Shaw and Lamb & Anor
[2018] FamCAFC 42
•13 March 2018
FAMILY COURT OF AUSTRALIA
| SHAW & LAMB AND ANOR | [2018] FamCAFC 42 |
| FAMILY LAW – APPEAL – CHILDREN – SURROGACY – where the primary judge made an order requiring the parties to do all acts and things to ensure that the male respondent’s name was entered as the father of the child on the child’s birth certificate – where that conclusion was based on his Honour’s interpretation of s 23 of the Status of Children Act 1978 (Qld) – where the preconditions necessary for the application of s 23 were not addressed in his Honour’s reasons – where the submissions of counsel below did not assist his Honour in addressing those preconditions – where there is demonstrated error – where that error was not contained in the appellant’s grounds of appeal – where nevertheless an appellate court is authorised and obliged to discharge its appellate duties – appeal allowed – matter remitted for a rehearing – each party ordered to bear their own costs. |
| Acts Interpretation Act 1954 (Qld) Status of Children Act 1978 (Qld) Surrogacy Act 2010 (Qld) |
| Bernieres & Dhopal (2017) FLC 93-793; [2017] FamCAFC 180 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Lenova & Lenova (Costs) [2011] FamCAFC 141 Nada & Nettle (Costs) (2014) FLC 93-612; [2014] FamCAFC 207 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 |
| APPELLANT: | Ms Shaw |
| FIRST RESPONDENT: | Ms Lamb |
| SECOND RESPONDENT: | Mr Sorensen |
| INDEPENDENT CHILDREN’S LAWYER: | Susan Gray |
| FILE NUMBER: | CSC | 197 | of | 2016 |
| APPEAL NUMBER: | NOA | 57 | of | 2017 |
| DATE DELIVERED: | 13 March 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Thackray, Murphy & Kent JJ |
| HEARING DATE: | 23 February 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 September 2017 |
| LOWER COURT MNC: | [2017] FamCA 769 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Fredericks |
| SOLICITOR FOR THE APPELLANT: | Anderson Fredericks Turner Lawyers & Advocates |
| COUNSEL FOR THE RESPONDENTS: | Mr Victoire |
| SOLICITOR FOR THE RESPONDENTS: | Marino Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Lawrence |
| INDEPENDENT CHILDREN’S LAWYER: | Susan Gray |
Orders
The appeal be allowed.
Order 7(b) of the orders made by the Honourable Justice Tree on 21 September 2017 be set aside.
The question of whether the second respondent is the father of the child the subject of the orders made on 21 September 2017 and hence should be entered as such on the child’s birth certificate be remitted for rehearing, if practicable before the Honourable Justice Tree.
Each party bear their own costs of and incidental to the appeal.
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 Shaw & Lamb and Anor 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 BRISBANE |
Appeal Number: NOA 57 of 2017
File Number: CSC 197 of 2016
| Ms Shaw |
Appellant
And
| Ms Lamb |
First Respondent
And
| Mr Sorensen |
Second Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
The appellant in this appeal from orders made by Tree J on 21 September 2017 is the birth mother of a child for whom she was the altruistic surrogate. The genetic parents of the child are jointly the respondents. The respondents[1] are husband and wife, having married in mid-2002. The appellant is related to the female respondent.
[1]The respondents will be referred to as such in these reasons and individually as the “male respondent” and the “female respondent” for the purposes of anonymisation. No disrespect is intended. Similarly, no disrespect is intended to the “appellant” who will be referred to as such for the same reason. Similarly, the man who was her de facto partner at the time of the trial will also, again with no disrespect, be referred to anonymously.
The surrogacy arrangement arose from the inability of the respondents to conceive a child naturally and, subsequently, health difficulties experienced by the female respondent which prevented her from carrying a child. An embryo resulting from IVF procedures earlier undertaken by the respondents was frozen and, subsequently, implanted in the appellant. That procedure occurred in mid-2015.[2] The child was born in 2016.
[2] Appellant’s Affidavit filed 3 February 2017, paragraph 41.
