Underhill & O'Neill
[2022] FedCFamC1F 196
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Underhill & O'Neill [2022] FedCFamC1F 196
File number(s): MLC 7422 of 2021 Judgment of: BENNETT J Date of judgment: 24 March 2022 Catchwords: FAMILY LAW – PARENTING – “intended parent” within meaning of section 60H of the Family Law Act 1975 (Cth). A three party proceeding between women where applicant and second respondent each claim, to the exclusion of the other, to have been living together with the birth mother in a genuine domestic relationship at time the son (now 5 years old) was conceived by artificial means – where mother supports second respondent’s application to be the parent and opposes the application by the applicant – where it is clearly in the child’s best interest that the competing applications be heard together.
FAMILY LAW – PRACTICE & PROCEDURE – inadequate estimate of time for hearing the threshold issue with multiple witnesses.
FAMILY LAW – PRACTICE & PROCEDURE – parties agree to be referred to by given names and female pronouns apply – Court to provide half day Family Dispute Resolution Conference.
FAMILY LAW – SUBPOENAS – where Counsel for parties confident of agreeing to terms which allow all parties to view documents produced by B Hospital.
Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 31 Date of hearing: 24 March 2022 Place: Melbourne (heard via MS Teams) Solicitor for the Applicant: Inner Melbourne Community Legal Inc Counsel for the First Respondent: Ms Mansfield Solicitor for the First Respondent: Vic Rajah Family Lawyers Counsel for the Second Respondent: Ms Dellidis Solicitor for the Second Respondent: Velocity Legal ORDERS
MLC 7422 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS UNDERHILL
Applicant
AND: MS O'NEILL
First Respondent
MS LOVELL
Second Respondent
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
24 MARCH 2022
THE COURT ORDERS THAT:
1.To the extent that leave is necessary, I grant leave to Ms Lovell to be a party to these proceedings as the second respondent,
2.This matter remain listed for a defended hearing before me on 11 April 2021 at 10.00 am and the hearing will proceed on a face to face basis and non-party witnesses may give evidence by electronic means NOTING THAT the matter is listed for three days with counsel indicating this day that it may require four days.
3.By not later than 28 March 2022 the second respondent, Ms Lovell, file and serve any response to the Amended Application Imitating Proceedings and to the response of the first respondent.
4.The parties prepare an Electronic Court Book using EBrief Ready AND IT IS DIRECTED that for this purpose my Legal Associate provide the template of the Electronic Court Book to the solicitors for the parties and the solicitor for the applicant include their documents first.
5.The Electronic Court Book to be completed by 6 April 2022 subject to the cooperation of other parties.
6.Pursuant to Section 13C(1)(b) of the Family Law Act 1975, the parties and their legal representatives (if any) shall attend a confidential half day Court-based Family Dispute Resolution (FDR) Conference commencing at 2.00pm AEDT on 30 March 2022 with a Registrar (as Family Dispute Resolution Practitioner) of the Family and Federal Circuit Court of Australia.
7.Not later than 4.00 pm on 29 March 2022, each party must:
(a)ensure that all documents required to be exchanged between parties pursuant to Chapter 6 of the Federal Circuit and Family Court Rules have been exchanged;
(b)ensure that any private expert report that is relevant to the proceedings has been filed;
(c)provide to the Court (by email to [email protected]) and to the other party a single collated bundle of documents comprising:
(i)a Confidential Outline of Case (Dispute Resolution);
(ii)a detailed minute of Orders Sought;
(iii)details of any previous or current family violence orders; and
(iv)a copy of any document exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted).
8.The parties shall otherwise comply with any other order or direction made by the Registrar necessary to facilitate the Family Dispute Resolution Conference.
9.The Registrar may vacate the Family Dispute Resolution Conference on 30 March 2022 in the event that pursuant to Regulation 29 of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008, the Registrar is no longer satisfied that the conference is appropriate.
IT IS NOTED:
A.Not later than 4.00 pm on 29 March 2022 the lawyer for each party must give the party for whom they act a written notice of:
(a)The party's actual costs, both paid and owing, up to and including the Family Dispute Resolution Conference; and
(b)The estimated future costs of the party up to and including each future court event, including trial; and
(c)Any expenses paid or payable to an expert witness or, if those expenses are not known, an estimate of the expenses.
B.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.
C.The Confidential Outline of Case (Dispute Resolution) is a confidential without prejudice document prepared for the purpose of the Family Dispute Resolution Conference only. It is not to be filed or relied upon after the conclusion of the conference.
D.The Family Dispute Resolution Conference is an opportunity for the parties to make a genuine effort to resolve their parenting dispute in a confidential, child focussed setting. The parties are to be resolution focussed and respectful during negotiations, and to be mindful of the financial and emotional costs associated with prolonged litigation.
