Parsons & Anor and Masson
[2018] FamCAFC 115
•28 June 2018
FAMILY COURT OF AUSTRALIA
| PARSONS AND ANOR & MASSON | [2018] FamCAFC 115 |
| FAMILY LAW – APPEAL – CHILDREN – Relocation – Two children born as a result of artificial conception procedures – Where the first appellant is the biological and birth mother of both children, the second appellant is a parent of the youngest child by operation of s 60H of the Family Law Act 1975 (Cth) (“the federal Act”) and the respondent is the biological father of the eldest child – Where the primary judge found the respondent is a “legal parent” of the eldest child, allowed him extensive time with both children and restrained the appellants from relocating – Where the primary judge only applied the federal Act – In a case heard in federal jurisdiction it is mandatory for s 79 of the Judiciary Act 1903 (Cth) to be applied – Rizeq v Western Australia (2017) 91 ALJR 707 and Northern Territory of Australia vGPAO (1999) 196 CLR 553 considered – No constitutional reason why s 79 of the Judiciary Act 1903 (Cth) ought not apply to “pick up” the Status of Children Act 1996 (NSW) (“the State Act”) – Held s 60H of the federal Act does not “otherwise provide” within the meaning of s 79 of the Judiciary Act – Section 14 of the State Act must therefore be applied – The respondent is presumed not to be the father of the eldest child – Section 60H of the federal Act does not enlarge the category of persons entitled to the status of “parent” as there can only be two parents for the purposes of the federal Act – Held primary judge erred in finding the respondent is a “legal parent” of the eldest child – Appeal allowed – Matter remitted – Costs certificates issued. FAMILY LAW – APPEAL – CHILDREN – Interpretation of the federal Act in relation to the meaning of “parent” considered – Where the rebuttable Division 12 presumptions are trumped by s 60H of the federal Act – Bernieres & Dhopal (2017) FLC 93‑793 considered – Biology alone does not determine who is a “parent” for the purposes of the federal Act – State of knowledge of the putative father about the nature of the mother’s relationship with another person irrelevant in the application of s 60H – The intention of a person to “parent” a child does not make them a “parent” within the meaning of the federal Act – Donnell & Dovey (2010) FLC 93-428 and Tobin v Tobin (1999) FLC 92-848 considered – First instances decisions considered – Re Mark: An Application Relating to Parental Responsibilities (2003) FLC 93‑173 no longer to be regarded as good law – If state legislation lays down a presumption that members of a class of men are not to be regarded as fathers of a specific class of children, then a court is obliged to apply that presumption unless it is repugnant to the federal Act – Re Patrick: An Application Concerning Contact (2002) FLC 93-096 approved. FAMILY LAW – APPEAL – CHILDREN – Consequences of a person being found to be a “parent” considered – In every case it is necessary to determine as a preliminary question which of the parties answers the description “parent” – Matter upon which the court’s power is conditioned – If the wrong person is found to be a “parent” then at a fundamental level the case goes off on a wrong premise – Mulvany & Lane (2009) FLC 93-404 distinguished – Where the primary judge treated the respondent as if he were the parent of both children – Error established. | |
| Australian Constitution Child Support (Assessment) Act 1989 (Cth) s 5 Family Law Act 1975 (Cth) ss 60CA, 60CC, 60H, 61B, 61C, 61DA, 65C, 65DAA Federal Proceedings (Costs) Act 1981 (Cth) Judiciary Act 1903 (Cth) s 79 Marriage Act 1961 (Cth) s 5 Status of Children Act 1996 (NSW) s 14 Status of Children Act 1974 (Vic) Family Law Regulations 1984 (Cth) reg 12C, 12CA | |
| Aldridge & Keaton [2009] FamCAFC 229; (2009) FLC 93-421 B v J [1996] FamCA 124; (1996) FLC 92-716 Bernieres & Dhopal [2017] FamCAFC 180; (2017) FLC 93-793 Donnell & Dovey [2010] FamCAFC 15; (2010) FLC 93-428 Farnell & Anor and Chanbua [2016] FCWA 17; (2016) FLC 93-700 Groth v Banks [2013] FamCA 430; (2013) 49 Fam LR 510 MRR v GR [2010] HCA 4; (2010) 240 CLR 461 Mulvany & Lane [2009] FamCAFC 76; (2009) FLC 93-404 Northern Territory of Australia v GPAO [1999] HCA 8; (1999) 196 CLR 553 Re Mark: An Application Relating to Parental Responsibilities [2003] FamCA 822; (2003) FLC 93-173 Re Patrick: An Application Concerning Contact [2002] FamCA 193; (2002) FLC 93-096 Rizeq v Western Australia [2017] HCA 23; (2017) 91 ALJR 707 Shaw & Lamb [2018] FamCAFC 42; (2018) FLC 93-826 Tobin v Tobin [1999] FamCA 446; (1999) FLC 92-848 Wilson v Alexander [2003] FCAFC 272; (2003) 135 FCR 273 Yates & Yates (Independent Children’s Lawyer - Costs) [2012] FamCAFC 219 |
| FIRST APPELLANT: | Susan Parsons |
| SECOND APPELLANT: | Margaret Parsons |
| RESPONDENT: | Robert Masson |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 3963 | of | 2015 |
| APPEAL NUMBERS: | EA | 111 | of | 2017 |
| EA | 11 | of | 2018 |
| DATE DELIVERED: | 28 June 2018 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Thackray, Murphy & Aldridge JJ |
| HEARING DATE: | 22 March 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATES: | 3 October 2017 |
| 18 December 2017 |
| LOWER COURT MNCS: | [2017] FamCA 789 |
| [2017] FamCA 1148 |
REPRESENTATION
| COUNSEL FOR THE FIRST AND SECOND APPELLANTS: | Mr Walker SC with Ms McMahon |
| SOLICITOR FOR THE FIRST AND SECOND APPELLANTS: | McDonald Johnson Lawyers |
COUNSEL FOR THE RESPONDENT: | Mr Kearney SC with Ms Lawson |
SOLICITOR FOR THE RESPONDENT: | Steiner Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms England |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Sydney Central Family Law |
Orders
Appeal number EA 11 of 2018 be dismissed.