Difficulties in the relationship between the appellant and the respondents commenced prior to the child’s birth; so much so that the appellant contemplated an abortion. The pregnancy was too far advanced for that to be carried out. The difficulties between the appellant and the respondents manifested themselves in proceedings commenced two days after the child’s birth. Interim consent orders were made after an urgent mediation.
The consent orders contained a notation to the effect that the respondents would seek a “parentage order” in the State Children’s Court pursuant to the provisions of the Surrogacy Act 2010 (Qld)[3] to the effect that they would be the child’s legal parents and that the appellant would consent to that arrangement. That Act provides that the effect of such an order if made is the “transfer of parentage of [the] child” to the respondents.[4] No parentage order was made. A surrogacy agreement is not enforceable as an agreement.[5]
[3] Chapter 3 of that Act (‘Surrogacy Act’).
[4] Surrogacy Act s 22(1).
[5] Surrogacy Act s 15.
Proceedings before the primary judge ensued which led to his Honour making orders, one of which is appealed.
The Order Appealed
There was no issue before his Honour that the respondents would have equal shared parental responsibility and that the child would live with them. The appellant sought time with the child. His Honour ordered that there be no time save “as may be determined by the [respondents] at their sole discretion”. That order is not the subject of appeal.
This appeal challenges solely Order 7(b) of his Honour’s orders which provides:
The parties do all acts and things, including singing [sic] any necessary documents, to cause the child’s birth registration details to be amended to ensure that:
…
(b)[the male respondent] is entered as the father of the child on the child’s birth certificate.
In the proceedings before his Honour the relevant issue was whether the male respondent was a “parent”. The challenge on appeal is that his Honour’s finding that he was, which gives rise to the challenged Order 7(b), is an error of law.
The Issue At Trial And On Appeal
His Honour’s judgment proceeds on two bases that are not the subject of challenge on this appeal.
First, despite expressing doubts about aspects of it, his Honour properly recognised that he was bound by the decision of the Full Court in Bernieres & Dhopal,[6] a decision handed down while his Honour’s judgment was reserved. Relevantly, the Full Court there held in respect of two potentially relevant sections of the Family Law Act 1975 (Cth) (‘the FLA’):[7]
Thus, it is plain that s 60HB now specifically addresses the position of children born under surrogacy arrangements, leaving s 60H to address the status of children born by means of conventional artificial conception procedures. Further, the plain intention of s 60HB is to leave it to each of the States and Territories to regulate the status of children born under surrogacy arrangements, and for that to be recognised for the purposes of the Act. In other words, s 60HB covers that field, leaving, as we say, s 60H to address conventional artificial conception procedures.
(Emphasis added)
[6] (2017) FLC 93-793 (‘Bernieres’).
[7] Bernieres at 77,535 [62].
A second basis upon which his Honour proceeded was that because no “parentage order” had been made pursuant to the provisions of the Surrogacy Act the question of who was a “parent” was to be determined by reference to the provisions of the Status of Children Act 1978 (Qld) (‘the Status Act’). Section 17 of the Surrogacy Act provides:
17 Presumptions under the Status of Children Act 1978
To remove any doubt, it is declared that, unless and until a parentage order is made under chapter 3 transferring the parentage of a child born as a result of a surrogacy arrangement, the parentage presumptions under the Status of Children Act 1978 apply to the child.
No arguments on this appeal challenge the correctness of the decision in Bernieres. So, too, no arguments on this appeal suggest that his Honour erred in concluding that parentage was to be determined by reference to the provisions of the Status Act.
The challenged order is founded on these conclusions by his Honour (at [70]):
In summary therefore:
(a)the biological parents of a child born to a surrogacy arrangement are the persons whose sperm and ovum combine to produce the gamete;
(b)however those persons are not, for the purposes of the Family Law Act, the parents of the child, unless the State legislation, either directly or by order made under it, effects such as a status;
(c)here, s 23(4) of the Status of Children Act operates such that the donor of sperm used to fertilise a donor ovum implanted into another woman’s womb, remains the father of the resultant child, has no rights or liabilities relating to it; and further
(d)by s 23(2) of the Status of Children Act, there is an irrebuttable presumption that the ovum donor is not the mother of the child, but the recipient is.
