Groth & Banks

Case [2013] FamCA 430

AMENDED PURSUANT TO RULE 17.02 OF THE FAMILY LAW RULES 2004
FAMILY COURT OF AUSTRALIA

GROTH & BANKS [2013] FamCA 430
FAMILY LAW – CHILDREN – applicant provided his genetic material in a consensual IVF program at a time when he was not living with the respondent mother –  no dispute as to the biology but is the applicant a parent at law? – parenting orders made.
Assisted Reproductive Treatment Act 2008 (Vic)
Child Support (Assessment) Act 1989 (Cth)
Judiciary Act 1903 (Cth)
Family Law Act 1975 (Cth)
Status of Children Act 1974 (Vic)
Aldridge and Keaton [2009] FamCAFC 229; 42 FamLR 369
CDJ v VAJ (1998) 197 CLR 172
Donnell v Dovey [2010] FamCAFC 15
Goode v Goode (2006) FLC 93-286
Lennon & Lennon [2011] FamCA 571 (unreported 9 July 2011)
Northern Territory v GPAO [1999] HCA 8, 196 CLR 553
Re J and M – Residence Application [2004] FMCAfam 656
Re Mark: An Application Relating to Parental Responsibilities[2003] FamCA 822; (2003) 179 FLR 248; (2003) 31 Fam LR 162; (2003) FLC 93-173
Tobin v Tobin (1999) FLC 92-848
University of Wollongong v Metwally and Ors [1984] HCA 74, (1984) CLR 447
APPLICANT: Mr Groth
RESPONDENT: Ms Banks
INDEPENDENT CHILDREN’S LAWYER:
FILE NUMBER: MLC 865 of 2012
DATE DELIVERED: 11 June 2013
PLACE DELIVERED: Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: Cronin J
HEARING DATE: 26, 27, 28 February; 1, 4 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr North SC with Mr Wood
SOLICITOR FOR THE APPLICANT: Nicholes Family Lawyers
COUNSEL FOR THE RESPONDENT: Mr Robinson
SOLICITOR FOR THE RESPONDENT: Women’s Legal Service Victoria
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Harris
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

IT IS DECLARED BY THE COURT:

(a)Mr Groth and Ms Banks are the parents of the child J born …October 2010; and

(b)The presumption in s 61DA of the Family Law Act 1975 (Cth) is not rebutted.

IT IS ORDERED

  1. That the applicant and the respondent have equal shared parental responsibility concerning the major long-term decisions for the child.

  2. That the child live with the mother.

  3. That otherwise all extant parenting orders are discharged as and from the first relevant date under these orders commencing in June 2013.

  4. That J spend time with the applicant Mr Groth as follows:

    (a)For the months of June and July 2013, on each Wednesday and each Saturday for a period of four hours from 9.00am until 1.00pm;

    (b)For the months of August and September 2013, on each Wednesday and each Saturday from 9.00am until 3.00pm;

    (c)For the months of October and November 2013, on each Wednesday and each Saturday from 9.00am until 4.00pm;

    (d)For the months of December 2013, January 2014 and February 2014 on Wednesdays and Saturdays from 9.00am until 6.00pm;

    (e)For the months of March 2014 to April 2014 on each Wednesday from 9.00am until 6.00pm and each alternate weekend on the Saturday between 9.00am and 6.00pm and the Sunday between 9.00am…

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AGLC
Groth & Banks [2013] FamCA 430
Case
[2013] FamCA 430
Decision Date

CaseChat Overview and Summary

In the matter of *Groth & Banks*, heard by Cronin J, the dispute concerned parenting arrangements for the child J, born in October 2010. Mr Groth was the applicant father and Ms Banks was the respondent mother.

The court was required to determine whether the presumption of parental responsibility under section 61DA of the *Family Law Act 1975* (Cth) was rebutted, and to make orders regarding the parental responsibility and living arrangements for the child.

