. The parties each depose that neither knows “the identity of the donor and it is not intended that [either has] a parenting role in relation to, or spend time and communicate” with either child.
Each of the parties deposes that each child was conceived “with a view to creating our own family, where we would both undertake parenting roles and responsibilities…” and, further, that they “both consider [the other] to be [each child’s] co-mother and a parent”.
In those circumstances the parties seek orders from the Court that the children live with the two of them and, further, that they “have the parental responsibility, in consultation with each other, for making decisions regarding the major long term issues affecting the children”.
Although one party is named as the applicant and the other the respondent, the parties have filed identical affidavits and each join in seeking the orders.

Who Is A “Parent”?

The Orders sought are plainly “parenting orders” (s 64B Family Law Act). Equally, on the evidence before me (which will be outlined below when considering best interests) each of the parties is a “person concerned with the care welfare or development of each of the children” (s 65C) and each can, accordingly, seek parenting orders.
The affidavits of each of the parties request an order be made without the preparation of a family report which, they assert, is otherwise required by s 65G of the Act.
The heading to that section refers to “[s]pecial conditions for making parenting orders about whom a child lives with or the allocation of parental responsibility by consent in favour of non-parent”.
Neither “parent” nor “non-parent” is specifically defined in the Family Law Act (although the former is defined in the Child Support (Assessment) Act 1989 (Cth))
Each of the mothers is registered as such on the respective birth certificates of the children. Each is, then, presumed to be that child’s parent. (s 69R ).
However, s 60H of the Act is a specific provision relating to “Children born as a result of artificial conception procedures”. Judicial debate has attended the interpretation of that section and, in particular, whether its can be said to provide an exhaustive (as opposed to expansive) definition of “parent” in the circumstances there specified. (See, for example, the discussion by Brown J in Re Mark: An Application Relating to Parental Responsibilities (2003) FLC 93-173).
The application of that section can be seen to depend, relevantly, on two pre-conditions. First, a child must be born to an unmarried woman as the result of an “artificial conception procedure” as defined (see s 4). That is satisfied here. Secondly, the section is dependant upon there being a prescribed Commonwealth or State law. There is, here, no such law (See Regulation 12C Family Law Regulations 1984 (Cth) and Schedules 6 and 7 to those Regulations).
Section 65G of the Act might apply if s 60H provides an exhaustive definition of “parent” (and, thus, “non-parent” within the meaning of s 65G) and if that exhaustive definition then governed the operation of s 65G.
In Re Patrick: An Application concerning Contact (2002) FLC 93-096, Guest J held that a biological father (a “sperm donor” to a lesbian couple) was not a parent within the meaning of the Family Law Act. That case concerned s 60H(3) which deals with, as it were, the position of the sperm donor. Section 60H(2) is in virtually identical terms but concerns, as here, the position of an unmarried mother using donated sperm. His Honour held in that case:
291. The effect of s 60H(3) of the Act is that where under a prescribed law of a State or Territory the child is a child of a man, the child is also to be regarded as his child under the Family Law Act. Thus a child is to be regarded as the child of the biological father and the biological father a ‘parent’ only if there is a specific State or Territory law which expressly confers that status on a semen donor for the purposes of the Family Law Act…. [emphasis added]
It followed, in accordance with his Honour’s reasoning, that where, as here, there is no prescribed law, the donor (or, if the same reasoning applied, here the recipient) could not be a parent for the purposes of the Act.
In Re Mark, above, Brown J points to, what her Honour holds, is an anomaly if Guest J’s reasoning is to apply:
46. If Guest J’s analysis in Re Patrick is correct, a birth and biological mother in the position of Patrick’s mother [that is, I interpose, the position of the mother here] may not be his parent for Family Law Act purposes, as no relevant Victorian law has been prescribed pursuant to s. 60H(2); the question would be whether the exhaustive definition in s. 60H(2) displaced the presumption of parentage arising from the child’s birth certificate.
Her Honour also referred to a number of other matters (see eg paras 37, 39, 40 48, 51- 53 of her Honour’s judgment) in ultimately concluding that she did not share the view of Guest J. With great respect to each of those Judges, I prefer the reasoning of Brown J which, in my view, is more consistent with both the literal interpretation of, and purpose of, the section.
For present purposes, the position can perhaps best be summarised, by respectfully using (as does her Honour) the language of Fogarty J in B v J (1996) FLC 92-716: “[s 60H’s] provisions enlarge, rather than restrict, the categories of people who may be regarded as the child’s parent”.
Here, then, each of the mothers is the biological mother of their respective child. Each is registered as such on the child’s birth certificate. Each is, then, I conclude, a parent of their respective child for the purposes of the Act and, specifically, in respect of the application of s 65G.
If the orders sought are made, an order will be made in favour of a parent of H who is also a person concerned in the care welfare and development of M and in favour of a parent of M who is also a person concerned in the care, welfare and development of H.
Section 65G(1) uses the singular – it refers to a child living with “a parent”. The section applies, in my view, only in circumstances where the proposed order has the child living with people, none of whom are, relevantly, parents of the child. That interpretation is, in my view, underlined by s 65G(1A) which provides relevantly, that it applies in circumstances where “no parent” (again noting the singular) is allocated parental responsibility.
Accordingly, in my view, s 65G has no operation.

