Sofia & Treacy (No 2)

Case [2024] FedCFamC1F 147

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Sofia & Treacy (No 2) [2024] FedCFamC1F 147

File number: MLC 13024 of 2020
Judgment of: MCGUIRE J
Date of judgment: 25 June 2024
Catchwords: FAMILY LAW – PARENTING – where child is now four years of age – conception by a sperm donor – same sex relationship – where respondent is the child’s biological mother – where applicant seeks a declaration of parentage and pursues time with the child despite an order being made in 2022 that the parties were not in a de facto relationship as at October/November 2018 and that the applicant is not a parent of the child – application dismissed – declaration of parentage not permitted – where no relationship between the child and the applicant since child was very young – where there is a highly conflicted and distrustful relationship between applicant and respondent - orders that child live with respondent – that respondent have sole parental responsibility for the child – that there be no orders for time with or communication with the applicant
Legislation:

Family Law Act 1975 (Cth) ss 60B, 60CC(2) and (3), 65C, 69VA, 102Q, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Rule 10.12

Cases cited:

Burton & Churchin and Anor (2013) FLC 93-56; [2013] FamCAFC 180

Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96

Malcolm & Monroe and Anor (2011) FLC 93-460; [2011] FamCAFC 16

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Re: F Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348

Valentine & Lacerra and Anor (2013) FLC 93-539; [2013] FamCAFC 53
Division: Division 1 First Instance
Number of paragraphs: 167
Date of hearing: 18, 19 and 20 December 2023, 5, 6, 22 and 23 February 2024 and 24 April 2024
Place: Melbourne
Solicitor for the Applicant: Litigant in Person
Solicitor for the Respondent: Litigant in Person
Counsel for the Independent Children’s Lawyer: Ms Colla
Solicitor for the Independent Children’s Lawyer: CMB Legal
Table of Corrections
3 July 2024 In paragraph 1 the word “X” has been replaced with the word “AA”.

ORDERS

MLC 13024 of 2020

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

SOFIA

Applicant
AND:

MS TREACY

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

25 JUNE 2024

THE COURT ORDERS THAT:

1.The child X (“X”) born 2019 live with his mother Ms Treacy.

2.Ms Treacy have sole parental responsibility for X.

3.The applicant, Sofia, spend no time with X.

4.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

5.The Amended Initiating Application filed by Sofia on 18 July 2022…

Continue reading Sofia & Treacy (No 2)

Sign in free to access the full text

Details
AGLC
Sofia & Treacy (No 2) [2024] FedCFamC1F 147
Case
[2024] FedCFamC1F 147
Decision Date

CaseChat Overview and Summary

The case of Sofia & Treacy (No 2) before the Federal Circuit and Family Court of Australia (Division 1) involved Sofia, the applicant, and Ms Treacy, the respondent. Sofia sought a declaration of parentage for the child X, born in 2019, who was conceived via a sperm donor agreement executed by the parties in mid-2018. Sofia also sought time with the child and communication, despite a prior finding by Carter J that the parties were not in a de facto relationship as at October/November 2018 and that Sofia was not a parent of the child. The court was required to determine whether Sofia should be recognised as a parent, the implications of any changes in the child’s circumstances, and the capacity of the parties to provide for the child’s needs. The court further needed to assess the potential for ongoing conflict and its impact on the child, given the highly conflicted and distrustful relationship between the parties.

The court dismissed Sofia’s application for a declaration of parentage and orders for time with the child. The reasoning was grounded in the lack of any relationship between Sofia and the child since January 2020, the findings of Carter J, and the significant conflict between the parties. The court concluded that there was no manifest benefit to the child in continuing a relationship with Sofia, and any such relationship would likely result in detriment to the child’s emotional and psychological well-being. The court found that the parties had no commonality, no shared friends or acquaintances, and presented with different worldviews, compounded by their diagnosed personality disorders. The court also noted that the child had no memory of Sofia and that the child’s best interests were served by not establishing a relationship with Sofia. The court’s decision was influenced by the expert opinion of Dr CC and Ms C, who highlighted the potential for significant emotional harm and the risk of long-term conflict impacting the child’s mental health and future relationships.

