Sofia & Treacy (No 2)
[2025] FedCFamC1A 10
•5 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Sofia & Treacy (No 2) [2025] FedCFamC1A 10
Appeal from: Sofia & Treacy (No 2) [2024] FedCFamC1F 147 Appeal number: NAA 190 of 2024 File number: MLC 13024 of 2020 Judgment of: AUSTIN, HARPER & STRUM JJ Date of judgment: 5 February 2025 Catchwords: FAMILY LAW – APPEAL – Parenting – Where the child was conceived by the respondent as a result of an artificial conception procedure – Where an earlier judgment found the parties were not in a de facto relationship at time of child’s conception such that the appellant was not a parent pursuant to s 60H of the Family Law Act 1975 (Cth) – Where the appellant’s application for parenting orders was subsequently dismissed by a later judgment– Where the appellant’s 16 grounds of appeal are entirely misconceived – Appellant appealed later judgment on numerous grounds – Appellant challenged the threshold parentage finding in the earlier judgment which was adopted by the later judgment – Where none of the grounds of appeal are found to have merit – Appeal dismissed. Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Family Law Act 1975 (Cth) Pt VII, ss 4AA, 60H, 60CC, 65C, 69VA, 69ZN, 69ZR, 69ZX
Family Law Amendment Act 2023 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36
United Nations Convention on the Rights of the Child
Cases cited: Aligante & Waugh (No 2) (2010) 43 Fam LR 423; [2010] FamCA 554
Benmax v Austin Motor Co Ltd [1955] AC 370; [1955] UKHL J0120-1
Bernieres and Anor & Dhopal and Anor (2017) FLC 93-793; [2017] FamCAFC 180
Clarence & Crisp (2016) FLC 93-728; [2016] FamCAFC 157
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Durham v Durham (2011) 80 NSWLR 335; [2011] NSWCA 62
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Feldman v Nationwide News Pty Ltd (2020) 103 NSWLR 307; [2020] NSWCA 260
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32
House v The King (1936) 55 CLR 499; [1936] HCA 40
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Neil v Nott (1994) 121 ALR 148; [1994] HCA 23
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Robinson Helicopter Co v McDermott (2016) 90 ALJR 679; [2016] HCA 22
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Scrymegeour & Scrymegeour (2014) FLC 93-600; [2014] FamCAFC 130
Sofia & Treacy [2022] FedCFamC1F 777
Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9\
Aldisert, Ruggero, Opinion Writing (West Publishing, 1990)
Number of paragraphs: 42 Date of hearing: 13 December 2024 Place: Melbourne The Appellant: Litigant in person Counsel for the Respondent: Ms Bacchetti Solicitor for the Respondent: Russell Kennedy Lawyers Counsel for the Independent Children's Lawyer: Dr Smith and Mr Ellis Solicitor for the Independent Children's Lawyer: CMB Legal ORDERS
NAA 190 of 2024
MLC 13024 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: SOFIA
Appellant
AND: MS TREACY
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN, HARPER & STRUM JJ
DATE OF ORDER:
5 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The appeal be dismissed, with no orders as to costs.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sofia & Treacy has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, HARPER & STRUM JJ
This is an appeal from orders of the Federal Circuit and Family Court of Australia (Division 1), made on 25 June 2024, that the child the subject of the proceedings, born in 2019, live with his mother, who is the respondent, and that she have sole parental responsibility for him.
BACKGROUND
The child was conceived by the respondent as a result of an artificial conception procedure.
Proceedings were instituted by the appellant in 2020 in relation to the child under Part VII of the Family Law Act 1975 (Cth) (“the Act”).
On 27 May 2022, the proceedings were bifurcated, in order first to determine, as a threshold issue, the parentage of the child.
On 14 October 2022, a judge of the Federal Circuit and Family Court of Australia (Division 1) (“the earlier primary judge”), found that the appellant and the respondent were not in a de facto relationship at the time of the child’s conception and that, accordingly, pursuant to s 60H of the Act, the appellant is not a parent of the child. That judge did not make a declaration of parentage under s 69VA of the Act. Rather, from the form of the order made by her Honour and her Reasons for Judgment (Sofia & Treacy [2022] FedCFamC1F 777), it is clear that she made a factual finding in relation to the proceedings pursuant to s 69ZR(1)(a) of the Act. As such, it was not then susceptible to appeal.