Appeal number EA 111 of 2017 be allowed.
The matter be remitted to the Family Court of Australia for rehearing by a judge other than the Honourable Justice Cleary.
The orders made by Justice Cleary on 3 October 2017 (as varied by the orders her Honour made on 18 December 2017) be set aside upon the matter being determined by the Family Court of Australia on either an interim or final basis, whichever is the earlier.
There be no order as to costs.
The Court grants to the appellants a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney‑General to authorise a payment under that Act to the appellants in respect to the costs incurred by them in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney‑General to authorise a payment under that Act to the respondent in respect to the costs incurred by him in relation to the appeal.
The Court grants to each of the appellants and the respondent a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of them in respect of the costs incurred by each of them in relation to the rehearing.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Parsons and Anor & Masson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 111 of 2017 & EA 11 of 2018
File Number: SYC 3963 of 2015
| Susan Parsons |
First Appellant
And
| Margaret Parsons |
Second Appellant
And
| Robert Masson |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Thackray J
The first and second appellants want to relocate to New Zealand with B and C, aged 10 and nine years. The respondent wants the children to remain in Australia and wishes to continue spending regular time with them.
The appellants cohabited before they were married in New Zealand in 2015, prior to same-sex couples being able to marry in Australia. The first appellant is the biological and birth mother of B and C, who were both conceived by artificial insemination. The girls live with the appellants, but have spent time with the respondent, who is B’s biological father, and is registered on her birth certificate. Both B and C call him “Daddy”.
The identity of C’s biological father is unknown, but s 60H of the Family Law Act 1975 (Cth) (“the federal Act”) deems the second appellant to be her other “parent”. She is shown as such on C’s birth certificate.
In the judgment under appeal, Cleary J found that the respondent is “a legal parent of B”. Her Honour’s orders of 3 October 2017 allow him extensive time with both girls and restrain the appellants from establishing a residence for them in New Zealand. The appellants have been given equal shared parental responsibility of the girls (Order 2) on the basis that they must consult the respondent before making any “long term” decisions (Order 3).
The appellants challenge most of the orders, including Order 3. The respondent and the Independent Children’s Lawyer oppose the appeal, but have not cross‑appealed against Order 2.
The main issues in the appeal
The first issue concerns the finding that the respondent is a “parent” of B within the meaning of the federal Act. The appellants submit that her Honour, who was sitting in New South Wales, erred in failing to recognise that s 79 of the Judiciary Act 1903 (Cth) required her to apply the Status of Children Act 1996 (NSW) (“the State Act”). The effect of that Act is that the respondent is conclusively presumed not to be B’s father.
The second issue arises from the primary judge’s method of ascertaining the best interests of the children, which the appellants say was flawed, not only as a result of the erroneous finding that the respondent was B’s “parent”, but also because her Honour effectively treated him as if he was also C’s “parent”.
The third issue concerns the finding that the appellants were not in a de facto relationship when B was conceived. That finding precluded a finding that the second appellant is legally B’s “parent”, and paved the way for the ultimate finding that the respondent is B’s “parent”. The appellants submit that her Honour should have found they were in a de facto relationship at the time B was conceived. If this argument had merit, it would be unnecessary to consider the first issue, since there would then be no doubt that the respondent was not a “parent” of B. However, as will be seen, I am not persuaded there is merit in this part of the complaint.
There are two further issues, but these were not pressed in oral argument, and will require no more than passing consideration.
The statutory provisions
There are three statutory provisions requiring consideration.
Section 79(1) of the Judiciary Act, upon which the appellants’ argument largely depends, provides as follows:
79 State or Territory laws to govern where applicable
(1)The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.
Section 14 of the State Act, which the appellants say is “picked up” by virtue of s 79(1) of the Judiciary Act, lays down a series of presumptions of parentage of children born as a result of artificial conception procedures:
14 Presumptions of parentage arising out of use of fertilisation procedures
(1) When a woman who is married to a man has undergone a fertilisation procedure as a result of which she becomes pregnant:
(a) her husband is presumed to be the father of any child born as a result of the pregnancy even if he did not provide any or all of the sperm used in the procedure, but only if he consented to the procedure, and
(b) the woman is presumed to be the mother of any child born as a result of the pregnancy even if she did not provide the ovum used in the procedure.
(1A) When a woman who is married to or who is the de facto partner of another woman has undergone a fertilisation procedure as a result of which she becomes pregnant:
(a) the other woman is presumed to be a parent of any child born as a result of the pregnancy, but only if the other woman consented to the procedure, and
(b) the woman who has become pregnant is presumed to be the mother of any child born as a result of the pregnancy even if she did not provide the ovum used in the procedure.
…
(2) If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using any sperm obtained from a man who is not her husband, that man is presumed not to be the father of any child born as a result of the pregnancy.
(3) If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using an ovum obtained from another woman, that other woman is presumed not to be the mother of any child born as a result of the pregnancy. This subsection does not affect the presumption arising under subsection (1A) (a).
(4) Any presumption arising under subsections (1)–(3) is irrebuttable.
(5) In any proceedings in which the operation of subsection (1) is relevant, a husband’s consent to the carrying out of the fertilisation procedure is presumed.
(5A) In any proceedings in which the operation of subsection (1A) is relevant, the consent of a woman to the carrying out of a fertilisation procedure that results in the pregnancy of her spouse or de facto partner is presumed.
(6) In this section:
(a) a reference to a woman who is married to a man includes a reference to a woman who is the de facto partner of a man, and
(b) a reference (however expressed) to the husband or wife of a person:
(i)is, in a case where the person is the de facto partner of a person of the opposite sex, a reference to that other person, and
(ii)does not, in that case, include a reference to the spouse (if any) to whom the person is actually married.
Section 60H of the federal Act also deals with the status of children born as a result of artificial conception procedures:
60H Children 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.
It should also be recorded that:
(a) The State Act is prescribed for the purposes of s 60H(1)(b)(ii);[1]
(b) Section 14 of the State Act is prescribed for the purposes of s 60H(2)(b);[2]
(c)No law has been prescribed for the purposes of s 60H(3).
