McAuley and Salberg and Anor
[2020] FCCA 1538
•15 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCAULEY & SALBERG & ANOR | [2020] FCCA 1538 |
| Catchwords: 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 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.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym McAuley & Salberg & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3865 of 2019
| MS MCAULEY |
Applicant
And
| MS SALBERG |
First Respondent
And
| MR MASON |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings in relation to X born in 2018.
The parties to the proceedings are the applicant, Ms McAuley, the first respondent, Ms Salberg and the second respondent, Mr Mason. The applicant is the mother of the child and the second respondent is the father. The first respondent is the former partner of the applicant. At the time of the child’s conception, the applicant and the first respondent were said to be in a committed same-sex relationship.
The proceedings were commenced by the applicant on 12 August 2019. The second respondent filed a response on 9 October 2019. The matter proceeded on an undefended basis as against the first respondent, who despite a number of procedural orders, had failed to appear at final hearing or file any documents as directed[1].
[1] The only documents filed on behalf of the first respondent were: on 9 September 2019 a Notice of Address for Service (at which point in time the first respondent was represented), on 11 October 2019 a Request to attend by electronic communication (followed by an appearance by telephone on 22 October 2019) and on 13 January 2020 a Notice of Withdrawal as a Lawyer.
The applicant seeks a number of orders, summarised as:
a)a declaration that the second respondent is a parent of the child;
b)that the child’s birth certificate be amended to include the details of the first respondent instead of the details of the second respondent;
c)that the child’s surname be changed to that of the applicant;
d)that the applicant have sole parental responsibility for the child;
e)that the child live with the applicant and spend time with the first respondent as agreed between the parents; and
f)that the applicant be permitted to travel internationally with the child.
The second respondent supports the application in its entirety.
How the child was conceived and history of the relationship
In 2013, the applicant and first respondent commenced a relationship after meeting on an online dating website. They started living together in Suburb A, New South Wales, in 2013.
In 2013, the applicant and first respondent decided to have a child together via artificial insemination using the applicant’s ovum and donor sperm. They agreed that the applicant would carry the child. Shortly after, in 2014, the applicant and first respondent became engaged to be married.
In 2015, the applicant and the first respondent met the second respondent, on an online co-parenting website.
In or about 2015, the parties all arranged to meet in person in City B to discuss the possibility and arrangements of conceiving a child together. The parties all agreed to have a child together with the second respondent to be the sperm donor and for the applicant to carry the child. It was agreed that the second respondent would have limited contact with the child.
Throughout 2015 and 2016, the second respondent attended the new residence of the applicant and first respondent in City B for the purpose of providing sperm samples. The visits followed a structure whereby the second respondent had dinner with the parties, then went into the bathroom to produce a sample of sperm in a specimen jar and provided same to the couple.
In or around early 2017 the applicant and first respondent moved from their City B residence to Suburb C. The second respondent continued to visit them at the Suburb C residence and provide sperm samples. Attempts at conceiving a child were not successful until 2017.
In 2017, the second respondent attended the Suburb C residence. During this visit the applicant suggested that he try to provide a sperm sample in a condom rather than a jar as she had read that the success rates of this method was much higher. The second respondent agreed and complied with that request and later left the residence. The applicant then inseminated herself with a syringe using the second respondent’s sperm. This was done in circumstances where the first respondent had indicated to the applicant and the second respondent that she wanted to try again for a baby, and whilst she was present in the same house as the applicant after the second respondent left, she was not in the same room when the procedure occurred.
In 2017, the first respondent notified the second respondent by text message that the applicant was pregnant. The text messages were happy messages that stated “We are in tears” and “We are going to be parents.”
The applicant and second respondent attended an ultrasound appointment in 2017. The first respondent was unavailable at the time however, they all went out to dinner later that night.
On 9 July 2017, the applicant and first respondent separated. The applicant says that the first respondent told her she did not want to be a mum. The last time the applicant and the first respondent communicated was in October 2017.
In or about December 2017, the second respondent agreed to be listed on the birth certificate upon the request of the applicant as she had not reconciled with the first respondent. The second respondent was unaware of the legal implications of having his details noted on the Register of Births, Deaths and Marriages as the father of the child.
The child X was born in 2018.
The second respondent spent time with the child on a regular basis until the child was about 6 months old. The applicant and second respondent had disagreements about parenting styles which resulted in the second respondent abrogating any parenting rights he had to the applicant. The last time the second respondent spent time with the child was on 22 July 2018.
After the child was born, the second respondent commenced paying child support in addition to other payments made to the applicant pursuant to an agreement between them. The second respondent continues to be assessed for child support.
