Maurice & Barry
[2010] FamCA 687
•6 August 2010
FAMILY COURT OF AUSTRALIA
| MAURICE & BARRY | [2010] FamCA 687 |
| FAMILY LAW – CHILDREN – CONSENT ORDERS – Matter considered “on the papers” in Chambers – Where orders are made by consent no requirement for judicial officers to: provide Reasons for Judgment; to make specific findings; or expressly refer to provisions of Part VII of the Family Law Act 1975 (Cth) – Discretion to make orders by consent in relation to parenting order must be exercised judicially and in accordance with what is in the best interests of the child |
| Family Law Act 1975 (Cth): s 60CA, s 60CC(2), s 60CC(3), s 60CC(5), s 61C, s 61D(2), s 61DA(1), s 65DAA(1), s 65DAA(2), s 69VA, s 69R |
| Aldridge & Keaton (2009) FLC 93-421 MRR v GR [2010] HCA 4 Marvel & Marvel (No. 2) [2010] FamCAFC 101 Wattel & Evans [2010] FamCA 411 |
| APPLICANT: | Ms Maurice |
| RESPONDENT: | Ms Barry |
| FILE NUMBER: | CAC | 996 | of | 2010 |
| DATE DELIVERED: | 6 August 2010 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Faulks DCJ |
| HEARING DATE: | 6 August 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Application for Consent Orders considered in Chambers |
| SOLICITOR FOR THE APPLICANT: | Consensus Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Application for Consent Orders considered in Chambers |
| SOLICITOR FOR THE RESPONDENT: | Self-represented litigant |
Orders
BY CONSENT IT IS ORDERED THAT:
Ms Maurice, born … 1965, and Ms Barry, born … 1976, have parental responsibility for L Barry, born … April 2007, and D Barry, born … January 2009.
The matter is removed from the Pending Cases Inventory.
IT IS NOTED that publication of this judgment under the pseudonym Maurice & Barry is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC 996 of 2010
| Ms Maurice |
Applicant
And
| Ms Barry |
Respondent
REASONS FOR JUDGMENT
In this matter, I was asked to make orders by consent that:
…[t]he applicant [Ms Maurice] together with the respondent [Ms Barry], has full parental responsibility in respect of their 2 children [L] born … April 2007 and [D] born … January 2009.
Affidavits were filed by both parties in support of the application which confirmed that the applicant and the respondent had been in a committed relationship since July 2000.
The two children subject of the application were:[1]
…born as a result of an artificial conception procedure as contemplated by s.60H of The Family Law Act. Neither [Ms Barry] nor I know the identity of the person who provided the other genetic material. [Ms Barry] is the biological mother and we were living together in a bona fide domestic relationship at all material times. Furthermore, we each consented to each procedure. Hence I am informed that, by dint of the Act, the children are the children of [the mother] and me.
[1] Affidavit of the respondent, filed 25 June 2010, [8].
Children born of an artificial conception procedure
Section 60H of the Family Law Act 1975 (Cth) relevantly provides:
60HChildren born as a result of artificial conception procedures
(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:
(a)the standard Rules of Court; and
(b)the related Federal Magistrates Rules.
I note the provisions of s 60H(5) of the Family Law Act 1975 (Cth) which presumes that a person has consented to the artificial conception procedure unless the contrary is proved on the balance of probabilities.
I am satisfied on the basis of the evidence I have before me, that the children the subject of the application fall within the provisions set out in s 60H(1) of the Family Law Act1975 (Cth) – that is that the children are the children of the applicant, who is the “other intended parent”.
As a consequence of s 60H(1), any order made by this Court is to a large extent unnecessary, at least from a legal perspective. This is a fact acknowledged by the applicant and respondent.
The parties have, however, apparently encountered practical difficulties in relation their children’s schools. The parties foresee that there may be difficulties in relation to medical questions either from doctors or hospitals in the future. They seek an order conferring parental rights.
Relevant Law: Parental responsibility by virtue of being a parent
When making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[2] There are then provisions which rebut the presumption under certain circumstances.[3]
[2] Family Law Act 1975 (Cth) s 61DA(1).
[3] Family Law Act 1975 (Cth) s 61DA(2) – (4).