The court made orders that the child X live with Ms Treacy and that she have sole parental responsibility for X. There were no orders for time with or communication between X and Sofia. The court emphasised that the orders were based on the best interests of the child, considering the likelihood of significant emotional harm and the practical difficulties and expenses associated with establishing a relationship with Sofia. The court also included particulars of the obligations created by the orders and the consequences of contravening them, as set out in the attached Fact Sheet. The application filed by Sofia on 18 July 2022 was dismissed, and all other extant applications, other than costs, were also dismissed. The form of the order was subject to entry in the Court’s records, and the Reasons for judgment could be subject to review or variation as permitted by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Orders

Orders of the court

MLC 13024 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

SOFIA

Applicant

AND:

MS TREACY

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

25 JUNE 2024

THE COURT ORDERS THAT:

1. The child X (“X”) born 2019 live with his mother Ms Treacy.

2. Ms Treacy have sole parental responsibility for X.

3. The applicant, Sofia, spend no time with X.

4. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

5. The Amended Initiating Application filed by Sofia on 18 July 2022 be dismissed.

6. All extant applications, other than costs, otherwise be dismissed.

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).

Part XIVB 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.

Background

Background to the litigation

There are issues of credit and particularly where Sofia asserts the respondent, Ms Treacy, to have lied to this and a previous court and where, in any event, each of the parties have diametrically opposed recollections of historical events. In circumstances where proceedings are being continued in other jurisdictions (particularly the Victorian Civil and Administrative Tribunal) in respect of administrative issues including the child’s birth registration, Sofia, in particular, has raised such issues before this Court but where the findings of Carter J significantly deal with those issues in respect of the jurisdiction of this Court. BACKGROUND The applicant Sofia is 54 years of age. Sofia is gender fluid and, as mentioned above, agreed to the Court referencing only the preferred name “Sofia”. Sofia is an entertainer of some apparent talent, who also teaches. The respondent, Ms Treacy, is 42 years of age. She is self-employed. The evidence of Ms Treacy is that, consistent with her long held desire to mother a child, she attempted artificial insemination in early and mid-2017. The parties met in June 2017 and commenced their relationship in July 2017. Each of the parties retained their own residence during the course of their relationship, but stayed variously at each residence and had some possessions at each other’s residence. A sperm donor agreement was executed in mid-2018. The content of that document and, in particular, any reference to and the intent of the inclusion of Sofia in the document was of considerable dispute at the trial before me. Ms Treacy became pregnant in 2018. X was born in 2019. In 2019 Sofia was registered as “Parent 2” on X’s birth certificate. The parties separated on or about 22 December 2019. Sofia has had no direct contact with X since January 2020. On 28 April 2020 a s 60I certificate was issued after mediation was deemed unsuitable. A second s 60I certificate was issued in November 2020. Sofia commenced these proceedings by application of 27 November 2020. On 14 October 2022 Carter J handed down Reasons in respect of the discrete preliminary issues. In late 2022 the respondent, Ms Treacy, made an application to Births Deaths and Marriages, Victoria, to remove Sofia’s name from X’s birth certificate such that has resulted in ongoing proceedings initiated by Sofia against Births, Deaths and Marriages with Ms Treacy now a party to those proceedings. Those proceedings continue in the Victorian Civil and Administrative Tribunal (“VCAT”). THE APPLICANT’S CASE The applicant, Sofia, claims to be a parent of X despite the findings of Sofia relies on representations made by Ms Treacy together with extraneous evidence such as reference to Sofia on the child’s birth certificate and the material lodged by Ms Treacy with other government agencies. Sofia says that later alterations to the child’s birth certificate by the Registrar of Births Deaths and Marriages (Victoria) was at the unilateral behest of Ms Treacy and made after the parties separated and contrary to their intent prior to X’s birth and during Ms Treacy’s pregnancy and months following X’s birth.

Evidence

Evidence Before The Court

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.[2] 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.[3]THE EVIDENCE[2] Malcolm & Monroe and Anor (2011) FLC 93-460: [2011] FamCAFC 16.[3] Valentine & Lacerra and Anor (2013) FLC 93-539; [2013] FamCAFC 53.SOFIA Sofia gave evidence in the form of a lengthy affidavit[4] replete with annexures and totalling some 568 pages. It is clear that the preparation for trial was meticulous, detailed and informed. As a layperson, Sofia was familiar with the relevant Family Law Act and numerous collateral and other legislation.[4] Filed 13 November 2023. Sofia submitted to cross-examination by the respondent, Ms Treacy, in person and by the ICL in a courteous and responsive manner being non-argumentative but keen to assert Sofia’s case at all times. Without criticism, it is clear that Sofia feels aggrieved by the findings and orders of Carter J and by difficulties confronting her with various state legislation and authorities where it is equally clear that Sofia’s purpose is to establish and enforce Sofia’s belief of being a parent to X and to accept and discharge the responsibilities of that role. Sofia presented in the witness box as decisive and emphatic in Sofia’s core assertions being that Sofia believes an agreement was reached for X to be a part of the family unit of Ms Treacy, X and Sofia’s and that Ms Treacy has fraudulently retreated from such agreement. Sofia on occasions became understandably emotional when questioned as to Sofia’s recollection of history and relationship with X. When cross-examining Ms Treacy, Sofia was at all times polite, civil and respectful albeit occasionally emotional. Overall, Sofia’s evidence showed a determination both towards X’s best interests and Sofia’s sense of aggrievement at the hands of both Ms Treacy and the various government systems in which Sofia has been engaged. I observed, at times, a confusion of these issues and sentiments in Sofia although again without criticism. In summary, Sofia presented the case with considerable skill and proper courtesy to the other parties and the Court.MS TREACY Ms Treacy was also self-represented and conducted herself with appropriate politeness and respect to the Court, the ICL, and Sofia. She was, however, emotional during much of her cross-examination and understandably so when confronted with difficult issues and questions from her former partner and in respect of her child. Her body language was demonstrable in her failure to make eye contact or face Sofia during cross-examination or even when at the bar table. Nevertheless, Ms Treacy’s answers is in cross-examination were direct and responsive. Neither party allowed the process of cross-examination of each other to degenerate into argument.

