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Keaton and Aldridge

Keaton and Aldridge

Case [2009] FMCAfam 92 9 February 2009

Parental Responsibility

Custody

Access Arrangements

Communication with Child

Disclosure of Changes in Contact Information

Protection from Derogatory Comments

Consequences of Breach

Family Law

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

KEATON & ALDRIDGE

[2009] FMCAfam 92

FAMILY LAW – Parenting – child conceived through assisted conception – child not biologically related to applicant – whether applicant is a parent of the child – whether s.60H(1) of the Family Law Act requires existence of de facto relationship at time of conception or birth – whether applicant and biological mother were in same-sex de facto relationship at time of child’s conception – applicant a person significant to child’s care, welfare and development – allocation of parental responsibility – safety concerns and applicant’s psychological states – different parenting styles – best interests of the child.

Commonwealth Powers (De Facto Relationships) Act 2003 (NSW) Commonwealth Powers (De Facto Relationships) Act 2003 (Qld) Commonwealth Powers (De Facto Relationships) Act 2004 (Vic) Commonwealth Powers (De Facto Relationships) Act 2006 (Tas)
Family Law Act 1975 (Cth), ss.4AA, 60B, 60CA, 60CC, 60EA, 60H(1), 65C(c), 69VA
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)
Property (Relationships) Act 1984 (NSW)
Property Law Act 1974 (Qld)
Status of Children Act 1996 (NSW) s.14(1), s.14(1A)
Succession Act 1981 (Qld)

Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337; [1937] ALR 221; (1937) 4 ATD 163
Ganter v Whalland (2001) 54 NSWLR 122; (2001) 28 Fam LR 260; [2001] NSWSC 1101
Greenwood v Merkel (2004) 31 Fam LR 571; [2004] NSWSC 43
Hayes v Marquis [2008] NSWCA 10
Houston v Butler [2007] QSC 284
KQ v HAE [2007] 2 Qd R 32; [2006] QCA 489
Mao v Peddley [2001] NSWSC 254
Re C and D (1998) 147 FLR 120; (1998) 23 Fam LR 375; (1998) FLC 92-815; [1998] FamCA 98
Re J & M; Residence Application [2004] FMCAfam 656; (2004) 32 Fam LR 668
Re Mark: An Application relating to Parental Responsibilities (2003) FamCA 822; (2003) FLC 93-173

Applicant:

MS KEATON

Respondent:

MS ALDRIDGE

File Number:

SYC 3130 of 2008

Judgment of:

Pascoe CFM

Hearing dates:

25 & 26 November 2008

Date of Last Submission:

26 November 2008

Delivered at:

Sydney

Delivered on:

9 February 2009

REPRESENTATION

Counsel for the Applicant:

Ms Anne Rees

Solicitors for the Applicant:

Watts McCray Lawyers

Counsel for the Respondent:

Ms Margaret Cleary

Solicitors for the Respondent:

Dettmann Longworth Lawyers

ORDERS

That the child [X] born in 2006 reside with the respondent.
That the respondent have sole parental responsibility for the child.
That the child spend time with the applicant as follows:
(a)Commencing from Saturday 14 February 2009, each Saturday from 10.00am to 1.00pm, for seven weeks.
(b)Thereafter each alternate Saturday from 10.00am to 4.00pm, for eight weeks.
(c)
Thereafter every third weekend of the month from 10:00am to 4:00pm on Saturday and from 10:00am to 4:00pm on Sunday, for

6 months.
(d)Thereafter every third weekend of the month from 10:00am on Saturday to 4:00pm on Sunday.
(e)On such other occasions as the parties may agree.
Each year the child is to spend time with the applicant on the applicant’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 Keaton and Aldridge

Details

AGLC: Keaton and Aldridge [2009] FMCAfam 92
Case: [2009] FMCAfam 92
Decision Date: 9 February 2009

CaseChat Overview and Summary

Keaton and Aldridge involved a dispute over the care and custody of a child born in 2006. The case was heard in the Family Court of Australia, where the court was tasked with determining the living arrangements and parental responsibilities of the child. The parents, identified as the applicant and the respondent, presented their respective cases and evidence regarding the best interests of the child.

The primary legal issues before the court were the allocation of primary residence, the determination of parental responsibility, and the establishment of a visitation schedule for the applicant. The court also had to consider the specific needs and welfare of the child, taking into account the evidence provided by both parties and any expert opinions. Furthermore, the court was required to set out clear and enforceable orders to ensure the smooth transition and maintenance of the child’s well-being.

