FRONTERA & GIBBONS - [2015] FamCA 701

FAMILY COURT OF AUSTRALIA

FRONTERA & GIBBONS [2015] FamCA 701

FAMILY LAW – CHILDREN – Interim Parenting – Best interests of the child – Where there is one child who is four years of age – Where the applicant and respondent were in a same sex relationship – Where the respondent conceived the child through an IVF program – Where the applicant and respondent are listed on the child’s birth certificate – Where the respondent seeks that the applicant be declared not to be a parent of the child – Where the child currently spends one weekend a month with the applicant – Where the applicant seeks an increase in time spent with the child – Where there are allegations of family violence – Consideration of the presumptions in relation to parentage at s 69R of the Family Law Act – Where the Court found that parentage of the child could not be determined on an interim basis – Consideration of the best interests of the child – Where the Court found the current circumstances do not warrant another interim change to the living arrangements for the child.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth) ss 60CC, 60H, 69R, 69U, 69ZK

Re F (A Minor)(Child Abduction) [1992] 1 FLR

APPLICANT: Ms Frontera

RESPONDENT: Ms Gibbons

INDEPENDENT CHILDREN’S LAWYER: KD Holmes Solicitors

FILE NUMBER: SYC 948 of 2015

DATE DELIVERED: 26 August 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 3 August 2015
REPRESENTATION

SOLICITOR FOR THE APPLICANT: Hamish Cumming Family Lawers

COUNSEL FOR THE APPLICANT: Ms Giacomo

COUNSEL FOR THE RESPONDENT: Ms Dart

SOLICITOR FOR THE RESPONDENT: Jennifer Weate and Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Holmes
Orders
(1)The parties’ applications for interim parenting orders including the amended Application in a Case filed 31 July 2015 and the amended Response to an Application in a Case filed 14 July 2015, are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Frontera & Gibbons has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY
FILE NUMBER: SYC 948 of 2015

Ms Frontera
Applicant
And

Ms Gibbons
Respondent
REASONS FOR JUDGMENT
Introduction
1.These are interim parenting proceedings involving B who was born in 2010 and at the time of the hearing, was four years of age.
2.Ms Frontera (“the applicant”) and Ms Gibbons (“the respondent”) commenced a relationship in 2009 and separated in December 2014. The respondent conceived the child through an IVF programme. The applicant is named as a parent on the child’s birth certificate.
3.B currently lives with the respondent at C Town. Since 22 May 2015 the child has been living with the respondent and spending time with the applicant on one weekend per month, from Friday at 4.00 pm to Sunday at 4.00 pm. The applicant proposes to relocate from Melbourne to Sydney in late August and seeks additional…

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 FRONTERA & GIBBONS

Details

AGLC: FRONTERA & GIBBONS [2015] FamCA 701
Case: [2015] FamCA 701
Decision Date: 26 August 2015

CaseChat Overview and Summary

In the matter of *Frontera & Gibbons*, heard by Loughnan J in the Federal Circuit Court of Australia, the dispute concerned interim parenting orders for a four-year-old child. The applicant sought an increase in the time the child spent with them, while the respondent sought to have the applicant declared not to be a parent of the child. Both parties were in a same-sex relationship, and the respondent conceived the child through an IVF program. The applicant and respondent are both listed on the child's birth certificate. Allegations of family violence were also raised.

The court was required to determine, on an interim basis, the parentage of the child and to consider the best interests of the child in relation to parenting arrangements. Specifically, the court had to consider the presumptions of parentage under section 69R of the *Family Law Act 1975* (Cth) and whether these presumptions could be displaced or determined at the interim stage. The court also had to assess whether any change to the child's current living arrangements, which involved the child spending one weekend a month with the applicant, was warranted in the child's best interests.

His Honour found that parentage of the child could not be determined on an interim basis. In considering the best interests of the child, the court concluded that the current circumstances did not justify an interim change to the child's living arrangements. Consequently, both parties' applications for interim parenting orders were dismissed.

Orders

Orders of the court

(1) The parties’ applications for interim parenting orders including the amended Application in a Case filed 31 July 2015 and the amended Response to an Application in a Case filed 14 July 2015, are dismissed.

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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COUNSEL FOR THE APPLICANT:	Ms Giacomo
COUNSEL FOR THE RESPONDENT:	Ms Dart

SOLICITOR FOR THE RESPONDENT:	Jennifer Weate and Associates
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Holmes