Saturday, 4 August 2007

Comment on case: Verner and Vine

I am grateful to my friend (and non-lawyer) Sue Kentlyn for bringing my attention to a case decided earlier this year in the Full Court of the Family Court, Verner and Vine.

Although one can understand at some level the process that the Full Court reached, in its limited capacity of an appeal court, I would doubt very much if it would have reached the same result if the appellant were represented at trial and if the sexuality of the appellant were different.

The facts

The parties lived together in some kind of relationship for 7 years from the age of 17 until 24, when the child was born, then within 2 years the mother had married, then proceeded to have 2 more children in the marriage.

The child the subject of the application was severely disabled.

The appellant stated that the mother and she had been in a lesbian relationship. The mother denied this, saying that they were just friends. Against this denial, the mother had applied for IVF treatment (resulting in the birth of the child)and represented that she was in lesbian relationship with the mother.The appellant and the mother also owned a home together.

Some considerable effort was spent at the trial by the appellant to show that the mother and she were in a lesbian relationship.

It was the mother's case that to expose the child to the existence of the mother would be extremely upsetting and that as a result there should not be contact between mother and child.

At trial, Lawrie J agreed with the mother, and dismissed the appellant's application.

Not a parent

The first point that her Honour made was that the appellant was not a parent under the Family Law Act or the NSW Status of Children Act.

The second was that she may be a person who was within the class of
other people significant to [the child’s] care, welfare and development
and therefore might have had standing to make application under the Family Law Act.

Her Honour was not impressed by the appellant's evidence of the nature of the relationship and then said:
“[w]hatever the nature of the relationship at the time A was conceived, it is now very different from a close friendship or a love affair”, and she proceeded to discuss the present state of the relationship between the appellant and the mother, concluding this discussion by saying:
The state of the relationship between these former friends which exists today makes it clear that it would be extremely unpleasant for the mother to be in a position where she was required to have any further contact with the applicant. I am satisfied that it would impinge on her and her family’s need for peace and tranquillity and cause upset in the child’s home which would not be in the child’s interest.



Her Honour also found that in 2 1/2 years the appellant had only seen the child 4 times.

Another issue pressed by the mother and accepted by Lawrie J was that the child's disabilities were such that she could not communicate with others and was very reliant upon the mother and stepfather.

The appeal

The appellant, who was now reperesented appealed unsuccessfully, the Full Court finding in essence that the various decisions by Lawrie J were within the ambit of her Honour's discretion.

Comment

What is extraordinary about the comments by Lawrie J about upset is that everyday in the Family Court and Federal Magistrates Court fathers (and occasionally mothers) seek to spend time with their children when it is clear that it would make the former partner feel "extremely unpleasant". Usually the courts have very little sympathy and press upon that parent the need for the child to know who she or he is.

On reading the appeal court judgment, it seems that the appellant, in being self-represented, made a number of basic errors in running a trial, which were simply too late to fix on appeal.

Elias Principle

It is all too common in property settlement cases where a party might make representations to a third party which are at complete odds to what they are now telling the court. A typical example is a woman saying to Centrelink that she was a single mother, whilst saying in property settlement proceedings that she had committed fraud on Centrelink as she was in a de facto relationship.

The rule in property settlement cases is a rule of family law that when people make representations of fact to third parties and gain advantage from so doing, they cannot in subsequent property proceedings of the Family Law Act lead evidence which contradicts those representations: Elias principle as explained in Jordan (1997).

The principle applied in Elias and similar decisions is more than merely a rule or presumption about credibility, to the effect that in some circumstances a party cannot be expected to be believed if he or she puts a proposition inconsistent with a representation made to revenue authorities. It is a rule of law that prevents a party asserting something in the proceedings.

Why should it have been any different here? The mother made clear representations to doctors that she was in a lesbian relationship with the appellant, and yet now says that she was not.

The relevance of course is that if she were in a lesbian relationship then, the clear inference is that the child was planned by the parties, and the involvement of the appellant in the child's life is obvious.

This case is a clarion call for lesbian couples to be very careful to protect the rights of their children. Whilst co-parenting agreements are not legally binding, they might be able to show clear evidence that the parties were in a relationship together and had planned the child together, and that therefore the co-parent should be recognised and at some level involved in the child's life.

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