Mathers & Mathers - [2008] FamCA 856

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

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…

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.

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Details

AGLC: Mathers & Mathers [2008] FamCA 856
Case: [2008] FamCA 856
Decision Date: 16 October 2008

CaseChat Overview and Summary

In *Mathers & Mathers*, heard before Murphy J, the parties, who were in a same-sex relationship, sought consent orders concerning their children. The dispute centred on the meaning of "parent" in the context of artificial conception procedures where each party was the biological parent of a child. The court was asked to consider an order in favour of a parent and a person concerned with the care, welfare, and development of each child, with the overarching consideration being the best interests of the children to live with both parties.

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