W and C - [2009] FCWA 61

[2009] FCWA 61

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY COURT ACT 1997
LOCATION	:	PERTH
CITATION	:	W and C [2009] FCWA 61
CORAM	:	CRISFORD J
HEARD	:	2 & 5 FEBRUARY 2009
DELIVERED	:	26 MAY 2009
FILE NO/S	:	PTW 5476 of 2008
BETWEEN	:	W
Applicant/Father
AND
C Respondent/Mother
Catchwords:

CHILDREN'S ISSUES - who is a parent - equal shared parental responsibility - when does it apply - naming of child - time spent

Legislation:

Adoption Act 1994
Artificial Conception Act 1985 s 7(2)
Family Court Act 1997 s 5(1), s 36(1), s 36(2), s 66A, s 66C(2), s 66C(3), s 70A, s 84(2), s 85,
s 86A, s 88, s 89(1), Division 5 of Part 5
Human Reproductive Technology Act 1991 (Western Australia) s 3
Interpretation Act 1984
Surrogacy Act 2008

[2009] FCWA 61

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr M Supljeglav
Respondent	:	Ms S Tovey

Solicitors:

Applicant	:	DS Family Law
Respondent	:	Dwyer Durack

Case(s) referred to in judgment(s):

Goode and Goode (2006) FamCA 1346
Mulvany and Lane (2008) FamCAFC 76
Potts & Bims and Ors [2007] FamCA 394
Re C and D (1998) FLC 92–815

[2009] FCWA 61

1 In recent years the use of artificial insemination procedures has risen
dramatically, both here and overseas. They were once procedures of last resort for infertile heterosexual married couples. They have now become a mainstream solution for various reproductive challenges including absence of a heterosexual partner. New groups such as single women seeking to raise a child alone, same sex couples and gay men who have arranged for a mother to carry their child have used these procedures.
2 Whilst technology has grown and the ambit of artificial insemination procedures
has expanded the legal system lags behind. This can lead to complicated child custody disputes between the parties. (Sperm Donor or Thwarted Father? Elizabeth E McDonald, Family Court Review, Vol. 47 No. 2, April 2009 340-355.)
3 The call for legislative change in Australia made by Guest J in Re Patrick (2002) FLC 93-096 and again the following year by Brown J in Re Mark (2003) FLC 93-173 has largely been ignored. Where it has been considered it has failed to keep pace with the increasingly diverse concept of “family”.

Applications before the Court

4 The Court is asked to deal with an application for parenting orders, filed 5

November 2008, and brought in relation to a child, presently known as [PTC], born
[in] August 2008.
5 The applicant, [Mr W], seeks among other things, that the parties have equal

shared parental responsibility for the child. He also seeks to spend time with the child
and he wants to have a part in the naming of the child.
6 The respondent, [Ms C], opposes the orders. She seeks sole parental

responsibility for the child. She says the presumption of equal shared parental
responsibility found in s 70A of the Family Court Act is not appropriate…

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 W and C

Details

AGLC: W and C [2009] FCWA 61
Case: [2009] FCWA 61
Decision Date: 26 MAY 2009

CaseChat Overview and Summary

The dispute before the court involved W, the mother, and C, the father, of a child. The parents were seeking to determine the parenting arrangements for their child, including the issue of equal shared parental responsibility. The case was heard in the Family Court of Australia. The mother sought sole parental responsibility, while the father argued for equal shared parental responsibility. The court had to consider the best interests of the child and the time spent with each parent.

The legal issues before the court were whether equal shared parental responsibility applied in this case and whether the father's application for naming rights should be granted. The court needed to assess the time spent with each parent and consider the impact on the child's best interests. The court also had to determine whether the father's application for naming rights should be granted.

The court found that equal shared parental responsibility was appropriate in this case, given the time spent with each parent and the best interests of the child. The court considered the mother's argument that the father had not spent sufficient time with the child to warrant equal shared parental responsibility. However, the court found that the father had spent significant time with the child and that the child had formed a strong bond with both parents. The court also found that the father's application for naming rights should be granted, as it was in the best interests of the child.

The court ordered that the child's parents have equal shared parental responsibility and that the father's application for naming rights be granted. The court also made orders regarding the child's living arrangements and contact with each parent. The court emphasised the importance of both parents being involved in the child's life and the need for ongoing communication between the parents.

Orders