RODEN & MONTIEL - [2019] FCCA 1641

FEDERAL CIRCUIT COURT OF AUSTRALIA

RODEN & MONTIEL

[2019] FCCA 1641

Catchwords:
FAMILY LAW – Child conceived via artificial insemination – whether or not the applicant sperm donor has standing to bring an application for parenting orders.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60B(2)(b), 60CA, 60CC, 60H, 60H(1),

60H(1)(b), 60H(1)(b)(ii), 60H(2), 60H(2)(b), 60H(3), 62B, 65C, 65C(c),

65DA(2), 102NA

Family Law Regulations 1984 (Cth) rr.12C, 12CA

Judiciary Act1903 (Cth) s.79

Status of Children Act1974 (Vic) s.15

Cases cited:

Aldridge & Keaton [2009] FamCA 229

Bemert & Swallow [2009] FamCA 5

KAM & MJR & JIG (1998) 24 Fam LR 656

Mankiewicz and Anor & Swallow and Anor [2016] FamCAFC 153

Parsons and Anor & Masson [2018] FamCAFC 115

R & M [2002] FMCAfam 279

Re Patrick 28 Fam LR 579

Thomas and Anor & Franklin and Anor [2013] FamCA 618

Venekatesan & Pawar [2007] FamCA 1109

Winship & Wrays [2018] FCCA 2632

Applicant:

MR RODEN

Respondent:

MS MONTIEL

File Number:

MLC 3624 of 2019

Judgment of:

Judge Harland

Hearing date:

13 May 2019

Date of Last Submission:

13 May 2019

Delivered at:

Melbourne

Delivered on:

14 June 2019

REPRESENTATION

Counsel for the Applicant:

Mr Hannan

Solicitors for the Applicant:

Dawes & Vary Riordan Lawyers

Counsel for the Respondent:

Mr Schmidt

Solicitors for the Respondent:

Mazzeo Lawyers

ORDERS

The court declares that the applicant has standing pursuant to s.65C.
That the applicant spend time with the child every third Friday from 12.30pm to 3.30pm.
The proceeding is adjourned for Mention Hearing on 16 October 2019 at 9:30am.
All parties are to note and comply with Practice Direction No.2 of 2017 Interim Family Law Proceedings (from 1 January 2018) at to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in these orders.
(B)If in any proceedings there are allegations of family violence and the provisions of s.102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
(C)Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
(D)Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
(E)If s.102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
IT IS NOTED that publication of this judgment under the pseudonym Roden & Montiel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE
MLC 3624 of 2019

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading RODEN & MONTIEL

Details

AGLC: RODEN & MONTIEL [2019] FCCA 1641
Case: [2019] FCCA 1641
Decision Date: 14 June 2019

CaseChat Overview and Summary

In *Roden & Montiel*, heard in the Federal Circuit Court of Australia, Judge Harland considered an application for parenting orders brought by an applicant who was the biological father of a child conceived via artificial insemination. The respondent mother opposed the application, arguing that the applicant, as a sperm donor, lacked the legal standing to seek parenting orders. The applicant sought orders for regular time with the child, including overnights and special days, asserting he had been involved in the child's life since birth and was considered "Dad" by the child.

The central legal issue before the court was whether the applicant, a known sperm donor, had standing to apply for parenting orders under section 65C(c) of the *Family Law Act 1975* (Cth) as a "person concerned with the care, welfare or development of the child." This required the court to determine if the applicant's relationship with and involvement in the child's life met the threshold for standing, notwithstanding that he was not a legal parent under Victorian law, specifically section 15 of the *Status of Children Act 1974* (Vic), which was a prescribed law for the purposes of section 60H of the *Family Law Act*.

Judge Harland reasoned that while the applicant was not a legal parent, section 65C(c) of the *Family Law Act* provided a broader category of applicants. Applying a two-step approach, the court first considered whether the applicant was a person concerned with the child's care, welfare, or development. Drawing on case law such as *Re Patrick* and *Aldridge & Keaton*, the court found that the applicant's extensive involvement in the child's life since birth, including being known as "Dad," spending regular time with the child, and the parties' mutual understanding (albeit with differing perceptions) of his role, satisfied this threshold. The court noted that the specific facts of each case are crucial in determining standing under section 65C(c).

The court declared that the applicant had standing pursuant to section 65C of the *Family Law Act*. Consequently, the court made interim orders for the applicant to spend time with the child every third Friday from 12:30 pm to 3:30 pm. The proceeding was adjourned for a mention hearing, and all parties were directed to comply with relevant practice directions.

Orders

Orders of the court

The court declares that the applicant has standing pursuant to s.65C.

That the applicant spend time with the child every third Friday from 12.30pm to 3.30pm.

