Re J and M: Residence Application
[2004] FMCAfam 656
•23 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RE J & M: RESIDENCE APPLICATION | [2004] FMCAfam 656 |
| FAMILY LAW – Children – parental responsibility – children born to same sex (female) partners as a result of an artificial conception procedure – identity of biological mother not an issue – identity of biological father unknown – anonymous sperm donor – best interests of children. |
Family Law Act 1975
ReMark: An Application relating to Parental Responsibilities (2003) FamCA 822; (2003) FLC 93-173
RePatrick: AnApplication concerning Contact (2002) FamCA 193; (2002) FLC 93-096
B & B: Family Law Reform Act1995 (1997) 21 FamLR 676
Smith (1994) 18 FamLR 55
Paskandy (1999) 25 FamLR 607
| Applicants: | FJM & BMT |
| Respondent: | EX PARTE |
| File No: | MLM 5413 of 2003 |
| Delivered on: | 23 November 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 17 February 2004 |
| Judgment of: | Walters FM |
REPRESENTATION
| Counsel for the Applicant: | Counsel & Kelly Family Lawyers |
| Solicitors for the Applicant: | Ms L. Kelly |
| Counsel for the Respondent: | Identity of respondent unknown |
ORDERS
The applicants have joint responsibility for the long term and day to day care, welfare and development of the children J and M, both born 14 April 2003.
The said children live with the applicants.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 5413 of 2003
| FJM & BMT |
Applicants
And
| EX PARTE |
Respondent
REASONS FOR JUDGMENT
J and M
J and M are twins. They were born on 14 April 2003.
Ms F is the twins’ biological mother. She and her partner, Ms B, have been in a same sex relationship since October 1998, and have lived together since 1 April 1999.
J and M were born after Ms F and Ms B made a joint decision to start a family. The decision was made in March 2002, and, as a result of it, Ms F and Ms B approached the Albury Reproductive Clinic to join its IVF program.
Ms F and Ms B attended the clinic on 27 June 2002 for their first appointment (which included medical and psychological assessments). Ms F became pregnant, using donor sperm, on 12 August 2003.
Ms B assisted Ms F, both emotionally and financially, during Ms F’s pregnancy.
Ms F and Ms B are jointly parenting J and M. They love the twins, and are caring for them in a proper and effective manner.
An Application is Made
Ms F and Ms B have jointly applied to this Court for orders to the following effect:
That they have joint responsibility for the long term and day to day care, welfare and development of the twins, and that the twins live with them.
The Twins’ Father is Unknown
There is no respondent to the application made by Ms B and Ms F. That is so because the identity of the twins’ biological father is unknown.
Dr Giltrap is the Director of Reproductive Medicine at the Albury Reproductive Clinic. In an affidavit sworn 23 December 2003, Dr Giltrap deposed as follows:
The operation of the Albury Reproductive Clinic is governed by the NHMRC Guidelines and the Medical Research Council. I am aware that there is currently no piece of legislation in New South Wales that prevents the use of sperm that has been donated anonymously. It is because of this “omission” of the legislation that we are able to use sperm that has been donated anonymously to impregnate women.
Our clinic elects to purchase some anonymous sperm. Where the sperm is classified as “anonymous” it means that the donor has specifically requested this when donating their sperm. A reproductive clinic is bound to keep the donor’s details anonymous by way of a contract between the donor and the clinic the donor donated the sperm to.
In the case of the insemination of (Ms F), the sperm that was used was purchased from a clinic which operated in Western Australia. I am aware and verily believe that this “batch” of anonymous sperm was purchased by this clinic approximately 15 years ago and that the Western Australian clinic has now closed down. Given that in Western Australia records are only required to be kept for a period of 10 years, there would be no possible way of obtaining the details of the person who donated the sperm that was used to inseminate (Ms F).
It is for these reasons that the anonymous donor cannot be identified.