In Marvel & Marvel (No. 2), the Full Court of the Family Court (Faulks DCJ, Boland & Stevenson JJ) considered the responsibilities parents have by virtue of being parents of a child. Effectively, such responsibilities exist, subject to an order of the Court.[4] The Full Court relevantly stated (at [94] to [103]):
[4] Family Law Act 1975 (Cth) s 61D(2) refers.
[94] Section 61C, as explained in Goode, provides that each of the parents of a child has parental responsibility for a child. That responsibility exists whether the parties are in an intact family, separated, or remarried. The section has effect subject to any order of the court. That is, one or more aspects of parental responsibility may be changed by a court order.
[95] The logical corollary of the interaction between s 61C and s 61DA is once a parenting order of any description is made or to be made, the presumption, if there is no finding of risk of abuse or family violence or not rebutted as not in the child’s best interests, applies. That presumption is that the parties then have equal shared parental responsibility not parental responsibility. We pause here to note that authority prior to the amending Act established that parental responsibility could be exercised jointly or severally (see B & B: Family Law Reform Act 1995 (1997) FLC 92-755). If the presumption does apply, but is not reflected in an order for equal shared parental responsibility, does it displace the operation of s 61C?
[96] The Revised Explanatory Memorandum is not of assistance in answering the question we have just posed. The learned authors of Australian Family Law (LexisNexis Australia, Australian Family Law, Vol 1, (at 233-04-10) [s 65DAA.1]) in their commentary on s 65DAA say “[i]n other circumstances, that is where there is no order that the parents have equal shared parental responsibility, s 65DAA has no application, and the court will deal with the matter on ordinary principles, having regard especially, to ss 60CA, 60CC and 60B”.
[97] Professor Richard Chisholm AM in an article published in the Australian Journal of Family Law in 2006 considered the question of whether a court will make an order for equal shared parental responsibility in proceedings including interim proceedings. He said, after noting the complexity of the issues which could not be fully explored in the instant article:
… I think the better view is that applying the presumption involves the court in making an order that the parents have equal shared parental responsibility. If this is correct, there may be a significant number of cases in which the court will wish to make such an order in interim cases, triggering an obligation for the court, in those interim proceedings, to consider equal time, or substantial and significant time. (Professor Richard Chisholm, ‘Interim proceedings after the Family Law Amendment (Shared Parental Responsibility) Act 2006’, (2006) 20 Australian Journal of Family Law 219 at 223).
[98] Osborn’s Concise Law Dictionary (Mick Woodley (ed), Osborn’s Concise Law Dictionary (11th ed, 2009) 320) defines a rebuttable presumption as follows:
(2)Rebuttable presumptions of law (praesumptiones juristantum) are inferences which the law requires to be drawn from given facts, and which are conclusive until disproved by evidence to the contrary; e.g. the presumption of the innocence of an accused person.
[99] Section 65D(1) gives the Court, subject to the presumption of equal shared parental responsibility, the power to make such parenting order as it thinks proper.
[100] It is important to remember the obligations, or perhaps more correctly the responsibilities, the legislation imposes if two or more persons are to have “shared parental responsibility” for a child. The relevant section, s 65DAC, does not refer to an order which provides for equal shared parental responsibility, but the circumstance where two or more persons are to share parental responsibility for a child. Section 65DAC provides as follows:
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
[101] In the context of interpreting s 65DAC it is necessary to bear in mind the definition of major long-term issues in s 4(1). That definition is as follows:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
[102] The intended effect of the section is explained in the Revised Explanatory Memorandum at paragraph 207 as follows:
New section 65DAC provides a rule that where parental responsibility is to be shared in relation to a major long-term issue under a parenting order, this means that decisions should be made jointly. This clarifies for parents or others who may have parental responsibility, what exercising shared parental responsibility actually involves. This will ensure that both parents have a meaningful involvement in the child’s life. This does not only apply in situations where parents are sharing exactly equal responsibility. In all cases where there is some sharing of responsibility then consultation, then discussion about major long-term issues is required for those parts of responsibility that are shared.
[103] It appears to us that as a parenting order, including an order for equal shared parental responsibility, must be in the best interests of a child, a court may in the exercise of its discretion find it is inappropriate to make such an order in certain circumstances. This could occur where, although there is no family violence or child abuse, the conflict or lack of effective communication between the parents is such that to properly exercise their equal shared parental responsibility they would be unable to comply with s 65DAC by consulting and making a genuine effort to reach agreement about major long-term issues affecting their child or children. In other words, in these circumstances an order for equal shared parental responsibility would inevitably lead to further conflict and perhaps contravention applications, which conflict and/or ongoing litigation could be adverse to the child’s best interests.