His Honour went on to hold, under the heading “Who are the parents of the child for the purposes of the Family Law Act”:
72.Bernieres & Dhopal (supra) compels, so it seems to me, the conclusion that the biological mother is not, for the purposes of the Family Law Act, a parent of the child. Rather, the effect of the Status of Children Act is that the birth mother is irrebuttably presumed, for all purposes, to be the mother of the child unless a parentage order is made pursuant to the Surrogacy Act.
73.The position of the biological father, at least in Queensland, is a little less clear. The State legislation does not deprive him of fatherhood per se, but rather strips that fatherhood of any rights or liabilities, unless he were to marry the birth mother. On the other hand, Bernieres & Dhopal and indeed Mason & Mason as well (albeit in the context of Victoria and New South Wales respectively) expressly held that the sperm donor father was not a parent for the purposes of the Family Law Act, although neither of the States from which those cases sprang had any equivalent to s 23(4) of the Status of Children Act.
74.Although with some hesitation, I am nonetheless persuaded that in Queensland, the combined effect of s 17 of the Surrogacy Act and s 23(4) of the Status of Children Act, means that the father is a parent of the child, and that, consistent with Bernieres & Dhopal, the Family Law Act will recognise that status.
The asserted error of law as expressed in the first of two grounds of appeal is:
The learned Family Court Judge erred [in] law in finding that the combined effect of s 17 of the Surrogacy Act Qld and s23(4) of the Status of Children Act Qld, means that the father is a parent of the child, and that, consistent with Bernieres & Dhopal [2017] FamCAFC 180, the Family Law Act will recognise that status.
The second ground of appeal attacks the adequacy of his Honour’s reasons.
The question of whether his Honour’s conclusions are correct as a matter of law requires us to consider whether his Honour erred in the application of the Status Act in light of the uncontroversial fact that no parentage order was made transferring parentage pursuant to the Surrogacy Act.
The Relevant Status Act Provisions
Part 3 of the Status Act deals with “Parentage of children”. It is not in issue that the relevant “fertilisation procedure” in this case involved the implanting of “an embryo derived from an ovum produced by [the female respondent] and fertilised by semen produced by [the male respondent]”. Sections 19 and 23 respectively deal with a fertilisation procedure of that kind.
The application of those sections differs depending upon the nature of the birth mother’s relationship, if any, with another man or woman at the time of the fertilisation procedure. Specifically, for present purposes, the application of the sections depends upon whether the appellant was a “married woman” at the time of the fertilisation procedure.
The expression “married woman”, is not defined as such, but is the subject of an inclusive provision, as is each of the expressions, “husband” and “wife”:
15Interpretation for div 2
(1)A reference in this division to a married woman includes reference to a woman who is living with a man as his wife on a bona fide domestic basis although not married to him or who is in a civil partnership with a man.
(2)A reference (however expressed) in this division to the husband or wife of a person—
(a)is, in the case where the person is living with another person of the opposite sex as his or her husband or wife on a bona fide domestic basis although not married to that other person, a reference to that other person; and
(b)does not, in that case, include reference to the husband or wife (if any) to whom the person is actually married.
(3)A reference (however expressed) in this division to the husband or wife of a person is also, in the case where the person is in a civil partnership with another person of the opposite sex, a reference to that other person.
Importantly, each of the relevant subsections of ss 19 and 23 provide for irrebuttable presumptions of law if the respective preconditions for the application of the same are met.[8] Establishment of the relevant relationship is fundamental to the application of the respective irrebuttable presumptions of law. Conversely, a finding as to the relevant presumption cannot be made unless and until there is a finding, or agreement, as to the relevant applicable relationship (or absence of relationship) on the part of the birth mother.
[8] Respectively, ss 19(2) and (3); s 19F; and ss 23(2) and (3).
As has been seen, his Honour’s judgment rests on the presumptions contained within s 23 of the Status Act which is, in turn, contained within Subdivision 3 of Division 2 of Part 3 of that Act. Section 23 provides:
23Implantation procedure—Presumption as to status where donor ovum used
(1) A reference in this section to a fertilisation procedure is a reference to the procedure of implanting in the womb of a woman—
(a) an embryo derived from an ovum produced by another woman and fertilised by semen produced by a man who is not the husband of the first-mentioned woman; or
(b) for the purpose of fertilising an ovum inside her body, an ovum produced by another woman together with semen produced by a man who is not the husband of the first-mentioned woman.