In delivering the judgment, the court carefully examined the evidence and testimonies presented. It was determined that the child would reside primarily with the respondent, with the applicant having a detailed visitation schedule that gradually increased in duration and frequency over time. The court also granted sole parental responsibility to the respondent, acknowledging her primary role in the child’s care and upbringing. The detailed visitation schedule and communication provisions were designed to facilitate a relationship between the child and the applicant while ensuring the child's safety and best interests. The court's orders included specific provisions for the delivery and collection of the child, communication methods, and obligations regarding the notification of changes in contact details or medical emergencies. The orders also included clear consequences for non-compliance, as mandated by the Family Law Act 1975.

Orders

Orders of the court

That the child [X] born in 2006 reside with the respondent.

That the respondent have sole parental responsibility for the child.

That the child spend time with the applicant as follows:

(a) Commencing from Saturday 14 February 2009, each Saturday from 10.00am to 1.00pm, for seven weeks.

(b) Thereafter each alternate Saturday from 10.00am to 4.00pm, for eight weeks.

(c)

Thereafter every third weekend of the month from 10:00am to 4:00pm on Saturday and from 10:00am to 4:00pm on Sunday, for

6 months.

(d) Thereafter every third weekend of the month from 10:00am on Saturday to 4:00pm on Sunday.

(e) On such other occasions as the parties may agree.

Each year the child is to spend time with the applicant on the applicant’s birthday, if it does not otherwise fall in a period when she spends time with the child, for three hours to be agreed between the parties. Failing agreement, time with the child will be between 10:00am and 1:00pm if it falls on a weekend and between 4:00pm and 7:00pm if it falls on a weekday.

Each year the child is to spend time with the applicant on the child’s birthday, for one hour as agreed between the parties, and failing that, between 10:00am to 11:00am if it falls on a weekend and between 4:00pm and 5:00pm if it falls on a weekday.

Each year the child is to spend time with the applicant on Boxing Day for three hours to be agreed between the parties. Failing agreement, time with the child will be between 10:00am and 1:00pm.

That the delivery of the child is to be agreed between the parties; and failing that, the respondent is to deliver the child to the home of the applicant at [omitted] at the commencement of the time with the child is to spend time with the applicant and is to collect her from the same place at the conclusion of the period, and after delivery is to absent herself and remain away from the home of the applicant during the period unless otherwise invited to stay.

The applicant has liberty to communicate with the child by way of telephone or any other electronic means on each Wednesday between 4:00pm and 7:00pm.

Both parties shall:

(a) Advise each other of any change of telephone numbers or residential address within 48 hours after such change occurring;

(b)

Notify the other as soon as possible and no later than within

24 hours, of any event in which [X] suffers any serious injury, illness or hospitalisation whilst in either parties’ respective care.

(c) Not discuss any parenting issues with the child or in the presence or of hearing distance of the child or allow any other person to do so.

(d) Not make any derogatory comments about the other party, or the other party’s partner or immediate family, in the presence or hearing distance of the child.

10.

That all previous orders be discharged.

11.

That pursuant to s.65DA (2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars form part of these orders.

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.

Citations

AGLC Citation

Keaton and Aldridge [2009] FMCAfam 92

Most Recent Citation

Baker & Landon [2010] FMCAfam 280

Cases citing this decision · 4 of 4 shown

Mizushima & Crocetti (No 3)
[2024] FedCFamC1F 542 Para 21

…However, that of itself is not exclusive of a finding that the parties had a shared life, see Keaton & Aldridge [2009] FMCAfam 92 at [67]. Indeed, the evidence of both parties is that the applicant effectively maintained both residences at the earlier time when it is agreed that they were in a de facto relationship.…
Wickham & Toledano (No 2)
[2022] FedCFamC1F 32 Para 20

…ARTIFICIAL CONCEPTION PROCEDURE CARRIED OUT AT A TIME WHEN MS D AND THE RESPONDENT WERE IN A DE FACTO RELATIONSHIP? [5] See also Keaton & Aldridge (2009) 223 FLR 158 per Pascoe CFM.…
Baker & Landon
[2010] FMCAfam 280 Para 2

…together raising children. The very participation in IVF together demonstrates this. In this respect the facts differ from those in Keaton v Aldridge [2009] FMCAfam 92; (2009) 223 FLR 158, where Pascoe CFM found: [91] Despite this involvement in each other’s lives and the applicant’s commitment to helping the Respon…
Aldridge & Keaton
[2009] FamCAFC 229