On 14 February 2019, the applicant and second respondent participated in Family Dispute Resolution (“FDR”) and reached an informal agreement including that the second respondent’s details be removed from the child’s birth certificate. Their joint attempts to amend the child’s birth certificate were refused by the NSW Registry of Births, Deaths and Marriages on 25 March 2019. It is unclear whether the only attempt at amending the birth certificate was to remove the father’s details on the joint application of the applicant and second respondent, or if it was to also include the details of the first respondent as a parent of the child.
On 24 June 2019, the first respondent refused to participate in FDR with the applicant.
On 12 August 2019, the applicant commenced these proceedings.
Relevant Legal Principles and Findings
Parentage, presumptions and declarations of parentage
The applicant and the second respondent are registered as the child’s parents on the child’s birth certificate. They are therefore presumed to be the child’s parents: s69R Family Law Act 1975 (Cth) (“Act”)[2].
[2] See also 11(1) of the Status of the Child Act 1996 (NSW) for the position in NSW
However, s60H of the Act provides:
(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.
Section 4 of the Act defines artificial conception procedure to include artificial insemination. For the purposes of the Act a de facto relationship can exist between partners of the same sex.
It is therefore apparent, that if the Court finds that the applicant and the first respondent were in a de facto relationship at the relevant time, and the child was conceived through artificial conception, then the applicant and the first respondent are the parents of the child for the purposes of the Act – despite what is noted on the child’s birth certificate. The Court may make declarations as to parentage: s69VA of the Act. Such a declaration is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.
In addition, this court is empowered to make orders for the insertion of registrable information about a child’s parents in the Register kept by the Registrar of Births, Deaths and Marriage in NSW provided that it makes a finding about the parentage of the child: s19(2) of the Births, Deaths and Marriages Registration Act 1995 (NSW).
Section 3 of the Child Support (Assessment) Act 1989 (Cth) (“CSA Act”) provides that the parents of a child have the primary duty to maintain the child.
The difficulty for the applicant and the second respondent, for present purposes, is that the Child Support Registrar is, according to s29(2)(b) of the CSA Act to be satisfied that a person is a parent of a child only if the Registrar is satisfied that the person’s name is entered in a register of as a parent of the child: s29(2)(b) CSA Act. As such and given that the second respondent’s details are entered on the child’s birth certificate, the second respondent has the liability for child support under the CSA Act.
Findings as to the existence of a de facto relationship and parentage
Sub-section 4AA(2) of the Act sets out the circumstances which may lead to a finding that persons have a relationship as a couple living together on a genuine domestic basis. Those circumstances are not exhaustive and no particular finding in relation to any circumstances is necessary: s4AA(3).
Having regard to the evidence in the proceedings, the Court is satisfied that the applicant and the first respondent were in a de facto relationship at the time the child was conceived based on the following facts as found:
a)The applicant and the first respondent were in a relationship between 2013 and 9 July 2017;
b)They lived together for three years and ten months;
c)The applicant accepted the first respondent’s marriage proposal in 2015 indicating a commitment to share the rest of their lives together;
d)The applicant and the first respondent agreed to conceive and raise a child together, indicating a mutual commitment to a shared life together; and
e)The relationship between the applicant and the first respondent was made known to the second respondent, this being a public aspect of their relationship.
In respect of consent to artificial conception and having regard to the facts as found, namely:
a)In 2013, the applicant and the first respondent agreed to conceive a child using a sperm donor and the applicant’s ovum;
b)In 2015, the second respondent agreed to provide sperm to the applicant and the first respondent for the purposes of conceiving a child; and
c)In 2017, the second respondent attended at the applicant and first respondent’s home and provided his sperm, and the applicant was then artificially inseminated with the knowledge and consent of the first respondent.
The Court finds that the first respondent consented to the carrying out of the procedure and that the second respondent consented to the use of his genetic material in the procedure.
The applicant and the second respondent did not have sexual intercourse. The insemination of the applicant was done by artificial means, namely with a syringe using sperm supplied by the second respondent in a condom. Consequently, the applicant became pregnant with the child. At this time, the applicant and the first respondent were in a de facto relationship.
Therefore, having regard to s60H of the Act, the Court finds that the applicant and the first respondent are the parents of the child. It is appropriate that a declaration be made in accordance with this finding and that the details of the child’s parents noted on the child’s birth certificate correctly reflect the child’s parentage. An order to this effect will therefore be made.
Parenting
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the children. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[3]
[3] see for example Slater & Light [2011] FamCAFC 1 at [45]
What are the appropriate parenting orders?
The child has been living with the applicant since birth. The second respondent has spent limited time with the child and has not seen the child since July 2018. The first respondent has never spent any time with the child nor has she had any communication with him.
The child is now 2 years and 5 months old. His primary carer and attachment figure must be the applicant. She is the person who meets all of his needs, both physical and emotional. The first and the second respondent do not at present have any relationship with the child.
