Halifax & Fabian - [2009] FMCAfam 972

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HALIFAX & FABIAN & ORS

[2009] FMCAfam 972

FAMILY LAW – Child aged 20 months at date of separation – applicant and mother in same-sex relationship – child conceived through assisted conception – biological father unknown – second respondents in same-sex relationship – seek to spend significant time with child and restrain child’s relocation – applicant and one of second respondents biological parents of another child conceived through assisted conception and born during applicant and mother’s relationship – threshold issue of whether second respondents are persons concerned with the care, welfare and development of the child.

Family Law Act 1975 (Cth), s.65C

B & J (1996) FLC 92-716
KAM v MJR; JIG (Intervener) (1999) FLC 92-847
Venkatesan & Pawar [2007] FMCAfam 1109
L & B [2005] FMCAfam 270

Applicant:

MS HALIFAX

First Respondent:

MS FABIAN

Second Respondents:

MR DALTON & MR BALLARD

File Number:

BRC 737 of 2009

Judgment of:

Purdon-Sully FM

Hearing date:

15 May 2009

Date of Last Submission:

15 May 2009

Delivered at:

Brisbane

Delivered on:

17 September 2009

REPRESENTATION

Solicitors for the Applicant:

Appearance not required

Counsel for the First Respondent:

Ms Brasch

Solicitors for the First Respondent:

sbA Family Lawyers

Solicitor for the Second Respondents:

Ms Tondelstrand

Solicitors for the Second Respondents:

Schultz Toomey O'Brien Lawyers

ORDERS

That the second respondents are persons concerned with the care, welfare and development of the child, [X] born in 2006 and as such have standing to pursue the orders sought in their response application filed 25 March 2009.

IT IS NOTED:

A.That the matter shall now be transferred to the Family Court of Australia in Brisbane pursuant to Order 2 of the Orders of this Court dated
26 March 2009.

IT IS NOTED that publication of this judgment under the pseudonym Halifax & Fabian & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

BRC 737 of 2009

MS HALIFAX

Applicant

And

MS FABIAN

First Respondent

MR DALTON AND MR BALLARD

Second Respondents

REASONS FOR JUDGMENT

Introduction

This matter concerns one of two young children who are not biologically related and who, to adopt the words of Fogarty J in B & J (1996) FLC 92-716 at 83,621 were born as a result of “artificial insemination procedures, out of non-traditional circumstances and into non-traditional families”.
Ms Susan Lewis, the family report writer, referred to the history to this dispute as being “complex”.[1]
[1] Report of Susan Lewis dated 20 March 2009 at para.4.1
The applicant, Ms Halifax, and the first respondent, Ms Fabian, lived in a same-sex relationship for about 7 years.
During the relationship they each had a child, Ms Halifax giving birth to [Y], now aged 7 years and Ms Fabian to [X], now aged 3 years.
[Y] and [X] have no biological connection. Both were conceived by way of artificial insemination during the course of their biological mother’s relationship with each other.
In [Y]’s…

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 Halifax & Fabian

Details

AGLC: Halifax & Fabian [2009] FMCAfam 972
Case: [2009] FMCAfam 972
Decision Date: 17 September 2009

CaseChat Overview and Summary

The case of Halifax & Fabian involves a dispute between the mother, Halifax, and the father, Fabian, concerning their child, [X], born in 2006. The dispute came before the Family Court of Australia, where Halifax sought to relocate to the United Kingdom with their child, while Fabian opposed the relocation on the grounds that it would significantly harm their child's relationship with him. The second respondents, who are persons concerned with the care, welfare, and development of the child, intervened in the matter to seek standing to pursue orders in their response application.

The primary legal issue before the court was whether the second respondents had standing to intervene in the relocation proceedings and seek orders concerning the child's welfare. The court had to determine whether the second respondents had a sufficient connection to the child's care, welfare, and development to warrant their involvement in the proceedings. The court also needed to consider the potential impact of the relocation on the child's welfare and whether it was in the child's best interests to relocate.

The court found that the second respondents had a sufficient connection to the child's care, welfare, and development to warrant their involvement in the proceedings. The court noted that the second respondents had a close relationship with the child and had been actively involved in the child's life. The court also found that the relocation would significantly harm the child's relationship with Fabian and was not in the child's best interests. The court therefore granted the second respondents standing to pursue the orders sought in their response application and denied Halifax's application to relocate to the United Kingdom.

Orders

Orders of the court

That the second respondents are persons concerned with the care, welfare and development of the child, [X] born in 2006 and as such have standing to pursue the orders sought in their response application filed 25 March 2009.

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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