Notwithstanding that finding, the appellant continued to seek, as she had standing to do pursuant to s 65C(c) of the Act, extensive orders in relation to the child, including for parental responsibility for the child and to spend time with the child.
After detailed consideration of the evidence and the application thereof to the factors prescribed by s 60CC of the Act as at the time of trial (which commenced prior to the commencement of operation of the Family Law Amendment Act 2023 (Cth)), over a number of days, a subsequent judge of the Federal Circuit and Family Court of Australia (Division 1) (“the later primary judge”) delivered Reasons for Judgment on 25 June 2024, concluding at [167]:
Whilst [the appellant] presents with some admirable personal traits, I conclude that there is no manifest benefit to [the child] in a continuing relationship with [the appellant]. To the contrary, there is likely to be a detriment to him with probable emotional or psychological distress should such relationship be established and continue. The adults in this matter have no commonality. They do not share friends and acquaintances. They present with different worldly viewpoints. [The appellant’s] personal focus on being a victim and hence intending to convey [the appellant’s] narrative to [the child] will be contrary to the parenting model now established with [the respondent]. Irresistibly, there will be ongoing conflict, both personally and in respect of [the child], between [the respondent] and [the appellant] given the determined positions taken by each compounded by their diagnosed obsessive/compulsive traits. There is no biological connection of identity between [the child] and [the appellant] although again I stress this is not a determinative factor in my consideration. There is every indication that [the appellant’s] litigious crusade will continue where [the appellant] considers [the appellant] the victim and my observation of [the appellant’s] personality and demeanour is that [the child] would be further exposed to inevitable resulting conflict. Finally, this is not a matter of resurrecting or restoring a relationship. Realistically, [the child] has no memory of the five month contact with [the appellant]. There is no current relationship of any type for [the child] with [the appellant]. [The child] is in all other respects progressing well, reaching his milestones, and about to broaden his world within the next year or so by commencing his schooling. As such, I am of the view, on the balance of probabilities, that [the child’s] best interests are served by not establishing a relationship with [the appellant]. The application by [the appellant] will be dismissed. There will be orders that [the respondent] have sole parental responsibility for [the child] and that he live with her. There will be no orders for time-with or communication between [the child] and [the appellant].
Accordingly, the later primary judge ordered that the appellant’s application be dismissed.
APPEAL
The appellant’s Amended Notice of Appeal reduced her grounds of appeal from 30 to 16. However, her Summary of Argument contains a litany of complaints which, if properly parsed, would constitute dozens more separate complaints, including purported errors which are not appealable at law.
Each of these 16 grounds are premised upon various provisions of s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) which provides that a person who is aggrieved by a decision to which that Act applies may apply to the Federal Court of Australia or to the Federal Circuit and Family Court of Australia (Division 2), for an order of review in respect of the decision on specified grounds. That Act does not apply to the decision of either the earlier primary judge or the later primary judge or, indeed, any judge of the Federal Circuit and Family Court of Australia (Division 1) exercising jurisdiction under the Act or the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”). Accordingly, at least (but not only) in this respect, the appeal is entirely misconceived.
The appellant, who was self-represented at trial before the later primary judge, was also self-represented in these appellate proceedings, including the drawing of her Amended Notice of Appeal and her Summary of Argument. Together with her oral submissions, they were of little assistance to her or, in turn, to us. However, in the circumstances of her self-representation, that is not unsurprising. Nevertheless, in Scrymegeour & Scrymegeour (2014) FLC 93-600 at [24], Ryan and Austin JJ cited with approval McHugh J in Tame v New South Wales (2002) 211 CLR 317 (at [70]) where his Honour held (citing Ruggero Aldisert, Opinion Writing, (West Publishing, 1990) at p.89) that, where there is “an appellant's brief containing seven to ten points or more, a presumption arises that there is no merit to any of them”. Those observations are apposite to this appeal. In Scrymegeour at [25], their Honours also referred to the decision of Campbell JA in the NSW Court of Appeal in Durham v Durham (2011) 80 NSWLR 335 at 353, with whom Tobias and Young JJA both agreed at 341 and 353, to similar effect.
We were, however, much assisted by the Summaries of Argument of the respondent and the Independent Children’s Lawyer, each of whom respectively grouped, as best could be done, the appellant’s grounds of appeal into various categories of complaint, with considerable overlap between the appellant’s grounds, as well as commonality between counsel’s respective groupings. We propose to consider the grounds of appeal similarly. As the High Court observed in Neil v Nott (1994) 121 ALR 148 at 150:
... A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy. …
None of the parties orally addressed the Court to any significant extent, relying principally upon their Summaries of Argument.
