ND & BM

[2003] FamCA 469

[2003] FamCA 469

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT MELBOURNE  No. (P)MLF7683 of 2002

BETWEEN:

ND

(Applicant Father)

and

BM

(Respondent Mother)

CORAM:  THE HONOURABLE JUSTICE KAY

DATE OF HEARING:          23 May 2003

DATE OF JUDGMENT:      23 May 2003

REASONS FOR JUDGMENT

APPEARANCES:

Mr Allen of Counsel, instructed by Pearsons, Solicitors, DX 436, Melbourne) appeared on behalf of the applicant father.

No appearance on behalf of the mother.

ND v BM
NO. MLF 7683 of 2002

Coram: Kay J

Date of hearing: 23 May 2003
Date of Judgment: 23 May 2003

CHILD SUPPORT –liability - sperm donor – conception by vaginal intercourse – parties agreed applicant would have no legal rights as parent – whether applicant is parent at law – agreement cannot act as an estoppel – father liable for child support

PRACTICE AND PROCEDURE – Appeal – appeal from summary jurisdiction – child support – leave to appeal required – appeal by way of hearing de novo – applicant for initial relief not appearing at appeal hearing – whether leave should be granted automatically in the absence of the initial applicant  

In April 1998 BM (the mother) told ND (the father) that she wanted to have a child and was looking for a sperm donor.  He volunteered to accept her invitation. At meetings with BM and LP they both emphasised that they did not want him to have any legal rights to the child and that the child would not be advised that he was the biological father.  He said that he would not seek any parental role and would not be responsible for the financial support of the child.  In the event of a separation between BM and LP, it was acknowledged that LP would assist in the financial support of the child.

Conception took place via vaginal intercourse.

Some two weeks after the birth of the child he executed a handwritten agreement at the request of BM and LP that provided he would have no legal rights to the child and that in the event of separation LP would support the child.  The child was born in January 1999 and he saw the child some three occasions after May of 1999.

BM commenced proceedings at the Melbourne Magistrates Court seeking a declaration the ND was liable to pay child support. A DNA test carried out that determined the probability of ND being the father of the child was 99.98 per cent.  Upon receipt of those results he signed minutes of consent orders acknowledging that for the purposes of the child support legislation he was the child's father.  He said he did so without legal advice.

Magistrate Tuppen at the Melbourne Magistrates Court declared under section 106 of the Child Support (Assessment) Act 1989 that BM was a person entitled to administrative assessment of child support payable by ND for the child PK born 22 January 1999.

ND applied for leave to appeal

Held in denying leave to appeal:

Although an appeal from a Court of Summary Jurisdiction is conducted by way of a hearing de novo, the requirement to obtain leave to appeal in a child support case still requires the applicant to shown an error in the court below.

The definition of parent in s 5 of the Child Support (Assessment) Act 1989 is an expansive, rather than inclusive definition. The normal meaning of the word "parent" in the English language has to be imported into the Child Support (Assessment) Act 1989 in context where it is used.

A “parent” is the father or mother of the child or the progenitor of a child, (Tobin v Tobin (1999) FLC 92‑848).

Only in the cases of adoption and artificial conception does the law alter the default position that the biological parent is treated in law as the parent: (B v J (1996) FLC 92-716).

In addition to the Australian authorities on the issue, there is a wealth of American authority confirming that, especially where conception was “in the usual and customary manner”, the biological parent was the parent at law.

Prior agreements between the parties could not be seen as a barrier to asking the Court to make an order that was otherwise just and equitable.  The equitable doctrine of estoppel did not apply.  A parent cannot waive a “right” to seek child support from another parent (B v J (1996) FLC 92-716; Woodcock (1997) FLC 92-739 followed.)

Query whether the father had a remedy elsewhere by application of equitable doctrines (W v G (1996) 20 Fam LR 49 – lesbian partner held liable for damages.)

Application dismissed.

No order as to costs.

Reportable

1. The proceedings before the Court today were instituted by a Notice of Appeal filed on 12 December 2002 seeking to appeal a decree made by Magistrate Tuppen at the Melbourne Magistrates Court on 14 November 2002 whereby a declaration was granted under s 106 of the Child Support (Assessment) Act 1989 that BM be declared a person entitled to administrative assessment of child support payable by ND for the child PK born in January 1999.

