FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALDRED & WARBURG | [2020] FCCA 2524 |
| Catchwords: FAMILY LAW – Parenting – same-sex couple – applicant claimed the children were conceived by way of private artificial conception procedures – respondent claimed the children were conceived by way of sexual intercourse – determination of how the children were conceived – consideration as to how the legislative framework should be applied – consideration of parental responsibility – consent for children to live with the respondent and spend alternate weekends with the applicant – determination as to holiday and special occasion time orders – respondent unilaterally changed the children’s surnames after separation – determination as to whether the children’s surnames should be changed back to their original registration. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC, 60H, 61B, 61C, 61DA, 64C, 65C, 65DAA, 65DAC Evidence Act 1995 (Cth), s.140 |
| Cases cited: Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 Mason & Parsons [2019] HCA 21, (2019) 59 Fam LR 503 Aldridge v Keaton (2010) 42 FamLR 369 Rice v Miller (1993) 16 FamLR 970 Potts & Bims [2007] FamCA 394 Chapman & Palmer (1978) FLC 90-510 |
| Applicant: | MS ALDRED |
| Respondent: | MS WARBURG |
| File Number: | BRC 6976 of 2017 |
| Judgment of: | Judge Lapthorn |
| Hearing date: | 27 April 2020 |
| Date of Last Submission: | 27 April 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 10 September 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Self represented |
| Solicitors for the Respondent: | Self represented |
ORDERS
That, subject to these orders the respondent, Ms Warburg have sole parental responsibility for all major long term issues in relation to the children, X born in 2013 and Y born in 2015 (“the children”).
That the parental responsibility provided for in Order (1) herein must be exercised as follows:
(a)The respondent must provide to the applicant, Ms Aldred, at least twenty-one (21) days prior written notice by email of her proposal regarding any decision relating to a major long term issue affecting the children or a child;
(b)The applicant shall provide to the respondent within fourteen (14) days of the date of the respondent’s notification, her written response by email to the respondent;
(c)The respondent must consider the applicant’s response before making a final decision upon which she must thereafter notify the applicant of that decision in writing by email within seven (7) days of the date of the applicant’s reply; and
(d)Unless otherwise agreed in writing the respondent must not alter the children’s residence in a way that will make it more difficult for them to spend time with the applicant in accordance with these orders.
Notwithstanding Order (2) herein, each party shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with that party.
That the children live with the respondent.
That the children spend time with the applicant as agreed between the parties and failing agreement as follows:
(a)Each alternate weekend from 4:30pm Friday…
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- AGLC
- Aldred and Warburg [2020] FCCA 2524
- Case
- [2020] FCCA 2524
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the factual circumstances of the children's conception and applying the relevant legislative framework to the parental responsibilities and arrangements. Key legal issues included how to allocate parental responsibility for major long-term issues, establish a schedule for the children to live with the respondent and spend time with the applicant, and address the contentious matter of the children's surnames. The court also considered orders relating to communication, travel, medical care, and dispute resolution.
In its reasoning, the court made orders regarding parental responsibility, granting the respondent sole parental responsibility for major long-term issues, subject to a detailed consultation process with the applicant. The children were ordered to live with the respondent, with specific provisions for the applicant to spend time with them on alternate weekends and during holidays. The court also addressed the surname issue, ordering that the children's surnames be changed back to their original registered names. The orders included detailed provisions for communication, medical care, and dispute resolution, aiming to promote the children's welfare and maintain their relationships with both parents.
Orders
Orders of the court
1.
That, subject to these orders the respondent, Ms Warburg have sole parental responsibility for all major long term issues in relation to the children, X born in 2013 and Y born in 2015 (“the children”).
2.
That the parental responsibility provided for in Order (1) herein must be exercised as follows:
(a) The respondent must provide to the applicant, Ms Aldred, at least twenty-one (21) days prior written notice by email of her proposal regarding any decision relating to a major long term issue affecting the children or a child;
(b) The applicant shall provide to the respondent within fourteen (14) days of the date of the respondent’s notification, her written response by email to the respondent;
(c) The respondent must consider the applicant’s response before making a final decision upon which she must thereafter notify the applicant of that decision in writing by email within seven (7) days of the date of the applicant’s reply; and
(d) Unless otherwise agreed in writing the respondent must not alter the children’s residence in a way that will make it more difficult for them to spend time with the applicant in accordance with these orders.
3.
Notwithstanding Order (2) herein, each party shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with that party.
4.
That the children live with the respondent.
