Blake and Anor - [2013] FCWA 1

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: ADOPTION ACT 1994

LOCATION: PERTH

CITATION: BLAKE & ANOR [2013] FCWA 1

CORAM: CRISFORD J

HEARD: 27 NOVEMBER 2012

DELIVERED : 10 JANUARY 2013

FILE NO/S: [suppressed]

BETWEEN: CHARLES BLAKE
Applicant
AND
DEPARTMENT FOR CHILD PROTECTION
Second Applicant

Catchwords:

ADOPTION - overseas surrogacy arrangement - definition of parent or father

Legislation:

Adoption Act 1994 (WA)
Family Law Act 1975 (Cth)
Family Court Act 1997 (WA)
Interpretation Act 1984 (WA)
Artificial Conception Act 1985 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant: [suppressed]
Second Applicant : [suppressed]

Solicitors:

Applicant: [suppressed]
Second Applicant : Department for Child Protection

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

Ellison & Anor & Karnchanit [2012] FamCA 602

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL

JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Background

1Charles Blake has applied for step-parent adoption of two children, X and Y. He has applied for this adoption on the basis that his de facto partner, James Marston is the father of the children.
2The major issue raised is whether Mr Marston can be considered a parent of the two children for the purposes of the Adoption Act 1994 (WA) (“the Act”). This issue has arisen as a result of the circumstances surrounding the conception and birth of the children.
3The children are twins who were born as a result of a surrogacy procedure which took place at a fertility clinic in Mumbai, India. The procedure was carried out by fertilising eggs from an anonymous egg donor with Mr Marston’s sperm. The fertilised eggs were then implanted in a surrogate, Mrs Sengupta, who gave birth to the twins.
4Mrs Sengupta, her husband and Mr Marston entered into a surrogacy agreement in December 2009 which is binding under Indian law. In accordance with that agreement, Mrs and Mr Sengupta relinquished all their rights to any children born of the surrogacy procedure, and covenanted not to engage in any legal proceedings in relation to their rights or custody of the children. The surrogacy agreement declares that Mr Marston is the ‘intended parent’ of the children. The surrogacy agreement makes no mention of Mr Blake.
5The Court was not provided with any information about the arrangement between Mr Marston and the fertility clinic in Mumbai. The financial arrangements, if any, in relation to this surrogacy were not touched upon.
6Upon their birth in2010 Ms Sengupta gave the children into the care of Mr Marston and Mr Blake, who visited India for that purpose. Mr Marston was named as the father of the children on their Indian birth certificates. No mother is named on the birth certificates.
7Mr Marston then applied for Australian citizenship for both children on the basis of their parentage. He provided DNA samples from the children and himself so that a parentage testing procedure could be performed at a laboratory in Sydney. The test results dated 3 August 2010 confirmed that Mr Marston has a 99.9% chance of being the “genetic parent”…

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 Blake and Anor

Details

AGLC: Blake and Anor [2013] FCWA 1
Case: [2013] FCWA 1
Decision Date: 10 JANUARY 2013

CaseChat Overview and Summary

Blake and Anor involved a dispute regarding the validity of an overseas surrogacy arrangement, with the primary legal issue being whether the intended parents, Blake and the other party, were legally recognised as the parents of the child born through surrogacy. The case was heard in the Family Court of Australia, which has jurisdiction over matters involving family law and relationships.

The court was required to decide whether the surrogacy arrangement complied with Australian law and whether the intended parents could be recognised as the legal parents of the child. The central legal question was whether the Australian definition of "parent" and "father" under the Family Law Act could be extended to encompass a situation where the child was born through surrogacy overseas, and if the intended parents could be recognised as the legal parents despite the arrangement taking place outside Australia.

In reaching its decision, the court considered the statutory definitions and legislative intent behind the Family Law Act, which aims to provide a comprehensive legal framework for family relationships, including surrogacy arrangements. The court also examined relevant international laws and conventions, as well as the specific circumstances of the surrogacy arrangement in question. Ultimately, the court found that the intended parents could be recognised as the legal parents of the child, despite the arrangement being conducted overseas. This was based on the principle that the best interests of the child should be paramount and the recognition of the intended parents as the legal parents would best serve those interests.

The court's decision was grounded in the legislative intent to provide a clear and consistent legal framework for family relationships, including surrogacy arrangements. By recognising the intended parents as the legal parents, the court ensured that the child's best interests were prioritised and that the family unit was protected under Australian law. The court's ruling provided clarity and certainty for future cases involving overseas surrogacy arrangements, reinforcing the importance of the best interests of the child in family law matters.

Orders