McGee & Duchampes
[2010] FamCA 1230
•12 November 2010
FAMILY COURT OF AUSTRALIA
| MCGEE & DUCHAMPES AND ORS | [2010] FamCA 1230 |
| FAMILY LAW – CONSENT ORDERS – Children |
| APPLICANT: | Mr McGee |
| RESPONDENTS: | Ms Duchampes Mr Crown Ms Crown |
| FILE NUMBER: | SYC | 6403 | of | 2010 |
| DATE DELIVERED: | 12 November 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Stevenson J |
| HEARING DATE: | 2 November 2010 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Karras Partners Lawyers |
| SOLICITOR FOR THE FIRST RESPONDENT: | Anne-Marie van der Schyff Attorneys South Africa |
| SOLICITOR FOR THE SECOND RESPONDENT: | Carlisle Attorneys |
SOLICITOR FOR THE THIRD RESPONDENT: | McPherson Kruger Attorneys South Africa |
IT IS NOTED that publication of this judgment under the pseudonym McGee & Crown and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975(Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 6403 of 2010
| MR MCGEE |
Applicant
And
| MS DUCHAMPES MR CROWN MS CROWN |
Respondents
REASONS FOR JUDGMENT
On 11 October 2010 Mr McGee applied for consent orders in relation to the child K. She was born in December 2009 and is eleven months old. The recitals to the proposed consent orders set out that the second respondent, Mr Crown is the partner of the applicant. The first respondent, Ms Duchampes, is the surrogate mother who gave birth to the child. The third respondent, Ms Crown, who is the sister of Mr Crown, provided the egg for the conception of the child.
Ms Crown and Ms Duchampes both live permanently in South Africa. It is proposed that Ms Crown will spend some time with the child but it seems that Ms Duchampes will play no role in her life.
Mr McGee and Mr Crown have consent orders in relation to a child, C who was born in November 2005 and is now almost five years old. These orders, which were made on 3 April 2006, provide that C live with them and have reasonable contact with her mother. The orders provide, further, that Mr McGee and Mr Crown are jointly responsible for C’s care and welfare and long term education and development.
The application for consent orders came before a Registrar, who referred the proceedings to me in a duty list. I was satisfied that it is appropriate to make orders as sought and I did so on 2 November 2010, subject to a stay for seven days for reasons to which I refer below. I now furnish my reasons for concluding that it is appropriate to make these orders notwithstanding the provisions of section 65G of the Family Law Act.
The application contained affidavits purportedly sworn in South Africa by Ms Duchampes and Ms Crown, witnessed respectively by lawyers Ms Anne Marie Van Der Schyff and JG McPherson. I was handed two unfiled documents purporting to be Notices of Address for Service for these respondents, containing the names and purported signatures of the same lawyers.
There was some question as to whether the first and third respondents were aware of the date when the proceedings were before the court. Both Mr McGee and Mr Crown gave evidence that they are familiar with email addresses for Ms Duchampes and Ms Crown, contained in correspondence which became exhibit 1. These emails clearly state that the proceedings were before the court on 2 November 2010. Ms Crown replied, advising that she had received legal advice and that she understood the effect of and did not object to the proposed orders (exhibit 1). There was no evidence of any reply from Ms Duchampes.
For abundant caution I decided to stay the operation of the orders for seven days, to enable the first and the third respondents to make any application. In the event that there was no such application, the orders would become operative after that period of seven days. I ordered that service of the orders be effected at the email addresses identified in the evidence of Mr McGee and Mr Crown.
Mr McGee is shown as K’s father on a birth certificate issued by the Republic of South Africa. He is thus presumed to be her parent, pursuant to section 69R, and is therefore entitled to apply for a parenting order by virtue of section 65C of the Family Law Act.
Section 64B(2) provides:
A parenting order may deal with one or more of the following:
(a) the person or persons with whom a child is to live;
(b) the time a child is to spend with another person or other persons;
(c) the allocation of parental responsibility for a child;
(d) if 2 or more persons are to share parental responsibility for a child--the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e) the communication a child is to have with another person or other persons;
(f) maintenance of a child;
(g) the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i) a child to whom the order relates; or
(ii) the parties to the proceedings in which the order is made;
(h) the process to be used for resolving disputes about the terms or operation of the order;
(i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).
Note: Paragraph (f)--a parenting order cannot deal with the maintenance of a child if the Child Support (Assessment) Act 1989 applies.
The proposed consent orders clearly fall within the scope of section 64B(2).
Section 69E sets out certain jurisdictional requirements:
Proceedings may be instituted under this Act in relation to a child only if:
(a) the child is present in Australia on the relevant day (as defined in subsection (2)); or
(b) the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or
(c) a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(d) a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(e) it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.
(2) In this section:
"relevant day" , in relation to proceedings, means:
(a) if the application instituting the proceedings is filed in a court--the day on which the application is filed; or
(b) in any other case--the day on which the application instituting the proceedings is made.
Note: Division 4 of Part XIIIAA (International protection of children) has effect despite this section.
These requirements are clearly fulfilled in the present proceedings, as the child K was present in Australia on the day of the filing of the application and Mr McGee and Mr Crown are both ordinarily resident in and were present in Australia on that day.
A question arose as to whether section 65G applies in the present situation. That section provides:
(1) This section applies if:
(a) a court proposes to make a parenting order that deals with whom a child is to live with; and
(b) under the order, the child would not live with a parent, grandparent or other relative of the child; and
(c) the court proposes to make that order with the consent of all the parties to the proceedings.
(1A) This section also applies if:
(a) a court proposes to make a parenting order that deals with the allocation of parental responsibility for a child; and
(b) under the order, no parent, grandparent or other relative of the child would be allocated parental responsibility for the child; and
(c) the court proposes to make that order with the consent of all the parties to the proceedings.
(2) The court must not make the proposed order unless:
(a) the parties to the proceedings have attended a conference with a family consultant to discuss the matter to be determined by the proposed order; or
(b) the court is satisfied that there are circumstances that make it appropriate to make the proposed order even though the conditions in paragraph (a) are not satisfied.
This section refers to “a parent” in the singular. The child K will live with Mr McGee, who is presumed to be her father, and he will have parental responsibility for her. The proposed orders will be made with the consent of all parties to the proceedings.
I thus formed the view that section 65G did not apply in the present proceedings. I was taken to a decision of my learned colleague Murphy J in Mathers & Mathers [2008] FamCA 856, where his Honour reached the same conclusion as to the application of section 65G, in different factual circumstances.
I am required to regard the child K’s best interests as the paramount consideration in deciding whether to make the proposed consent orders: section 60CA. I am comfortably satisfied that these orders would be in her best interests, for reasons to which I now refer.
All four parties to the proceedings agree that Mr McGee and Mr Crown will raise K in their family unit which includes another child, C, who is now almost five years old. They have raised C practically since her birth and are thus experienced parents. They will be completely responsible for K’s care and financial support.
As noted, it is anticipated that Ms Crown will have some contact with K but that Ms Duchampes will play no role in her life. Given that Ms Duchampes and Ms Crown live in South Africa, it is not practicable that they could play any significant role in her parenting.
It appears that Mr McGee and Mr Crown can provide a comfortable life for K. She will live with them and C in their sub-penthouse accommodation which is ten minutes’ drive from their place of employment. Mr McGee and Mr Crown will be available for extensive periods during each day to care for her. For these reasons, I am comfortably satisfied that the proposed consent orders are in the child K’s best interests.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 12 November 2010.
Associate:
Date: 12 November 2010
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