FAMILY COURT OF AUSTRALIA
| MATHERS & MATHERS | [2008] FamCA 856 |
| FAMILY LAW – CHILDREN – Application for consent orders –Parties in a same-sex relationship – Meaning of parent – Artificial conception procedure – Each party is biological parent to a child – Order to be made in favour of a parent and a person concerned with care welfare and development for each child – In best interests for children to live with both parties – Consideration of parental responsibility – Orders sought seem to confine parental responsibility to long term issues – Parties to consider reasons and draft orders |
| Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 60H, 61B, 61DA, 64B, 65C, 65DAC, 65G, 69R, 69ZM, 69ZO Family Law Rules 2004 (Cth) r 6.02 Family law Regulations 1984 (Cth) reg 12C; Schedules 6 and 7 |
| B v J (1996) FLC 92-716 Re Mark: An Application Relating to Parental Responsibilities (2003) FLC 93-173 Re Patrick: An Application concerning Contact (2002) FLC 93-096 |
| APPLICANT: | Ms A Mathers |
| RESPONDENT: | Ms R Mathers |
| FILE NUMBER: | BRC | 7096 | of | 2008 |
| DATE DELIVERED: | 16 October 2008 |
| PLACE DELIVERED: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | Application Considered In Chambers |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Not Applicable |
| SOLICITOR FOR THE RESPONDENT: | Not Applicable |
IT IS NOTED that publication of this judgment under the pseudonym Mathers & Mathers is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER: BRC7096/2008
| MS A MATHERS |
Applicant
And
| MS R MATHERS |
Respondent
REASONS FOR JUDGMENT
On 5 August 2008 an Application for Consent Orders was filed relating to two children H born … June, 2004 and M born … January, 2007.
A Registrar has referred that application to the Court.
The applicant and respondent are in a same-sex relationship that commenced in June 2002 and which has subsisted since.
The applicant is the biological mother of H. The respondent is the biological mother of M.
The parties each and together took a decision to respectively conceive, and together nurture, a child. The decision to have a second child as a “sibling” for the first was also planned.
Each child was conceived by way of donor insemination. The parties each depose that neither knows “the identity of the donor and it is not intended that [either has] a parenting role in relation to, or spend time and communicate” with either child.
Each of the parties deposes that each child was conceived “with a view to creating our own family, where we would both undertake parenting roles and responsibilities…” and, further, that they “both consider [the other] to be [each child’s] co-mother and a parent”.
In those circumstances the parties seek orders from the Court that the children live with the two of them and, further, that they “have the parental responsibility, in consultation with each other, for making decisions regarding the major long term issues affecting the children”.
Although one party is named as the applicant and the…
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CaseChat Overview and Summary
The primary legal issue before the court was the interpretation of "parent" under the relevant family law legislation, particularly in circumstances involving a same-sex couple where both individuals were biological parents to the children. The court also had to determine whether the proposed orders, which appeared to confine parental responsibility to long-term issues, were appropriate and in the best interests of the children.
Murphy J considered the meaning of "parent" in the context of the *Family Law Act 1975* (Cth) and the specific circumstances of artificial conception. The court acknowledged the biological parentage of both parties and the need to ensure the children's welfare and development were adequately provided for. The judge indicated that orders would be made in favour of a parent and a person concerned with the care, welfare, and development for each child, finding it to be in the best interests of the children to live with both parties. The court directed the parties to consider the reasons for this approach and to draft the final orders accordingly, with a focus on ensuring appropriate parental responsibility was maintained.
Orders
Orders of the court
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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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