I accept Dr Giltrap’s evidence, and accept that the biological father of the twins cannot be identified.
Because the twins’ biological father cannot be identified, there is effectively no “contradictor” in this case. The applicants are the only parties, and they obviously consent to the orders they are seeking.
Children Born as a Result of Artificial Conception Procedures
There can be no doubt that the twins are biologically the children of Ms F, notwithstanding the fact that they were born as a result of the carrying out of an artificial conception procedure.
Although s.60H of the Family Law Act 1975 deals with children born as a result of artificial conception procedures, it has no relevance to the question of whether Ms F (let alone Ms B) is a “parent” of the twins. The relevant parts of s.60H are as follows:
(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 the Act.
Section 60H is awkwardly drafted. It does not mention the word “parent”. It does no more than deem certain children (being children born as a result of artificial conception procedures) to be children of males or females who have involved themselves in artificial conception procedures — but not for all purposes. It only so deems them for the purposes of the Family Law Act.
Section 60H has no application to Ms B.
In my opinion, the section has no application to Ms F either. She is, in every sense, the twins’ mother. That is so, irrespective of whether “a prescribed law of the Commonwealth or of a State or Territory” deems the twins to be Ms F’s children. After all, if she is not their mother, then who could their mother possibly be?
Given the fact that Ms F is obviously the twins’ mother (and therefore a parent of the twins), the discussion of the meaning and effect of s.60H in cases such as ReMark: An Application relating to Parental Responsibility (2003) FamCA 822; (2003) FLC 93-173 and RePatrick: An Application concerning Contact (2002) FamCA 193; (2002) FLC 93-096 are of only academic interest in the context of this case. To the extent that it may be necessary for me to express some view on the matter, however, I would record that I concur with Brown J’s analysis of the section in Re Mark. Relevantly, I agree that, to the extent that s.60H might be said to define “parent” for the purposes of the Family Law Act, it is not an exhaustive definition. Its provisions “ … enlarge, rather than restrict, the categories of people who may be regarded as the child’s parent.”[1]
[1] See Re Mark at paragraph 40.
The Biological Father Cannot be Served
It is of little consequence whether s.60H serves to deem the twins to be the children of the anonymous sperm donor for the purposes of the Family Law Act. The fact of the matter is that there appears to be no way to identify him, and certainly no way to locate him for the purpose of serving him with a copy of the application filed by Ms F and Ms B. Ms Kelly (for the applicants) conceded that it would be appropriate to serve the biological father with a copy of the application if he could be identified. She also conceded that, whether or not he might be regarded as a “parent” of the twins, he would at least be regarded as a person concerned with the children’s care, welfare and development. Obviously, he would have been a suitable “contradictor”.
In my opinion, and in the circumstances of this case, the fact that the biological father of the twins has not been served with the application has no bearing upon the Court’s ability to hear and determine the issue now before it. To the extent that it may be necessary for me to do so, I find that service of the application on the twins’ biological father should be dispensed with.
Ms F and Ms B can apply for a Parenting Order
Section 65C of the Family Law Act provides that a parenting order in relation to a child may be applied for by, amongst others, either or both of the child’s parents or any other person concerned with the care, welfare or development of the child.
Ms F is a parent of the twins, and there can be no doubt that Ms B is a person concerned with their care, welfare or development.
Section 65D provides that, in proceedings for a parenting order, the Court may (subject to Division 6 of Part VII of the Family Law Act), make such parenting order as it thinks proper.
Certain special conditions apply to applications for consent residence orders in favour of a non-parent. Those conditions are set out in s.65G. They do not apply in the circumstances of this case, because the Court is not being asked to make an order “otherwise than in favour of a parent, or of persons who include a parent, of the child concerned”. Both Ms F and Ms B seek that the relevant residence order be made in their favour.
The Law
Residence and contact orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B sets out the object of Part VII, and the principles which underlie that object. They are subject to section 65E in that, in determining the outcome, the best interests of the child comprise the paramount consideration. That is the overriding principle.