[104] As we did not have the benefit of any extensive argument before us on this topic it is inappropriate we determine this issue. It seems to us, as presently advised, that the implication of the legislation, having regard to the provisions of s 61C, s 61D, s 61DA, s 65D(1) and s 65DAA is that if the presumption applies, an order for equal shared parental responsibility will generally be made, thus displacing s 61C and triggering consideration of the provisions of s 65DAA. That is, of course, in an interim matter subject to the exception contained s 61DA(3) and the qualification we have expressed in respect of s 65DAC.
I will consider the effect of s 61DA of the Family Law Act 1975 (Cth) in my Reasons below.
“Child is a child of…the other intended parent”…but not a parent?
I digress to consider an issue relevant in this case about the status of the applicant as a parent. In this case, s 60H(1) of the Family Law Act 1975 (Cth) has the effect that each of the children is “a child of…the other intended parent.”
It is not immediately clear from the express provisions of s 60H(1) of the Family Law Act 1975 (Cth) that the “persons” for whom the child is a child within the meaning of that section is also to be regarded, for other purposes under the Family Law Act 1975 (Cth) as a parent. This was a matter the subject of consideration by the Full Court of the Family Court in Aldridge & Keaton (at [18] to [21].)[5] The Full Court relevantly stated:
[22] We think from reading the Senate report, it was intended that following amendments to s 60H that children, the subject of proceedings under the Act, regardless of the circumstances of their conception or birth, should have the same rights, protections and privileges under the Act to receive proper parenting from either a biological parent, or that biological parent’s partner (including a same-sex co-parent), as biological children born to men and women who have been legally married, living in a de facto relationship or who have never lived together. We are not sure the legislation has had that effect. However, while some issues in this appeal do focus on the term “person” and “parent” it is unnecessary we say anything further about s 4, s 60H, s 69VA in the context of this appeal, other than to note further legislative amendment may be necessary to clarify the non-biological person’s status as a parent.
[5] Aldridge & Keaton (2009) FLC 93-421, 83,815 [18] – [22].
As the Full Court made clear in the preceding paragraphs ([18] to [21]) it was intended by the legislature that a person referred to in s 60H “should be treated in the same manner as a parent, to meet the concerns expressed in representations recorded in the Senate Standing Committee on Legal and Constitutional Affairs’ report on the Family Law Amendment (De facto Financial Matters and Other Measures) Bill 2008…”.
Although the Full Court expressly reserved the question of whether s 60H would enable, (in the circumstances of the applicant in this case), a person who is the “other intended parent” to be a parent for the purposes of Part VII of the Family Law Act 1975 (Cth), in my opinion, a purposive construction of the s 60H, in combination with the Explanatory Memorandum, would suggest that s 60H at least impliedly contemplates an “other intended parent” being a “parent”. The drafting may fall short of ideal. It is difficult to imagine a man (or person) on an ACTION[6] Bus (let alone a man on the Clapham Omnibus) responding other than positively to a question about whether if a child was a child of a person that person was not the child’s parent.
[6] ACTION stands for “Australian Capital Territory Internal Omnibus Network”.
In this matter I was not asked to make orders pursuant to s 69VA of the Family Law Act 1975 (Cth), although one would think that it would be appropriate in these circumstances to do so. In addition, if there were a direction sought in relation to the registration and the children’s birth certificates in accordance with s 69R of the Family Law Act 1975 (Cth), this may also have been appropriate. I am prepared upon further application to make orders in Chambers to this effect, notwithstanding my removal of this matter from the Pending Cases Inventory. I also waive any associated filing fee.
Discussion
The orders sought by the parties related to “full parental responsibility”. This is not a term contemplated by the legislation.
In the ordinary course of events where a family is, for want of a better expression, still intact, it would appear that s 61C is applicable – that is that parents each retain parental responsibility for their child unless or until there is an order of the Court to the contrary.
It is possible that the parents (as I now call them) may have sought an order for equal shared parental responsibility. It would seem that such an order would be more appropriate where parents have separated. If I were to make such an order, then that would call into effect s 65DAA of the Family Law Act 1975 (Cth).