1. The procedure that brought the matter on before me was the filing of a Notice of Appeal. BM has indicated that she does not wish to be heard in these proceedings. Normally the nature of an appeal from a State court of summary jurisdiction to this court would be by way of rehearing (see s 96 Family Law Act 1975). In the absence of the applicant in the court below axiomatically the appeal would be allowed effectively because the proceedings down below would no longer be conducted and they would lapse from want of prosecution.

1. An appeal arising under the Child Support (Assessment) Act from a Court of summary jurisdiction is not an appeal as a right, but it is an appeal by way of leave. I refer to s 105(2) of the Child Support (Assessment) Act.  That places a different barrier in the face of the applicant for leave.  As far as procedure is concerned, without notice to BM but with the effective consent of the applicant/appellant, I have treated today's proceedings as an application for leave to appeal, and if leave is granted, then because of the reasons I have just expressed, the appeal would be allowed.  I have waived any obligation to file and serve any further documents in support of the leave application.

1. The principles upon which leave is granted in child support cases has been the subject of a number of decisions.  They are comfortably set out in paragraphs 39 through 44 of Hendy v the Deputy Commissioner of Child Support reported, amongst other places, at (2001) 27 Fam LR 641.  Only last week Hendy was the subject of an unsuccessful application for special leave to the High Court, the High Court indicating in their very short reasons, which were published 22 May 2003 on the High Court web site, that they saw no error in approach by the Full Court (see type="1">

2. Basically, an applicant for leave to appeal needs to demonstrate there is an error of principle or there they have suffered a substantive injustice.  The authorities are still unsettled as to whether both of those legs need to be demonstrated, although in the child support arena the authorities tend to lean towards the view that if there is a meaningful effect to a substantive right as a result of an error of principle, then the Court ought not be too rigid in its application of the leave requirement. 

Background: 

1. For my purposes, the facts in these proceedings are unchallenged in that I have only the material put forward by the applicant.  He deposes that he entered into a sexual relationship with BM in March 1997, but it was of some short compass.  In April 1997 she began to board at his home and she advised him that she was bisexual.  There were further sexual relations between the parties late in 1997.  She then told him that she was interested in pursuing a homosexual relationship and she commenced such a relationship with one LP with whom she underwent a "ceremony of marriage" in March 1998. 

1. The applicant deposes that in April 1998 BM told him that she wanted to have a child and was looking for a sperm donor.  He said that he volunteered to accept her invitation and he attended three meetings with the respondent and LP over the next seven to 10 days in their home discussing his role as a sperm donor.  He said they both emphasised that they did not want him to have any legal rights to the child and that the child would not be advised that he was the biological father.  He said that he would not seek any parental role and would not be responsible for the financial support of the child.  There was a discussion about what would happen in the event of a separation between BM and LP and

“it was acknowledged that in such an event LP would assist in the financial support of the child.”

1. He said there was an agreement that conception would take place via vaginal intercourse in the presence of LP.  This occurred on three occasions.  The child was conceived and born in January of 1999. 

1. He said that some two weeks after the birth of the child he executed a handwritten agreement at the request of BM and LP that provided he would have no legal rights to the child and that in the event of separation LP would support the child.  He said, as at January of this year, that he saw the child some three occasions after May of 1999. 

1. After the proceedings relating to the child support declaration commenced there was a DNA test carried out that determined the probability of the applicant being the father of the child was 99.98 per cent.  Upon receipt of those results he signed minutes of consent orders acknowledging that for the purposes of the child support legislation he was the child's father.  He said he did so without legal advice. 

1. His case, which is neatly summed up in paragraph 20 of his affidavit, reads as follows:

“…Whilst I acknowledge that I am the child's biological father it was never my intention or the Respondent's intention that I would be a parent to the child.  My role was to be the sperm donor and to represent a male figure in the child's life.  The child was not to know that I was the biological father.  I do not believe that the child is aware of my role in his life.  It was also agreed I would have no rights nor incur any liabilities in respect of the child.”

