Simpson v Brockmann [2010] FamCAFC 37
Court: Family Court
Judges: Coleman, Warnick, May JJ
Facts: This case involves parenting arrangements for [B] (now 10 years old) and [S] (now 11 years old). [B’s] biological mother is the respondent, [Ms. Brockmann], and [S’s] biological mother is the applicant, [Ms. Simpson]. [Ms. Simpson] and [Ms. Brockmann] were in a partnership during the conception and birth of the children, both being artificially inseminated by the same anonymous sperm donor. After the parties separated, the existing parenting orders became unworkable when Ms. Brockman moved to Sydney. The lower court issued orders, allowing child B to continue living with her mother in Sydney and child S to live with his mother in Northern New South Wales. Each child was to spend some time in the household of the other child and that child’s mother. At the time of this order, the law had not been amended to recognize each woman as the legal parent of their non-biological child. Ms. Simpson appealed, seeking primary residence of the children and appropriate visitation for Ms. Brockmann, applying the amended law. The appeal was dismissed.
Reasoning: The right to appeal under Section 24 of the Federal Court of Australia Act 1976 (Cth) is an appeal and not a rehearing. Therefore, the court must consider and apply the law as it stood at the date of the initial hearing, not at the date of the appeal. Regarding the best interest of the child, the appellate court found no error in the lower court’s reasoning based on the evidence presented, and any issues not raised during the trial could not be addressed solely on appeal.
To read the full judgement go to: http://www.austlii.edu.au/au/cases/cth/FamCAFC/2010/37.html