(2) If a woman has undergone a fertilisation procedure as a result of which she has become pregnant—
(a) the woman who has undergone the fertilisation procedure is presumed, for all purposes, to have become pregnant as a result of the fertilisation of an ovum produced by her and to be the mother of any child born as a result of the pregnancy; and
(b) the woman who produced the ovum from which the embryo used in the procedure was derived is presumed, for all purposes, not to be the mother of any child born as a result of the pregnancy.
(3) A presumption of law that arises by virtue of subsection (2) is irrebuttable.
(4) Also, the man who produced the semen has no rights or liabilities in relation to any child born as a result of the pregnancy happening because of the use of the semen unless, at any time, he becomes the husband of the child’s mother.
(5) The rights and liabilities of a man who produced the semen and becomes the husband of the mother of a child born as a result of a pregnancy mentioned in subsection (2) are the rights and liabilities of a father of a child but, in the absence of agreement to the contrary, are restricted to rights and liabilities that arise after the man becomes the husband of the child’s mother.
The preconditions for the application of subdivision 3, and thus s 23, are set out relevantly in s 20 of the Status Act:
20Application of sdiv 3
This subdivision applies if—
(a)a married woman undergoes a fertilisation procedure other than with her husband’s consent; or
(b)a woman who is not married and does not have a de facto partner or civil partner undergoes a fertilisation procedure; or
(c)a woman who has a de facto partner undergoes a fertilisation procedure other than with her partner’s consent; or
(d)a woman who has a civil partner undergoes a fertilisation procedure other than with her partner’s consent.
The terms of s 19, and the preconditions prescribed for its operation in s 16 of that Act should be contrasted.
Section 16 provides:
16 Application of sdiv 2
This subdivision applies if a married woman, in accordance with the consent of her husband, undergoes a fertilisation procedure.
Section 19, which is contained in the subdivision referred to in s 16, provides:
19Implantation procedure—Presumption as to status where donor ovum used
(1)A reference in this section to a fertilisation procedure is a reference to the procedure of implanting in the womb of a woman—
(a)an embryo derived from an ovum produced by another woman and fertilised by—
(i)semen produced by the husband of the first‑mentioned woman; or
(ii)semen produced by a man other than the husband of the first-mentioned woman; or
(b)for the purpose of fertilising an ovum inside her body, an ovum produced by another woman together with semen produced by the husband of the first-mentioned woman or by a man other than her husband.
(2)Where a married woman has undergone a fertilisation procedure as a result of which she has become pregnant—
(a)the married woman shall be presumed, for all purposes, to have become pregnant as a result of the fertilisation of an ovum produced by her and to be the mother of any child born as a result of the pregnancy; and
(b)the woman who produced the ovum from which the embryo used in the procedure was derived shall be presumed, for all purposes, not to be the mother of any child born as a result of the pregnancy; and
(c)where the semen used for the fertilisation of the ovum from which the embryo used in the procedure was derived was produced by the husband of the married woman, the husband shall be presumed, for all purposes, to be the father of any child born as a result of the pregnancy; and
(d)where the semen used for the fertilisation of the ovum from which the embryo used in the procedure was derived was produced by a man other than the husband of the married woman—
(i)the husband shall be presumed, for all purposes, to have produced the semen and to be the father of any child born as a result of the pregnancy; and
(ii)the man who produced the semen shall be presumed, for all purposes, not to have produced the semen and not to be the father of any child born as a result of the pregnancy.
(3)A presumption of law that arises by virtue of subsection (2) is irrebuttable.
(4)In any proceedings in which the operation of subsection (2) is relevant, a husband’s consent to the carrying out of a fertilisation procedure in respect of his wife shall be presumed but that presumption is rebuttable.