[1] Regulation 12C of the Family Law Regulations 1984 (Cth) (“the Regulations”).
[2] Regulation 12CA of the Regulations.
The primary judge’s reasons
The judge accepted that both the second appellant and the respondent had standing to apply for parenting orders, regardless of whether they are “parents”.[3] However, her Honour recognised that it was still necessary, for other purposes, to make a finding as to who are the legal “parents” of both girls.
[3] Section 65C of the federal Act.
After recording that “parent” is not defined in the federal Act, and having set out s 60H, her Honour went on to consider whether the appellants were in a de facto relationship at the time of B’s conception (it being accepted they were in such a relationship by the time C was conceived).
Having found that the appellants were not in a de facto relationship at the time, and that the second appellant was therefore not B’s “parent”, her Honour turned to the respondent’s position. I will set out this discussion in full:
85.For [the respondent] to be a legal parent, I conclude that the evidence must at least support findings that he provided his genetic material for the express purpose of fathering a child he expected to parent, and was unaware of the defacto relationship now asserted to have been in existence at the time of conception.
86.I draw this conclusion from the following decisions commencing with Re Patrick [[2002] FamCA 193]. The facts of this case were that a lesbian couple and their gay male friend had all agreed in advance on an artificial insemination procedure and further, that the man would be involved in the life of the child…
87.In that decision Guest J held that the biological father of a child conceived in such circumstances would only be regarded as a parent if there was a specific state or territory law which expressly conferred that status on a ‘sperm donor’ for the purposes of the Act.
88.In that case there being no such law in Victoria the father was found not to be a parent.
89.As other judges of this Court at first instance have done, I respectfully disagree with that conclusion. “The meaning of the word “parent” ranges across biology, law and factual reality. It is open to assume that a biological progenitor is a parent unless an order of a Court says otherwise, as for example when there is a legal adoption or surrogacy.
90.One such decision is that of Brown J in the case of Re Mark [[2003] FamCA 822]. The facts were that a gay male couple entered into an overseas surrogacy agreement with a surrogate mother who carried the pregnancy. One of the men, Mr X, provided his sperm and together with an anonymous donor egg an embryo was created and implanted in the surrogate mother.
91.In that decision Brown J found that the ordinary meaning of the word parent encompassed a person in the father’s position. Her Honour said this:
Mr X provided his genetic material with the express intention of fathering (begetting) a child he would parent. He is not a sperm donor, (known or anonymous), as that term is commonly understood. The fact that the ovum was fertilised by a medical procedure, as opposed to fertilisation in utero through sexual intercourse, is irrelevant to either his parental role or the genetic make-up of Mark.
92.With respect I agree that the intention and belief of a party to an artificial insemination process is a factor to be taken into account.
93.Being a biological parent is not the whole answer to the question who is a parent. Donors of eggs or sperm very often make express disclaimers (for instance in surrogacy agreements) of future involvement in the life of a child. They do so in order to disclaim the rights, obligations and benefits of being a parent.
94.However where there is a challenge to a biological parent being a legal parent, as there is here, biology is a part of the answer.
95.In this case if the evidence supports a finding, as I have found that it does, that [the respondent] took part in the artificial insemination process believing that he was fathering a child whom he would help to parent, by financial support and physical care, then absent other legally disqualifying factors, he is a parent in the ordinary meaning of the word.
96.In Groth & Banks [[2013] FamCA 430] Cronin J, with whom I respectfully agree, stated that s 60H of the Act should be interpreted as expanding rather than restricting the categories of people who can be parents. In my view it is a proposition consistent with the absence of an exhaustive definition of the term “parent” in s 4 of the Act.
97.The facts of that case were that a man and a woman who had separated as a couple agreed to undergo IVF and raise the child as separated parents.
98.The biology of the situation was that the father provided sperm for the IVF procedure. The mother argued that pursuant to the relevant state legislation an irrebuttable presumption of law applied that if a woman becomes pregnant as a result of an IVF procedure and a child is born, the man who produced the semen used in the procedure is not the father of the child.
99.Referring to “the fact that a child has two parents who are his or her biological progenitors permeates the language of the Act” his Honour concluded that “biology is the determining factor unless specifically excluded by law”. Hence, the child having been created by his two biological parents had significance.
100.In this case, biology is of course a factor but the belief of [the respondent] that he would take on the responsibilities of parenthood, together with [the first appellant], as friends raising a child is equally significant.
Her Honour completed her discussion by saying:
101.I have concluded that:
(i)[The appellants] were not partners in a defacto relationship when B was conceived in December 2006. That condition not being satisfied, the second limb of the test (being consent), is not activated for consideration;
(ii)[The respondent] believed that he would take on parental responsibilities as a parent as would [the first appellant] and he provided his sperm for that purpose. Further I find that he had not been told and did not consider that [the appellants] were in a relationship with the character of a de facto relationship.
102.Accordingly for those reasons and taking into account that [the respondent] is the biological father of B I conclude that [the respondent] is a legal parent of B.
I turn now to the first issue, which addresses the question of who is B’s “parent” – a most important question since that word appears throughout Part VII of the federal Act, pursuant to which the proceedings were conducted.
Ground 1 – who legally is B’s “parent”?
The first ground of appeal asserts jurisdictional error as a result of what is said to be the primary judge’s failure to apply “the relevant law” when deciding that the respondent was a “legal parent” of B.
The line of authority followed by the primary judge effectively postulates that the relevant law is to be found in the federal Act. The appellants submit, in effect, that this is a constitutional heresy given there is a State law with obvious application to the circumstances. I agree, since this was a case heard in federal jurisdiction and it was mandatory for s 79 of the Judiciary Act to be applied.
The mandatory application of s 79 of the Judiciary Act
As the plurality of the High Court said when considering the operation of s 79 in Rizeq v Western Australia (2017) 91 ALJR 707 (“Rizeq”) at [56]:
The simple constitutional truth is that State laws form part of the single composite body of federal and non‑federal law that is applicable to cases determined in the exercise of federal jurisdiction in the same way, and for the same reason, as they form part of the same single composite body of law that is applicable to cases determined in the exercise of State jurisdiction – because they are laws.
