RYAN & FRASER
[2014] FamCA 763
•8 September 2014
FAMILY COURT OF AUSTRALIA
| RYAN & FRASER | [2014] FamCA 763 |
| FAMILY LAW – CHILDREN – Where the parties were in a same sex de facto relationship and had a child through IVF – Where the Respondent in the substantive parenting proceedings seeks that the parenting proceedings be summarily dismissed on the grounds that the Court has no jurisdiction and/or that the Applicant in the substantive proceedings has no legal capacity to apply for the parenting orders – Whether the Applicant in the substantive proceedings is a “parent” as that term is referred to in Part VII of the Family Law Act 1975 in particular s 65C and s 60H – Whether the Applicant has a reasonable likelihood of success in the substantive parenting proceedings |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Aldridge & Keaton (2009) FLC 93-421 Groth & Banks [2013] FamCA 430 |
| APPLICANT: | Ms Ryan |
| RESPONDENT: | Ms Fraser |
| FILE NUMBER: | BRC | 2243 | of | 2014 |
| DATE DELIVERED: | 8 September 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 8 September 2014 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Ms Fotheringham of Legal Aid Queensland |
| COUNSEL FOR THE RESPONDENT: | Mr Bunning |
| SOLICITOR FOR THE RESPONDENT: | Browns Lawyers |
Orders
It is ordered that:
The Respondent’s application for summary dismissal of the Applicant’s Initiating Application filed 12 March 2014 be dismissed.
It is further ordered that:
Within seven (7) days of the date of these Orders the Respondent provide to the Applicant the names of three (3) Family Consultants able to undertake the preparation of a Family Report in these proceedings and that within seven (7) days thereafter the Applicant nominate the person to undertake such Family Report and the Respondent shall forthwith upon receiving such nomination engage that expert to undertake the Family Report.
UNTIL FURTHER ORDER the costs of obtaining such Family Report be the responsibility of the Respondent in the first instance but that the question of such costs be reserved for further consideration.
The Respondent be given leave to provide to the nominated Family Consultant any filed documentation to assist in the preparation of the Family Report.
The parties shall attend and ensure the child attends all necessary appointments for the preparation of the Family Report.
The application for interim parenting orders (excluding order 6) contained in the Applicant’s Response to an Application in a Case filed 28 July 2014 be adjourned before the Registrar to a date to be fixed for the fixing of a fresh hearing date after receipt of the Family Report.
Each party bear their own costs of and incidental to today’s hearing.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ryan & Fraser has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 2243 of 2014
| Ms Ryan |
Applicant
And
| Ms Fraser |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Ms Ryan and Ms Fraser are engaged in parenting proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) concerning the child N (“the child”), born in November 2007, who is currently aged six years. The applicant in the substantive proceedings is Ms Ryan. Ms Fraser is the applicant on this application for summary dismissal of Ms Ryan’s parenting proceedings.
By way of brief background, there appears to be no dispute between the parties that they were in a same sex de facto relationship both at the time when Ms Fraser conceived the child through IVF procedures, and at the time of his birth in November 2007.
The parties lived together in a de facto relationship from September 2004 until their separation in September 2008. Following their separation, the child remained living with Ms Fraser and it appears that Ms Ryan has had minimal time and communication with the child although to what extent is in dispute. It was on 12 March 2014 that Ms Ryan, the respondent to this application, commenced parenting proceedings in this court seeking time and communication with the child.
It would not appear to be open to doubt that Ms Fraser has been the child’s primary carer since his birth and that the child has had little to minimal contact with Ms Ryan since about December 2011 when the child was four years old. There is, on the evidence of Ms Ryan, some dispute about the extent of her time with the child, she asserting in some of her material that she had time and communication with the child up until about September 2012 when she says that Ms Fraser ceased facilitating time between her and the child.
On this application, Ms Fraser seeks that the parenting proceedings be summarily dismissed on the grounds that the Court has no jurisdiction and/or that Ms Ryan has no legal capacity to apply for the parenting orders she seeks in the application. It is contended by Ms Fraser that Ms Ryan is not a “parent” as that term is referred to in Part VII of the Act, and in particular, s 65C, and with respect to subsection (c) thereof, there is the contention that Ms Ryan is not a “person concerned with the care, welfare or development of the child” within the meaning of s 65C, subsection (c).