For the reasons explained below, the appeal will be dismissed. Section 36(2) of the FCFCOA Act relevantly provides, in effect, that if, in dismissing an appeal, the Full Court is of the opinion that the appeal does not raise any question of general principle, it may give its decision in short form. This appeal does not raise any such question and, accordingly, our Reasons for Judgment are in short form, addressing only those issues which we consider require comment.
Asserted bias and denial of procedural fairness
Grounds of appeal in relation to bias and natural justice or procedural fairness are challenges to the integrity of the administration of justice; thus, they must be dealt with first, before other discrete grounds of appeal: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 581, 611–612 and 634; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]–[10]. Accordingly, we turn first to those grounds of complaint.
Bias
Doing the best we can to distil them, by Grounds 6, 7, 8 and 12, the appellant appears to assert, in effect, both actual and apprehended bias.
A finding of actual bias is a grave matter. The allegation must be distinctly made and proved, and should not be found lightly; cogent evidence is required: Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]. The appellant must demonstrate that the earlier primary judge and/or the later primary judge were each so committed to a conclusion already formed as to be incapable of alteration, whatever arguments might be presented: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72] per Gleeson CJ and Gummow J.
The test for apprehended bias is uncontroversial; it is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Johnson v Johnson (2000) 201 CLR 488 at [11]. That is a two-step enquiry. First, the Court must identify what it is said might lead a judge to decide a case other than on its legal and factual merits. Secondly, there must be a logical connection between the matter and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8].
The appellant has made no attempt to support her general allegations by identifying any part of the Reasons for Judgment of the earlier primary judge or the later primary judge said to demonstrate actual or apprehended bias. However, bias is rarely, if ever, manifest from Reasons for Judgment alone: Feldman v Nationwide News Pty Ltd (2020) 103 NSWLR 307 at [41]–[43]. The difficulty which confronts the appellant in this regard is that, on 8 November 2024, upon application by her, the time for her to obtain the transcript was extended and it was ordered that, in default, the appeal be prosecuted without a transcript. She did not obtain the transcript and, therefore, she is unable to point to anything said or done by the earlier primary judge or the later primary judge at the hearings before each of them.
These grounds of appeal fail.
Procedural fairness
By Ground 1 of her Amended Notice of Appeal, the appellant contends that each of the earlier primary judge and the later primary judge failed to afford her natural justice. However, the appellant’s complaint is more properly distilled and characterised, albeit misconceived, as a failure to afford procedural fairness, which is one aspect of the rules of natural justice: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40].
The appellant complains that the “hearing type” before the earlier primary judge was changed from a defended parenting hearing to a threshold hearing to determine whether she was a parent of the child pursuant to s 60H of the Act. However, it is not disputed that, when trial directions were made on 27 May 2022, the matter was listed before the earlier primary judge “in relation to the threshold issue”. The appellant was then squarely on notice as to the hearing type and the issue for determination before the earlier primary judge. Further, at that threshold hearing, some three months later, the appellant was legally represented and there is nothing to suggest that her counsel objected to the procedure adopted or sought an adjournment of that hearing.
The appellant has not articulated any way in which the separate and prior hearing of the issue of her parental status before the earlier primary judge denied her a fair hearing before the later primary judge in any respect, nor is there anything before us to suggest that this was so. She prosecuted, albeit in person, her substantive parenting application before his Honour and, again, there is nothing to suggest that she did not have the opportunity to be heard on all relevant issues. Whilst initially listed for three days, the hearing before his Honour ultimately proceeded over several more days. As with the appellant’s complaint of bias, insofar as she asserts that his Honour was rude or disrespectful, such complaints cannot be advanced without the transcript. Insofar as may be relevant, however, we observe that the Reasons for Judgment of the later primary judge are respectful and sensitive towards the appellant.
Insofar as the appellant also complains, under this guise, that, by reason of the earlier primary judge’s excusal of the Independent Children’s Lawyer from attendance at the threshold hearing, her Honour “set aside” the best interests of the child and “suspended” the operation of the United Nations Convention on the Rights of the Child, such complaints have no merit whatsoever. As her Honour correctly observed at [18], the question she was required to determine, namely, the existence or otherwise of a de facto relationship at the relevant time for the purposes of s 60H, did not turn on the best interests of the child and, accordingly, there was no role for the Independent Children’s Lawyer to play at that hearing. See Clarence & Crisp (2016) FLC 93-728 at [37].
