Sofia & Treacy
[2021] FamCA 647
•30 August 2021
FAMILY COURT OF AUSTRALIA
Sofia & Treacy [2021] FamCA 647
File number(s): MLC 13024 of 2020 Judgment of: BENNETT J Date of judgment: 30 August 2021 Catchwords: PARENTING – where respondent lesbian mother gives birth to child after assisted conception – where former gender fluid girlfriend of mother is named on birth certificate – where any relationship between applicant and respondent ceases – where applicant claims that mother and her were in a de facto marriage relationship at the time of the birth and the applicant seeks father status; where mother denies the alleged de facto relationship and that the applicant has father status – where each party seeks orders against the Registrar of Births Deaths and Marriages (Vic) for details in the child’s birth certificate to be amended to accord with the position for which they contend.
PROPERTY – where applicant seeks that the applicant deliver up baby memorabilia and a ladder and repayment of money by way of “reparation”.
SUMMARY DISMISSAL – where respondent mother seeks summary dismissal of applicant’s application but then discontinues that application – where some parts of application dismissed summarily on court’s volition.
FAMILY DISPUTE RESOLUTION- preferable that alternative dispute resolution follow any psychiatric assessment of applicant and respondent.
Legislation: Births, Deaths and Marriages Registration Act 1996 (Vic)
Evidence Act 1995 (Vic)
Family Law Act1975 (Cth)
Cases cited: Baros and Baros [2021] FamCA 534
Bigg v. Suzi (1998) F.L.C. 92-799
Korsky & Bright and Anor (No.2) (2007) F.L.C. 93-352
Lindon v. The Commonwealth (No 2) [1996] HCA 14
Pelerman v. Pelerman [2000] FamCA 881; (2000) F.L.C. 93-037
Number of paragraphs: 25 Date of hearing: 30 August 2021 Place: Melbourne Solicitor for the Applicant: Sofia In Person Counsel for the Respondent: Mr Harvey Solicitor for the Respondent: Russell Kennedy Lawyers Counsel for the Independent Children's Lawyer: Mr Mort ORDERS
MLC 13024 of 2020 BETWEEN: SOFIA
Applicant
AND: MS TREACY
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
30 AUGUST 2021
THE COURT ORDERS THAT:
1.Paragraph 4, 45 and 55 of the Application Initiating Proceedings filed 27 November 2020 be dismissed pursuant to section 45A(2) of the Family Law Act 1975.
2.The orders sought in paragraphs 2, 7, 8 and 9 of the Applicant’s reply sealed 22 February 2021 be dismissed pursuant to section 45A(2) of the Family Law Act 1975.
3.The applicant and the respondent do all acts and things necessary to undergo a psychiatric assessment by a single practitioner and for the purpose of payment the Independent Children’s Lawyer is requested to make application to Victoria Legal Aid to fund same.
4.Pursuant to Section 13C(1)(b) of the Family Law Act 1975, the parties and their legal representatives (if any) shall attend a confidential Court-based Family Dispute Resolution (FDR) Conference on a date to be fixed but not later than 1 April 2022. (Amended 14 September 2021)
5.The matter shall be referred to the Executive Director of Dispute Resolution for allocation, listing and further orders in relation to the conduct of the FDR Conference.
6.There be liberty to the Independent Children’s Lawyer to seek an administrative adjournment of the Dispute Resolution Conference in the event the psychiatric assessment can be undertaken but will not be completed before the date of the Dispute Resolution Conference.
7.Once the single expert psychiatrist is identified each party to the proceedings provide that practitioner with a copy of a document filed in these proceedings by that party.
8.The respondent mother confirms she relies upon the three affidavits of witnesses filed on 27 August 2021. Accordingly, the applicant is at liberty to respond to those affidavits and, if she wishes to do so, to respond not later than 1 week before any Dispute Resolution Conference in this matter.
9.Otherwise, all extant interim applications be dismissed and the matter be placed in the list of cases awaiting allocation to a judicial docket.
AND IT IS NOTED BY THE COURT:
A.That the respondent mother does not otherwise wish to pursue an application for summary dismissal.
B.That the respondent mother has informed the court that items 56(b),(c),(d),(e) and (g) are not in her possession custody or control.
C.The respondent mother has the pink lava lamp, the star wars diorama and the multi fold ladder.
D.For the purposes of the Family Dispute Resolution Conference, the parties are referred to s 131 of the Evidence Act 1995 and ss 10J and 10H of the Family Law Act 1975 and to the Court’s Family Dispute Resolution Fact Sheet.
Note: The form of the order is subject to the entry in the Court’s records.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sofia & Treacy has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Introduction
The applicant, Sofia, instituted proceedings by an application filed on 27 November 2020 against the Ms Treacy (“the respondent mother”) in relation to the child X who is two years old.