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 Underhill & O'Neill is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BENNETT J:
INTRODUCTION
This is the first day of hearing of this proceeding which concerns the little boy, X, who is five years old, having been born in 2016. X currently lives in C City with his mother and is in grade 1 at the fee paying school known as H School.
The parties to the proceedings are the applicant, Ms Underhill. She is 56 years old and is employed. Ms Underhill resides in Melbourne and has not repartnered.
The first Respondent, Ms O’Neill, is 46 years old having been born in 1975. She is employed. Ms O’Neill has not repartnered. X is her only child.
The second respondent is Ms Lovell. She is 44 years old, employed as a manager of the F Organisation in C City. Ms Lovell’s partner is Ms D, who is a researcher at E University.
Both the applicant (Ms Underhill) and the second respondent (Ms Lovell) each make application pursuant to s 60H of the Family Law Act1975 (Cth) (“the Act”) to be declared as the other parent of X. Each alleges that, having regard to all of the circumstances of her relationship with Ms O’Neill, she and Ms O’Neill were living together as a couple on a genuine domestic basis within the meaning of section 4AA(1) of the Act and that she and Ms O’Neill consented to the carrying out of the artificial conception procedure. Each say that she is the intended parent within the meaning of s 60H of the Act.
Ms O’Neill opposes Ms Underhill’s application but supports Ms Lovell’s application.
By way of formalities, each party has indicated that I can refer to her by her given name. To do otherwise invites error and inaccuracy. Female pronouns will be used for all parties
This matter is in the hands of good Counsel who were of assistance to the Court in this first day of hearing particularly as far as settling a set of agreed facts.
The parties have agreed to attend a court based conciliation/arbitration with Registrar Jill Raby on Wednesday afternoon (30 March 2022). That is a format for reality testing of their respective positions and to attempt to resolve the matter without the need for a contested hearing.
SOME RELEVANT BACKGROUND
Ms Lovell and Ms O’Neill commenced a relationship in late 2006 and commenced cohabiting at the beginning of 2007.
Ms O’Neill and Ms Underhill were colleagues. Ms Lovell was aware that Ms O’Neill and Ms Underhill were attracted to one another. She did not object when they started a romantic or sexual relationship in late 2013 (according to Ms Underhill) and January of February 2014 (according to Ms Lovell and Ms O’Neill). Indeed, Ms Lovell says that she encouraged Ms O’Neill to proceed with the relationship.
Ms Underhill alleges that Ms Lovell and Ms O’Neill separated in late 2014 however text messages annexed to Ms Underhill’s affidavit indicate November 2014.
According to Ms Underhill her cohabitation with Ms O’Neill commenced in mid 2015. They each maintained their respective residence but would stay together at one or the other’s residence for 5 out of 6 nights per week. Ms O’Neill claims there was never a period of cohabitation.
Ms Lovell ceased to reside in Victoria in April 2016. Ms Underhill disputes this and is her case that Ms Lovell left Victoria in February 2015 to travel in a caravan around Australia. When she did so, Ms Lovell left all her belongings (save for those packed for travel) with Ms O’Neill. Ms Lovell’s belongings are still at Ms O’Neill’s house.
Ms Lovell and Ms O’Neill asked Mr G, Ms O’Neill’s friend, for his genetic material. Ms O’Neill claims she communicated directly with Mr G and before Ms Underhill asked him.
Ms Lovell commenced a relationship with someone else in New South Wales in May 2016 which lasted until later that year. Ms Lovell commenced her relationship with Ms D in May 2019. Their relationship persists.
At all material times, Ms O’Neill has been in receipt of an income tested pension or benefit as a single person. Ms Underhill has not been in receipt of any income tested pension or benefit but is a low income earner. Ms Lovell is in receipt of income and she pays X’s fees at private school and has provided other financial support to Ms O’Neill and X for which there are annotated bank statements.
X was born at B Hospital. In the medical records from B Hospital Ms Underhill is referred to as the mother’s “partner” on ten occasions and on one occasion Ms Underhill is referred to as Ms O’Neill’s “bestie”. Ms O’Neill says Ms Underhill was referenced at least once as a “support person”. On another occasion Ms Underhill is referred to as a “friend/neighbour” and Mr G is referred to on one occasion as the “husband”.
The application for a birth certificate was completed by Ms O’Neill in January 2017. The original application for a birth certificate was for X’s name to be “X Y Underhill O'Neill”. The name “Y” was proposed by Ms Underhill and agreed to by Ms O’Neill. “Ms Underhill” is the family name of Ms Underhill. Ms O’Neill is noted as the mother and the father is referred to as (perhaps) “nil”. Ms Underhill says she was not included as another parent because Ms O’Neill said that to do so would endanger her entitlement to social security payments as a single parent.
