Re J and M: Residence Application - [2004] FMCAfam 656

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RE J & M: RESIDENCE APPLICATION

[2004] FMCAfam 656

FAMILY LAW – Children – parental responsibility – children born to same sex (female) partners as a result of an artificial conception procedure – identity of biological mother not an issue – identity of biological father unknown – anonymous sperm donor – best interests of children.

Family Law Act 1975

ReMark: An Application relating to Parental Responsibilities (2003) FamCA 822; (2003) FLC 93-173
RePatrick: AnApplication concerning Contact (2002) FamCA 193; (2002) FLC 93-096
B & B: Family Law Reform Act1995 (1997) 21 FamLR 676
Smith (1994) 18 FamLR 55
Paskandy (1999) 25 FamLR 607

Applicants:

FJM & BMT

Respondent:

EX PARTE

File No:

MLM 5413 of 2003

Delivered on:

23 November 2004

Delivered at:

Melbourne

Hearing date:

17 February 2004

Judgment of:

Walters FM

REPRESENTATION

Counsel for the Applicant:

Counsel & Kelly Family Lawyers

Solicitors for the Applicant:

Ms L. Kelly

Counsel for the Respondent:

Identity of respondent unknown

ORDERS

The applicants have joint responsibility for the long term and day to day care, welfare and development of the children J and M, both born 14 April 2003.
The said children live with the applicants.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 5413 of 2003

FJM & BMT

Applicants

And

EX PARTE

Respondent

REASONS FOR JUDGMENT

J and M

J and M are twins. They were born on 14 April 2003.
Ms F is the twins’ biological mother. She and her partner, Ms B, have been in a same sex relationship since October 1998, and have lived together since 1 April 1999.
J and M were born after Ms F and Ms B made a joint decision to start a family. The decision was made in March 2002, and, as a result of it, Ms F and Ms B approached the Albury Reproductive Clinic to join its IVF program.
Ms F and Ms B attended the clinic on 27 June 2002 for their first appointment (which included medical and psychological assessments). Ms F became pregnant, using donor sperm, on 12 August 2003.
Ms B assisted Ms F, both emotionally and financially, during Ms F’s pregnancy.
Ms F and Ms B are jointly parenting J and M. They love the twins, and are caring for them in a proper and effective manner.

An Application is Made

Ms F and Ms B have jointly applied to this Court for orders to the following effect:
That they have joint responsibility for the long term and day to day care, welfare and development of the twins, and that the twins live with them.

The Twins’ Father is Unknown

There is no respondent to the application made by Ms B and Ms F. That is so because the identity of the twins’ biological father is unknown.
Dr Giltrap is the Director of Reproductive Medicine at the Albury Reproductive Clinic. In an affidavit sworn 23 December 2003, Dr Giltrap deposed as follows:
The operation of the Albury…

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 Re J and M: Residence Application

Details

AGLC: Re J and M: Residence Application [2004] FMCAfam 656
Case: [2004] FMCAfam 656
Decision Date: 23 November 2004

CaseChat Overview and Summary

The applicants, the parents of the children J and M, applied for a residence order to determine the primary care arrangements for their children. The children were born on 14 April 2003. The case was heard in the Family Court of Australia. The applicants were seeking a joint responsibility arrangement, where both parents would share the long-term and day-to-day care, welfare, and development of their children. The parents were already living together with their children.

The legal issues the court was required to decide were whether it was in the best interest of the children to have joint responsibility arrangements and if both parents were capable of providing the necessary care and support for the children. The court also had to consider the welfare and development of the children, as well as the ability of each parent to provide a stable and nurturing environment.

The court found that it was in the best interest of the children to have joint responsibility arrangements, as both parents were capable of providing the necessary care and support. The court noted that the children were living with the applicants and that both parents were committed to their welfare and development. The court also considered the ability of each parent to provide a stable and nurturing environment, and found that both parents were capable of doing so. The court concluded that the joint responsibility arrangement would best serve the children's needs.

The final orders of the court were that the applicants have joint responsibility for the long-term and day-to-day care, welfare, and development of the children J and M, and that the children live with the applicants. This decision provides clarity and security for the parents and the children, ensuring that both parents are actively involved in the children's lives and that their needs are met.

Orders

Orders of the court

The applicants have joint responsibility for the long term and day to day care, welfare and development of the children J and M, both born 14 April 2003.

The said children live with the applicants.

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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