Sofia & Treacy - [2021] FamCA 647

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Sofia & Treacy

Details

AGLC: Sofia & Treacy [2021] FamCA 647
Case: [2021] FamCA 647
Decision Date: 30 August 2021

CaseChat Overview and Summary

In the matter of *Sofia & Treacy*, heard by Bennett J, the applicant, Sofia, sought declarations regarding parentage and amendments to a child's birth certificate, alleging a de facto marital relationship with the respondent, Ms. Treacy, at the time of the child's birth via assisted conception. Sofia also sought orders for the return of personal property and repayment of money. Ms. Treacy denied the existence of a de facto relationship and Sofia's claim to father status, and initially sought summary dismissal of Sofia's application, though this was later discontinued.

The court was required to determine whether certain parts of Sofia's application should be dismissed summarily, and to make orders regarding the future conduct of the proceedings, including the need for psychiatric assessments and the participation of the parties in Family Dispute Resolution (FDR). The court also considered ancillary property claims and the respondent's assertions regarding the possession of specific items.

Bennett J dismissed specific paragraphs of the application and reply pursuant to section 45A(2) of the *Family Law Act 1975*, finding them to be without merit or otherwise appropriate for summary dismissal. The court ordered that both parties undergo a psychiatric assessment, with the Independent Children's Lawyer to seek funding from Victoria Legal Aid. Furthermore, the parties were directed to attend a confidential FDR conference, with the matter to be referred to the Executive Director of Dispute Resolution for allocation. The court also noted the respondent's position regarding certain items of property and confirmed her reliance on specific affidavits, granting the applicant liberty to respond.

The court made orders for the dismissal of certain parts of the application and reply, the psychiatric assessments, and the FDR conference. The matter was to be placed in the list of cases awaiting allocation to a judicial docket, with liberty for the Independent Children's Lawyer to seek an adjournment of the FDR conference if necessary. The court also noted that the respondent mother did not wish to pursue her application for summary dismissal and clarified the possession of certain items of memorabilia.

Orders

Orders of the court

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).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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

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