The Rules and The Donor

Rule 6.02 of the Family Law Rules 2004 provides that any person “whose rights may be directly affected by an issue in a case, and whose participation as a party is necessary for the Court to determine all issues in dispute in the case, must be included as a party in the case”.
Clearly, that rule cannot apply here, if only because his “participation as a party” is not “necessary for the Court to determine all the issues in dispute”.

Best Interests

An Application for Consent Order, in my view, being a proceeding in this Court, comes within the definition of “proceedings” under the Act. Accordingly, the principles outlined in Division 12A of the Act apply.
Among those provisions are duties cast upon the Court and a mandatory requirement to give effect to the principles contained in s 69ZM of the Act.
For present purposes it should be noted that those principles include a principle that proceedings “are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible”.
Section 69ZO of the Act provides that the principles and duties cast upon the Court apply equally to proceedings in chambers.
Among the duties cast upon the Court is a duty to “deal with as many aspects of the matter as it can on a single occasion” and to “deal with the matter, where appropriate, without requiring the parties’ physical attendance at court” (s 69ZQ(1)(g) and (h) respectively).
Obviously enough these provisions have particular resonance in a case such as the present where the parties are in full agreement as to the arrangements that should apply with respect to the children.
Nevertheless the making of consent orders requires the exercise of judicial discretion. In deciding whether to make a parenting order, the court must regard the best interest of the child as the paramount consideration. (s 60CA ).
Accordingly it is incumbent upon the court to apply the provisions of the Act, including the Principles and Objects, and to specifically consider those matters prescribed for the ascertainment of whether orders are in the best interests of the child, (s 60B and s 60CC of the Act respectively), although less stringent requirements apply when all parties consent to the prospective orders. (s 60CC(5)).
I have had regard generally to the Objects, Principles and Considerations contained in the sections just referred to.
I note:-
·Each of the mothers is in employment and separately and together the parties are able to provide financially for the children;
·The children live in a modern four bedroom home with all modern amenities. Each child has their own room;
·There is no suggestion other than that the parties live in a committed relationship which includes, as part of that commitment a joint commitment to care and nurture two young children;
·There are no significant health issues that need consideration by the court;
·The parties have together made thoughtful decisions with respect to the rearing of the children and have, for example, made arrangement for the children to attend kindergarten at J and day care respectively and plan for the children to ultimately attend P College for their primary and secondary education to which both parties are prepared to financially commit;
·There is no suggestion other than that each of the parties have the capacity to provide for all of the children’s needs, including their emotional and intellectual needs;
·The children will remain living with their respective parent and her partner, who, in each case, is a person clearly committed to both children’s best interests. It is proposed that the children continue to develop and enjoy their “sibship” which, in turn, was planned as being in the children’s best interests;
·The parties have a stable relationship which has subsisted for some 6 years and a joint commitment to provide for the nurturing for each of the children both presently and into the future.
On the material before me I have no difficulty in coming to the conclusion that it is in the best interests of these two children that they live with the applicant and the respondent.
The order with respect to parental responsibility is, in terms, in my view more problematic.
The court has determined to make a parenting order in terms of order 1 of the orders sought in the application. Accordingly when making that order, the court must apply a presumption that it is in the best interests of each of these children for their “parents” to have equal shared parental responsibility for each child.
I have previously recorded my reasons for my view that each of these children has, within the meaning of, and for the purposes of, the Act, only one parent, namely their respective mother.
Accordingly, in my view, s 61DA of the Act has no application. But, the Act makes provision for two or more “persons” (as distinct from “parents”) to share parental responsibility. Clearly, it is contemplated that orders for parental responsibility are not confined to “parents” (see s 65DAC).
The definition of “parental responsibility” in s 61B of the Act refers to “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (emphasis added).
Thus, it is at least arguable that, by the terms of the order sought for parental responsibility in the Application, each of the parties seek to confine parental responsibility of the other to a specific aspect of parental responsibility, namely “making decisions regarding the major long term issues affecting the children”.
It is not clear that this is the true intention of each of the parties. It seems to me more likely that the parties intend their partner to have the (as it seems to me, significantly broader) concept of parental responsibility as defined in the Act with respect to the other’s child.
That is, I suspect it is intended that each should have in respect of the other’s child “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
It may be that, in addition, the parties intend to provide for a specific aspect of each of them having parental responsibility, namely a requirement to consult, which such requirement would be mandated by the Act in circumstances where parents “share” parental responsibility (s 65DAC).
These are, of course, matters of surmise – the affidavits do not make this clear. It seems to me, though, that in the somewhat unusual circumstances of this case that the parties might want the opportunity to consider that aspect of the matter.
With that in mind I propose to:-
(a)Indicate that I consider order 1 of the orders sought in the Application to be in the children’s respective best interests
(b)Indicate that, similarly, it is in the best interests of each of the parties to assume parental responsibility for each of the children if that is what the parties intend.
(c)Refer the matter back to the Registrar with the direction that these reasons be forwarded to the parties for further consideration of the issues arising in respect of parental responsibility and any amendment to the draft orders they consider appropriate.

I certify that the preceding fifty (50) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy

Associate: …

Date: 16 October 2008