…[2009] FMCAfam 92…

View all 4 citing cases →

Cases cited in this decision · 10 of 10 shown

Hayes v Marquis
[2008] NSWCA 10 Para 11

…AE [2007] 2 Qd R 32; [2006] QCA 489. The phrase was recently considered by the New South Wales Court of Appeal in Hayes v Marquis [2008] NSWCA 10 where Einstein J at [166] stated that, “[t]o live together requires that the two adult persons be seen as regarding the place or places in which they live as ‘their home…
Houston v Butler
[2007] QSC 284 Para 2

…In the matter of Houston v Butler [2007] QSC 284 on an application under the Succession Act 1981 (Qld) for proper maintenance and support out of the testator’s estate on the basis the applicant was the testator’s de facto spouse, both parties held separate residences and the applicant only moved into the testator…
KQ v HAE
[2006] QCA 489 Para 11

…eensland cases that also indicate consideration should be had to the merging of lives: see for example KQ v HAE [2007] 2 Qd R 32; [2006] QCA 489. The phrase was recently considered by the New South Wales Court of Appeal in Hayes v Marquis [2008] NSWCA 10 where Einstein J at [166] stated that, “[t]o live together…
Re J and M: Residence Application
[2004] FMCAfam 656 Para 8

…(the donor) has not been served with an application, to the knowledge of the respondent and her representatives. In Re J & M; Residence Application [2004] FMCAfam 656; (2004) 32 Fam LR 668 there was discussion as to the necessity of serving the donor if he can be found because he may be regarded as a biological paren…
Greenwood v Merkel
[2004] NSWSC 43 Para 5

…ties spent most nights of the week together at one or the other’s residence and in a way that suited them; Greenwood v Merkel (2004) 31 Fam LR 571; [2004] NSWSC 43. However, the independent nature of their relationship carried through to other aspects including, finances, property and possessions and to basic chor…
Ganter v Whalland
[2001] NSWSC 1101 Para 6

…I note that in the decision of Ganter v Whalland (2001) 54 NSWLR 122; (2001) 28 Fam LR 260; [2001] NSWSC 1101, Justice Campbell found that the time for the marriage was at the time of pregnancy. However, I am of the view that the wording of s.14(1) of the Status of Children Act 1996 (NSW) at the time is sufficiently…
Mao v Peddley
[2001] NSWSC 254 Para 11

…s “so merged their lives that they were, for all practical purposes, living together as a married couple” : see for example Mao v Peddley [2001] NSWSC 254 at [57]. I note that the Property (Relationships) Act 1984 (NSW) phrases the term as two adults “ who live together as a couple” rather than “living together on…
Hibberson v George
[1989] NSWCA 100 Para 12

…hat they may still be in a de facto relationship if they temporarily separate. Two cases decided under the NSW legislation separations (Hibberson v George (1989) DFC 95-064 and Mao v Peddley (2002) DFC 95-249) indicate that courts have not had any particular difficulty with the issue of temporary separation, and that person…
Broken Hill South Limited (Public Officer) v Commissioner of Taxation (NSW)
[1937] HCA 4 Para 3

…ng of the words yields no absurd results or any inconsistency with the rest of the instrument: Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337 at 371; [1937] ALR 221; (1937) 4 ATD 163 per Dixon J. In fact, the literal reading which requires the de facto relationship to be in effect at the ti…
[1998] FAMCA 98
[1998] FAMCA 98 Para 2

…In Re C and D (1998) 147 FLR 120; (1998) 23 Fam LR 375; (1998) FLC 92-815; [1998] FamCA 98 it was stated that at [10.10]: “This court made it clear in Rice and Miller (1993) 16 Fam LR 970; (1994) FLC 92-415 and more recently in Re Evelyn (1998) (1998) 23 Fam LR 53; FLC 92-807 that the biological parent does not st…

Legislation cited in this decision · 10

Family Law Act 1975 (Cth)
4AA, 60B, 60CA, 60CC, 60EA, 60H(1), 65C(... 9 mentions (from Para 11)
Property Law Act 1974 (Qld)
2 mentions (from Para 11)
Status of Children Act 1996 (NSW)
14(1) 2 mentions (from Para 6)
Acts Interpretation Act 1901 (Cth)
1 mention (from Para 1)
Commonwealth Powers (De Facto Relationships) Act 2003 (NSW)
1 mention (from Para 5)
Commonwealth Powers (De Facto Relationships) Act 2004 (Vic)
1 mention (from Para 5)
Commonwealth Powers (De Facto Relationships) Act 2006 (TAS)
1 mention (from Para 5)
Property (Relationships) Act 1984 (NSW)
1 mention (from Para 11)
Property Law Act 1958 (Vic)
1 mention (from Para 12)
Succession Act 1981 (Qld)
1 mention (from Para 2)