The proceeding is adjourned for Mention Hearing on 16 October 2019 at 9:30am.

All parties are to note and comply with Practice Direction No.2 of 2017 Interim Family Law Proceedings (from 1 January 2018) at http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/rules-and-legislation/practice-directions/2017/022017

NOTATION:

(A) Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in these orders.

(B) If in any proceedings there are allegations of family violence and the provisions of s.102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

(C) Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

(D) Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

(E) If s.102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

All parties are to note and comply with Practice Direction No.2 of 2017 Interim Family Law Proceedings (from 1 January 2018) at to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in these orders.(B)If in any proceedings there are allegations of family violence and the provisions of s.102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties. (C)Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing. (D)Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet. (E)If s.102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.IT IS NOTED that publication of this judgment under the pseudonym Roden & Montiel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth). FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE MLC 3624 of 2019 MR RODEN ApplicantAnd MS MONTIEL RespondentREASONS FOR JUDGMENTI am asked to determine as a threshold issue whether or not the applicant has standing to bring an application pursuant to s.65C(c) of the Family Law Act 1975 (Cth) (“Family Law Act”). Both parties were represented by counsel and the parties relied on their affidavits. The evidence is yet to be tested.The applicant seeks interim and final orders to spend time with [X], born … 2016. He seeks to spend regular time with her on alternate weekends and special days. The orders are typical of many parenting orders sought by parents except they are silent with respect to parental responsibility.The respondent mother opposes his application arguing that he lacks standing to bring the application as he is a sperm donor and not a parent or a person concerned with the care, welfare and development of [X].Before discussing the law it is worthwhile summarising the parties’ respective positions.The applicant’s caseIn his supporting affidavit the applicant says he is [X]’s biological father. He is married to Ms A who is the respondent’s first cousin. [X] was conceived via artificial insemination at the Suburb B IVF Clinic.The applicant says that on 10 November 2012 his wife had a family reunion and over the weekend the respondent was talking about how she wished to have a child and was looking for a sperm donor. The applicant and his wife discussed the possibility of him donating sperm to the respondent. The applicant goes on to say “I did not have any biological children at the time, although I have been a stepfather for the past 14 years.”The applicant then says that on 13 November 2012 they started discussing the possibility of having children together and had many discussions over the next several months.He says that on 26 January 2013 the respondent stayed at their home and he says “initially, I had no expectations regarding my involvement with any potential child, as I wanted to be guided by the respondent’s wishes. The respondent insisted that I be heavily involved, and there were lengthy discussions regarding the future and this included myself being known as ‘Dad’ to the child.” He says they also talked about going on family holidays together.He says that in February 2013 they talked about trying to conceive naturally through intrauterine insemination (“IUI”) rather than in-vitro fertilisation (“IVF”) because of the expense. They tried this over several months without success. The respondent did fall pregnant in … 2014 but then had a miscarriage.The applicant says that on 16 March 2015 he consulted with Suburb B IVF Clinic and in order to start the IVF process he was required to sign an agreement that stated he had no legal rights to any child born using his genetic material. He goes on to say that that was contrary to the discussions that he had had with the respondent.The applicant says that on 17 August 2015 the respondent sent a Facebook message saying “you guys can freak out when you’ve got to bulky car seats filling the back of your car. Not to mention beds and everything else! OMG!” He does not annex the message to his affidavit. In … 2015 the respondent miscarried. They attempted IVF again and she became pregnant again in … 2016. He says that throughout her pregnancy she kept the applicant and his wife updated sending photos of her belly and sending scans of the baby. She notified them that it was a baby girl after her scan on … 2016.The applicant says they met for lunch on … 2016 and he confirmed that he wanted to be known as dad and wanted to be heavily involved in the child’s life. The respondent claims that she said she expected the applicant and his wife would see the baby on a fortnightly basis and that this would start from Christmas time onwards.He says the respondent also agreed that he should be able to post whatever he wanted on Facebook about the baby’s impending arrival.He visited the respondent and [X] in hospital after [X] was born. He received several messages of congratulations from members of the respondent’s family.He says on 7 September 2016 the respondent told him she wanted him to start having overnights so [X] developed a routine early. [X] stayed at the applicant’s home without the respondent on 23 September 2016.He says that he offered the respondent financial assistance for [X] but she refused. He says on 4 October 2017 the respondent started demanding financial support. He said he had been purchasing supplies for her and had started putting money in a bank account for [X].On 20 November 2016 the respondent notified them that she was reducing the applicant’s time to every third weekend. He says he felt that