Sofia & Treacy (No 2)

Case [2025] FedCFamC1A 10

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]…

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Details
AGLC
Sofia & Treacy (No 2) [2025] FedCFamC1A 10
Case
[2025] FedCFamC1A 10
Decision Date

CaseChat Overview and Summary

Sofia appeals against orders of the Federal Circuit and Family Court of Australia, which dismissed her application for parenting orders in relation to a child born in 2019, following a finding that she was not the child's parent, and that it was not in the child's best interests for her to have any contact with him. The child was conceived by artificial conception, and the respondent was the only genetic parent. The appellant's appeal is predicated on the contention that the earlier primary judge erred in concluding that the parties were not in a de facto relationship at the time of the child’s conception, and thus that the appellant was not a parent of the child. The appeal raises a number of other grounds, including that the later primary judge misapplied the relevant statutory provisions, and failed to give appropriate weight to evidence in support of the appellant's application.

The appeal court found that the earlier primary judge's finding that the parties were not in a de facto relationship at the time of conception was not open to question. The appeal court also found that the later primary judge had given appropriate weight to all relevant evidence, and had applied the correct legal principles in concluding that it was not in the child's best interests to have any contact with the appellant. The appeal court found that the appellant's arguments were entirely misconceived, and that the appeal should be dismissed.

The appeal court found that the earlier primary judge had correctly determined that the parties were not in a de facto relationship at the time of conception, and that the appellant was not a parent of the child. The appeal court found that the later primary judge had applied the correct legal principles in dismissing the appellant's application for parenting orders, and had given appropriate weight to all relevant evidence. The appeal court found that the appellant's arguments were entirely misconceived, and that the appeal should be dismissed.

The appeal was dismissed, with no orders as to costs.

Orders

Orders of the court

NAA 190 of 2024

MLC 13024 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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).

Background

Background to the litigation

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].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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