The Chief Justice said in the same case at [7]:
It is well accepted that in federal jurisdiction State and federal courts can apply both Commonwealth and State laws, as the matter in question requires. Commonwealth and State laws, together with the common law of Australia, comprise a “single though composite body of law” to be applied.
Section 79 of the Judiciary Act operates to fill a gap. However, the gap is not a gap in the scheme provided by s 60H, as the respondent submitted, but rather the one created by virtue of the fact that state legislatures lack competence to regulate what a court does in the exercise of federal jurisdiction: Rizeq at [63] and [90].
As the plurality said in Rizeq at [63]:
[Section 79] fills that gap by picking up the text of a State law governing the exercise of State jurisdiction and applying that text as a Commonwealth law to govern the manner of exercise of federal jurisdiction.
Gleeson CJ and Gummow J had earlier said in Northern Territory of Australia vGPAO (1999) 196 CLR 553 at [80] (“GPAO”) that s 79 should be seen as:
[facilitating] the particular exercise of federal jurisdiction by the application of a coherent body of law, elements in which may comprise the laws of the State or Territory in which the jurisdiction is being exercised, together with the laws of the Commonwealth, but subject always to the overriding effect of the Constitution itself.
Accordingly, I accept the appellants’ argument that the only issue that required consideration was whether the parenthetical exception in s 79 is invoked – i.e. is there something in the Constitution, or in some law of the Commonwealth, which makes s 79 ineffective in picking up the State law which would have required her Honour to find that the respondent was not a parent of B?
It was not suggested there was any constitutional reason why s 79 ought not apply to “pick up” the State Act, and it was not suggested there was any law of the Commonwealth that would have that effect, save for the federal Act itself.
Does the federal Act otherwise provide?
The question therefore arises whether there is something in the federal Act that has the effect that the State Act cannot apply, bearing in mind that for present purposes they are “statutes having the same source”: GPAO at [80]. That question is answered by asking whether the ambit of the federal Act so reduces the ambit of the State Act that the provisions of the former are irreconcilable with those of the latter, with the result that, to use the wording of s 79 of the Judiciary Act, the federal Act “otherwise provides”: GPAO at [81].
I find nothing in s 60H which “otherwise provides” in relation to the “picking up” of s 14 of the State Act, since 60H “leaves room” for the operation of all of that provision: GPAO at [84]. Put another way, there is nothing irreconcilable between the provisions of s 14 of the State Act and s 60H of the federal Act, or indeed any other part of the federal Act.
The mere fact that s 60H provides for laws to be prescribed for certain purposes does not create inconsistency between the federal Act and laws like the State Act. Inconsistency could only arise if the State law provided that:
(a)a married or de facto couple who satisfied the terms of s 60H(1)(a) and (b)(i) must be treated as not being the parents of a child born as a result of an artificial conception procedure; or
(b)that the person who provided the genetic material but was not the “other intended parent” must be regarded as being a parent of the child (and that law had not been prescribed as a law to which s 60H(2) or s 60H(3) applied).
There are no State laws so providing, and hence no inconsistency in what I have previously described as “a coherent national legal framework” (Farnell & Anor and Chanbua (2016) FLC 93-700 (“Farnell”) at [301]).
In particular, there is no State law providing for a man to be treated as being the father of a child born as a result of an artificial conception procedure who would not be treated as such by s 60H(1) or s 60HB. This makes unsurprising the failure to prescribe any law for the purposes of s 60H(3) and is not a matter from which any conclusion can be drawn: B v J (1996) FLC 92-716 at 83,617 (“B v J”).
I consider it clear that a law such as s 14 of the State Act, which determines whether a man can be regarded as the father of a child, must be applied where that question arises in federal jurisdiction. Since the presumption in s 14 is irrebuttable, and as the respondent was not married to the first appellant, or in a de facto relationship with her, it follows that the respondent is presumed not to be the father of B, and therefore ought not to have been treated as being her parent for the purposes of the federal Act.
How should the federal Act have been interpreted?
There are a number of provisions of the federal Act with potential application. In my respectful opinion, consideration of them also points to a different interpretation of the word “parent” than the one favoured by the judge.
Subdivision D of Division 12 of Part VII contains presumptions of parentage. All but one are rebuttable by proof on a balance of probabilities.[4] The one presumption that is not rebuttable is irrelevant here. It is not disputed that the others must give way to s 60H.[5] In Bernieres & Dhopal (2017) FLC 93-793 the Full Court adopted the interpretation I had proposed in Farnell, namely that the rebuttable Division 12 presumptions are trumped by, inter alia, s 60H which, although not expressed as such, is in effect an irrebuttable presumption.
[4] Section 69U(1).
[5] Including the presumption that would otherwise arise under s 69R from the registration of birth.
Section 60H(1) has no application unless the appellants are right in asserting they were in a de facto relationship when B was conceived, in which case she would be deemed not to be the respondent’s child for the purposes of the Act, which would logically exclude the respondent from being her “parent”.
Section 60H(2) also has no application as it is directed to identifying who is the mother of the child, which is not the issue here.
Section 60H(3) similarly has no application, as no laws have been prescribed for the purposes of that section – and it has no other operation.
For completeness, B was never adopted by the respondent, in which case she would be his child regardless of biological origin,[6] and she was not conceived under a surrogacy arrangement, in which case s 60HB would come into play: see Bernieres & Dhopal at [62]; Farnell at [203] to [208].
[6] By operation of the s 4 definition of “child”.
There are no other provisions of the federal Act which were said to have any relevance in determining who is a “parent” (save for provisions about parentage testing procedures which do not take the discussion any further).
It follows from this survey of potentially relevant provisions of the federal Act that all three bases upon which her Honour found that the respondent is B’s “parent” cannot be supported by reference to the text of the federal Act alone.
First, while as a matter of ordinary English usage the word “parent” will be satisfied by identifying the male whose gametes were used for a child to be conceived, biology alone is not determinative in deciding who is a “parent” for the purposes of the federal Act, since a biological connection is not required. This can be seen from the provisions dealing with adoption, surrogacy and artificial conception procedures involving consenting partners.