The importance of the section 60B principles varies from case to case. Where there are no countervailing factors, the section 60B principles may be decisive — not only because they are contained in section 60B, but also because they accord with what is generally accepted to be in the best interests of children[2].
[2] See B & B: Family Law Reform Act1995 (1997) 21 FamLR 676 at 734
In deciding the residence and contact arrangements that will promote the best interests of a child, the Court must consider the various matters set out in section 68F(2).
In Smith (1994) 18 FamLR 55, the Full Court, referring to the manner in which the Court should discharge its obligation under the Family Law Act in coming to a decision relating to the custody, guardianship or welfare of or access to a child said:
…the preferable approach to be adopted is to consider each of the matters referred to in the section (being the equivalent of section 68F(2)) separately and, having regard to the evidence upon each of those matters, make findings in relation to them, In the course of this exercise, the trial judge should consider, weigh and assess the evidence touching upon each of the relevant matters adduced on behalf of the parties. After a consideration of all those matters, a trial Judge should then indicate to which of those matters he or she attaches greater significance and how all of those matters balance out.
In Paskandy (1999) 25 FamLR 607, the Full Court said (at page 618):
The Judgment of the Full Court in Smith (above) was delivered before the amendments to the Family Law Act made as a result of the Family Law Reform Act 1995 (Cth). However, the comments referred to remain apposite.
Discussion
Ms F and Ms B are raising the twins together. Both are involved in all aspects of their care, and they consider themselves the joint parents of the twins.
Ms F, Ms B and the children live on a four acre property (which Ms F and Ms B jointly own) in South Gippsland. They run calves, sheep and chicken on the property.
The children have been baptised in the Catholic Church by Ms B’s brother, who is a priest. The applicants intend to send the children to St. Lawrence Primary School and Mary McKillop Catholic College (which are both situated in Leongatha). They have established an education fund to cover the cost of the twins’ education, to which they both contribute.
At the time of the hearing, Ms F was on maternity leave from her usual employment as a receptionist. Ms B was employed as the Practice Manager in a medical centre in Foster.
The extended families of both Ms F and Ms B are supportive of them, and of their relationship.
Dr Polmear is Ms B’s employer. In an affidavit sworn 12 December 2003, he spoke positively of Ms B’s character and parenting qualities.
I am satisfied that the twins have a close and loving relationship with both the applicants. They are the only “parents” that the twins have ever known.
Both Ms F and Ms B have the capacity to provide for the twins’ needs — including their emotional and intellectual needs. Both have demonstrated an appropriate (and mature) attitude to the children, and to the responsibilities of parenthood.
This is not a case in which orders might result in separating the twins from either of the people with whom they have been living. The twins will remain living with Ms F and Ms B.
The Twins’ Best Interests
I am satisfied that the twins’ best interests will be fostered if I make the orders sought by the applicants. Their relationship with the twins (both individually and together), and their commitment to the twins and to each other, support the making of such an order — as do more pragmatic concerns. To paraphrase Brown J in Re Mark[3], it is to be hoped that Ms F and Ms B live to see the twins grow to adulthood. The potential for that not to occur, however, must be acknowledged. Were Ms F to die or become incapacitated whilst the twins are young in circumstances where she had (at law) sole parenting responsibility, then the twins would find themselves in a legal vacuum. This Court has been given an opportunity to assess Ms B’s relationship with the twins, her role in their life, and her capacity to foster their best interests in the short and long term.
[3] At paragraph 100.
I am satisfied that it is in the twins’ best interests for significant decisions relating to their welfare (including decisions relating to health, education and religion) to be made by both of the people who treat them as their children, and that the twins can only benefit from the applicants’ informed involvement in all aspects of their life.
It follows that there will be orders in the terms of the application.
I Barbara Mendleson certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Walters FM
Deputy Associate:
Date: 18 November 2004
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