The applicant seeks 58 interim parenting orders and to be excused from particularising the final orders until after a Family Report is released. By a response filed on 16 February 2021, the respondent mother seeks:
1.THAT the Application filed the 27th day of November 2020 be dismissed.
2.THAT the Applicant pay the Respondent’s cost of and incidental to these proceedings.
3.THAT there be a declaration that the Applicant is not and has never been a parent of the child, X born … 2019.
4.THAT there be no order for the Applicant to spend time or communicate with the child X.
5.THAT the purported Notice of Child Abuse, Family Violence of Risk be struck out.
6.THAT the Registrar of Births, Deaths and Marriages issue a new Birth Certificate for the child, X born … 2019, listing MS TREACY as his sole parent.
By a reply filed on 22 February 2021 the applicant restates or recasts some of the relief already sought in the application initiating proceedings as well as seeking orders for the admonishment of the respondent mother’s lawyer and that the respondent mother and certain deponents be “admonished and punished”.
The applicant and the respondent have each filed a Notice of Child Abuse and Family Violence alleging that they have personally been subjected to emotional/psychological, sexual and financial family violence by the other as well as threatening comments. Each alleges that the other has perpetrated emotional and psychological violence to X and exposed him to family violence. On 22 December 2020 a family violence intervention order was made against the applicant and the respondent for the protection of X.
The applicant appears in person. Mr Harvey of counsel appears for the respondent mother. Mr Mort appears for the Independent Children’s Lawyer. This hearing was conducted by MSTeams because Melbourne is in lockdown due to the COVID-19 pandemic restrictions.
The applicant and the respondent mother have each filed extensive affidavit evidence which I read in preparation for today although I have not read all of the annexures to the applicant’s 91 page affidavit affirmed on 27 November 2020 or the annexures relied upon by the respondent mother. I have not read the three affidavits which the respondent mother filed last Friday because I did not know of their existence until submissions were concluded. In any event, I do not have regard to the respondent’s evidence for the purpose of the summary dismissal application, only for the future conduct of the matter.
Summary dismissal
On 2 June 2021 Registrar Sudholz listed this matter before me today “for interim hearing of the threshold issue (summary dismissal)”. There were no directions requiring a summary of argument. An order by Registrar Sudholz requiring the filing of an outline of argument would have assisted the court to understand each parties’ case today and, even more importantly, to focus the attention of the parties and/or their legal representatives on the issues in the case and the legal principles to be applied by the court in a determination of those issues. As it happened, after the parties and their lawyers waited some hours for me to commence this case, counsel for the respondent mother announced that the respondent mother did into seek to proceed with her application for summary dismissal.
Section 45A(2) of the Family Law Act 1975 provides that the court may make a decree for one party against another in relation to the whole or any part of a proceedings if the first party is defending the proceedings or that part of the proceedings and the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.
Section 45A(3) of the Family Law Act provides that for the purposes of this section, proceedings or part of proceedings need not be hopeless or bound to fail to have no reasonable prospect of success. If the court dismisses all or part of proceedings, under this section, the court may make such order as to costs as the court considers just (s.45A(6)). Section 45A(7) provides that the court may take action under this section on its own initiative or on application by a party to the proceedings.
Rule 10.12 of the Family Law Rules 2004 provides that the court can on an application under rule 10.12:
·Dismiss any part of the case
·Decide an issue
·Make a final order on any issue
·Order a hearing about an issue or fact
·With the consent of the parties, order arbitration about the case or any part of the case.
The principles to be applied to an application for summary dismissal are settled. They are summarized in the recent case of Baros and Baros [2021] FamCA 534 and are included in the reasoning in Lindon v. The Commonwealth (No 2), following Bigg v. Suzi (1998) F.L.C. 92-799, and approved in Pelerman v. Pelerman [2000] FamCA 881; (2000) F.L.C. 93-037, and later in Korsky & Bright and Anor (No.2) (2007) F.L.C. 93-352. The principles include:
·The relief sought is rarely and sparingly provided. As Kirby J stated in Lindon v The Commonwealth No.2 at [35]. “It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided.
·The party seeking the relief must show, on the face of the opponent’s documents that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious. This is also known as the ‘doomed to failure’ test.
·It is not sufficient that the Court may think the case appears weak or that it is unlikely to succeed. Such a case is not ‘sufficient to warrant termination’. Even a weak case deserves determination.
·An application for summary relief is no substitute for demurrer. If there is a serious legal question to be determined then it should ordinarily be determined at trial – the proof of facts can sometimes assist the Court to understand and apply the law invoked in circumstances where it is more conducive to deciding a real case with actual litigants than one determined on imagined or assumed facts.
