F and D - [2005] FMCAfam 178

FEDERAL MAGISTRATES COURT OF AUSTRALIA

F & D

[2005] FMCAfam 178

FAMILY LAW – Parenting – no respondent – joint application for joint responsibility of same sex parents where mother has passed away – where the Court needs to consider s.68F(2) or s.65D(1) in considering what orders to make when applicants consent and there is no respondent.

Family Law Act 1975 (Cth), ss.61B; 61D; 64B; 65C; 65D; 65E; 68F

B v B (1997) 21 FamLR 676

First Applicant:

Second Applicant:

File Number:

PAM 5460 of 2004

Judgment of:

Emmett FM

Hearing date:

4 March 2005

Date of Last Submission:

4 March 2005

Delivered at:

Parramatta

Delivered on:

4 March 2005

REPRESENTATION

Solicitors for the Applicant:

Ms Sullivan, Maurice Blackburn Cashman

Ex parte Application

ORDERS

The children AF, TF and CF (“the Children”) reside with their father.
The Applicants share joint responsibility for the long term care, welfare and development of the Children.
The Applicants share joint responsibility for the day to day care, welfare and development of the Children.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 5460 of 2004

First Applicant

And

Second Applicant

REASONS FOR JUDGMENT

The Application

The Application filed on 1 November 2004 seeks orders that the Applicants have joint responsibility for day to day and long term care, welfare and development of the children.
The Applicants are the father and his de facto partner of the children AF 14, TF 12 and CF 8 (“the Children”). The Children’s mother tragically died in 1996 from breast cancer.
In support of their Application the Applicants rely on two Affidavits of RF sworn 7 October 2004 and 19 January 2005; 2 Affidavits of GD sworn 7 October 2004 and 19 January 2005; the Affidavit of BM sworn 20 January 2005 and the Affidavit of RC sworn 20 January 2005.

The Law

Pursuant to s.65C(1)(d) a parenting order in relation to a child may be applied for by, inter alia, a parent or ‘any other person concerned with the care welfare or development of the child’.
GD has lived with the Children since January 2003 in the capacity of their father’s partner and essentially the Children’s step-father and has been intricately involved in their day to day lives as deposed to in the Affidavits of each of the Applicants and indeed BM and RC. Accordingly, having regard to the evidence before me I am satisfied that GD is a person concerned with the care, welfare and development of the Children.
Pursuant to s.64B(6) a parenting order includes an order conferring on a person, whether alone or jointly with another person, responsibility for the long term care, welfare and development of a child or for the day to day care, welfare and development of a child.
Pursuant to s.65C RF, being a parent of the Children, and GD, being a person concerned with the care, welfare and development of the Children, are entitled to apply for a parenting order.
Section 65D(1) gives the Court power…

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.

Continue reading F and D

Details

AGLC: F and D [2005] FMCAfam 178
Case: [2005] FMCAfam 178
Decision Date: 4 March 2005

CaseChat Overview and Summary

The matter before the court involved F and D, who were the parents of three children, AF, TF, and CF. The dispute centred on the care, welfare, and development of the children, with both parents seeking orders regarding their living arrangements and responsibilities. The case was heard in the Family Court of Australia. The court was required to make determinations about the long-term and day-to-day care of the children, as well as the division of responsibilities between the parents.

The legal issues before the court included the best interests of the children, the respective roles of each parent in their upbringing, and the allocation of responsibilities for both long-term and day-to-day care. The court needed to consider various factors, including the children’s needs, the parents' capacity to provide care, and the benefits of maintaining a relationship with both parents. The evidence presented by both parties regarding their parenting abilities, the children's relationships with each parent, and the potential impact of the living arrangements on the children's welfare were pivotal in the court's deliberations.

After carefully weighing the evidence and considering the children's best interests, the court determined that the children should reside with their father. Both parents were found to share joint responsibility for the long-term care, welfare, and development of the children, as well as the day-to-day care, welfare, and development. The court concluded that this arrangement would best serve the children's needs, allowing them to maintain strong relationships with both parents while ensuring their overall well-being. The court's orders reflect a balanced approach to parenting responsibilities, aiming to promote the children's health, development, and stability.

Orders

Orders of the court

The children AF, TF and CF (“the Children”) reside with their father.

The Applicants share joint responsibility for the long term care, welfare and development of the Children.

The Applicants share joint responsibility for the day to day care, welfare and development 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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