It will be observed immediately that the applicability of those different provisions, each with differing irrebuttable presumptions governing parentage, is dependent upon two related factual enquiries. The first is whether the birth mother is “married” or is “not married”, or whether she has or does not have “a de facto partner” or “civil partner”. The second enquiry must be made if the birth mother is in one of those relationships at the time of the fertilisation procedure, namely whether her partner consents to the procedure.
The terms of s 15 have been earlier quoted. Neither “civil partner” nor “de facto partner” is defined within the Status Act and they therefore take their meaning as prescribed by the Acts Interpretation Act 1954 (Qld).
The Absence Of Essential Factual Findings
A finding as to the nature of the relationship between the appellant and the man who was her de facto partner at trial was a necessary precondition to his Honour proceeding to apply the relevant sections of the Status Act which are determinative of paternity.
The appellant deposed to being in a de facto relationship with a man at the date of trial. He deposed similarly.[9] However, the relevant date for the relevant purposes of the Status Act was the date of the fertilisation procedure, mid‑2015. In respect of that date, the evidence was entirely unclear; each of the appellant and her partner at trial deposed that, in late 2014, they commenced “a relationship” and “moved in together in [late] 2015”.[10] The appellant deposed that they had bought a house together [several months earlier].[11] Other evidence from the appellant deposed to the man spending regular rostered periods away by reason of his employment.[12]
[9]Respectively, Appellant’s Affidavit filed 3 February 2017, paragraph 4; and Appellant’s then partner’s Affidavit filed 2 February 2017, paragraph 1.
[10]Appellant’s Affidavit filed 3 February 2017, paragraph 4; Appellant’s then partner’s Affidavit filed 2 February 2017, paragraph 2.
[11] Appellant’s Affidavit filed 3 February 2017, paragraph 4.
[12] Appellant’s Affidavit filed 3 February 2017, paragraph 9.
In short, there was no evidence before his Honour from which his Honour could, without more, make the finding required by ss 16 or 20 of the Status Act. Thus, there was no evidence by which his Honour could, without more, apply the relevant parentage presumption.
The question then becomes whether, by what each of the parties agreed or led his Honour to assume, his Honour was entitled to proceed on the assumption necessary to found the application of s 23. That is, did the parties agree or lead his Honour to assume that the appellant met one of the three conditions prescribed in s 20 of the Status Act (noting the extended meaning of “married woman” within s 15).
The answer to that question is that they plainly did not. There was no agreement in respect of that essential question and, indeed, different assumptions pertained.
We feel bound to record that the issues confronting the legal practitioners were not without complexity and all the more so because at the time that material and submissions were prepared and the hearing before his Honour conducted, no decision of the Full Court had addressed those issues and no first instance decision had addressed the Queensland legislation which applied in this case.
Yet, the net result of those circumstances is that his Honour was not provided with the evidence or submissions directing his Honour’s attention to the relevant questions requiring an answer as a precursor to addressing the applicable presumptions. As all three counsel conceded before us, the relevant preconditions were either not addressed at all by them before the primary judge or, if alluded to, it was in a different, and with respect irrelevant, context.
The written Case Outline filed by the appellant before the primary judge referred the Court to the relevant presumptions contained in s 23 of the Status Act.[13] No other sections of that Act were referred to by the appellant. In contrast, the respondents’ written Supplementary Submissions below submitted that “the correct presumption is found in Section 25 of the [Status Act]”.[14] The section deals with a rebuttable presumption arising from entry on a birth certificate. We are, with respect, unable to see how this has any relevance to the application here.
[13]Appellant’s Case Outline at trial filed 6 February 2017, paragraph 51.
[14]Respondents’ Supplementary Submissions at trial provided 15 February 2017.
In conjunction with those Supplementary Submissions, in the respondents’ written Case Outline and during oral submissions, counsel referred his Honour to s 26 of the Status Act, the written submissions having contended that “Sections 23 has no application to this case”.[15] Counsel for the respondents indicated to his Honour (in the context of a discussion about whether the Court “has jurisdiction”) that “section 23 [of the Status Act] doesn’t apply”, saying that “s 26 is the one that applies”.[16] We have, with respect, some difficulty in understanding what counsel meant in that exchange. We are unable to see how s 26 has any application at all to this case.
[15]Respondents’ Case Outline at trial filed 6 February 2017.
