RODEN & MONTIEL
[2019] FCCA 1641
•14 June 2019
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 MELBOURNEMLC 3624 of 2019
MR RODEN Applicant
And
MS MONTIEL Respondent
REASONS FOR JUDGMENT
I 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 case
In 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 case
The 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 law
Both 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.”
Driver FM (as he then was) in R & M [2002] FMCAfam 279 determined that an application by a neighbour, who acted as a MacKenzie Friend for the father in parenting proceedings before the father committed suicide, did not meet the criteria in s.65C(c). Driver FM distinguished KAM & MJR & JIG as in that case the applicant, who was the mother’s former partner, had had contact with the child and had been involved with aspects of the child’s care.
In Venekatesan & Pawar [2007] FamCA 1109 the mother was deceased. The Court found that the maternal aunt and uncle did not have standing as they did not have a meaningful relationship with the child.
In Thomas and Anor & Franklin and Anor [2013] FamCA 618 Hogan J found that the applicants, who had been the child’s foster parents, had standing to bring the application as they had had significant involvement in the child’s care. The child had lived with them for a significant period, including a year when the mother did not see the child. The child protection department reunified the child with the mother. From that time the applicants did not spend time with the child. They were concerned about the child’s welfare in the mother’s care.
In Winship & Wrays [2018] FCCA 2632 there were competing residence applications between the father and the maternal aunt. The mother was deceased. The child was living with the maternal aunt. Turner J had no difficulty in finding that the aunt met the criteria in s.65C(c).
In Bemert & Swallow [2009] FamCA 5 Watts J considered applications by the maternal grandfather and the maternal great grandparents to spend time with the children (being their grandchildren and great grandchildren respectively). Watts J heard the applications together and summarily dismissed both of them. The parents vehemently opposed both applications. None of the applicants had a relationship with the children. The mother alleges that the maternal grandfather abused her. The maternal grandfather alleged that the mother had a psychiatric illness and was alienating the children. In Mankiewicz and Anor & Swallow and Anor [2016] FamCAFC 115 the Full Court dismissed the appeal by the great grandparents against Watts J’s orders. The Full Court stated that the determination as to whether or not a person can satisfy the requirements of s.65C(c) as being someone concerned with the care, welfare or development of a child is a question of fact to be determined in the individual case. Contrary to the respondent’s Counsel’s submission that the question of standing must be determined first and the court may not make any other orders until it is, Ryan and Austin JJ further stated at [10] that it is for the discretion of the judge to determine whether the issue of standing should be addressed as a discrete issue or at some other stage. However Murphy J discussed this at [89] to [92] and concluded that it is a jurisdictional fact which must be determined first.
Ryan and Austin JJ also observed that the appellants were found to lack standing when they brought proceedings in 2009. They were not estopped by making a further application in 2013 as an applicant may lose or gain standing depending on the facts at the time of the application.
As can be seen from the cases above, whether or not an applicant has standing under s.65C very much turns on the individual circumstances of the case and not whether or not there is a biological or familial relationship between the applicant and the child.
In this case neither party sought a family report prior to the issue of standing being determined. The applicant proposed seeking a private family report with Dr D in August 2019. It strikes me that in some cases where the issue of standing is raised, the court may be assisted by a family report before determining the issue. This is not such a case.
The issues in this case are sensitive and complex. The availability of artificial conception procedures raises the issue of functional families. Biology is not the sole qualification for parenthood. It is apparent that one of the controversial issues in this case will be the parties’ intentions and understanding of the applicant’s role in [X]’s life. There will also be the issue of the mother’s health. Most importantly what arrangements are in [X]’s best interests will prevail. At this stage I am only asked to determine whether or not the applicant has standing and if so whether or not interim orders for him to spend time with [X] should be made. I am satisfied that in the circumstances of this case the applicant has standing to bring his application. He has a relationship with [X] and is concerned for her welfare. The nature of that relationship and what it should look like in the future remains to be determined.
At the hearing the mother, through her Counsel, indicated that she proposed [X] continue to spend time with the applicant but did not want an order made. If the Court is minded to make an order Counsel submitted it should not be greater than the current arrangement.
The respondent does not raise any issues of risk to [X] in the applicant’s care. Given this and the fact that [X] has been spending regular time with the applicant I find that it is in [X]’s best interests that the current arrangement continue. I do not know what impact there would be on [X] if that time was to stop without explanation. I am not satisfied that the time should be increased as the applicant seeks until there is further evidence before the Court.
At the hearing the applicant proposed that the parties see Dr D for a private family report. The respondent did not oppose that if the applicant was found to have standing but said that the applicant should fund it. If there is consent with respect to the report order this can be submitted to Chambers. Otherwise, I list the matter for further directions.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 14 June 2019
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