FAMILY COURT OF AUSTRALIA
| BERNIERES AND ANOR & DHOPAL AND ANOR | [2017] FamCAFC 180 |
| FAMILY LAW – APPEAL – CHILDREN – PARENTAGE – Where the child of the relationship was born as a result of a surrogacy arrangement – Where the appellants complain that the primary judge failed to make declarations of parentage in relation to the child as sought by them and to grant leave to apply for a step-parent adoption – Where the appellants submit that it was open to the Court to apply s 69VA of the Family Law Act 1975 (Cth) – Where s 69VA of the Family Law Act 1975 (Cth) is not available here, s 60HB of the Family Law Act 1975 (Cth) covers the field and s 60H of the Family Law Act 1975 (Cth) does not apply – Where the unfortunate result of that conclusion is that the parentage of the child is in doubt – Where there is no question here that the father is the biological father of the child but that does not translate into him being a parent for the purposes of the Family Law Act 1975 (Cth) – Where the mother is not the biological mother and is even less likely to be the “legal parent” – Where in the alternative the appellants sought a declaration pursuant to s 67ZC of the Family Law Act 1975 (Cth) – Where s 67ZC of the Family Law Act 1975 (Cth) does not apply – Where it is alleged by the appellants that the primary judge failed to address their application for leave to apply for a step-parent adoption pursuant to s 60G of the Family Law Act 1975 (Cth) – Where the transcript shows differently – Where it was only necessary for the primary judge to address s 60G of the Family Law Act 1975 (Cth) if there was a declaration of parentage in favour of the second appellant but not in favour of the first appellant – Where the primary judge did not make a declaration in favour of either party and thus on the appellants’ own case the primary judge was not obliged to address the application pursuant to s 60G of the Family Law Act 1975 (Cth) – Where the primary judge did not address s 60G of the Family Law Act 1975 (Cth) in his reasons for judgment but given there was no basis to make an order under that section a lack of reasons specifying that should not result in the appeal being allowed – Where there is no merit in the grounds of appeal – Appeal dismissed. |
| Adoption Act 1974 (Vic) s 33 Family Law Regulations 1984 (Cth) regs 12C, 12CA and 12CAA |
| Keyes, M and Chisholm, R, ‘Commercial Surrogacy – Some… |
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- AGLC
- Bernieres & Dhopal [2017] FamCAFC 180
- Case
- [2017] FamCAFC 180
- Decision Date
CaseChat Overview and Summary
The court applied the rule of statutory construction known as generalia specialibus non derogant, which suggests that specific provisions in a statute will prevail over more general ones if there is a conflict. This was supported by the fact that sections 60H and 60HB were enacted after the general provisions in the Family Law Act and thus should be given precedence. The reasoning extended to the interpretation of sections 60H and 60HB as effectively non-rebuttable presumptions, which would render them meaningless if not interpreted to displace the general presumptions. This interpretation was also supported by previous judicial comments that suggest state law governs the determination of parentage in surrogacy cases, which federal law will recognise.
The court concluded that the specific provisions for children born through artificial conception or surrogacy should govern the determination of parentage in such cases, and thus dismissed the appeal. The outcome affirmed that the specific provisions of the Family Law Act regarding children born through artificial conception or surrogacy take precedence over the general parentage provisions, and that state law will govern the determination of parentage in surrogacy arrangements, a principle that federal law will recognize. The court's decision was clear in affirming that unless an order is made in favour of an applicant pursuant to state surrogacy legislation, federal family law does not permit a declaration of parentage in their favour.
Orders
Orders of the court
1.
The appeal be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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
Section 69VA provides as follows:DECLARATIONS OF PARENTAGE69VAAs well as deciding, after receiving evidence, the issue of the parentage of a child for the purposes of proceedings, the court may also issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth. This section is in that part of the Act (Part VII) where a number of general provisions dealing with parentage, presumptions and declarations of parentage appear, and the obvious question is whether specific sections such as ss 60HB and 60H prevail over these general provisions where they conflict. The answer to that question is assisted by the rule of statutory construction known as generalia specialibus non derogant. That provides that if there is a specific section or sections of the Act that apply, then that section or those sections prevail, particularly where, as here, the specific sections, namely s 60HB and the amended s 60H were enacted after the general (Commissioner of Taxation v Hornibrook (2006) 156 FCR 313). The proposition that ss 60H and 60HB prevail over the general provisions can also be supported by a consideration of the meaning and effect of those two sections. As Chief Judge Thackray explained in Farnell & Anor and Chanbua (2016) FLC 93–700 at [143]; [2016] FCWA 17 at [231]:Sections 60H and 60HB, at least to the extent that they expressly determine the status of children coming within their ambit, would be rendered meaningless if they were not interpreted to displace the presumptions in Division 12 [of the Act]. It should also be noted that ss 60H and 60HB appear in Subdivision D of Division 1 of Part VII, which is entitled “Interpretation – how this Act applies to certain children”. I conclude that while the rules of maternity and paternity in ss 60H and 60HB are not expressed as non-rebuttable presumptions, in effect they are, and they therefore trump the rebuttable Division 12 presumptions.(Footnotes omitted)We agree with that interpretation. We note that this issue was also tentatively addressed by Ryan J in Mason where her Honour said this:33.The application of these principles [namely the application of the generalia specialibus rule of statutory construction] to s 60H and s 60HB was not discussed in this hearing. It follows, that without the benefit of argument, a cautious approach to the issue is necessary. However, it is my preliminary view that for the purposes of the Act, the 2008 amendments evince an intention by Parliament that the parentage of children born as a result of artificial conception procedures or under surrogacy arrangements will be determined by reference to those provisions and not the general parentage provisions. This interpretation achieves, on a state by state (and territory) basis, a uniform system for the determination of parentage.34.The effect of this is that unless an order is made in favour of the applicant pursuant to the Surrogacy Act [of New South Wales], the provisions of the [Family Law Act] do not permit this Court to make a declaration of parentage in his favour. Thus, on reflection, I am inclined to respectfully agree with Watts J in Dudley and Anor & Chedi [2011] FamCA 502, where at [29] his Honour determined that ultimately state law will govern the determination of parentage [of children born under surrogacy arrangements] and that state law will be recognised by federal law.