Rule 10.12 is the relevant provision within the Family Law Rules 2004 (Cth) (“the Rules”) for applications for summary orders. Rule 10.12 provides:
A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
(a) the court has no jurisdiction;
(b)the other party has no legal capacity to apply for the orders sought;
(c) it is frivolous, vexatious or an abuse of process; or
(d) there is no reasonable likelihood of success.
It can be seen that the contentions of Ms Fraser are to the effect that the Court has no jurisdiction or that Ms Ryan has no legal capacity to apply for the orders sought or, finally, that there is no reasonable likelihood of success of her application.
Section 65C of the Act sets out who may apply for a parenting order, that is:
(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 words “artificial conception procedure” are defined in s 4 as including:
(a) artificial insemination; and
(b) the implantation of an embryo in a woman.
It may thus be concluded that the child was conceived through an artificial conception procedure.
Section 60H of the Act outlines how the Act applies to children born as a result of artificial conception procedures and provides as follows:
(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.
Subsection (5) of s 60H provides:
For the purposes of subsection (1), a person is to be presumed to have consented to an artificial conception procedure being carried out unless it is proved, on the balance of probabilities, that the person did not consent.
In Groth & Banks [2013] FamCA 430, Cronin J made a number of observations with respect to the application of s 60H of the Act in paragraphs 17 to 21 of his Honour’s judgment. His Honour noted, at paragraph 17:
Section 60H deals with children born as a result of artificial conception procedures. The Act provides for the displacement of the donors of genetic material as parents. For example, biology is displaced and a person defined as a parent by adoption (ss 4, 60HA(2), 60HA(3), 61E, 65J and 66B) or surrogacy arrangements (s 60HB). Section 60H provides that opportunity and sets out the circumstances in which the child is not the child of the person who provided the genetic material.
At paragraph 18 of his Honour’s judgment he sets out the three categories of children born as a result of artificial conception procedures, and I need not repeat them here.
There is no dispute in this case relevant to the application of s 60H that the child’s birth mother, Ms Fraser, was in a de facto relationship with Ms Ryan both when the artificial conception procedure was carried out within the meaning of s 60H(1)(a), and also when the child was born. However, an issue is raised by Ms Fraser as to whether Ms Ryan, the other intended parent, “consented” to the artificial conception procedure being carried out.
It would not seem to be open to doubt that in circumstances where the IVF procedure was sourced by an unknown sperm donor through the B IVF Centre and Ms Fraser, who carried the child and provided the remaining genetic material, both consented – that is that both biological parents could be said to have consented to the procedure.
As already noted, it is not in doubt that Ms Ryan was a de facto partner, within the meaning of s 60EA of the Act, of Ms Fraser, both at the time of conception and at the time of birth. Obviously enough, on the authorities, on a summary dismissal application, particular emphasis is given to the material provided in Ms Ryan’s case. I note in passing that given the opportunity to do so, Ms Fraser would take issue with matters of fact raised by Ms Ryan in her material, but for present purposes, as is clear on the authorities, the test or the Rules application is applied by reference in particular to material filed by Ms Ryan (see Custodio & Pinto (2006) FLC 93-279 and Friar & Friar [2011] FamCAFC 71).
I note one area of issue is in terms of the length of the de facto relationship between the parties. On Ms Fraser’s version the relationship existed between September 2004 and September 2008, but the contrary version is that the relationship lasted from September 2004 to December 2011. On either version, however, as it is that Ms Fraser underwent the IVF procedures through the B IVF Centre in 2007, which resulted in the child being born in November 2007, there cannot be any doubt that the child was conceived and born during the period that the parties were in a de facto relationship.
So far as consent is concerned, the issue raised by Ms Fraser on this application is whether or not Ms Ryan could be said to have consented to the IVF procedure that was undertaken. It seems to me that the starting point is subsection (5) of s 60H, which provides for a rebuttable presumption in respect of consent. In these circumstances, Ms Ryan’s consent is to be presumed, unless it is proved on the balance of probabilities that she did not consent.