Secondly, there is nothing in the federal Act to suggest that the expectation of a man that he will “parent” a child born using his genetic material is relevant in determining whether he is a “parent” for the purposes of that Act. The only thing that comes close is the use of the words “intended parent” in s 60H(1), but that subsection concerns spouses or de facto partners, and it is not suggested the respondent was ever married to or a de facto partner of the first appellant.
Thirdly, there is nothing in the federal Act to suggest that the state of knowledge of the putative father about the nature of the mother’s relationship with another person is of any relevance to his status in relation to the child. If the child is born to a woman who is married to, or in a de facto relationship with, another person, and the provisions of s 60H(1) are otherwise satisfied, then regardless of his state of knowledge, the male who provided the genetic material is not the father of the child, since the child is deemed not to be his.
The respondent seeks to support the primary judge’s finding by arguing that s 60H should be understood as not limiting, but rather enlarging the category of persons who are entitled to the status of “parent”. The logical extension of this argument is that a child could have more than two “parents”, which would lead to awkward consequences in applying the federal Act. The appellants refute any suggestion that the Act admits of children having more than two parents. They point out that provisions such as ss 60B and 60CC are framed on the clear assumption that a child can have only two parents. This is said to follow from the use of the word “both” when referring to “parents”.[7]
[7] The word “both” also appears in s 65C which provides that “either or both of the child’s parents” may apply for a parenting order.
The appellant’s interpretation should be accepted. It is consistent not only with all dictionary definitions of “both” but also with those sections of the federal Act where reference is made to “both parties to the marriage”.[8] Marriage is the union of two people, as provided for in s 5 of the Marriage Act 1961 (Cth).
[8] See for example ss 55A(3) and 60F(1).
For these reasons, I consider there is merit in Ground 1.
I reject the respondent’s submission that because of the way the trial was conducted it was not open to the appellants to rely upon Ground 1. While I accept that the appellants made no mention of the Judiciary Act at trial, the State Act was relied on and it could only have application because of the Judiciary Act.
Full Court decisions
Senior counsel for the appellants left open the possibility that whatever view we might form about Ground 1, we may nevertheless find ourselves obliged to follow earlier authority that conflicts with his argument. However, as he pointed out, we were not taken to any authority which came close to touching on his proposition concerning the operation of s 79 of the Judiciary Act.
As I pointed out in Farnell there has been a serious divergence of judicial opinion in this area. The problem arises from the fact that the federal Act does not make express provision for the status of all children born as a result of an artificial conception procedure or surrogacy arrangement.
The primary judge noted this divergence of opinion, but she did so by reference only to what has been said by other trial judges. This, in itself, points to there being no authoritative ruling at appellate level that might prevent us from allowing the appeal on the basis of the merit in Ground 1.
Whatever may have been said by trial judges, it has always been accepted by this Court that the intention of a person to “parent” a child does not make them a “parent” within the meaning of the federal Act. So much should be clear from the distinction the Act draws between a “parent” and a “step-parent” – a distinction which would apply even to a male who had lived with and treated a child as a member of his family from the time of birth.[9]
[9] A step-parent is defined in s 4 of the federal Act as a person who is not otherwise a parent of a child but who is, or was, married to, or a de facto partner of, a parent of the child and who treats, or at any time while married to, or a de facto partner of, the parent treated the child as a member of the family formed with the parent.
We were referred to Donnell & Dovey (2010) FLC 93-428 where this point was made. There the Full Court said at [92]:
The only attempt made in the legislation to assist in interpreting the meaning of the word “parent” is contained in s 4(1), which says that “parent, when used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child”. We therefore proceed on the basis that “parent” means a biological or adoptive parent and does not include a person who stands in loco parentis to a child: Mulvany & Lane (2009) FLC 93-404 per May and Thackray JJ at [32]. See also Hort & Verran [2009] FamCAFC 214, per Coleman, O’Ryan and Strickland JJ at [84] …
Importantly, the Full Court immediately went on to say:
We exclude from consideration for present purposes the difficult issues associated with children born as a result of artificial conception procedures, as to which see the decision of the Full Court in Aldridge & Keaton [2009] FamCAFC 229 at [16] to [22].
The remarks the Full Court made in Aldridge & Keaton were obiter, but in any event not inconsistent with what I have said about the respondent’s potential status as “a parent”. Furthermore, there was no discussion in Aldridge & Keaton of s 79 of the Judiciary Act and the possible application of State law.[10]
[10] The Full Court’s reference at [21] to New South Wales legislation was only in the context of a reference to s 69R of the federal Act, which lays down a rebuttable presumption of parentage by reference to the law of a State.
Earlier, in Tobin v Tobin (1999) FLC 92-848 (“Tobin”), the Full Court said
45. Whilst the term [parent] may be capable of being used in different contexts to include broader categories than those of “father” or “mother”, in our view, the natural meaning of the word in the context in Part VII, Division 7 of a child is the biological mother or father of the child and not a person who stands in loco parentis.
The Full Court in Tobin was dealing with an assertion that a person in loco parentis was a “parent”. The question of parentage of a child born as a result of an artificial conception procedure was simply not addressed. Importantly, however, the Full Court drew attention to the consequences that would follow from an expansive interpretation of “parent”:
44. There are several other areas of the Family Law Act which would make any broader interpretation of the word “parent” quite problematic. Section 60B speaks of the children having a right to know and be cared for by both their parents. It does not talk of the children having a right to know and be cared for by all of their parents. Section 60B(2) provides that the children have a right of contact on a regular basis with both their parents and with other people significant to their care, welfare and development. It recognises a clear delineation between a parent and a person significant to a child’s care, welfare and development.
(Emphasis in original)
In Bernieres & Dhopal, one of the most recent decisions of this Court dealing with an artificial conception procedure, it was made clear that the fact a man is the biological father “does not translate into him being a parent for the purposes of the [federal] Act” (at [65]). However, the Full Court recorded that it had not heard argument as to whether the provisions of s 60H impliedly exclude a sperm donor from recognition as a “parent”. The Court was therefore unable “to express any informed view about the same” (at [59]). No reference was made to the effect of s 79 of the Judiciary Act.