Section 61DA of the Family Law Act 1975 (Cth) does not mandate, that when a parenting order is made, the Court must make an order for equal shared parental responsibility, only that it must apply the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[7]
[7] Family Law Act 1975 (Cth) s 61DA(1).
If such an order were to be made, then s 65DAA(1) of the Family Law Act 1975 (Cth) would be invoked. This would require the Court to consider the matters set out in s 65DAA(1)(a) – (c). Such orders and such considerations are matters which are more approximately applicable to parents who are separated. To make an order that these children spend equal time with each of their parents would not make a great deal of sense.
For the sake of completeness, however, it may be appropriate to consider the effect of s 65DAA(1) in the context of the High Court of Australia’s determination in MRR v GR.[8] The High Court relevantly stated (at [13]):
Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question of whether it is in the best interests of the child to spend equal time with each of the parents [para (a)], and the question of whether it is reasonably practicable that the child spend equal time with each of them [para (b)]. It is only where both questions are answered in the affirmative that consideration may be given under para (c) to the making of an order. The words with which para (c) commences [“If it is”] refer back to the two preceding questions, and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned, much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subsection 2(a) and (b) require that the prospect of a child spending substantial and significant time with each parent then be considered. That subsection follows the same structure of subsection (1), and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
[8] MRR v GR [2010] HCA 4.
This statement of their Honours of the High Court does not, in my opinion, require a judicial officer when making orders by consent to deliver a Judgment, or to articulate in an order the fact of, and the basis for, the considerations identified in ss 65DAA(1)(a) – (c) of the Family Law Act 1975 (Cth). This is similarly the case for the equivalent provisions under s 65DAA(2) of the Family Law Act 1975 (Cth), or indeed, in my opinion, any other provision under Part VII of the Family Law Act 1975 (Cth) which is “expressed in imperative terms”.
Section 60CC(5) of the Family Law Act 1975 (Cth) relevantly provides:
Consent orders
(5)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
The reference to (2) and (3) relates to the primary and additional considerations which must be taken into account by the Court when determining what is in a child’s best interests in contested proceedings (on either an interim or final basis).
Ostensibly, it would appear that to comply with the requirements of s 65DAA(1) (and s 65DAA(2)), in accordance with the principles in MRR v GR, a judicial officer must consider whether it is in the best interests of the child to spend equal time with each parent (or substantial and significant time). Section 65DAA does not oblige, nor does common sense require, that the judicial officer should deliver what amounts to a Judgment or Reasons for the orders to be made in circumstances where the parties seek orders by consent. It also does not require that the judicial officer must articulate either the fact of consideration or the matters taken into account in the course of such consideration. In other words, it seems to me that the making of consent orders does not require the judicial officer to provide Reasons for the making of those orders, or to make findings of fact in relation to each order, or for reference to be specifically made to any of the provisions of Part VII of the Family Law Act 1975 (Cth) when those orders are entered on the record.
In circumstances of controversy between the parties, it is obviously necessary that the judicial officer, as with other matters under Part VII of the Family Law Act 1975 (Cth), should set out both the fact and the substance of the consideration to be given mandatorily to the various matters the Family Law Act 1975 (Cth) requires. A judicial officer has discretion either to make or not to make orders by consent.[9] Such discretion is to be exercised judicially, with the paramount consideration being the best interests of the child.[10] This, however, is the “outward and visible sign” of the consideration, not the consideration itself. To the extent that Murphy J in Wattel & Evans[11] may be taken to have suggested to the contrary, I respectfully disagree with that view.
[9] Family Law Rules 2004 Rule 10.17.
[10] Family Law Act 1975 (Cth) s 60CA.
[11] Wattel & Evans [2010] FamCA 411, [8] to [11].
This is not to suggest that in some cases it is not appropriate to set out the basis or bases for the consideration by the judicial officer. In my opinion, that may well be wise or appropriate course in some cases. I do not believe it is necessary in circumstances where the orders are to be made by consent. In addition, in practical terms and in most circumstances, the very fact that parties seek to make orders by consent demonstrates that those orders are likely to be in the best interests of a child.
In this matter, there is no controversy between the parties and I make the order that I consider best suits their requirements and those of the children. I direct the matter be removed from the Pending Cases Inventory.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.
Senior Legal Associate:
Date: 6 August 2010
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