Decision

Reasons for decision

I accept the diagnoses of Dr CC that Sofia suffers and anxiety disorder together with a personality disorder with particular personality traits and that Ms Treacy suffers an anxiety disorder together with particular personality traits. Even a lay person’s understanding of these conditions gives serious doubt as to there being any realistic possibility of proper communication or cooperation between these two adults in respect X with such traits compounded by mutual fear, suspicion and accusation, a conclusion in fact volunteered by Dr CC and supported by the Senior Court Child Expert, Ms C.CONCLUSION Whilst Sofia presents with some admirable personal traits, I conclude that there is no manifest benefit to X in a continuing relationship with Sofia. 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. Sofia’s personal focus on being a victim and hence intending to convey Sofia’s narrative to X will be contrary to the parenting model now established with Ms Treacy. Irresistibly, there will be ongoing conflict, both personally and in respect of X, between Ms Treacy and Sofia given the determined positions taken by each compounded by their diagnosed personality traits. There is no biological connection of identity between X and Sofia although again I stress this is not a determinative factor in my consideration. There is every indication that Sofia’s litigious crusade will continue where Sofia considers Sofia the victim and my observation of Sofia’s personality and demeanour is that X would be further exposed to inevitable resulting conflict. Finally, this is not a matter of resurrecting or restoring a relationship. Realistically, X has no memory of the contact with Sofia. There is no current relationship of any type for X with Sofia. X 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 X’s best interests are served by not establishing a relationship with Sofia. The application by Sofia will be dismissed. There will be orders that Ms Treacy have sole parental responsibility for X and that he live with her. There will be no orders for time-with or communication between X and Sofia.

Ratio Decidendi

Legal Principle Established

Sofia says that Sofia participated in the care of the child during the first months of X’s life and brings this application in order to accept the obligations of making long-term decisions and spending time/communicating with X.Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:(i) either of his or her parents; or(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; The orders sought by Sofia would initially present a dramatic change in X’s circumstances. He inevitably would understand himself to be a child of a sole parent, Ms Treacy. It is unlikely that he has any current knowledge or memory of Sofia. He has no expectation of a relationship with Sofia. Sofia is ambitious in the quest to parent X. Sofia seeks considerable time with X and a substantial decision-making role. Should this occur and conflict and acrimony continue between the adults then such a change would impact significantly on X. This potential change is addressed by Ms C at [67] of her report as follows:[Sofia’s] proposal of shared parental responsibility and shared care (with multiple changeovers) of [X] has the advantage to [X] of another adult in his life who is concerned about his care and welfare. It is the writer’s view however, that based on the information available for this assessment, [Sofia’s] proposal places [X] at risk of significant emotional harm. Such a plan undermines [X’s] emotional safety, stability and security. It frequently separates [X] from his primary carer and introduces a relationship with an adult who is determined that [X] view her as his parent. In addition it teaches [X] that his primary carer is duplicitous and untrustworthy. Further, given the poor state of the relationship between the parties and the entrenched nature of the dispute, there is a risk in [Sofia’s] proposal that [X] will be exposed to long-term high level conflict, with a high likelihood of future litigation should [Ms Treacy] not align with [Sofia’s] view in the future. Both are likely to impact on [X’s] current and future mental health, his ability to negotiate friendships, his ability to meet his academic potential and his relationships in adulthood.Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis Again, this sub-section references parents but, in any event, the evidence here does not anticipate any practical difficulty or expense should the Court be persuaded by Sofia’s proposal.Section 60CC(3)(f) the capacity of:(i) each of the child’s parents; and(ii) any other person (including any grandparent or other relative of the child);to provide for the needs of the child, including emotional and intellectual needs;