he had no choice but to accept it.The applicant and his wife attended [X]’s first birthday. The respondent gave the applicant a hand-painted foot print that [X] made at day care. He says it was given to him in front of all their family. It was tendered as part of exhibit A.The respondent reduced the applicant’s time to day visits on 13 April 2018.The applicant and his wife met with the respondent and her sister Ms C and talked about trying mediation. The mediation failed. The applicant says that the respondent reduced his time further. He says he is “fully committed to playing an important role in [X]’s life.” He says he has “been the father figure in [X]’s life since her birth” and seeks orders to spend significant and substantial time with [X].The respondent’s caseThe respondent opposes the applicant’s application. She says that she was diagnosed with multiple sclerosis in 2006. She suffered some severe symptoms at the time which then resolved. She later reduced her working arrangements from full time to part time to better manage her symptoms and attacks. It is a relapsing and remitting condition. Her symptoms worsen when she is stressed. She is concerned that the stress she is suffering due to the increased demands from the applicant and his wife will permanently damage her health and make it harder for her to parent [X]. She describes the symptoms she experiences when she is stressed and refers to an example of when the applicant’s wife texted her on 10 May 2018 saying “in the eyes of the law we have been advised that Mr Roden is the other parent, not the donor. We hope you understand”.The respondent says she started looking into artificial insemination in 2006. She saw the applicant’s wife Ms A, who is also the respondent’s cousin, at a family reunion in 2012. The applicant says that later the applicant’s wife suggested that her husband could donate his sperm with “no strings attached”. The applicant says they indicated to her that they would respect her decisions and that the applicant did not seek to have any parental rights. [X] was conceived via IVF in … 2015. [X] was born on … 2016. The respondent annexes [X]’s birth certificate to her affidavit which does not refer to the applicant as the father. The respondent says the IVF clinic required the applicant to sign a form relinquishing any parental rights. The respondent says she paid all the costs associated with IVF.The respondent described the applicant and his wife as being overbearing and not respecting her wishes from the time [X] was born. She says they persistently pressured her in seeking time with [X] and started turning up to visit on weekends without her consent. The respondent described being overwhelmed and stressed. She says she did not know how to address this without “fracturing family relationships”.The respondent says she allowed the applicant and his wife to have overnights against her better judgment. She now thinks this was developmentally inappropriate for [X] at the time.The respondent says that she was finally able to address her concerns in an email to them dated 20 November 2017. She reduced their time to every three weeks and wrote “You have to remember that you were happy with ‘whatever you got’… I hope you will be happy to share in this special girls life. It just simply can’t be that of co-parent. … That was never the arrangement”. She annexes that email to her affidavit. She also annexes the response from the applicant’s wife on 23 November 2016 stating “We of course understand that you are her only parent and always will be …. Obviously along the way there have been some misunderstandings on both sides …” The respondent says despite this exchange the applicant and his wife continued to pressure her and she reduced their time in accordance with [X]’s developmental needs and what she considered was in [X]’s best interests.The respondent lives with her twin sister, her sister’s husband and their three children. She says this is the arrangement she has envisaged and that in many senses her sister is a co-parent, her husband a father figure and her sister’s children are like siblings. Her mother also provides her with support.Submissions and discussion of the lawBoth Counsel argued the case on the premise that the applicant is not a parent for the purposes of the Family Law Act. Section 60H addresses children born as a result of artificial conception procedures. There is no dispute that [X] is such a child. Section 60H(1) does not apply as the respondent is not married and does not have a de facto partner. There is no dispute that the respondent is the mother of the child. Section 60H(2) and s.60H(3) state the following: (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.Regulations 12C and 12CA of Family Law Regulations 1984 (Cth) set out the prescribed laws referred to in s.60H(1)(b)(ii) and s.60H(2)(b). There are no prescribed laws pursuant to s.60H(3).Section 15 of the Status of Children Act1974 (Vic) states:(1) If a woman who does not have a partner undergoes a procedure as a result of which she becomes pregnant—(a) the woman is presumed, for all purposes, to be the mother of any child born as a result of the pregnancy; and(b) the man who produced the semen used in the procedure is presumed, for all purposes, not to be the father of any child born as a result of the pregnancy, whether or not the man is known to the woman.(2) A presumption of law that arises under subsection (1)— (a) is irrebuttable; and (b) prevails over— (i) any conflicting presumption that arises under section 8; or (ii) any conflicting declaration made under section 10.As this is one of the prescribed laws for the purpose of s.60H(2)(b) and by reason of the operation of s.79 of the Judiciary Act1903 (Cth), it is clear that the applicant is not a legal parent.[1] The applicant must satisfy s.65C(c) in order to have standing.