McAuley and Salberg and Anor - [2020] FCCA 1538

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCAULEY & SALBERG & ANOR

[2020] FCCA 1538

Catchwords:
FAMILY LAW – PARENTING – Final orders – parental responsibility – where the applicant and first respondent were in a same sex relationship which ended prior to the child’s birth – where the second respondent is the biological father – where all parties were involved in efforts to achieve pregnancy by artificial insemination – where applicant and first respondent are now estranged – applicant to have sole parental responsibility – child to live with applicant and spend time with first respondent as agreed – best interests of child.

FAMILY LAW – DECLARATION OF PARENTAGE – Where the applicant and second respondent are registered on the child’s birth certificate – where presumption of parenting does not apply – where section 60H of the Family Law Act 1975 (Cth) applies – where applicant and first respondent are declared to be the child’s parents.

FAMILY LAW – CHANGE OF NAME – Where applicant seeks to change surname of child – application to register change of name – order made changing surname - best interests of child.

Legislation:

Family Law Act 1975 (Cth), ss.4AA 60B, 60CA, 60CC, 61DA, 60CG, 69R, 69VA

Child Support (Assessment) Act 1989 (Cth), ss.3, 29

Births, Deaths and Marriages Registration Act 1995 (NSW), ss.19, 20, 28

Status of the Child Act 1996 (NSW), s.11

Cases cited:

Chapman & Palmer (1978) FLC 90-150

Kuebler & Kuebler (1978) FLC 90-434

Jepson & Fleming [2018] FCCA 400

Mayes & Denning [2017] FCCA 1754

Sander & Hearn [2012] FMCAfam 812

Slater & Light [2011] FamCAFC 1

Thomason & Malhotra [2010] FamCAFC 85

Applicant:

MS MCAULEY

First Respondent:

MS SALBERG

Second Respondent:

MR MASON

File Number:

PAC 3865 of 2019

Judgment of:

Judge Obradovic

Hearing date:

5 March 2020

Date of Last Submission:

16 March 2020

Delivered at:

Parramatta

Delivered on:

15 June 2020

REPRESENTATION

Appearing for the Applicant:

Ms McAuley

Solicitors for the Applicant:

Women’s Legal Services NSW

Appearing for the First Respondent:

No appearance

Appearing for the Second Respondent:

No appearance

ORDERS

The child X (male) born in 2018 shall henceforth be known as X McAuley.
A declaration that the applicant, Ms McAuley born in 1988, and the first respondent, Ms Salberg born in 1983, are the parents of the child X born in 2018 (“the child”).
The applicant, Ms McAuley, is authorised to apply to the Registrar of Births, Deaths and Marriages:
(a)that the child registered as X Mason (male) born in 2018 be now registered as X McAuley; and
(b)to include the details of the first respondent as registrable information on the Register of Births, Deaths and Marriages.
Pursuant s.28 (5) of the Births, Deaths and Marriages Registration Act 1995 (NSW) the Registrar of Births, Deaths and Marriages to register the child’s name in the form specified in Order 3(a) herein.
Pursuant to s.20 Births, Deaths and Marriages Registration Act1995 (NSW), the Registrar of Births, Deaths and Marriages to alter the registrable information on the Register…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 1538
Decision Date: 15 June 2020

CaseChat Overview and Summary

In the matter of *McAuley and Salberg and Anor*, Judge Obradovic of the Family Court of Australia considered a dispute concerning a child born via artificial insemination to a same-sex couple, where the biological father was also involved. The applicant, Ms McAuley, and the first respondent, Ms Salberg, were in a relationship that ended before the child's birth. The second respondent, Mr Mason, is the biological father. The proceedings involved applications for declarations of parentage, orders regarding parental responsibility, and a change of the child's surname.

The court was required to determine who should be declared the legal parents of the child, given that the presumption of parentage under the *Family Law Act 1975* (Cth) did not apply. Additionally, the court had to decide on the issue of parental responsibility, specifically whether the applicant should have sole parental responsibility and how the child should spend time with the first respondent. The court also considered the application to change the child's surname and the implications for the child's birth registration, including the removal of the biological father's details and the inclusion of the first respondent's details.

In reaching its decision, the court applied section 60H of the *Family Law Act 1975* (Cth) to declare the applicant and the first respondent as the child's parents, notwithstanding the biological father's involvement and registration on the birth certificate. The court also made orders for the child to have sole parental responsibility vested in the applicant, with time spent with the first respondent to be as agreed between them, all in consideration of the child's best interests. Furthermore, the court ordered a change of the child's surname to McAuley and directed the Registrar of Births, Deaths and Marriages to amend the birth registration accordingly, removing the second respondent's details and including the first respondent's. The court also clarified that the applicant would be the sole person with parental responsibility for passport purposes.

Orders

Orders of the court

The child X (male) born in 2018 shall henceforth be known as X McAuley.

A declaration that the applicant, Ms McAuley born in 1988, and the first respondent, Ms Salberg born in 1983, are the parents of the child X born in 2018 (“the child”).

The applicant, Ms McAuley, is authorised to apply to the Registrar of Births, Deaths and Marriages:

(a) that the child registered as X Mason (male) born in 2018 be now registered as X McAuley; and

(b) to include the details of the first respondent as registrable information on the Register of Births, Deaths and Marriages.

Pursuant s.28 (5) of the Births, Deaths and Marriages Registration Act 1995 (NSW) the Registrar of Births, Deaths and Marriages to register the child’s name in the form specified in Order 3(a) herein.

Pursuant to s.20 Births, Deaths and Marriages Registration Act 1995 (NSW), the Registrar of Births, Deaths and Marriages to alter the registrable information on the Register by removing the details of the second respondent, Mr Mason, who is registered as the child’s father, and including the details of the first respondent, Ms Salberg, as the child’s other mother.

The Court directs that the applicant forthwith serve a sealed copy of these Orders upon the Registrar of Births, Deaths and Marriages.

That the applicant have sole parental responsibility for the child.

That the child spend time with the first respondent as agreed between the applicant and the first respondent.

X born in 2008 is permitted to travel internationally, without the need for the consent of the first respondent Ms Salberg to be provided to the issue of a passport to X born in 2008. The applicant Ms McAuley shall be the only person with ‘parental responsibility’ of the child X born in 2008 for the purposes of applying for, and being issued with, an Australian passport for X born in 2008.

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Evidence

Evidence Before The Court

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Decision

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