Gaze & Maltby - [2022] FedCFamC2F 1013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gaze & Maltby [2022] FedCFamC2F 1013

File number: BRC 11825 of 2020

Judgment of: JUDGE LAPTHORN

Date of judgment: 4 August 2022

Catchwords: FAMILY LAW – Parenting – Application to dismiss an Initiating Application for Parenting Orders on the basis the Applicant was not a parent – Same sex couple – Consideration as to whether the parties were in a de facto relationship at the time of the child’s conception achieved through a private artificial conception procedure – Declaration as to parentage

Legislation:
Family Law Act 1975 (Cth), ss 4AA; 60H; 60I; 65C; 69VA

Evidence Act 1995 (Cth) s 140

Cases cited:
Clarence & Crisp [2016] FamCAFC 157, (2016) FLC 93‑728, (2016) 55 Fam LR 292

Jonah & White [2012] FamCAFC 200

Division: Division 2 Family Law

Number of paragraphs: 119

Date of last submission/s: 7 February 2022

Date of hearing: 31 January 2022

Solicitor for the Applicant: Aboriginal & Torres Strait Islander Legal Service

Counsel for the Applicant: Mr Thomas

Solicitor for the Respondent: Harrigan Lawyers

Counsel for the Respondent: Mr Duplock
ORDERS

BRC 11825 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS GAZE

Applicant

AND:
MS MALTBY

Respondent

order made by:

JUDGE LAPTHORN

DATE OF ORDER:

4 August 2022

THE COURT DECLARES THAT:
1.Pursuant to section 69VA, the applicant, Ms Gaze born in 1983, is a parent of the child X born in 2019.

THE COURT ORDERS THAT:
2.The respondent’s application to dismiss the Initiating Application filed 31 August 2020 and the Amended Initiating Application filed 26 July 2021 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Gaze & Maltby has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE LAPTHORN
INTRODUCTION

I am asked to determine whether the Applicant has standing in which to bring a parenting application. The applicant, Ms Gaze, commenced proceedings seeking parenting orders in relation to the child X born in 2019. The respondent, Ms Maltby, has asked the court to dismiss the application arguing the applicant is not a parent of the child and therefore does not have standing pursuant to s65C to commence the proceedings.
The child was born as a result of a private artificial conception procedure in 2019. The parties are…

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 Gaze & Maltby

Details

AGLC: Gaze & Maltby [2022] FedCFamC2F 1013
Case: [2022] FedCFamC2F 1013
Decision Date

CaseChat Overview and Summary

This case involves a dispute between two women, Ms Gaze and Ms Maltby, who were in a relationship and conceived a child through artificial insemination. The court was asked to determine whether the applicant, Ms Gaze, had standing to bring a parenting application and whether she was a parent of the child. The legal issue at hand was whether the parties were in a de facto relationship at the time of the conception, which would determine whether the applicant is a parent for the purposes of the proceedings. The court assessed the evidence on the balance of probabilities and found that the parties were in a de facto relationship from around February 2018 until October 2019 or possibly until early 2020. The court held that the parties had merged their lives to the extent that they were living together as a couple on a genuine domestic basis. As a result, the applicant is a parent of the child, and the court made a declaration to that effect. The court also dismissed the respondent's application to dismiss the initiating and amended initiating applications.

Orders