·If, notwithstanding defects in the pleadings, if it appears a party may have a reasonable cause of action which has been poorly framed, the Court will ordinarily allow that party to reframe the pleading.
·The guiding principle is doing what is just.
·If the proceedings within the concept of the pleading are doomed to fail then there should be a dismissal to save the respondent from being further troubled, to save the applicant from further costs and disappointment and to relieve the Court from the burden of further wasted time and resources.
·If by taking the applicant’s evidence at its highest, in the sense that it is untested, there are facts if found in the applicant’s favour, could entitle the applicant to relief sought, then the conclusion will not be that there is no reasonable prospect of success and that part of the application will not attract summary dismissal.
·The material which is used for an application for summary dismissal is only the opponent’s documents and non-contentious facts.
In spite of the respondent mother not wishing to press the summary dismissal application, there are a handful of orders sought by the applicant which, in my view, are doomed to fail. They are as follows:
Application initiating proceedings
4. That make up parenting time, equating to 333 days [approx. 1,500 hours based on above 2) and 3)] that has been denied the Applicant by the Respondent as at the filing date of this initiating application, to be allocated at the court’s discretion.
45. That both the Respondent and the Applicant shall encourage love and affection between the child and the other parent, and that the child is permitted to express his live and affection for both parents.
55. That if court applications are required in response to a breach of this parenting order, the party who breached the order will pay the legal costs of the other party unless otherwise ordered by the court.
Applicant’s Reply
2. That the Respondent pay the Applicant’s legal, medical and incidental costs in this matter, as well as any costs incurred for child contact centres engaged to ensure the safety of the child and the Applicant.
7. That the Respondent’s legal representative be admonished for seeking orders that are in clear contradiction to the material facts in the case (as per ASCR 2015 rule 22.1, 21.2 & 21.3)
8. That the Respondent be admonished / penalised for providing false information under oath to this honourable court in her Affidavit, Annexures and Notice of Risk filed 16.02.2021.
9. That the deponents named in Annexure T-4 and T-5 be admonished / penalised for providing false information under oath in their statutory declarations dated April 6th 2020.
None of the parties sought to make submissions to uphold the orders sought. I am satisfied that the above orders sought have no reasonable prospect of success. To allow them to remain may serve to distract the parties from the justiciable issues in the case.
I will dismiss the relief sought by the applicant and described in paragraph 13 of these reasons.
Future conduct of matter
The applicant and the respondent both seek relief against the Registrar of Births Deaths & Marriages. The applicant seeks “that the Registry of Birth Deaths and Marriages amend/correct the child’s birth certificate to reflect the true nature of the relationship between his parents at the time of registration, which should read status: de facto”. The respondent mother seeks that “the Registrar of Births, Deaths and Marriages issue a new Birth Certificate for the child, X born … 2019, listing MS TREACY as his sole parent”.
Section 20(1) of the Births, Deaths and Marriages Registration Act 1996 provides that “the Court” may, on application by an interested person or on its own initiative, order the inclusion of registrable information about a birth or a child's parents in the Register. “Court” is defined in s.4(1) as the County Court. However, s.20(2)(b) provides that, if a court (including a court of another State or the Commonwealth) finds that the registrable information contained in an entry about a birth in the Register under this Act or a corresponding law is incomplete or incorrect, the court may direct registration of the birth or the inclusion or correction of registrable information in the Register under this Act or the corresponding law (as the case may require). “Registerable information” is defined as information that must or may be included in the Register.
During the hearing, I read the Children and Parents Issues Assessment by Ms C released today. It had already been released to the parties. The Family Consultant identifies the key issues as:
(1)Whether the Applicant has a parental role, rights and responsibilities in relation to X.
(2)X’s living and spend-time arrangements.
(3)Mental health issues with regard to both parties, and the impact this has on their relationship and parenting capacity.
The Family Consultant made the following observations about risk factors:
15. There are no drug or alcohol concerns identified for either party.
16. The Applicant reported her concern that the Respondent may physically assault X so as to cause him injury which the Respondent would subsequently blame on the Applicant. Based on the information available, the writer does not share this concern.
17. Although both parties expressed their relationship difficulties and current dispute in terms of family violence, neither provided information to suggest that family violence has been a significant feature of their relationship or a current risk issue for X.
18. It appears to the writer that mental health has a more significant role in the relationship dynamic described by the parties, and demonstrated in the affidavit material and current dispute. It is the writer’s view that the most relevant risk issue for X in this matter currently, is his exposure to the possible mental health consequences for the Respondent resulting from involvement in the current litigation, particularly if such litigation is extended.