Cronin J declared that Mr Groth and Ms Banks were the parents of J and that the presumption in section 61DA of the *Family Law Act 1975* (Cth) was not rebutted. The court ordered that the parties have equal shared parental responsibility for major long-term decisions concerning the child, and that the child live with the mother. The court also made detailed orders regarding the time the child would spend with the father, including specific schedules for weekdays, weekends, school holidays, and special occasions, with provisions for handovers and medical information access. Extant parenting orders were discharged from June 2013, and the Independent Children's Lawyer was discharged from the proceedings. The court also ordered that the parties attend upon a Mr P for assistance in implementing the orders, with costs to be borne by the applicant father.

Orders

Orders of the court

IT IS DECLARED BY THE COURT:

(a) Mr Groth and Ms Banks are the parents of the child J born …October 2010; and

(b) The presumption in s 61DA of the Family Law Act 1975 (Cth) is not rebutted.

IT IS ORDERED

1.

That the applicant and the respondent have equal shared parental responsibility concerning the major long-term decisions for the child.

2.

That the child live with the mother.

3.

That otherwise all extant parenting orders are discharged as and from the first relevant date under these orders commencing in June 2013.

4.

That J spend time with the applicant Mr Groth as follows:

(a) For the months of June and July 2013, on each Wednesday and each Saturday for a period of four hours from 9.00am until 1.00pm;

(b) For the months of August and September 2013, on each Wednesday and each Saturday from 9.00am until 3.00pm;

(c) For the months of October and November 2013, on each Wednesday and each Saturday from 9.00am until 4.00pm;

(d) For the months of December 2013, January 2014 and February 2014 on Wednesdays and Saturdays from 9.00am until 6.00pm;

(e) For the months of March 2014 to April 2014 on each Wednesday from 9.00am until 6.00pm and each alternate weekend on the Saturday between 9.00am and 6.00pm and the Sunday between 9.00am and 6.00pm;

(f) For the months of May 2014 until the end of 2014, on each Wednesday from 10.00am until 5.00pm and during each alternate weekend from 10.00am Saturday until 12 noon on Sunday;

(g) Thereafter, during each alternate weekend from 10.00am Saturday until 5.00pm on Sunday and on each Wednesday from 10.00am until 5.00pm.; and

(h) Once the child commences primary school on each Wednesday from after school until 7.30pm and each alternate weekend from the conclusion of school on Friday until the commencement of school on the following Monday morning.

5.

That the child spend one half of all school term holidays by agreement and in default of agreement the first half commencing in the second year of his schooling and two weeks during the long summer holidays be agreement and in default of agreement from 1 January commencing in the January of his third year at school.

6.

That the child spend time with the applicant as follows:

(a) on Father’s Day from 10.00am until 5.00pm each year;

(b) for two hours on both the child’s birthday and the father’s birthday from 4.00pm until 6.00pm;

(c) from 3.00pm on 24 December 2014 until 11.30am on 25 December 2014 and for a similar period in each even numbered years;

(d) from 11.30am on 25 December 2013 until 3.00pm on 26 December 2013 and for a similar period in each odd numbered years.

7.

That the father’s time if it falls on Mother’s Day shall be suspended from 10.00am on Mother’s Day.

8.

That the hand-overs of the child that do not occur at a school or kindergarten shall commence outside of the mother’s house and the mother shall collect the child from the father’s house at the conclusion of any time other than at kindergarten or school.

9.

That the parties attend upon Mr P for the purposes of assisting them to implement these orders and such costs shall be borne by the applicant father.

10.

That the child attend the one medical clinic unless in an emergency and the mother advise the applicant of the name of that clinic and sign all necessary documents to enable the applicant to not only attend but to have access to the child’s records and be informed of any medical treatment.

11.

That the Independent Children’s Lawyer is discharged from the proceedings.

12.

That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

13.

That all outstanding proceedings be otherwise 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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