In her affidavit, Ms Ryan deposes at paragraph 14 that:
It was early on in our relationship that we [a reference to both parties] decided to have a child together.
Ms Ryan further deposes that the parties underwent the IVF process through B IVF Centre together in 2005, including participating in psychological assessment. And she further deposes that it was she who chose the donor and paid for all the relevant procedures (see Annexures “A” to “E” of Ms Ryan’s affidavit).
In my judgment, this provides evidence of Ms Ryan’s consent to the IVF procedure, or, alternatively, is certainly sufficient to stand in the way of any rebuttal of the presumption in s 60H(5). I am satisfied that all parties consented to the IVF procedure, in that the parties were in a de facto relationship throughout the time the IVF process was undertaken, and at the time the child was born. I am therefore satisfied that the child is the child of “the woman and of the other intended parent” within the meaning of subparagraph (c) of s 60H(1) of the Act.
Mr Bunning of counsel for Ms Fraser referred me to the decision of the Full Court in Aldridge & Keaton (2009) FLC 93-421. I note that at paragraph 16 the Full Court made the following observation:
Although not directly raised in this appeal, the question of whether an “other intended parent” is a “parent” for the purposes of Part VII is not without some doubt. This fact is of significance when considering s 60B(1) and (2) and s 60CC(2) and (3). We would, consistent with principles of statutory interpretation, give a purposive construction to the section, and regard both the birth mother and other intended parent as parents of the child. But we note other provisions of the Act appear inconsistent with this interpretation.
(Emphasis added)
The Full Court thereafter went on to discuss other provisions of the Act apparently inconsistent with that interpretation. However, as I have referred to, the Full Court in albeit an obiter statement confirmed that they would regard both the birth mother and other intended parent in that case as parents of the child within the meaning of Part VII of the Act.
In circumstances where this is an application for summary dismissal, significantly more would need to be shown by Ms Fraser to demonstrate that the Full Court was wrong in its interpretation in expressing that obiter statement in Aldridge & Keaton. For these reasons, I am not persuaded, within the meaning of r 10.12 that the Court has no jurisdiction to entertain the parenting application brought by Ms Ryan on this application, nor that she lacks legal capacity to apply for the orders that she seeks.
I am not persuaded on an application for summary dismissal that Ms Ryan has no reasonable likelihood of success in the substantive parenting proceedings.
For these reasons, the application for summary dismissal will be dismissed.
The other part of the interim application concerns interim parenting orders sought by Ms Ryan. She has set out in her Response to the Application in a Case filed 28 July 2014 she seeks specific orders in terms of the child spending time with her. One of the orders sought was that a family consultant be appointed to prepare a family report. And in the course of argument, the approach was adopted by Ms Ryan for the family report to be prepared, and for the question of any interim parenting orders to be revisited, with the assistance of the expert evidence of the family consultant as per such a family report.
For her part, Ms Fraser sought that if a family report was to be ordered that it be privately funded, preferably by both parties, or ultimately, if necessary, by her. It was submitted that Ms Fraser have the opportunity to provide three names of appropriate family consultants to prepare the family report and for Ms Ryan to select the name of the person to undertake the report. I confirmed, during the course of argument by Mr Bunning, that in circumstances where Ms Ryan is legally aided that the family report be funded, at least in the first instance, by his client, but leaving open to her a reservation of a position to seek at least half the costs of that report in due course.
For these reasons, I will therefore order that Ms Fraser, within seven days, provide to Ms Ryan the names of three family consultants able to undertake a family report in the matter and that within seven days thereafter Ms Ryan nominate the person to undertake the report.
I will order that in the first instance Ms Fraser be responsible for the costs of the report, but that the question of such costs be reserved for further consideration.
I will otherwise order that the application for interim orders be adjourned to the registrar, for the fixing of an interim date after the family report has been received.
I will also order that each party bear their own costs of and incidental to today’s hearing.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 8 September 2014.
Associate:
Date: 8 September 2014
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