The most recent decision of this Court dealing with artificial conception was Shaw & Lamb (2018) FLC 93-826; however that case concerned surrogacy and it also concerned proceedings in Queensland where the legislation is expressed in different terms to the equivalent law in New South Wales. The few remarks made which are potentially relevant are obiter, and the Full Court acknowledged that any opinion it expressed would be “hypothetical” (at [60]).
There being no other Full Court or High Court decisions that are on point, there is no binding authority preventing adoption of the appellants’ argument.
First instance decisions
For completeness, I mention first instance decisions to which we were referred.
Re Mark
The primary judge adopted the line of authority that follows Re Mark: An Application Relating to Parental Responsibilities (2003) FLC 93-173 (“Re Mark”) where Brown J rejected Guest J’s finding in Re Patrick: An Application Concerning Contact (2002) FLC 93-096 (“Re Patrick”) that the biological father of a child born as a result of an artificial conception procedure can only be a “parent” for the purposes of the federal Act if “there is a specific State … law which expressly confers that status on a semen donor in his position, and that law is prescribed for the purposes of s 60H” (at [36]).
All that really needs to be said about Re Mark is that Brown J was not asked to take account of the operation of s 79 of the Judiciary Act.
However, Brown J also placed apparent significance on the fact that:
37.Section 60H creates the relationship of parent and child, not by the use of the term “parent”, but by deeming a child to be “her child”, “his child” or “their child” for the purposes of the Family LawAct in certain circumstances.
Her Honour went on to stress, at [39], that s 60H “does not contain the word ‘parent’”. With respect, this does not take the argument any further, since senior counsel for the appellants was right in stating that status is neutral, “so that if A is not the father of B, then B is not the child of A”. Conversely, if a child is deemed to be the child of a particular person then that person must be deemed to be that child’s “parent”. That the Commonwealth Parliament has the same view can be seen from s 5 of the Child Support (Assessment) Act 1989 (Cth) which provides that “parent”, “when used in relation to a child born because of the carrying out of an artificial conception procedure — means a person who is a parent of the child under section 60H of the Family Law Act 1975”.
Brown J also said that “[t]o the extent that s 60H could be said to define ‘parent’ for the purposes of the Family Law Act I am not satisfied it is an exhaustive definition” (at [40]). I would respectfully agree since s 60H is manifestly not exhaustive, but its meaning stands to be fleshed out by reference to State law, unless the parenthetical exception in s 79 of the Judiciary Act is properly invoked. Brown J did not mention s 79 and therefore did not engage with the exceptions to its mandatory application.
Brown J did refer to Tobin and indeed relied upon it. She took issue with Guest J in Re Patrick who, she said, had distinguished Tobin on the basis that “the unique position of a sperm donor was not before the Court (in Tobin) and for this reasons [sic] it is of limited application” (at [50]). Her Honour felt that Tobin could not “so easily be distinguished” (at [51]). With respect, it is not a question of whether the two cases can be “distinguished”. It was simply, as Guest J pointed out, that the Full Court had not been required to turn its mind to the position of children born as a result of an artificial conception procedure and the judgment could therefore not be treated as a binding authority.
Brown J’s reasoning also depended, in part, upon the terms of the Status of Children Act 1974 (Vic) as it stood at the time. Her Honour emphasised that the Victorian law created “no presumptions, rebuttable or otherwise” concerning parentage of a child, and instead focussed on “rights” and “liabilities” (at [71]). The Victorian law has since been amended, and now contains an irrebuttable presumption that a sperm donor is not the father of the child.[11]
[11] See Part II of the Status of Children Act 1974 (Vic).
Brown J observed, at [78], that if there was a “principle of statutory construction which means a federal law should be construed in the light of State or Territory presumptions … one wonders at its effect in areas where State and Territory laws differ”. I accept that rejection of Brown J’s approach means there might be different outcomes depending on the State or Territory in which a matter is heard. However, adopting her Honour’s approach would be antithetical to the proper operation of s 79: Wilson v Alexander (2003) 135 FCR 273.
Re Mark should therefore no longer be regarded as good law.[12]
[12] Out of fairness, it must be recorded that Brown J noted that there had been no contradictor before her and she accepted that “there may well be other arguments which should be put” (at [81]). Her Honour therefore did not express a finally concluded view.
Groth v Banks
Cronin J did turn his mind to s 79 of the Judiciary Act in Groth v Banks (2013) 49 Fam LR 510, another decision on which the primary judge relied.
His Honour said the relevant question was:
31.…whether the determination of parentage for the purposes of the laws of the Commonwealth should follow the meaning of “parent” under the [federal] Act as I have interpreted it, or whether the applicant is excluded by the irrebuttable presumption just mentioned [i.e. the presumption in the Status of Children Act 1974 (Vic)].
His Honour went on to say:
The question invites consideration of two crucial elements of the federal legal system;
(a)the incorporation of state laws into Federal jurisdiction unless the Commonwealth law “otherwise provides” because of ss 79 and 80 of the Judiciary Act; and
(b)section 109 of the Constitution, which provides that where two laws are in conflict, the Commonwealth law prevails.
Cronin J held that:
35.Section 79 of the Judiciary Act makes clear that the laws of Victoria are binding on this court if it is exercising federal jurisdiction unless those laws are otherwise provided by the law of the Commonwealth. The Status of Children Act [Vic] is not binding here, because Part VII of the Act has provided an applicable and sufficient law as to parentage as required by ss 79 and 80 of the Judiciary Act.
With respect, I consider that his Honour posed the correct question in the first sentence of the paragraph but answered a different one in the second sentence. It is not the function of a court to decide whether a Commonwealth law is “sufficient” where there is a State law which prima facie has direct application. It is also not a case of looking for a “gap” in the federal legislation in the sense advanced by the respondent, but rather acknowledging that the State law must be applied unless the federal law “otherwise provides”.
Cronin J also went on to consider the argument put to him that:
36.…if the state law did apply it would be inconsistent with the law of the Commonwealth in Part VII of the [federal] Act by impairing, altering or detracting from the right to be a “parent”. Section 109 of the Australian Constitution clearly provides that in the event of inconsistency of two validly enacted laws, the Commonwealth law prevails.
