Sofia & Treacy

Case [2022] FedCFamC1F 777

Federal Circuit and Family Court of Australia

(DIVISION 1)

Sofia & Treacy [2022] FedCFamC1F 777

File number: MLC 13024 of 2020
Judgment of: CARTER J
Date of judgment: 14 October 2022
Catchwords: FAMILY LAW- CHILDREN – Parentage – artificial conception – same-sex relationship – where the respondent is the child’s biological mother – whether the applicant is the other intended parent – whether the parties were in a de facto relationship at the time of the artificial conception procedure – declaration of parentage is not permitted to be made – witness credibility.     
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4AA, 60H
Cases cited:

Bernieres & Anor v Dhopal & Anor (2017) 57 Fam LR 149

Briginshaw v Briginshaw (1938) 60 CLR 336

Carlson & Fluvium[2012] FamCA 32

Delamarre & Asprey [2014] FamCAFC 218

Fairbairn v Radecki [2022] HCA 18

Gustz& Denniston [2019] FamCA 16

Jonah and White (2012) FLC 93-522

Lynam v Director-General of Social Security (1983) 52 ALR 128

Moby and Shulter (2010) FLC 93-447

Shelby & Rylan [2022] FedCFamC1A 143

Sinclair and Whittaker [2013] FamCAFC 129

Taisha & Peng and Anor [2012] FamCA 385

Division: Division 1 First Instance
Number of paragraphs: 257
Date of last submissions: 25 August 2022
Date of hearing: 22 – 25 August 2022
Place: Melbourne
Counsel for the Applicant: Ms Glenys Jardine
Solicitor for the Applicant: Pentana Stanton
Counsel for the Respondent: Ms Therese Borger
Counsel for the Respondent: Ms Vanessa Bacchetti
Solicitor for the Respondent: Russell Kennedy Lawyers

ORDERS

MLC 13024 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

SOFIA

Applicant
AND:

MS TREACY

Respondent

order made by:

CARTER J

DATE OF ORDER:

14 october 2022

Upon the court finding that:

A.The parties were not in a de facto relationship as at October/November 2018; and

B.Accordingly, pursuant to s60H of the Family Law Act 1975 (Cth), the applicant is not a parent of the child X born … 2019.

THE COURT ORDERS THAT:

1.The proceedings are adjourned to 2 November 2022 at 10.00 am for mention.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sofia & Treacy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUSTICE CARTER

Introduction

  1. The applicant, Sofia, instituted these proceedings by way…

Continue reading Sofia & Treacy

Sign in free to access the full text

Details
AGLC
Sofia & Treacy [2022] FedCFamC1F 777
Case
[2022] FedCFamC1F 777
Decision Date

CaseChat Overview and Summary

In the case of Sofia and Treacy, the Family Court of Australia was tasked with determining the nature of the relationship between the parties, specifically whether they were in a de facto relationship at the time of conception of their child, X, in November 2018. The applicant, Sofia, sought parenting orders and argued that she and the respondent, Treacy, were in a de facto relationship. The court had to determine whether the parties' relationship met the criteria for a de facto relationship under section 4AA of the Family Law Act 1975. The primary legal issue was whether the parties had a mutual commitment to a shared life and intended to parent X together, or if they were simply engaging in a temporary arrangement.

The court examined the evidence presented by both parties, including their testimonies and supporting witnesses. The applicant argued that her involvement in the insemination process, the entries in her notebook, and the parties' discussions about marriage and having a baby demonstrated a de facto relationship. However, the court found that the evidence did not convincingly establish a mutual intention to parent X together or a shared life. The relationship was relatively new, with only 16 months of duration at the time of conception. The court also noted that the parties did not share a home life, engage in domestic tasks together, or demonstrate financial interdependence. The court found the applicant's witnesses' testimonies to be less credible as they were based on what the applicant told them, rather than direct observations of the relationship.

The court concluded that while the applicant played a supportive role in the insemination process, there was limited evidence to support the claim that the parties had a mutual commitment to a shared life or intended to parent X together. The court found that the relationship did not meet the criteria for a de facto relationship under section 4AA of the Family Law Act 1975. Therefore, the court did not make any parenting orders based on the finding that the parties were not in a de facto relationship. The court's decision was based on the balance of probabilities, as required by section 140 of the Evidence Act 1995 (Cth). The court emphasised that the nature of the relationship at the critical time of conception was the key factor, and events that occurred after that date were of lesser relevance.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Whilst the substantive orders sought by the applicant are parenting orders, this is not a matter in which the court must regard X’s best interests as the paramount consideration. Clearly, whether the parties were or were not in a de facto relationship, as a matter of law, could not be answered differently whether the substantial proceedings were about financial matters or children. The evidence It has not been possible to include every aspect of each of the parties’ evidence. However, I have taken all the evidence into account. Just because I have not mentioned something in these reasons does not mean that I have not considered it. Some of the witnesses appeared via Microsoft Teams. The trial was otherwise conducted in person. There were no technical or other issues that impacted on the running of the trial. I am satisfied I was sufficiently able to hear and assess the evidence that was given. The parties each gave evidence and were subject to cross examination. They each attended court in person. Prior to the trial commencing, I excused the Independent Children’s Lawyer from attending. The question that I must determine does not turn on the best interests of X, and accordingly there was no role for the Independent Children’s Lawyer to play at this threshold hearing. As already observed, I must consider the nature of the relationship as at the time of the insemination process around November 2018, which resulted in X’s birth. That is the critical date. It does not matter if the parties subsequent to that insemination became de facto partners. Nor is what the parties did or said after X’s conception relevant to that determination, save insofar as it might inform and reflect the nature of the parties’ relationship as at the time of conception. In dealing with objections, substantial parts of the material were struck out as not relevant to the issues I must now determine. However, I did not strike out all the evidence of events post conception, where it seemed that that evidence could shed some light on the nature of the parties’ relationship at the critical date. I note however, that the later the events occurred after the critical date, the less relevant they seem to be in determining the nature of the relationship at the relevant time of conception. In my view, the events leading up to that event, and those that occurred fairly shortly thereafter provide a greater insight into how the parties’ relationship is to be characterised at the relevant date. Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities. I note that the applicant bears the onus of satisfying that ordinary civil standard. I cannot guess whether the parties were in a de facto relationship. The applicant must persuade me of that. As set out by Dixon J (as he then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362:The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