1. The statutory obligation for child support is contained in the Child Support(Assessment) Act.  It provides in s 3:

“The parents of a child have the primary duty to maintain a child.”

1. In s. 4 it says that the principal object of the Act is to ensure that children receive a proper level of financial support from their parents.

1. The only definition of a parent in the Child Support (Assessment) Act is set out in s 5 and reads as follows:

“‘Parent’ means:

(a)when used in relation to a child who has been adopted, an adoptive parent of the child; and

(b)when used in relation to a child born because of the carrying out of an artificial conception procedure, a person who is a parent of the child under section 60H of the Family Law Act 1975.”

1. Even though there is no definition beyond that contained in s 5, the cases conclude that the definition in s 5 is an expansive definition and not an inclusive definition and that the normal meaning of the word "parent" in the English language has to be also imported into the Child Support (Assessment) Act in context where it is used. 

1. I refer to the decision of the Full Court in Tobin v Tobin (1999) FLC 92‑848 where the Court, when discussing the obligations of a step-parent to pay child support held that a “parent” is the father or mother of the child or the progenitor of a child.

1. Fogarty J in B v J (1996) FLC 92-716, dealing with a child who had been conceived other than by vaginal intercourse said:

“Ordinarily, the biological parents of a child are treated in law as the parents of the child. However, section 5 of the Child Support (Assessment) Act alters that position for two categories of children [they being adopted children and children born because of the carrying out of an artificial conception procedure].” 

1. Mr Allen on behalf of the applicant before me submitted that the law had reached a very strange situation.  It is clear from the decision of B v J that the provision of sperm does not make you a parent where the sperm is provided other than by the more traditional manner.  Mr Allen pointed out the apparent inconsistency with the concepts on an emotional basis; namely, that if somebody wanted and intended to be the father of a child but the actual conception took place other than via vaginal intercourse, unless it was attended by the necessary statutory procedures, that person could not be deemed to be the father of the child even though that person wanted to be the father of the child and for all intents and purposes was accepted by the mother and the child as a father.  Yet, where a child was conceived through vaginal intercourse with all of the parties, other than the child of course who could not be party to the agreement, intending the male to play no role in the child's life or incur no liabilities the law still imposed a liability.  This, it was said, seemed an artificial line to draw.

1. The argument in respect of the nature of parenthood and whether or not the applicant before me was a parent within the meaning of the Child Support (Assessment) Act was not strongly pressed in light of the Australian authorities to which I have referred and in light of a wealth of American authorities that were available through the remarkable technology that has been developed through the Internet over the past few years.  Many of those authorities are conveniently discussed in an article that appears in Vol 11, No 1 of Divorce Litigation, a publication of the National Legal Research Group in Charlottesville, Virginia written by Laura Wish Morgan which can be found at type="1">

2. By way of example of some of the cases there cited is the New York decision of Pamela P v Frank S (1983) 449 N.E. 2d 713; 59 N.Y. 2d 1.  In that case the father said he was deceived into believing the mother was taking appropriate contraceptive steps and that in the circumstances he should not be seen to be liable for the support of his child.  The court said, and perhaps this is more significant to the second stage of Mr Allen's argument rather than the first:

“The primary purpose of establishing paternity is to ensure that adequate provision will be made for the child's needs in accordance with the means of the parents.  In determining parents' obligations to support their child the statute mandates consideration of two factors; the needs of the child for support and education and the financial ability of the parents to contribute to that support.  The statute does not require, nor, we believe, does it permit consideration of the fault or wrongful conduct of one of the parents in causing the child's conception.  The purpose of paternity proceedings and the imposition of support obligations being a protection of the child, the Family Court as a court of limited jurisdiction is simply not the proper forum for adjudicating disputes existing solely between the parents.” 

