Maurice & Barry - [2010] FamCA 687

FAMILY COURT OF AUSTRALIA

MAURICE & BARRY

[2010] FamCA 687

FAMILY LAW – CHILDREN – CONSENT ORDERS – Matter considered “on the papers” in Chambers – Where orders are made by consent no requirement for judicial officers to: provide Reasons for Judgment; to make specific findings; or expressly refer to provisions of Part VII of the Family Law Act 1975 (Cth) – Discretion to make orders by consent in relation to parenting order must be exercised judicially and in accordance with what is in the best interests of the child

Family Law Act 1975 (Cth): s 60CA, s 60CC(2), s 60CC(3), s 60CC(5), s 61C, s 61D(2), s 61DA(1), s 65DAA(1), s 65DAA(2), s 69VA, s 69R

Aldridge & Keaton (2009) FLC 93-421
MRR v GR [2010] HCA 4
Marvel & Marvel (No. 2) [2010] FamCAFC 101
Wattel & Evans [2010] FamCA 411

APPLICANT:

Ms Maurice

RESPONDENT:

Ms Barry

FILE NUMBER:

CAC

996

2010

DATE DELIVERED:

6 August 2010

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

6 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Application for Consent Orders considered in Chambers

SOLICITOR FOR THE APPLICANT:

Consensus Family Lawyers

COUNSEL FOR THE RESPONDENT:

Application for Consent Orders considered in Chambers

SOLICITOR FOR THE RESPONDENT:

Self-represented litigant

Orders

BY CONSENT IT IS ORDERED THAT:

Ms Maurice, born … 1965, and Ms Barry, born … 1976, have parental responsibility for L Barry, born … April 2007, and D Barry, born … January 2009.
The matter is removed from the Pending Cases Inventory.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 996 of 2010

Ms Maurice

Applicant

And

Ms Barry

Respondent

REASONS FOR JUDGMENT

In this matter, I was asked to make orders by consent that:
…[t]he applicant [Ms Maurice] together with the respondent [Ms Barry], has full parental responsibility in respect of their 2 children [L] born … April 2007 and [D] born … January 2009.
Affidavits were filed by both parties in support of the application which confirmed that the applicant and the respondent had been in a committed relationship since July 2000.
The two children subject of the application were:[1]
…born as a result of an artificial conception procedure as contemplated by s.60H of The Family Law Act. Neither [Ms Barry] nor I know the identity of the person who provided the other genetic material. [Ms Barry] is the biological mother and we were living together in a bona fide domestic relationship at all material times. Furthermore, we each consented to each procedure. Hence I am informed that, by dint of the Act, the children are the children of [the mother] and me.
[1] Affidavit of the respondent, filed 25 June 2010, [8].

Children born of an artificial conception procedure

Section 60H of the Family Law Act 1975 (Cth) relevantly provides:
60HChildren born as a result…

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 Maurice & Barry

Details

AGLC: Maurice & Barry [2010] FamCA 687
Case: [2010] FamCA 687
Decision Date: 6 August 2010

CaseChat Overview and Summary

In the matter of *Maurice & Barry*, heard by Faulks DCJ, the dispute concerned parental responsibility for two children, L Barry and D Barry. The case was brought before the court for determination regarding the legal status of parental responsibility for these children.

The central legal issue before the court was to formally recognise and order parental responsibility for the children in favour of Ms Maurice and Ms Barry. This involved the court making a determination on who would hold legal responsibility for the upbringing and welfare of L Barry and D Barry.

The court, by consent of the parties, made orders recognising Ms Maurice and Ms Barry as having parental responsibility for L Barry and D Barry. Consequently, the matter was removed from the Pending Cases Inventory, signifying the resolution of the issue before the court.

Orders

Orders of the court

BY CONSENT IT IS ORDERED THAT:

Ms Maurice, born … 1965, and Ms Barry, born … 1976, have parental responsibility for L Barry, born … April 2007, and D Barry, born … January 2009.

The matter is removed from the Pending Cases Inventory.

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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