5.
That the children spend time with the applicant as agreed between the parties and failing agreement as follows:
(a) Each alternate weekend from 4:30pm Friday to 1:30pm Sunday;
(b) Each Boxing Day from 9.00am to 5.00pm;
6.
That notwithstanding any order for the children to spend time with the applicant, unless otherwise agreed between the parties, the children shall spend time with the respondent from 5.00pm Christmas Eve to 9.00am Boxing Day each year.
7.
That in the event the children are due to spend time with the applicant pursuant to these orders on a weekend in which Mother’s Day falls the children will spend that weekend with the respondent with the weekend foregone by the applicant being made up on the following weekend. To remove any doubt the children will then spend two consecutive weekends with the applicant.
8.
That on every Mother’s Day the children are to communicate with the applicant by way of Facetime at a time agreed to between the parties and failing agreement between 9.00am and 9.30am. The respondent is to assist the children to initiate the call.
9.
That during school holidays the children spend time with the applicant as agreed between the parties in writing and failing agreement as follows:
(a) In 2021:
(i) On the Easter weekend from 4.30pm 1 April (Holy Thursday) to 4.30pm 5 April (Easter Monday).
(b) In 2022:
(i) During the school holidays at the end of term 1 for a period of four (4) consecutive nights as agreed between the parties with such time not to incorporate the Easter weekend and failing agreement from 4.30pm on the first Sunday to 4.30pm on the first Thursday; and
(ii) During the school holidays at the end of term 3 for a period of four (4) consecutive nights as agreed between the parties and failing agreement from 4.30pm on the first Sunday to 4.30pm on the first Thursday.
(c) In 2023:
(i) For a period of four (4) consecutive nights as agreed between the parties in January during the school holiday period at the conclusion of term 4 of the 2022 school year and failing agreement from 4.30pm on the first Sunday of January 2023 to 4.30pm on the following Thursday;
(ii) For a period of four (4) consecutive nights over the Easter weekend during the Easter school holiday period at the conclusion of term 1;
(iii) For a period of four (4) consecutive nights as agreed between the parties in September during the school holidays at the conclusion of term 3 and failing agreement from 4.30pm on the second Sunday of the school holidays until 4.30pm on the following Thursday; and
(iv) For a period of four (4) consecutive nights as agreed between the parties in December / January during the school holiday period at the conclusion of term 4 and failing agreement from 4.30pm on the first Sunday of January 2024 to 4.30pm on the following Thursday.
(d) In 2024:
(i) For a period of five (5) consecutive nights as agreed between the parties during the Easter school holidays with such time not to incorporate the Easter weekend;
(ii) For a period of five (5) consecutive nights as agreed between the parties in September during the school holidays at the conclusion of term 3 and failing agreement from 4.30pm Sunday of the first week of the school holidays until 4.30pm the following Friday; and
(iii) For a period of five (5) consecutive nights as agreed between the parties in December / January during the school holiday period at the conclusion of term 4 and failing agreement from 4.30pm on the first Sunday of January 2025 to 4.30pm the following Friday.
(e) In 2025:
(i) For a period of six (6) consecutive nights incorporating the Easter weekend during the Easter school holiday period at the conclusion of term 1.
(ii) For a period of six (6) consecutive nights as agreed between the parties in September during the school holidays at the conclusion of term 3 and failing agreement from 4.30pm on the Sunday of the second week of the school holidays until 4.30pm the following Saturday.
(iii) For a period of six (6) consecutive nights as agreed between the parties in December / January during the school holiday period at the conclusion of term 4 and failing agreement from 4.30pm on the first Sunday of January 2026 to 4.30pm the following Saturday.
(f) In 2026 and each year thereafter:
(i) For a period of seven (7) consecutive nights as agreed between the parties during the Easter school holidays with such period to not include the Easter Weekend in even numbered years and to include the Easter Weekend in odd numbered years commencing 2027;
(ii) For a period of seven (7) consecutive nights as agreed between the parties in September during the school holidays at the conclusion of term 3 and failing agreement from 4.30pm on the Sunday of the first week of the school holidays until 4.30pm the following Sunday in even numbered years and from 4.30pm on the Sunday of the second week of the school holidays until 4.30pm on the following Sunday in odd numbered years; and
(iii) For a period of seven (7) consecutive nights as agreed between the parties in December / January during the school holiday period at the conclusion of term 4 and failing agreement from 4.30pm on the first Sunday of January 2027 to 4.30pm the following Sunday.