[16]Transcript, 6 February 2017, p 93 ln 4–5; s 26 presumes parentage irrebuttably if, in accordance with the section’s terms, a court has so found.
The Independent Children’s Lawyer (‘ICL’), in written Further Submissions provided to his Honour submitted that “[d]emonstrably, neither biological parent [i.e. the current respondents] is able to gain any assistance from the Queensland legislation”.[17] On its own, that submission lacks meaning by reason of its lack of particularity. However, seen in the context of the paragraphs which succeed it,[18] and as counsel confirmed before us, it is a reference to the absence of a parentage order under the Surrogacy Act.
[17]ICL’s Further Submissions provided 15 February 2017, paragraph 12.
[18] See particularly the conclusion at paragraph 16.
Those same written submissions by the ICL filed before the primary judge contain a statement that perhaps comes closest to a submission before his Honour that the nature of the appellant’s relationship at the time of the procedure was important. Counsel submitted, “[i]t is important in this case that the [appellant] was not married or in a de facto relationship at the time of the agreement or the surrogacy”.[19] However, that statement is referenced to ss 60H and 60HA of the FLA; and in any event, does not pertain to the relevant date (the date of the fertilisation procedure), and is not otherwise pursued in the context of ss 15, 16 or 20 of the Status Act.
[19] ICL’s Further Submissions provided 15 February 2017, paragraph 22.
The transcript reveals that there was a dispute (or, at least, differing assumptions) about the nature of the appellant’s relationship:[20]
HIS HONOUR: Well, can I bring you back to a fundamental question I have: who were the child’s birth parents?
[COUNSEL ICL]: The – I would submit the birth mother and, because she wasn’t in a de facto relationship or marriage at the time, the biological father the second applicant.
HIS HONOUR: Is there a different view anywhere on the bar table, that the second applicant is the birth father of the child?
[SOLICITOR CURRENT APPELLANT]: I hold a different view, yes. My view is that he’s not – would not be considered the birth father - - -
HIS HONOUR: So who is the birth father?
[SOLICITOR CURRENT APPELLANT]: It would seem that at this stage there is no birth father, though - - -
[20] Transcript, 8 February 2017, p 198 ln 30–46.
And also:[21]
[SOLICITOR CURRENT APPELLANT]: This is what I was touching on very briefly before. In my read [sic] of the Status of Children Act, there doesn’t seem to be – and I could have been missing it, but there doesn’t seem to be a concept that a de facto partner to a woman, setting aside woman and woman de facto partners - - -
…
- - - but to a woman, was given any presumptions under that Act. So I fail to see how – say, for example, my client was in a relationship, and she was, and has remained in that relationship, so presumably a de facto relationship, I would submit, but I would not submit that this takes it that far to say that this child is a child of [the appellant’s then partner].
[21] Transcript, 8 February 2017, p 215 ln15–26.
The transcript also reveals that references by the parties which might be seen to pertain to that central issue have different contexts or, to the extent that they might be seen to pertain, also beg the central question rather than answer it.
An example is the discussion between counsel for the current respondents and his Honour[22] where it is contended that s 23 of the Status Act does not apply. Reflecting written submissions made below, counsel explained that submission before us as an argument directed to the assertion that the section only applied in circumstances where the appellant failed to deliver up the child.[23] With great respect, we have considerable difficulty in understanding that submission, but whatever might be said about its merits it is not, as counsel frankly conceded before us, a reference to the questions necessary to be answered by his Honour.
[22] Transcript, 6 February 2017, p 93.
[23]Respondents’ Further Submissions provided 15 February 2017, paragraph 21.
The solicitor for the appellant also frankly conceded before us that she did not refer to the questions which underpin the relevant presumptions nor, as a consequence, to the specific possibility of the presumptions in s 19 applying to the facts of the case. In a discussion which occurred between his Honour and that solicitor at the hearing, his Honour posed the question of whether “there really is dispute at the bar table as to whether or not the father – sorry [the male respondent] is the father of the child”. The appellant’s solicitor responded: “No. I mean, we can’t say that he’s not the father”.[24]
[24] Transcript, 8 February 2017, p 206 ln 1–4.
