FAMILY LAW - APPEAL – CHILDREN – PARENTING ORDERS – With whom a child spends time – When appropriate for a person with no biological connection to a child to have a parenting order – Whether the Chief Federal Magistrate erred in approach taken to application – Whether the Chief Federal Magistrate erred in failing to consider whether no parenting order should be made – Where the parties had been in a same-sex relationship – Where the child had been conceived by artificial conception – Where the applicant had no biological connection to the child – Where the Chief Federal Magistrate’s finding that the parties were not in a de facto relationship at the time of conception was not challenged – Discussion of the amendments to s 60H of the Family Law Act 1975 (Cth) – Discussion of the Family Law Amendment (Shared Parental Responsibility) Act2006 (Cth) – Discussion of Mulvany & Lane (2009) FLC 93-404 – Amendments introduced do not prescribe a hierarchy of applicants – All applications for parenting orders remain to be determined with the child’s best interests as the paramount but not sole determinant – The Family Law Act 1975 (Cth) enables the Court flexibility to recognise new forms of family when making orders in the best interest of a child of that family – The child’s best interests rather than the circumstances of conception or sex of parents is the paramount consideration – Where clear the Chief Federal Magistrate considered and rejected the mother’s position that no parenting order should be made –Where the Chief Federal Magistrate considered the child’s warm relationship with the applicant – Where the Chief Federal Magistrate determined it was in the child’s best interests to spend time with the applicant – No appealable error – A two step approach is appropriate in dealing with an application for parenting orders by a person other than a parent, child or grandparent – (1) is the applicant a person concerned with the care, welfare or development of the child, and if so, (2) what order should be made in the best interests of the child – No appealable error in the Chief Federal Magistrate’s approach to application.
FAMILY LAW - APPEAL – CHILDREN – PARENTING ORDERS – Whether the Chief Federal Magistrate erred in applying provisions of s 60CC of the Family Law Act 1975 (Cth) which apply only to parents – Where clear the Chief Federal Magistrate was aware he was not required to consider subparagraphs which refer exclusively to parents – Where s 60CC(3)(m) of the Family Law Act 1975 (Cth) allows a broad opportunity to consider many diverse matters relevant to the welfare of a child – Potts & Bims and Ors[2007] FamCA 394 discussed – No error in using framework of s 60CC(2) and (3) of the Family Law Act 1975 (Cth) with appropriate qualifications – No merit to challenge.
FAMILY LAW - APPEAL – EVIDENCE…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Aldridge & Keaton [2009] FamCAFC 229
Case
[2009] FamCAFC 229
Decision Date
CaseChat Overview and Summary
The appeal arose from a decision made by the Chief Federal Magistrate regarding parenting orders involving a child conceived through artificial means in the context of a same-sex relationship. The applicant, who had no biological connection to the child, sought parenting orders. The legal issues before the court included whether the Chief Federal Magistrate erred in their approach to the application, in failing to consider whether no parenting order should be made, and in applying provisions of the Family Law Act 1975 (Cth) that pertained only to parents. Additionally, the court had to determine if the Chief Federal Magistrate erred in the weight placed on expert evidence, and whether they failed to take into account the effect of the orders on the mother.
The court found that the Chief Federal Magistrate did not err in their approach to the application. They considered the child's best interests as the paramount consideration and applied the relevant legal framework appropriately. The court noted that the amendments to the Family Law Act 1975 (Cth) do not prescribe a hierarchy of applicants, and all applications for parenting orders should be determined based on the child's best interests. The Chief Federal Magistrate correctly applied a two-step approach in dealing with the application for parenting orders by a person other than a parent, child, or grandparent. Furthermore, the court found no error in the Chief Federal Magistrate's application of the provisions of s 60CC of the Family Law Act 1975 (Cth), as they were aware of the need to consider only relevant matters and had appropriately qualified their application of the framework. The court also dismissed the challenges based on the weight given to expert evidence, finding that the Chief Federal Magistrate recognised the type of relationship to which the expert referred and gave it the appropriate weight in their discretion.
The appeal was dismissed, and the parties were directed to file written submissions regarding the costs of the appeal within a specified timeframe.
Orders
Orders of the court
1.
The appeal is dismissed.
2.
The parties are at liberty to file written submissions with regard to the costs of the appeal in accordance with the following timetable:
(a) on behalf of the appellant within 21 days of the date hereof;
(b) on behalf of the respondent in response thereto within 21 days thereafter;
(c) on behalf of the appellant in reply thereto within seven days thereafter; and
(d) that each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.
Background
Background to the litigation
In Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 743, Heydon JA (as his Honour then was) referred to circumstances in which an expert’s report will be admissible in proceedings. Whilst that part of his Honour’s judgment deals with admissibility, it has relevance to this ground. His Honour said:…so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. … (our emphasis) We have already concluded that the expert had relevant expertise to prepare the report, albeit he is not a clinical psychologist. An examination of the transcript of the expert’s evidence discloses that while he assumed that the applicant had the right to apply for an order for equal shared parental responsibility (as in fact she did) and that his assumption about the parties being parents was based on his understanding of the legal status of the parties, he said he did not think his views would have changed if his assumption was incorrect (transcript, 26 November 2008, p 91). Further, he indicated that he had in the course of preparing his report viewed all the affidavits and subpoenaed material before he had conducted his observations of the parties. In these circumstances, we do not accept that his report was fundamentally flawed being a report based on a misconception of the applicant’s legal status as a parent. He made appropriate concessions in his oral evidence. Further, we are satisfied that what the Chief Federal Magistrate relied on in his reasons were the matters alluded to by him in paragraphs 138 and 139 which we have set out above. Of particular significance was the expert’s observations of the interaction between the child and the applicant. The expert made it very clear that when he referred to “attachment” he was not using that word in the sense discussed in the social science literature, such as the description “insecure attachment” (see Joan B Kelly and Michael E Lamb ‘Using Child Development Research to Make Appropriate Custody and Access Decisions for Young Children’ (2000) 38(3) Family and Conciliation Courts Review 297). In other words, he was not suggesting that the child had a primary or even secondary attachment to the applicant, rather he used the word to describe an observed warm relationship between the child and the applicant. The Chief Federal Magistrate clearly recognised exactly the type of relationship to which the expert referred, and gave that matter the weight he discerned, in the exercise of his discretion, it should be afforded.