Halifax v Fabian [2010] FamCA 1212
Court: Family Court
Judge: Cronin J
Facts: Two children were born through artificial conception to two mothers in a lesbian relationship that ended irretrievably. The mothers share parental responsibility for the children. The case underscores the challenge of balancing the freedom of movement for adults with the welfare of children.
Reasoning: While the best interests of the children are of utmost importance, they are not the sole consideration, especially in the context of an adult’s relocation. The amendment to Section 60H of the Family Law Act 1975 (Cth) specifically addresses children born before November 2008. According to Section 60H(1), if a child is born through an artificial conception procedure while one woman is the de facto partner of another, and the partner consents to the procedure, the child is considered the child of both. Although the consent aspect may lack precision, Section 60H(5) places the burden of disproving consent on the party claiming otherwise, and there is no such contention in this case. Here, all relevant elements are undisputed, establishing both Ms. Halifax and Ms. Fabian as parents of both children. However, due to geographical distance and communication challenges, granting equal or substantial time with the other parent is not deemed in the best interest of the child.
To read the full judgement go to: http://www.austlii.edu.au/au/cases/cth/FamCA/2010/1212.html