Harris and Calvert - [2013] FCCA 955

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARRIS & CALVERT

[2013] FCCA 955

Catchwords:
FAMILY LAW – Breakdown of same-sex relationship – preliminary/thresh-hold question regarding whether a parenting order should be made for the young child to spend time with former partner of birth/biological parent.

Legislation:

Evidence Act 1996 (Cth), s.128

Family Law Act 1975, ss.60CA, 60H, 65C(c)

Aldridge v Keaton (2010) 235 FLR 450; 42 Fam LR 369
Connors & Taylor (2012) FamCA 207
Valentine & Lacerra (2013) FLC ¶93-359

Aristotle, Nicomachean Ethics
C.S. Lewis, The Four Loves (Glasgow: Collins, Fount Paperbacks, 1960 [reprint 1982])

Applicant:

MS HARRIS

Respondent:

MS CALVERT

File Number:

CAC 104 of 2013

Judgment of:

Judge Neville

Hearing date:

19 March 2013

Date of Last Submission:

2 April 2013

Delivered at:

Canberra

Delivered on:

26 July 2013

REPRESENTATION

Counsel for the Applicant:

Mr Hogg

Solicitors for the Applicant:

Sheekey Williams Solicitors, Wagga Wagga

Counsel for the Respondent:

Ms Godtschalk

Solicitors for the Respondent:

Walsh & Blair, Wagga Wagga

ORDERS

The Application filed on 24^th January 2013 be dismissed.
Within 14 days of the date of these orders, the parties file written submissions of no more than two pages in relation to costs.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 104 of 2013

MS HARRIS

Applicant

And

MS CALVERT

Respondent

REASONS FOR JUDGMENT

Introduction

At the outset of the seminal Full Court decision in Aldridge v Keaton their Honours (Bryant CJ, Boland and Crisford JJ) said, at [1]:[1]
The fundamental issue raised in this appeal is when it is, or is not, appropriate for a person with no biological connection to a child to have a parenting order made in his or her favour under Part VII of the Family Law Act 1975 (Cth) (“the Act”) in respect of that child.
[1] Aldridge v Keaton (2010) 42 Fam LR 369.
The same issue is the central, and only, matter to be determined here, which involves two women who were once in a same-sex relationship, but have not been so for some time.
The Respondent is the biological/birth Mother of 4 year old X.[2] The Applicant seeks orders that will enable her to re-kindle her relationship, and spend regular time, with X. She has not seen or spent any time with him for some two years or so.
[2] X was born on (omitted) 2009 via IVF treatment.
The Respondent seeks to have the Application dismissed – with an order for costs. Among many grounds of opposition raised by X's Mother is that (a) the Applicant has not spent any time with X for a very significant period of time, (b) X has no relationship with the Applicant and has not had a relationship with her for quite some time, (c) the parties live a significant distance apart, (d) the parties are significantly estranged (indeed, on the Mother’s part,…

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 Harris and Calvert

Details

AGLC: HARRIS & CALVERT [2013] FCCA 955
Case: [2013] FCCA 955
Decision Date: 26 July 2013

CaseChat Overview and Summary

In the matter of *Harris and Calvert*, heard before Judge Neville, the dispute concerned an application filed on 24th January 2013. The specific nature of the dispute and the identities of the parties beyond their surnames are not detailed in the provided text.

The primary legal issue before the court was the determination of the application filed on 24th January 2013. The court was required to decide whether this application should be granted or dismissed.

Judge Neville dismissed the application. Following this determination, the court ordered that the parties were to file written submissions concerning costs within 14 days of the date of the orders, with these submissions limited to a maximum of two pages.

Orders

Orders of the court

The Application filed on 24th January 2013 be dismissed.

Within 14 days of the date of these orders, the parties file written submissions of no more than two pages in relation to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.