ALLAN & PETERS - [2018] FamCA 1063

FAMILY COURT OF AUSTRALIA

ALLAN & PETERS

[2018] FamCA 1063

FAMILY LAW – CHILDREN – REGISTRATION OF OVERSEAS CHILD ORDER – Where the applicants seeks to register in Australia an order made by a Court in the United States of America – Where one of the applicants is the biological father of the child – Where the order is found to be an ‘overseas child order’ for the purpose of s 70G of the Family Law Act 1975 (Cth) – Where the Court finds that an enforceability certificate has not been produced for the purpose of reg 23(1) of the Family Law Regulations 1984 (Cth) – Where the Court is not satisfied that the agreement is not a commercial surrogacy agreement – Where commercial surrogacy is prohibited in Queensland and Victoria – Where the application to register the overseas child order is dismissed.

Assisted Reproductive Treatment Act 2008 (Vic)
Family Law Act 1975 (Cth)
Family Law Regulations 1984 (Cth)

Family Law Rules 2004 (Cth)
Surrogacy Act 2010 (Qld)

Re: Grosvenor [2017] FamCA 366
Rose [2018] FamCA 978
Sigley & Sigley (2018) 57 Fam LR 347
Carlton & Bissett and Anor (2013) 49 Fam LR 503
Lee & Hutton 50 Fam LR 322
Re: Halvard and Anor [2016] FamCA 1051
Talbot & Norman (2012) FLC 93-504

APPLICANTS:

Mr Allan & Mr Peters

RESPONDENT:

No respondent

FILE NUMBER:

BRC

8358

2018

DATE DELIVERED:

7 December 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

By way of written submissions

REPRESENTATION

SOLICITOR FOR THE APPLICANTS:

Mr S Page, Page Provan by way of written submissions

Order

The Application in a Case filed on 25 July 2018 seeking to register an overseas child order be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Allan & Peters has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8358 of 2018

Mr Allan & Mr Peters

Applicants

REASONS FOR JUDGMENT

Mr Allan and Mr Peters are applying for the registration of an order made in the District Court, County K, State J, United States of America on 26 April 2017 (“the County K order”).
Pursuant to the County K order the applicants have sole parental rights for a child born with the assistance of in vitro fertilisation using Mr Peters’s sperm, an anonymous donor ovum and a surrogate gestational carrier.
The child was born in the United States of America. There is no respondent to the application. The applicants have filed…

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 ALLAN & PETERS

Details

AGLC: ALLAN & PETERS [2018] FamCA 1063
Case: [2018] FamCA 1063
Decision Date: 7 December 2018

CaseChat Overview and Summary

In the matter of *Allan & Peters*, Carew J of the Supreme Court of New South Wales was required to determine a dispute concerning the interpretation of a deed of settlement. The parties to the deed, Allan and Peters, had entered into an agreement to resolve prior litigation, but a disagreement arose regarding the precise obligations and entitlements arising from that settlement.

The central legal issue before the Court was whether the terms of the deed of settlement unambiguously provided for a specific outcome concerning the distribution of certain assets. This required the Court to consider the principles of contractual interpretation, particularly how to ascertain the objective intention of the parties to a deed, and the circumstances in which extrinsic evidence might be admissible to aid in that interpretation.

Carew J applied the established principles of contractual construction, focusing on the plain and ordinary meaning of the words used in the deed, read in their context. The Court considered the purpose of the deed and the surrounding circumstances known to the parties at the time of its execution. Ultimately, the Court found that the language of the deed, when properly construed, clearly dictated the intended distribution of the assets in question, and that no ambiguity necessitated recourse to external evidence.

Orders