[1] See the discussion by Thackery J in Parsons and Anor & Masson [2018] FamCAFC at paragraphs 11 to 13 and 21 to 33.Section 65C reads as follows: A parenting order in relation to a child may be applied for by:(a) either or both of the child's parents; or(b) the child; or(ba) a grandparent of the child; or(c) any other person concerned with the care, welfare or development of the child.The applicant’s Counsel relied on Re Patrick 28 Fam LR 579 at [308], where Guest J referred to Patrick’s right to have contact with people significant to his care, welfare and development as referred to in s.60B(2)(b), as it then was, and that he could apply for a parenting order pursuant to s.65C. He referred to Re Patrick being approved by the Full Court of the Family Court in Parsons and Anor & Masson [2018] FamCAFC 115. That case is the subject of an appeal before the High Court.The applicant’s Counsel expressed surprise that the respondent was arguing that his client did not have standing pursuant to s.65C. He referred to the evidence I have summarised above. He also relied on exhibit A which is a selection of various texts between the applicant, his wife and the respondent. At times the texts reflect the parties having different understandings of what the arrangement would involve. It is interesting to note that much of the discussion in the texts takes place between the applicant’s wife and the respondent. Her language reflects speaking on behalf of both of them.The applicant also relies on the fact that by agreement he has been spending regular time with [X] from the time she was born. He is not a stranger to her. It is clear that the parties had different perceptions as to how involved the applicant would be and how regular his time with [X] would be. The respondent’s Counsel submits that this is a case where the sperm donor is known and where the respondent’s understanding was that she was [X]’s only parent and that the applicant and his wife would respect the boundaries. It was never intended that he would take on a parenting role. He points out that the bundle of text messages the applicant relies on have been cherry picked by him.The respondent’s Counsel further submits that the legislative intent was clear with respect to sperm donors not having the status of parents. There is a public policy benefit to children knowing their genetic origins but known sperm donors should not be given any greater status than unknown ones. It is not an issue of the status of a known versus an unknown donor being different. The reality is that an unknown donor would not be aware of the child. He further submitted that if the legislature intended a sperm donor to be a person concerned with the care, welfare and development of a child then s.65C would refer to them specifically. The respondent’s Counsel submits that as the applicant and his wife are extended family members the fact that all three attend the same familial parties does not advance the applicant’s case. He further submitted that each case with respect to standing turns on it facts and the fact that a sperm donor was found to have standing in Re Patrick does not mean that all sperm donors have standing.The respondent submits that the fact that the applicant is spending time with [X] should not be sufficient to establish standing as that would broaden the range of people who would have standing under s.65C significantly to include people such as babysitters or a sister in law. I do not think it can be taken that far. The category of persons who can apply under s.65C(c) is not closed. To illustrate this point I will discuss some of the cases which discuss s.65C(c).In Aldridge & Keaton [2009] FamCA 229 the Full Court of the Family Court discussed s.65C at [83]. Where the applicant is not a parent, child or grandparent, a two step approach should be taken. The first step is to consider whether or not the applicant is a person concerned with the care, welfare or development of the child. If the answer is yes, the second step is to consider what orders should be made in the best interests of the child. The Court also commented that the application should be determined under s.60CA, s.60B and s.60CC.In KAM & MJR & JIG (1998) 24 Fam LR 656, Burr J discussed s.65C and made the following observations at [5.1.1] to [5.1.5]:“5.1.1 Any person may file an application for a parenting order.5.1.2. A parenting order may be made in favour of a person other than a parent (Section 64C).5.1.3 In order to proceed beyond the mere making of the application, the Applicant for a parenting order must demonstrate that they are a “person concerned with the care, welfare or development of the child”. In my view this imposes a threshold test, it being a test to be determined on the individual facts and circumstances of each case.5.1.4 That the degree or strength of the nexus or concern with the care, welfare or development of the child is again an issue for determination in each case, depending upon the facts and circumstances of each case. For example, as mentioned earlier in my reasons, it may be appropriate for a complete stranger, say in the form of an aunt who resides overseas, to be granted a parenting order by this Court in the event of the death or incapacitation of the child’s parents. The nature and degree of her concern with the care, welfare or development of the child in that case, would be defined and determined by entirely different circumstances than those which exist in this matter. I do not find the authority to which Ms. Vanstone referred me, to be of benefit or assistance in the context of Part VII of this Act where the Court must regard the best interests of the child as the paramount consideration (Section 65E). There may well be circumstances in this Court where a mere “interest in” or “concern about” the child in question is sufficient to satisfy the threshold test. Once the threshold stage has been passed, the individual facts and circumstances of the matter again must be viewed in order to determine whether or not a parenting order is appropriate and in the best interests of the child, as would be the nature and form of any such order.5.1.5 The specific wording of Section 65C(c) appears to require demonstration of a concern with only one of the issues of care, welfare or development.”

Ratio Decidendi

Legal Principle Established

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