Similarly, insofar as the appellant points to the earlier primary judge not ordering a Family Report, such a report would in no way have been relevant to the threshold parentage issue to be determined by her Honour. We observe, however, that a Family Report was relevant to, and ordered for, the trial of the subsequent parenting applications and was in evidence before the later primary judge.
This ground of appeal fails.
Challenge to finding against parentage
Again, doing the best we can to distil them, by Grounds 4, 5, 9, 10, 11 and 13, the appellant appears to challenge, in effect, the threshold findings of the earlier primary judge in relation to parentage and the adoption thereof by the later primary judge in his determination of her application for parenting orders.
Insofar as the appellant contends that the earlier primary judge took a “constrictive, literal interpretation” of s 60H, which “unnaturally narrowed the evidentiary window”, no error has been identified with respect to her Honour’s approach to that section, which addresses the parentage of children born as a result of the carrying out of artificial conception procedures: Bernieres and Anor & Dhopal and Anor (2017) FLC 93-793 at [41]–[63]. Her Honour’s interpretation of that section was entirely orthodox and consistent with authority, which requires parenthood to be given its natural and ordinary meaning: Masson v Parsons (2019) 266 CLR 554 at [26]–[55]. Her Honour expressly found that the parties were not in a de facto relationship, to which s 60H refers, as defined in s 4AA of the Act, at the time of conception. That finding was clearly open to her Honour, on her evaluation of the facts otherwise found by her: Warren v Coombes (1979) 142 CLR 531 at 539–540, citing Viscount Simonds in Benmax v Austin Motor Co Ltd [1955] AC 370 at 372–373. Accordingly, the applicable standard of appellate review is the “correctness standard” to which the High Court referred in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635 at [15]–[17], rather than the standard applying to discretionary decisions to which it referred in House v The King (1936) 55 CLR 499 at 504–505. The appellant has in no way demonstrated that any finding of fact by the earlier primary judge is wrong, having regard to “incontrovertible facts or uncontested testimony”, or is “glaringly improbable” or “contrary to compelling inferences”: Robinson Helicopter Co v McDermott (2016) 90 ALJR 679 at [43]; Fox v Percy (2003) 214 CLR 118 at [28]–[29].
Whilst her Honour could have made a declaration of parentage under s 69VA of the Act, she merely made, in the threshold hearing, a factual finding in relation to the proceedings, as was open to her to do pursuant to s 69ZR(1)(a) of the Act, that the appellant and the respondent were not in a de facto relationship at the relevant time and that, accordingly, pursuant to s 60H, the appellant was not a parent of the child. As Watts J said in Aligante & Waugh (No 2) (2010) 43 Fam LR 423 at [40]–[41]:
40Section 69ZR(1) of the FLA envisages that before making final orders, a court may find a fact or determine a matter. The section would have no meaning if what was being referred to was the determination of uncontroversial facts or matters. The word “fact” or “matter” must, at least, include a fact or matter disputed between the parties.
41The work that s 69ZR of the FLA does, in Div 12A Pt VII of the FLA, is to free up a trial judge, so that the trial judge can conduct proceedings in a more child-focused way. While the features of an adversarial trial are not entirely abandoned, and procedural fairness is still a touchstone, there is flexibility in the judge-controlled process created by the Division. That flexibility allows a judge, without having to fear a disqualification application based on pre-judgment, to make findings about disputed facts and to determine issues, if the judge forms the opinion that it is in the child’s best interests to conduct the hearing in that manner.
The earlier primary judge having made those findings, pursuant to s 69ZX(3)(b), the later primary judge could, and did, adopt them. Further, s 69ZX(1)(a) empowered his Honour to give directions about the matters in relation to which the parties were to present evidence. The issue of parentage having already been determined, it was entirely open to his Honour, and consistent with the principles articulated in s 69ZN, not to permit evidence in relation to that issue to be presented again before him. Indeed, albeit not submitted on behalf of the respondent or the Independent Children’s Lawyer before us, it is arguable, but we need not determine, that an issue estoppel arose.
