Yarnall

[2021] FCCA 241

FEDERAL CIRCUIT COURT OF AUSTRALIA

Yarnall [2021] FCCA 241

File number:	DNC 671 of 2020
Judgment of:	JUDGE YOUNG
Date of judgment:	2 February 2021
Catchwords:	FAMILY LAW – parenting – whether the Court has jurisdiction to make orders – where the mother of the children died – where the father of the children is not recorded on the children’s birth certificates – children to live with maternal aunt – maternal aunt to have sole parental responsibility
Legislation:	Family Law Act 1975 (Cth) s 60CC
Cases cited:	Kenneally & Kenneally & Allen [2012] FMCAfam 921 Re Jessie & Matthew: Residence application [2004] FMCAfam 656
Number of paragraphs:	11
Date of last submission:	2 February 2021
Date of hearing:	2 February 2021
Place:	Darwin
Counsel for the Applicant:	Mr Barry
Solicitor for the Applicant:	Darwin Family Law

ORDERS

DNC 671 of 2020

BETWEEN:

MS YARNALL

Applicant

AND:

[NO RESPONDENT]

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	2 FEBRUARY 2021

THE COURT ORDERS:

1.That Ms Yarnall (“the maternal aunt”) have sole parental responsibility for the children X born in 2015, and Y born in 2016 (“the children”).

2.That the children live with the maternal aunt.

AND THE COURT NOTES:

A.That the children’s mother, Ms B, died in 2020. The children have no father recorded on their birth certificates.

B.That upon application of the maternal aunt to the court, the court was satisfied that the maternal aunt is well-placed to care for the children and raise the children as if the children are her own.

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 under the pseudonym Yarnall is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting application concerning two children: X, who is five, and Y, who is four years old.  In 2020 the mother of the children died in Western Australia in circumstances that are somewhat unclear. There has been, or will be, a coronial investigation into her sudden death but the coronial findings have either not been made or not been published.  In the affidavit of the applicant, who is the sister of the mother of the children, the applicant maternal aunt refers to the sudden death of her sister as being unexplained. She says that there is nothing to indicate that it was drug related or anything of the kind. An aneurysm or some such sudden medical catastrophe is suspected to be the cause of death of the mother. 

3. The two children, X and Y, were apparently conceived as a result of an anonymous sperm donation conducted through a fertility clinic in Western Australia.  There is no direct evidence of that, although the applicant says that her sister told her that was the case. The applicant says that she did not receive any details of the identity of the fertility clinic or the medical practitioners involved. 

4. The applicant says that she is not in a position to provide any more information about the context of the conception of the children.  She says that she has always understood that the children were conceived as a result of anonymous sperm donation and there is nothing to suggest otherwise.  There is no reason not to accept what the applicant says about that.  The children’s birth certificates are annexed to the applicant’s affidavit and the father is not identified in the birth certificate, which tends to support to the applicant’s submissions. 

5. I asked Mr Barry, who appears for the applicant, to provide me with submissions about the Court’s jurisdiction.  He has done so.  In particular, I have been provided with two cases of relevance.  Kenneally & Kenneally & Allen [2012] FMCAfam 921, a decision of then Federal Magistrate Harman, dealt with the authorities concerning whether or not the Court is able to make a parenting order in circumstances where there is no respondent. He reached the view that the Court was able to do so. I accept his Honour’s reasoning.

6. His Honour also referred to an earlier decision, Re Jessie & Matthew: Residence application [2004] FMCAfam 656, which dealt with an application for a parenting order where the biological father of the children was an anonymous sperm donor. The facts of that case are indistinguishable from this case although in Re Jessie & Matthew the applicant was the mother of the children.  This is a different case but I am satisfied, for the reasons given in Re Jessie & Matthew, that it is appropriate for the Court to make orders in this case. 

7. I acknowledge that the detailed evidence of inquiries referred to in Re Jessie & Matthew is not able to be provided here.  In that case there was evidence from the director of the fertility clinic about the processes of the clinic and the impossibility of discovering the identity of the sperm donor or donors.  There has not been the same level of inquiry here. However, I am satisfied that nothing is likely to be achieved by insisting that the applicant make inquiries of every fertility clinic in Western Australia in the hope of identifying an anonymous donor for the purpose of naming him as a respondent. 

8. I am not satisfied that this is appropriate in the circumstances of this case.  Another possibility would be to appoint someone else as the respondent – another family member or something of the kind. However, I am not satisfied that would serve any purpose either.  The applicant has filed an affidavit which essentially says that there has been a family agreement that she and her husband were the persons best placed to care for these two children.  The applicant and her husband have three children of her own, who are aged eleven, nine and four. 

9. The applicant’s father, the maternal grandfather, has also filed an affidavit.  He deposes that the family decided that the applicant and her husband are the people best placed to care for these children.  I am satisfied that there has been a family conference of some form and a consensus has been reached that the applicant and her husband should have responsibility for these children. 

10. Mr Barry made some brief submissions addressing section 60CC of the Family Law Act 1975 (Cth) matters and they are not really an issue. Everything suggests that these children will be well cared for by the applicant and her husband and I do not think I need to go into the details of that. I am satisfied that it is in the best interests of X and Y to make the orders sought by the applicant.

11. I propose to make the orders as set out in the application, along with the notation.

12          I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated: 11 February 2021