It may well be that the interchange involved a confusion as to terminology, with the references to “father” being designed to indicate “genetic father” or “biological father”, but the unaddressed and unanswered question before his Honour was, what factual preconditions gave rise to what irrebuttable presumptions which required that very question (inter alia) to be determined.
The preconditions necessary for the application of s 23 are not at all addressed in his Honour’s reasons. Nor, conversely, are the potentially applicable provisions of ss 16 and 19 addressed at all in his Honour’s reasons. The only finding made by his Honour that might be seen as relevant is that which appears at [13] of his Honour’s reasons: “[i]n [late] 2014 [the appellant] commenced a relationship with her present partner”. That finding begs the relevant questions but does not answer them and the issue is not returned to otherwise in his Honour’s reasons.
Appealable Error
We consider that the only conclusion open to us is that his Honour failed to consider and make findings as to a matter central to a question of law which required determination.
The question necessary for his Honour to address and answer was neither posed nor adequately alluded to in the proceedings before him. Nevertheless, his Honour was, in our respectful view, duty bound to consider and decide upon all matters relevant to the determination of the issues of law before him.
The specific error to which we have referred is not the subject of a ground of appeal. However, notwithstanding that specific errors are not pleaded in the grounds, if we are of the view that there is appealable error then, subject to procedural fairness and otherwise a lack of prejudice to any of the parties, we “are authorised, and obliged, to discharge [our] appellate duties in accordance with the statute”.[25]
[25]Fox v Percy (2003) 214 CLR 118 at 128 [27]; see also Warren v Coombes (1979) 142 CLR 531 at 552.
Further, the application of s 23 of the Status Act, which is the basis for his Honour’s ultimate conclusion, requires satisfaction – in the absence of agreement – that there was no husband or de facto partner of the appellant to whom presumptions of parentage might apply in contradistinction to the application of s 23 of the Status Act. To the extent that the reasons do not deal with that issue, and the issue of the nature of the relationship as at the date of the fertilisation procedure between the appellant and the man who was her partner at the time of trial, we respectfully consider his Honour’s reasons to be inadequate.
Conclusion
The appeal should be allowed. Order 7(b) of his Honour’s orders should be set aside.
Additional Presumption Not Relevant
For the sake of completeness we should mention that s 28 of the Status Act also contains a presumption as to parentage. Its application turns on a criterion different from ss 15 or 16, namely if the birth mother and a man “cohabit, but are not married” during “the period starting 44 weeks and ending 20 weeks before the birth”. If they do so cohabit, that man is presumed to be the child’s father. In this case, if that factual precondition is made out, the man who was the appellant’s de facto partner at trial[26] would be presumed to be the child’s father; however the presumption is rebuttable.[27]
[26] We were informed that this relationship ended subsequent to the hearing before his Honour.
[27] Status Act s 28(2).
Section 28 was referred to in argument before his Honour by the current appellant, but is not referred to in his Honour’s reasons.
However, it is tolerably clear on the evidence before his Honour that the appellant and the man who was her partner at trial did not “cohabit” during the timeframe prescribed by s 28 so as to engage its presumption.[28] In any event, even if the presumption was engaged it would have been rebutted by the finding that the issue of genetic parentage had been resolved by DNA tests.[29]
[28]The evidence was that they “moved in together in [late] 2015” – see footnote 10: On the only evidence before the primary judge, the earliest they could have cohabited is later than 20 weeks before the birth of the child in 2016.
[29] Reasons at [113].
Re-Exercise Or Remitter
It will be clear from what we have said that we consider it necessary for factual findings to be made in respect of the requisite preconditions for the application of relevant presumptions of law.
It is accepted before us that the evidence as filed before the primary judge does not address the relevant questions and nor does reference to any oral evidence emerging from cross-examination. It is contended that exploration of the nature of the relationship, as at the date of the fertilisation procedure, between the appellant and the man who was her partner at trial, requires relevant evidence and needs to be explored in cross-examination.
In light of those matters, we consider it effectively inevitable, as appears to have been conceded before us, that the proceedings be remitted for rehearing.