It is unnecessary to consider how Cronin J dealt with that proposition since it is clear, following the decision in Rizeq, that in matters such as the present no issue of inconsistency between Commonwealth and State law arises: Rizeq at [92]. The task is to consider the operation of two laws which have the same source – and the question then becomes one of statutory interpretation.
B v J
Brown J in Re Mark found support in B v J for her view that the provisions of s 60H enlarge, rather than restrict, the categories of people who may be regarded as the child’s parent. However, the remarks of Fogarty J in that case were obiter and his Honour noted that no argument had been addressed to the issue. In fact, Fogarty J went further and accepted the possibility that the law should be interpreted such that “the term ‘parent’ in Commonwealth legislation is to be given the meaning ascribed to it in State and Territory legislation” (at 83,620).
Re Patrick
Guest J reached his conclusion in Re Patrick without making reference to the Judiciary Act. Instead he arrived at the result by saying at [291]:
The effect of s 60H(3) of the [federal] Act is that where under a prescribed law of a State or Territory the child is a child of a man, the child is also to be regarded as his child under the Family Law Act. Thus a child is to be regarded as the child of the biological father and the biological father a “parent” only if there is a specific State or Territory law which expressly confers that status on a semen donor for the purposes of the Family Law Act…
His Honour went on to say at [301]:
Contrary to Fogarty J’s arguments [in B v J], Sandor argues, with which I agree, that in the absence of express provisions in federal law, the Family Law Act can and should be read in light of such state and territory presumptions, thereby leaving the sperm donor, known or unknown, outside the meaning of “parent”…
In other words, if State legislation lays down a presumption that the members of a class of men are not to be regarded as fathers of a specific class of children, then a court is obliged to apply that presumption unless it is repugnant to the federal Act. This is so, not because of the operation of any provision in the federal Act, but rather by operation of the Judiciary Act. Subject to this understanding, Re Patrick should now be regarded as correctly stating the law.
Uniformity – a final word on Ground 1
Fogarty J pointed out in B v J that the Standing Committee of Commonwealth and State Attorneys-General repeatedly determined in the 1980s that there should be uniform laws dealing with the status of children born as a result of artificial insemination. It was agreed throughout the Commonwealth that a sperm donor would have no rights or liabilities arising from the use of their semen and that any child born as a result of artificial insemination would have no rights or liabilities in respect of the sperm donor.
I consider it would be a curious result if the Commonwealth was found to be out of step with the laws of all States on this issue, which would be the result of adopting the approach advanced by the respondent.[13] I respectfully instead agree with the appellants’ senior counsel that adoption of his “entirely satisfying federal approach” leads to a “thoroughly satisfying and coherent system of law”.
[13] See Danny Sandor, ‘Children Born from Sperm Donation: Financial Support and Other Responsibilities in the Context of Discrimination’ (1997) 4(1) Australian Journal of Human Rights 175.
Ground 2 – failure to apply relevant principles or follow the pathway
Ground 2 asserts that:
Her Honour failed to apply the relevant legal principles and/or the relevant legislative pathway in determining [the appellants’] application to relocate to New Zealand with both of the children.
It is important at the outset to recognise that many consequences flow from a finding that a person is a “parent”. Importantly, s 61C provides that “each of the parents of a child … has parental responsibility for the child”. Parental responsibility in turn is defined as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.[14]
[14] Section 61B of the federal Act.
Section 61DA provides that a court, when making a parenting order, “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”. If an order is made for equal shared parental responsibility, a court must then consider making either an order for the child to spend equal time or, failing that, substantial and significant time with each parent.[15] Indeed, when an order is to be made for equal shared parental responsibility, the court lacks power to make any parenting order until it has first considered s 65DAA: MRR v GR (2010) 240 CLR 461 at [13].
[15] Section 65DAA.
When considering making an order for equal time or substantial and significant time, or indeed any parenting order, a court must treat the child’s best interests as paramount.[16] In doing so, it must consider all of the matters in s 60CC(2) and s 60CC(3), with those in the former being treated as “primary considerations” and those in the latter as “additional considerations”. Some of the considerations apply only to a person who is a “parent” within the meaning of the legislation – for example the first primary consideration, namely “the benefit to the child of having a meaningful relationship with both of the child’s parents”.
[16] Section 60CA.
As a further example, arguably important here, one of the “additional considerations” is that set out in s 60CC(3)(e), namely:
the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
It will be apparent that in every case it is necessary to determine, as a preliminary question, which of the parties answers the description “parent”. It will also be seen that this is a matter upon which the court’s power is conditioned, given the terms of both 61DA (which applies in every case) and s 65DAA (which applies whenever an order for equal shared parental responsibility is to be made).
It is true, as the respondent’s senior counsel submitted, that there is no jurisdictional necessity for an order granting parental responsibility to be made prior to a court making some other form of parenting order, but senior counsel properly accepted that in every case it is necessary to determine whether the presumption in favour of equal shared parental responsibility applies – and in order to do so it is necessary to determine who are the child’s parents.
Given the critical importance of determining who are the “parents”, I accept the submission of senior counsel for the appellants that “if the wrong person is selected as a parent, then at that fundamental level, the case goes off on a wrong premise”. Whilst there may be what the appellants’ senior counsel called “something in the nature of a working equivalence” between a person who is a parent and someone who performs the role of a parent, it is inappropriate to start from that position.
Senior counsel for the appellants was also justified in drawing attention to the pejorative observations made by the primary judge concerning the refusal of his clients to accept that the respondent was the father of the children. Whilst her Honour went to some length to approach issues from the perspective of the children, rather than by relying upon concepts such as who was the “legal parent”, her Honour may not have been so critical of the appellants had she appreciated that they were right in saying that the respondent was not a “parent”.
Although I accept it would have been necessary in any event for her Honour to consider, in relation to all parties, all of the factors in s 60CC,[17] that does not pardon the error of treating a person as a “parent” who legally is not a “parent”. The case is thus distinguishable from Mulvany & Lane (2009) FLC 93-404 where the trial judge had correctly found that one of the parties was not a “parent”, but then consciously considered at least the s 60CC(3) factors in relation to that person, including those which were expressed to apply only to a “parent”.