In 2020 Ms O’Neill made application for an amendment of X’s birth certificate to delete “Ms Underhill” as a given name. A new birth certificate was issued in due course. Counsel for Ms O’Neill did not have instructions in relation to Ms O’Neill’s choice of names and changing X’s birth certificate to remove Ms Underhill’s family name as a middle name for X. No one has a birth certificate for X. There have been two issued. Both should be filed so they are in evidence.
MS LOVELL’S LATE APPLICATION
Ms Underhill opposes Ms Lovell becoming a party to the proceedings. Ms Lovell swore affidavit material which was filed on behalf of Ms O’Neill early in the proceedings. It was recognised, certainly by September 2021, that Ms Lovell may well seek relief under section 60H of the Act. However, Ms Lovell’s application has only been made very recently, and the final hearing is set down for 11 April 2022.
Counsel for Ms Underhill opposed Ms Lovell being joined to the proceedings on the basis that it was procedurally unfair to Ms Underhill to join a party at this late stage. I mooted that the final hearing could be postponed and Ms Underhill could, thereby, have more time to respond to all material. However, Ms Underhill does not want extra time to file her responses or answer affidavit material and wants the threshold hearing on 11 April 2022 to proceed. Accordingly, I do not find that procedural fairness is an impediment to Ms Lovell being joined to the proceedings. She is a person interested in X’s welfare. The other matters which were to be raised by Ms Underhill as considerations contrary to allowing the joinder of Ms Lovell at this late stage related to the merits of the substantive application under section 60H, rather than to the joinder of another party at this late stage. Sensibly, they were not pursued. It is clearly in the child’s best interest that the competing applications be heard together.
The procedural issues are in hand pursuant to directions made by Alstergren CJ at a callover when this matter was in Division 2 of the Court.
There is an outstanding issue in relation to inspection of subpoenaed documents from B Hospital. The documents have been produced pursuant to subpoena but, at the moment, Ms Underhill is not permitted to look at the documents, although her solicitors have. Ms Lovell seeks an entitlement to inspect the documents. I am optimistic about counsel being able to reach an accommodation in this regard. However, in the event that they cannot do so in the short term, the matter can be relisted before me, and I will hear their submissions and receive such evidence as they rely upon for their respective positions.
The only other issue is alternative dispute resolution. It seems that Registrar Jill Raby has time, on 30 March 2022 to have a Court funded mediation in this matter. It would be of great benefit to the parties.
THE FINAL HEARING
As indicated the final hearing is set down for 11 April 2022 before me.
The matter was referred to my Chambers as a threshold issue requiring one day of hearing to determine. That was a serious underestimation of hearing time. This matter involves the determination of whether Ms O’Neill was in a de facto relationship with Ms Underhill or Ms Lovell (or neither) when X was conceived. There is to be reputational evidence. There are three parties. Each party has a number of witnesses.
The matter has been listed by me for three days. Counsel for Ms Lovell thinks it will take in excess of three days. We will commence on 11 April, come what may. If not concluded, the hearing may then need to be adjourned part heard. An alternative, which on reflection I consider to be preferable, is to require counsel to commit to a trial plan which contemplates the matter being concluded in the three days. Counsel should work on a trial plan at the conclusion of the mediation with Registrar Raby, if the matter remains unresolved.
No party seeks to activate the s102NA order but all parties are running the proceedings on a shoestring. They will need to co-operate to minimise costs. No one seeks representation for X’s interests and, absent allegations of family violence, the case would not fall within the guidelines of Victoria Legal Aid for appointment of an independent children’s lawyer. All parties confirmed today that no family violence is alleged.
The parties should assume that matter will proceed face to face in Court. The practitioners agreed that non-party witnesses may give evidence electronically. The practitioners should prepare an electronic court book. My legal associate will distribute the shell. The trial will be paperless and no handouts will be permitted.
Each party should attend Court with their own screen so they can access documents in the witness box. Practitioners for parties are responsible for ensuring that non-party witnesses who are to give evidence on the Court’s Microsoft Teams platform in support of their client’s case and are aware of all protocols for the giving of evidence electronically. I refer to the (Practitioner and Litigant Guide to Electronic Hearings and Microsoft Teams | Federal Circuit and Family Court of Australia (fcfcoa.gov.au). Of course, non-party witnesses my also attend the Registry to give evidence in Court. All parties and practitioners are on notice that anyone attending the Registry must be triple vaccinated.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett delivered on 24 March 2022. Associate:
Dated: 30 March 2022
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