The relevant finding, that the appellant was not a parent of the child, having been made by the earlier primary judge and adopted by the later primary judge, is clear from the Reasons for Judgment of the later primary judge that it nevertheless was merely one of numerous factors taken into account by his Honour. Indeed, his Honour said at [69]:
Interestingly, the wording at particular subsections, such as s 60CC(2)(a) and s 60CC(3)(c), specify the “parent”. Nevertheless, a broader reading and construction of the section satisfies me that the consideration is not limited only to parents but to any person otherwise concerned as to a child’s welfare and best interests. Indeed there is to be no presumption or preferential position applying as between a biological parent and a non-parent party in respect of children’s best interests.
(Citations omitted)
However, his Honour’s Reasons for Judgment at [167], which we have set out at [7] above, makes it beyond doubt that the appellant’s status as a parent was ultimately immaterial to his Honour’s determination of the appellant’s application for parenting orders. Further, his Honour explicitly considered that there was no presumption or preference afforded to parents under the Act (Reasons for Judgment at [69]) and gave due consideration to the potential benefits to the child in establishing a relationship with the appellant (Reasons for Judgment at [118]–[119]).
These grounds of appeal fail.
Exercise of discretion in making the parenting orders
Grounds 3 and 10 and the appellant’s Summary of Argument in support thereof appear to challenge, in effect, the exercise of the later primary judge’s discretion in making the parenting orders in favour of the respondent and not the appellant.
Before interfering with the later primary judge’s decision, this Court must be satisfied that some error has been made in the exercise of his Honour’s discretion. One of the factors set out in House v The King at 504–505 would need to be established.
Insofar as the appellant contends that the later primary judge took a number of irrelevant considerations into account, they are wholly unparticularised, save for the findings of the earlier primary judge in relation to parentage. However, as we have observed above, his Honour was entitled to adopt those findings pursuant to s 69ZX(3)(b) of the Act, albeit that they were not determinative and were ultimately immaterial to his decision.
The appellant also contends that the later primary judge failed to take into account relevant considerations, including her evidence that she was a “psychological parent [sic] … an inseminating and registered parent of the child by full agreement of the respondent and was, even in the respondent’s own evidence – “The Best Daddy Ever” and “The Best Partner Ever”” (appellant’s Summary of Argument at paragraph 58). However, the matters complained of, such as they are identified by the appellant, were taken into account, where relevant, by his Honour, for example at [43]–[52] of his Reasons for Judgment, under the rubric “The Applicant’s Case”, and at [148]–[166], under the rubric “Discussion, Consideration and Findings”. Otherwise, they are mere complaints as to weight, which do not, in and of themselves, without more, constitute appealable error.
Otherwise, in relation to the appellant’s complaints, we observe that the later primary judge discussed and correctly identified the relevant statutory provisions (Reasons for Judgment at [68]–[69]) and gave detailed consideration to the s 60CC factors (Reasons for Judgment at [118]–[147]), before carefully weighing those considerations (Reasons for Judgment at [167]). Far from being plainly wrong, the decision reached by his Honour was correct and wholly unsurprising on the particular facts and in the particular circumstances of the case.
These grounds of appeal fail.
Other grounds of appeal
In her Amended Notice of Appeal, the appellant also sets out a number of other complaints, including in Grounds 2, 14, 15 and 16, which do not constitute appellate errors and, hence, do not require consideration. These include the alleged “societal impact” of the decisions below (appellant’s Summary of Argument at paragraphs 5–6); the alleged conduct of lawyers and experts involved in the proceeding (appellant’s Summary of Argument at paragraphs 21, 26–34); alleged error by the Registry of Births, Deaths and Marriages Victoria (appellant’s Summary of Argument at paragraphs 43–44, 75–76); speculation about treatment of family violence allegations if the parties’ positions had been reversed (appellant’s Summary of Argument at paragraph 70); an assertion that the earlier primary judge’s judgment left the parties with uncertainty, coupled with the registry’s rejection of the appellant’s Notice of Appeal therefrom (appellant’s Summary of Argument at paragraphs 71–74); and reference to the particulars of a fraud framework that has no application to the Federal Circuit and Family Court of Australia (Division 1) (appellant’s Summary of Argument at paragraph 83).
These grounds of appeal fail.
DISPOSITION
In the circumstances, the appeal will be dismissed, with no orders as to costs, in circumstances where neither the respondent nor the Independent Children’s Lawyer seeks an order for costs.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Harper & Strum. Associate:
Dated: 5 February 2025
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