19. There is also a potential future risk for X from being exposed to emotion regulation and possible mental health issues for the Applicant, should the dispute continue. The Applicant reported she experiences anxiety and agoraphobia. She commented that she has had a “challenging life path” and has had several mental health plans. Currently she is attends a psychologist every 6-8 weeks, pending her financial circumstances and is provided with emotional support by her friend, Ms B. The Respondent reported that the Applicant had to wear noise-cancelling headphones when X was crying, as she finds loud noises “triggering”. From information provided by both the Applicant and Respondent, it appears that the Applicant has experienced significant childhood trauma which has impacted on her adult mental health, functioning and interpersonal relationships. Such impacts, if accurate, are likely to impact future parental capacity.
20. Further information about both the Applicant and Respondent’s mental health through a comparative mental health assessment by an independent mental health professional who has access to the file material is likely to be of significant assistance to the Court, should this dispute remain unresolved.
The Family Consultant opines [22] that the current relationship between the parties appears highly fractured. They both present as deeply entrenched in their opposing views with regard to the Applicant’s status with regard to X. Until the Court provides clarity in this regard, any attempt to mend their relationship with the potential for co-parenting (should this align with the Court’s finding) is both premature and highly unlikely.
The Family Consultant’s evaluation is:
24. Given the Respondent is X’s primary carer, she is his major source of safety and emotional security. As is the case with very young children, X will be highly attuned to his primary carer’s emotional moods and feelings. Ms Treacy has reported that the current Application has resulted in significant stress and anxiety for her. She is worried that it is impacting on her parenting capacity to be emotionally and practically available to X as she responds to the needs of litigation. This is a realistic concern. Should Ms Treacy be experiencing significant stress or anxiety, despite her best intentions, X will also experiencing such emotions, even though he will have no understanding as to why he is feeling this way. X is likely to start acting out so as to provoke a comforting and reassuring response from his mother.
25. Given his young age, X will have no knowledge of or understanding about the current dispute. He has not spent time with the Applicant since infancy will have no conscious memory of her. Any relationship between them will need to be newly established. Given what time-spend represents to both the Applicant and the Respondent, it is likely to engender strong emotional reactions from both. It will be very confusing for X for any relationship re-establishment to take place with the Applicant without clarity with regard to what, if any, role the Applicant may have in his life.
26. Should spend-time occur, it is likely to have significant mental health responses for both the Applicant and the Respondent. The Applicant indicated that she feels unable to commence time-spend with X without therapeutic support for herself, as she is worried about containing her emotional responses. The Respondent has indicated significant anxiety and distress given her stated perspective to the Application and is likely to find this escalates if time-spend commences. Such mental health consequences for the Respondent may impact on her parenting capacity, and thus have a direct adverse consequence for X. As such, it is suggested that it will significantly benefit X for a cautious approach be taken with regard to any spend time between him and the Applicant prior to a decision having been made by the Court as to the Applicant’s legal role in this matter.
27. Once a decision has been made about the Applicant’s legal role in this matter, further assessment of the competing living and spending-time proposals of each of the parties is likely to assist the Court. Until such time as a decision has been made however, such assessment is considered premature and likely to cause further stress and distress to the parties.
The Family Consultant describes the future directions, or her recommendations, in the following terms:
29. X to remain living with the Respondent.
30. Time-spend between X and the Applicant be reserved pending an independent mental health assessment as described below:
31. The parties attending a comparative mental health assessment by an independent psychiatrist/psychologist who can comment on the parties’ mental health, personality and functioning and any impact that this may have on their parenting capacity.
32. Consideration of re-referral to Child Dispute Services for a Family Report.
33. Consideration be made to this assessment being provided to any professionals assisting the adults.
The parties agree to seek a psychiatric assessment and the Independent Children’s Lawyer will apply for funding.
I have ordered that the parties attend a Dispute Resolution Conference. They will be able to adjourn this event if it appears that their application for funding for a psychiatric assessment will be successful. It would be preferable for the Conference to follow a psychiatric assessment (if there is to be an assessment).
In response to my question, the respondent mother informed the court that of the mementos (property) that the applicant seeks, under “reparation orders”, only the lava lamp, the Star Wars diorama and the ladder are still in the respondent’s possession custody or control.
Counsel for the respondent mother sought a further discrete listing from me to seek that the applicant’s application be summarily dismissed because, it will be contended, the applicant has no standing. Counsel for the respondent mother submits that the applicant is not a person concerned with the care, welfare or development of X within the meaning of s65C of the Family Law Act 1975. My preliminary view is that there is no merit in that argument. I refused to allocate a further discrete listing before myself for an application which is yet to be filed. Notably, the court set aside specific hearing time today for an application with which the respondent mother chose not to proceed.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 14 September 2021
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