1. On an issue as to whether or not a child conceived by way of vaginal intercourse could be said to fall within the concept of artificial insemination, the Superior Court of Pennsylvania in Kessler v Wenigar  No. 491 WDA 99 that can be found, amongst other places, at reported as 2000.PA.0042059, in a case not dissimilar to this one where the mother said, "If I fall pregnant through sexual intercourse you will not be required to support the child" and the father argued that he merely voluntarily helped in conception, the court said in a rather pithy statement:

“Whilst science has enabled all manner of assisted conception, variations of which continue to evolve, we decline to recognise a category of ‘artificial insemination by intercourse’.  Even if the appellant's role has been, as he suggests, merely that of a man obliging a friend with donations of sperm for 15 years, he cannot avoid his obligation to the child. 

It matters not when an agreement to forego support occurred, the right to support is the right of the child, not the mother or the father.  It cannot be bargained away before conception any more than it can be bargained away after birth, nor can it be extinguished by principles of estoppel.”

1. In Budnick v Silverman 805 So.2d 1112, a decision of the Florida 4^th District Court of Appeal in 2002, the court said in discussing a section of their legislation not dissimilar to the medical conception procedures discussed in our legislation:

“Impregnation by the ‘usual and customary manner’ has been around long enough so that it does not constitute ‘reproductive technology’.  Therefore, we do not read section 742.14 to apply to a conception that happened the old-fashioned way.”

1. The second leg of Mr Allen's argument, the one that was pressed more strongly before me, was the application of the doctrine of estoppel in the circumstances of this case.  Where the mother has entered into an agreement with the father of the child that she would not expect the father to have any responsibility at all for the child it was harsh and unconscionable to expect the father to then be obliged to support the child.  As a matter of application of equitable principles the mother was not allowed effectively to call evidence as to the paternity of the child. 

1. The general application of the doctrine of estoppel to family law cases has been discussed on more than one occasion.  There is an extensive discussion of the principles by Fogarty J in the case already cited where he says:

“It is, in my view, to untenable to suggest that an otherwise liable parent may contract out of liability for child support or that an otherwise entitled parent may waive a ‘right’ to assistance for the support of his or her child.  It is well established that statutory rights granted to individuals which rest upon wider principles of public policy may not be waived.”

1. His Honour then cites significant authorities for those, concluding with Commonwealth v Verwayen (1990) 170 CLR 394; 95 ALR 321:

“The financial support of children is a matter of great public interest.  The community as a whole would be adversely affected if a person were permitted to waive a ‘right’ to seek support from a child's parent.”

1. The Full Court looked at the doctrine of the application of estoppel in property cases in Woodcock (1997) FLC 92-739 and concluded the doctrine had no application when faced with a statute that provides the considerations that the Court is obliged to take into account. That particular case involved s 79 of the Family Law Act. The prior behaviour of the parties in reaching some form of agreement but non-sanctioned and not implemented by way of court orders could not be seen as a barrier to asking the Court to make an order that was otherwise just and equitable.

1. Having regard to the authorities to which I have been directed, the wealth of Australian authorities, the wealth of the United States authorities, and notwithstanding whatever sympathy might be generated for the position of the father and notwithstanding the best efforts put forward by Mr Allen who has conducted some rather thorough research into the matter, I remain unconvinced that the Magistrate applied any error of principle or that any substantive injustice is demonstrated.  If there is some form of argument available that relies upon the agreement of the father, the mother and the mother's companion, then the relief arising out of that agreement, in my view, is not to be found within the confines of the Child Support (Assessment) Act. 

1. The application of equitable doctrines that have led to the recovery of moneys in these types of cases is not entirely unknown.  In W v G (1996) 20 Fam LR 49, Hodgson J of the Supreme Court of New South Wales dealt with a claim by the biological mother of a child conceived through artificial insemination process against her lesbian partner who had, on the findings of the trial judge, indicated that she would accept responsibility for assisting the support of the child. Relying upon that agreement Hodgson J awarded damages to the mother to assist in the support of the child.

1. It may be there exists in some other forum some claim for the recovery of moneys that will necessarily be payable as a result of the operation of the child support legislation.  But for my purposes, I do not perceive that the remedy sought before this Court, namely the effectively setting aside of the declaration that the mother is entitled to administrative assessment as against the father, was attenuated by the error or creates a substantive injustice for the father.  Accordingly, the application for leave to appeal is dismissed.

I certify that the preceding 29 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Kay
The 7th day of July 2003

Associate: Elizabeth Hore