No party suggests that Tree J should not hear the remitted proceedings. The parties and their legal representatives are in North Queensland and we can see no reason why his Honour cannot rehear the matter. We will order accordingly.
Further Matters For Consideration
As we have seen, his Honour arrived at conclusions of law that must have factual preconditions, none of which were established before his Honour. Of course, in the remitted hearing, one of the s 20 preconditions (or, perhaps the s 16 precondition) may in fact be established. If one of the s 20 preconditions is satisfied, a question which arises is whether his Honour was correct in arriving at the conclusion which he reached as to the construction of s 23 (and the Status Act more broadly).
We are acutely conscious of the fact that, if we are to pass an opinion on that issue, it can be seen as hypothetical and beyond the remit of conclusions available from the record. To repeat, in the absence of agreement between the parties as to the relevant factual preconditions, further evidence is needed and a finding will need to be made. It goes without saying that we should not be seen as in any way restricting Tree J in his redetermination.
Yet, we are also conscious that a rehearing before his Honour allows conflict to persist and involves cost to, at least, the current respondents.
We will say no more than this. If it be established that s 16 of the Status Act does not apply and if, in lieu, it be established that one of the preconditions within s 20 does apply, we are, as informed currently by the arguments before us, by no means convinced that his Honour erred in his interpretation of s 23(4). Very careful consideration might be given to the statutory provisions and to his Honour’s reasons.
In respect of the factual question confronting any rehearing, it might also be observed that different terminology is used within the statutory provisions which we have earlier discussed. It will have been seen that, in s 15 earlier quoted, a married woman includes reference to “a woman who is living with a man as his wife on a bona fide domestic basis although not married to him”. Yet, as has been seen, the expression “de facto partner” is also used separately to the inclusive expression “married woman” in s 20 quoted above.
The expression “de facto partner” is defined in s 32DA of the Acts Interpretation Act 1954 (Qld) and applies to all Acts unless displaced by a contrary intention in any such Act.[30] The use of that expression in the Status Act, which sits with the different expression “married woman”, does not suggest any such contrary intention.[31]
[30] Acts Interpretation Act 1954 (Qld) ss 2 and 4.
[31] See Acts Interpretation Act 1954 (Qld) s 32AB.
That leaves open the possibility that something different is meant by the expression “person … living with another person of the opposite sex as his or her husband or wife on a bona fide domestic basis although not married to that other person” than what might conform with the definition of “de facto partner”.
Again, we consider that we should say no more than that the parties and their legal advisors might give careful consideration to the statutory provisions in respect of any rehearing.
The Parenting Orders
Lest there be any misunderstanding, we feel bound to point out that the decision in this appeal has no bearing upon the parenting orders (as that expression is defined in the FLA) made by his Honour.
Each of the respondents is without doubt a “person concerned with the care, welfare or development of the child”,[32] and by reason of that fact alone can apply to the Family Court for parenting orders.
[32]The FLA s 65C(c).
The allocation of parental responsibility has effect “subject to any order of a court for a time being in force”.[33] Plainly enough a parenting order can confer parental responsibility for a child on a “person” (as distinct from a “parent”).[34]
[33]The FLA s 61C(3).
[34] The FLA s 61D.
So, too, parenting orders, including orders relating to the person or persons with whom the child lives and/or spends time can be made in favour of a “parent” but also in favour of “some other person”.[35]
[35] The FLA s 64C.
The consequence is that while Order 7(b) of the orders made by the primary judge will be set aside as contended for by the appellant, the remaining orders (which are in any event, not challenged by the appellant) shall remain in full force and effect.
Costs
As is customary, in order to minimise costs and inconvenience, we sought submissions in respect of the issue of costs by reference to the permutations of the result of the appeal.
In the result the appeal has succeeded, but on a point not raised in the written submissions of the parties and not raised below. In any event, the appellant was represented pro bono and costs were not sought if the appeal succeeded.
Although costs certificates were sought for the appeal and the rehearing, it is not appropriate that public funds be expended in circumstances where the proceedings have miscarried as a result of the parties’ failure to address the relevant statutory requirements.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Murphy and Kent JJ) delivered on 13 March 2018
Associate:
Date: 13 March 2018
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