The applicant and the second respondent have been financially supporting the child. The applicant submits that it should be the first respondent rather than the second respondent, who should be financially supporting the child.
The applicant proposes that the child continue to live with her and that he spend time with the first respondent as may be agreed between the parties.
It is apparent on the evidence that it is the applicant, rather than the first respondent. who wants to foster and promote a relationship between the child and the first respondent, the latter not having participated in these proceedings in any meaningful way.
The applicant has in the past facilitated a limited relationship between the child and the second respondent, the biological father of the child. The Court notes the informal agreement reached between the parties in February 2019 and annexed to the applicant’s affidavit, which provides for the applicant to support the child if he seeks to have contact with the second respondent.
Given the position by consent between the applicant and the second respondent, it is highly likely that they will in future be able to agree about any further time that the child might spend with the second respondent and what involvement the second respondent might have in the child’s life. The second respondent does not seek any orders for time with the child at present.
Parental Responsibility
Section 61DA of the Act provides that when making a parenting order, 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. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
The Court has already found that the first respondent is a parent of the child. Having regard to her lack of participation in these proceedings and her lack of participation in the child’s life to date, the Court finds that the presumption of equal shared parental responsibility has been rebutted.
It is appropriate and in the child’s best interest that the applicant have sole parental responsibility, an order to which the second respondent consents.
International Travel
The relevant legal principles[4] in relation to travel have been identified in a number of authorities which set out matters which the Court might in the exercise of its discretion take into consideration in the context of the best interest principles. Those relevant matters which the Court may take into consideration have been identified as:
a)the length of the proposed stay out of the jurisdiction;
b)the bona fides of the application;
c)the effect on the child of any deprivation of spending time with the other parent;
d)any threats to the welfare of the child by the circumstances of the proposed environment; and
e)the degree of satisfaction in which the Court based its assessment of the parties that a promise of a return to the jurisdiction would be honoured.
[4] Kuebler & Kuebler (1978) FLC 90-434 and also see Thomason & Malhotra [2010] FamCAFC 85 at [50]
The decision of course as to whether or not to make the orders proposed by the applicant is an exercise of the Court’s discretion. While there is no evidence of any planned overseas trips in the near (or far) future, the applicant says that she wants to the child to experience the world around him. The applicant has never travelled overseas, she nonetheless tells the Court that she would love to do this with the child in the future. There is no evidence that the applicant is a flight risk or that she would remove the child permanently from the jurisdiction.
In those circumstances, and given the first respondent’s lack of involvement with the child (including the lack of any communication between the parents since October 2017) and the second respondent’s consent, it would not be appropriate for the applicant to have to seek the consent of the first respondent or apply to the Court each time she wanted to travel with the child. As such, an order permitting international travel at large will be made.
Change of Name
The principles regarding a change of name for children are articulated in the Full Court decision of Chapman & Palmer[5]. In a helpful summary, which the Court respectfully adopts here[6], Judge Turner in Sander & Hearn[7] held that consideration must be given to:
a)The welfare of the child being the paramount consideration;
b)Any short or long term effect of any change in the child’s name;
c)Any confusion of identity which may arise for the child of a name change if a name change does or does not occur;
d)Any embarrassment that the child may experience if their name is different to that of the primary carer;
e)The effect that any change of name may have on the child’s relationship with the parent whose name the child bears; and
f)The effect of frequent or random changes of name.
[5] (1978) FLC 90-150
[6] And which has previously been adopted; see Mayes & Denning [2017] FCCA 1754; Jepson & Fleming [2018] FCCA 400
[7] [2012] FMCAfam 812
The child carries the surname of the second respondent, who while biologically related to the child, has not had any involvement with the child for close to 2 years. He consents to the child’s name being changed.
The first respondent has not expressed any interest in the child although she is his parent. She has not sought that the child be identified by her surname or by any surname for that matter.
The applicant is the only parent the child knows and the parent who has the entire burden of parenting the child. While the child may at present be too young to realise, there will be a time, in the near future, when he will start to ask questions about why his surname is different to that of his mother, whose surname it is that he has and why he has that surname.
No doubt, there will be further questions asked by not only the child, but also by other children and parents, when the child commences school. The applicant gives some evidence of a situation where others have presumed that not only was she married to the second respondent but that she too had the child’s surname when she was addressed as Mrs Mason in the presence of the child.
While the applicant may be able to skilfully answer such questions, even with a satisfactory explanation the child would still be known by a different surname to his only involved parent. This outcome cannot be in his best interest.
It is in the child’s best interest that he be known by the same surname as his mother.
Conclusion
For all of these reasons orders as set out at the forefront of these Reasons for Judgment are made and are in the child’s best interests.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Associate:
Date: 15 June 2020
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