10.
That on a child’s birthday the party with whom the child is not living with or spending time with according to these orders, will communicate with that child by Facetime at a time agreed between the parties or failing agreement between 4.30pm and 5.00pm unless the parties have reached agreement for that party to spend physical time with the child on that day.
11.
That on the birthdays of the applicant and the respondent, the parties are to ensure the children communicate with the party whose birthday it is by way of Facetime at a time agreed between the parties or failing agreement between 4.30pm and 5.00pm unless the parties have reached agreement for that party to spend physical time with the children.
12.
That the children communicate with the applicant by Facetime once per week on Wednesdays between 4.30pm and 5.00pm with the applicant to telephone the respondent who will ensure her telephone is switched on or able to receive calls during this time.
13.
That changeovers occur at the B Service Centre, City C Northbound.
14.
That in the event the applicant is not able to personally collect or drop off the children due to work commitments, the applicant’s partner, Ms D is permitted to collect and drop off the children so long as she has a clear driving history.
15.
That neither party leave the children unsupervised in the presence of the respondent’s father and any person that they are aware of with a violent criminal history or sexual abuse allegations.
16.
That each party keep the other party informed at all times of their residential address and contact telephone number.
17.
That in the event a party intends to travel with the children for a block period in excess of four nights they are to notify the other party of the travel arrangements including details of where the children will be staying.
18.
That each party be at liberty to take the children to a registered medical practitioner in relation to common illnesses however in the event of ongoing major health issues the respondent is to arrange such treatment in consultation with the applicant as part of her exercise of sole parental responsibility for the children.
19.
That each party keep the other party informed of the names and address of any treating medical or other health practitioners who treat the children and authorise the practitioner to provide the other party with information that they are lawfully able to provide about the children.
20.
That by this Order the applicant is authorised to apply to Medicare Australia to have the children added to her Medicare Card.
21.
That by this Order the parties authorise the schools attended by the children to give each party information about the children's education progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at that party's cost).
22.
That during the time the children are with either party, that each party shall:
(a) Respect the privacy of the other party and not question the children about their personal life;
(b) Speak of the other respectfully;
(c) Actively encourage the children's relationship with the other party;
(d) Not discuss adult issues with the children and use their best endeavours to ensure that others do not discuss adult issues with the children;
(e) Not denigrate or insult the other party in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other party in the hearing or presence of the children;
(f) Not interrogate the children about their life, circumstances or any such thing where undue pressure is applied; and
(g) That communication between the applicant and respondent is to be in writing by email unless in the event of an emergency when it can be by telephone. Communication is to be in accordance with the Parenting Orders Program (POP) email communication guidelines.
23.
That the respondent is at liberty to take two weeks holiday with the children twice a year and time with the applicant will be suspended for that period. The respondent will provide the applicant with no less than seven days’ notice of her intention to rely on this Order. This order does not permit a variation of Order (5)(b) unless agreed to between the parties in writing.
24.
That the applicant is at liberty to take two weeks holiday twice a year and time with the children will be suspended for that period. The applicant will provide the respondent with no less than seven days’ notice of her intention to rely on this Order.
25.
That the respondent will provide the applicant with all information necessary for her to care for the children including dietary requirements and health issues.
26.
That the process to be used for resolving future disputes about the children or the terms or operation of these Orders shall be as follows:
(a) The parties shall consult with the Family Dispute Resolution Practitioner or a Family Relationship Centre to assist with resolving any dispute in relation to the children or reaching agreement about changes to be made to the parenting arrangements for the children.
(b) They shall pay the costs of the Family Dispute Resolution Practitioner equally.
(c) In the event that they are unable to, for any reason, to have an appointment with the Family Dispute Resolution Practitioner and cannot agree on an alternate Family Dispute Resolution Practitioner, the applicant shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability.
(d) The respondent shall choose one of the listed practitioners within seven (7) days of receipt of the list.
(e) If the respondent fails to choose then the applicant may choose.
27.
That unless there are some emergent circumstances, before an application is made to a Court for a variation of these Orders to take into account the changing needs of the children, each party is to attempt to take the steps referred to in the preceding Order.
28.
That the applicant will respect the children’s rights to pursue a relationship with their biological fathers in the future.
Notations:
29.
That the applicant undertakes to ensure that the children will sleep in suitable beds.
30.
That the applicant undertakes to ensure that the children have healthy meals for the duration of their visits that meet nutritional requirements and the dietary requirements of the children.
Background
Background to the litigation
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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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