Decision

Reasons for decision

As observed, the applicant did not contribute financially to the costs of the hotel rooms when the first attempts at insemination were made. She did not contribute to the other costs of the attempted inseminations, save, potentially to purchase some syringes. Conclusion The notebook and the applicant’s involvement in the mechanics of the insemination process is just a part of the evidence before me. I bear in mind what the Full Court said in Sinclair when they adopted the observations of Fitzgerald J in Lynam – namely that there is an endless scope for differences in human attitudes and activities – and accordingly an almost infinite variety of circumstances that the court may have to consider. What might be “normal” and what might be “unusual” will not assist me in determining whether the parties were in a de facto relationship within the meaning of s 4AA of the Act. The respondent had been engaged in a long term plan to have a baby, and parent as a single mother, well before she met the applicant. She had sought to protect her role as a single parent by having a Sperm Donor Agreement drafted and signed by the donor she used. Beyond the applicant assisting with the actual insemination, and the sparkle notebook entries, there is, in my view, limited evidence that there was a mutual intention to create and parent a baby together, or that they had a mutual commitment to a shared life. Certainly, the applicant played a very supportive and active role in the insemination process, but there are other factors in the matter that lead away from the conclusion that the parties were in a de facto relationship at the relevant time. In particular, the relationship was relatively new at the time of conception – around 16 months’ duration. It is accepted that the parties spent a lot of time together. But there was no persuasive evidence that they were operating as a couple sharing their lives. They did not appear to have a shared home life. Nor did it appear to me that they shared domestic activities, or the running of their households together. There was no persuasive evidence that the parties engaged in actually sharing domestic tasks or undertaking errands for the other. There was no financial interdependence. There was no financial support provided to the other party’s home expenses. There was no consultation with the other about tenants, or use of the properties. There is evidence that the applicant had a few possessions in the respondent’s home, but nothing substantial. Moreover, I accept the evidence of the respondent and her witnesses that the parties did not engage in discussions regarding co-parenting, having a child together, or getting married in 2017 or subsequently. I accept the respondent’s evidence that the concept of the parties jointly having and raising a child was not discussed. The credibility of the assertions made by the applicant and some of her witnesses regarding discussions that the parties had about marriage and baby plans is substantially undermined by a lack of detailed or specific evidence of any such alleged conversations. Only Ms B said the applicant told her she and the respondent were discussing getting married in the United States. The applicant herself does not specifically depose to telling that to Ms B. Mr F refers vaguely to the parties “planning to get married” and “discussing plans for a baby”. Additionally, much of the evidence of the applicant’s supporting witnesses is based on what they were told by the applicant herself.

Ratio Decidendi

Legal Principle Established

The completion of the birth certificate including both parties as X’s parents occurred about 10 months after conception. The parties give competing evidence as to why the applicant was included on the certificate. The applicant says the parties both sought to include her as a parent to reflect their intentions as to his parentage at least when the certificate was signed. The respondent says she felt pressured and bullied into including the applicant’s name on the certificate as that was never the parties’ intentions. In my view, I do not need to determine that factual dispute as it would not assist me to determine the nature of the relationship as at the critical time. Separation The applicant said that in August 2019, the respondent asked her to sign documents for Centrelink advising that they separated in October 2019. The applicant said she did as directed, although the parties continued their relationship. She said the respondent advised her that their separation was “just on paper”. It seems this was for Centrelink purposes. There was some evidence regarding an application made to Child Support, in around October or November 2019. I do not regard the events around that time as of assistance in determining the nature of the parties’ relationship 12 months earlier. It appears common ground that the relationship ended in December 2019. Witness descriptions of the parties’ relationshipMs D Ms D gave evidence on behalf of the applicant. She said that in September 2017, the applicant:told me about ‘new beginnings’ with her new partner. From our conversations over the following months, I understood [the parties] to be in a committed romantic relationship. Ms D does not depose that the applicant told her that the parties intended to get married, or were planning a child together at that time. In her oral evidence, Ms D acknowledged the applicant did not name the respondent when telling her about her new partner. She also acknowledged that the belief she formed about the nature of the parties’ relationship came only from speaking with the applicant. She never spoke with the respondent. Additionally, she acknowledged that she and the applicant did not speak regularly, just “now and then when we happened to bump into each other”. Moreover, she deposed that her contact with the applicant was limited over 2018. In her oral evidence she agreed she and the applicant fell out of contact from January 2018. Accordingly, the evidence of Ms D does not assist the court as to the nature of the parties’ relationship at the relevant time. It also does not corroborate the applicant’s evidence as to the parties’ early formed intentions to marry and have a family together. Dr G Dr G gave evidence on behalf of the applicant. She deposed that in December 2017, the applicant “informed me via email of her romantic relationship” with the respondent. She similarly does not corroborate the applicant’s evidence that the parties at that time were planning to marry and have children together.