[17] Where necessary by recourse to s 60CC(3)(m).
Senior counsel for the respondent argued that the appellants’ case on appeal differed from the way the trial was run because there was no suggestion at trial that the children should be treated differently or that the outcome would be different if different findings were made about parentage. I do not accept this proposition. The appellants were always insistent that the respondent was not legally a parent of either of the children, and as I read the record they considered this to be a crucial element of their case for being able to live where they chose.
I accept the appellants’ submission that there was little if any difference in the primary judge’s reasoning between the two girls, since the respondent was effectively treated as if he were the “parent” of both. I acknowledge though that her Honour approached the matter from the perspective of the children, both of whom regarded the respondent as their father. I accept her Honour may therefore have arrived at the same result even if she had realised that, at law, the respondent was not a “parent” of either child. However, it is unsafe to speculate.[18]
[18] Notwithstanding the concerns expressed by Finn J in Mulvany & Lane at [15], the federal Act still does not provide any guidance as to the weight to be attached to a child’s relationship with a person who is found not to be the child’s “parent”.
For these reasons I find merit in Ground 2.
Ground 3 – the alleged de facto relationship
Ground 3 asserts that:
Her Honour ignored relevant material and or/relied on irrelevant material in determining whether [the appellants] were in a de-facto relationship at the time of [B]’s conception.
Senior counsel for the appellants accepted that his clients faced the usual onus with respect to the disturbance of factual findings and he noted correctly that the argument advanced under this ground was not critical to success in the appeal.
Noting that the ground was not strongly pressed, I do not propose to say more, other than that I consider the judge’s finding was open on the evidence, and I am not persuaded that she ignored relevant material or relied on irrelevant material.
Ground 4 – agreement to “co-parent”
Ground 4 asserts that the primary judge
ignored relevant material and/or relied on irrelevant material in determining whether [the respondent] and [the appellants] had:
(i) Entered into an agreement to co-parent either or both of the children and/or
(ii) In fact co-parented either or both of the children.
I accept the respondent’s submission that while there were references by the parties to “co-parenting”, there was no finding on whether their conduct amounted to “co-parenting” and the resolution of such an issue did not play any role in the determination. There is therefore no merit in the complaint.
Ground 5 – procedural fairness
Ground 5 asserts that:
Her Honour breached the rules of procedural fairness in that, notwithstanding that she stated she would not be considering or taking into account the disputed evidence about [the respondent’s] prior time spent with the children, Her Honour subsequently went on to make findings, in favour of [the respondent], that he had spent regular time with the Children before the commencement of the proceedings.
I find no merit in this ground since there is no basis for challenging the finding that the respondent had, in fact, spent regular time with the children.
Further, I was not persuaded that the appellants had been unfairly led to believe by her Honour that she would not make an order for the respondent to have more than 75 nights a year with the girls. Although her Honour was keen to prevent exploration of a dispute as to whether the children had spent 75 nights in the previous year with the respondent (as he asserted), or whether it had been 30 or 35 nights, (as the appellants asserted), nothing that her Honour said could have been interpreted as meaning that the respondent would not be given more than 75 nights with the children. Her Honour was right in making clear that nothing would turn on which of the assertions was correct.
Re-exercise
Senior counsel for the appellants conceded that it was hard to argue that we could re-exercise the discretion of the primary judge – both as to the issue of the de facto relationship and more importantly the relocation. Senior counsel for the respondent did not submit that there was any basis for a partial remitter.
I consider the matter should be remitted for hearing by a judge other than the primary judge. Although the appellants did not appeal all of the orders, given the intertwining of issues, I consider the better course is to require a full re‑consideration. All orders should therefore be set aside; however, this should not occur until the court below has had an opportunity to consider the matter afresh.
The orders I propose will take account of the fact that, on 18 December 2017, the judge suspended the operation of part of the orders pending “further order”.
Costs
Senior counsel for the respondent opposed an order for costs if the appeal was allowed, arguing that the case advanced on appeal was not clearly agitated in the court below. I agree that the way the case was presented at first instance provides a sufficient basis for declining to make an order for costs against the respondent, notwithstanding he has been wholly unsuccessful. I also take account of the previous uncertainty in the state of the law.
Costs certificates were sought by the appellants and respondent, both for the appeal and the rehearing. The appeal having been allowed on a question of law, certificates should issue, noting we are unable to grant a certificate to the Independent Children’s Lawyer: Yates & Yates (Independent Children’s Lawyer - Costs) [2012] FamCAFC 219.
The stay appeal
We also had before us an appeal (EA 11 of 2018) against an order made by Cleary J on 18 December 2017 refusing to grant a stay of orders.
That appeal was not pressed and should now be dismissed.
Proposed orders
For these reasons I would make the following orders:
(1)Appeal number EA 11 of 2018 be dismissed.
(2)Appeal number EA 111 of 2017 be allowed.
(3)The matter be remitted to the Family Court of Australia for rehearing by a judge other than the Honourable Justice Cleary.
(4)The orders made by Justice Cleary on 3 October 2017 (as varied by the orders her Honour made on 18 December 2017) be set aside upon the matter being determined on either an interim or final basis by the Family Court of Australia, whichever is the earlier.
(5)There be no order as to costs.
(6)The Court grants to the appellants a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney‑General to authorise a payment under that Act to the appellants in respect to the costs incurred by them in relation to the appeal.
(7)The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney‑General to authorise a payment under that Act to the respondent in respect to the costs incurred by him in relation to the appeal.
(8)The Court grants to each of the appellants and the respondent a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of them in respect of the costs incurred by each of them in relation to the rehearing.
Murphy J
I have had the opportunity to read the judgment of Thackray J. I agree with the orders proposed and his Honour’s reasons for those orders.
Aldridge J
I have had the opportunity to read the judgment of Thackray J. I agree with the orders proposed and his Honour’s reasons for those orders.
I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Murphy & Aldridge JJ) delivered on 28 June 2018.
Associate:
Date:28 June 2018
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