BLH v SJW - [2010] QDC 439

CHILDREN’S COURT OF QUEENSLAND

CITATION:

BLH & Anor v SJW & Anor [2010] QDC 439

PARTIES:

BLH and MH

(Applicants)

v

SJW and MW

(Respondents)

FILE NO/S:

2592/2010

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Children’s Court of Queensland

DELIVERED ON:

28 September 2010

DELIVERED AT:

Brisbane

HEARING DATE:

28 September 2010

JUDGE:

Irwin DCJ

ORDER:

1. That pursuant to section 22(1) of the Surrogacy Act (Qld) 2010 parentage of CWH born 11 May 2010 be transferred from SJW and MW to BLH and MH;

2.        That SJW and MW relinquish to BLH and MH custody and guardianship of CWH and that the presumptions of parentage pursuant to the provisions of the Status of Children Act 1978 (Qld) which are applicable and declarable until this order is made be declared inapplicable;

3.        That BLH and MH become permanently responsible for the custody and guardianship of CWH;

4. That pursuant to section 41D of the Births, Deaths and Marriages Registration Act (Qld) 2003, that the applicants and the Registrar of Births, Deaths and Marriages take all steps to register this parentage order and hence register the transfer of parentage of CWH’s Queensland birth certificate registration number [number stated] registered in Brisbane on 21 May 2010;

5. That pursuant to section 63(4) of the Surrogacy Act (Qld) the Court dispense with the following requirements:

           Under chapter 3 of the said Act:

(i) that the surrogacy arrangement was made after the parties had obtained independent legal advice about the arrangement and its implications (section 22(2)(e)(i));

(ii) that the surrogacy arrangement was made after the parties had obtained counselling from an appropriately qualified counsellor upon the surrogacy arrangement and its social and psychological implications (section 22(2)(e)(ii));

(iii) that the surrogacy arrangement was not in writing prior to the conception of the intended child (section 22(2)(e)(v)); and

(iv) that an affidavit under section 31 be produced to the court.

6.       The first and second applicants pay the costs of the first and second respondents of the application.

CATCHWORDS:

APPLICATION - SURROGACY ACT - PARENTAGE ORDER - where the application is for a parentage order to be made under s 22(1) of the Surrogacy Act 2010 (Qld) - where the respondent’s consented to the making of the order - where a verbal parentage agreement was entered into in contemplation of, but prior to, the passing or commencement of the Act - where a written parentage agreement was made retrospectively which confirmed the verbal agreement - where the application relies on the transitional provisions of the Act - where certain non-mandatory requirements have not been complied with - whether to exercise discretion to dispense with requirements - where discretion exercised - where application for a parentage order granted

Acts Interpretation Act 1954 (Qld), ss 32DA(1), 32DA(5), 36

Births, Deaths and Marriages Registration Act 2003 (Qld), s 41D

Status of Children Act 1978 (Qld), s 17(2)

Surrogacy Act 2010 (Qld), ss 7, 8, 9(1), 12, 14(1)(b)(ii), 21(1), 22(2), 23(1), 25, 26, 27, 28, 30, 31, 32, 62, 63

COUNSEL:

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 BLH v SJW

Details

AGLC: BLH v SJW [2010] QDC 439
Case: [2010] QDC 439
Decision Date: 28 September 2010

CaseChat Overview and Summary

The case of BLH v SJW involved an application under section 22(1) of the Surrogacy Act 2010 (Qld) for a parentage order concerning a child born on 11 May 2010. The applicants, BLH and MH, sought to have the parentage of the child, CWH, transferred from the respondents, SJW and MW. The case hinged on a verbal parentage agreement entered into prior to the Act's commencement and subsequently confirmed by a written agreement. The respondents had consented to the order but raised issues regarding the compliance with certain non-mandatory requirements of the Act.

The court was required to decide whether to exercise its discretion under section 32DA of the Acts Interpretation Act 1954 (Qld) to dispense with the non-mandatory requirements of the Surrogacy Act 2010 (Qld), given that the parties had not complied with them. The applicants argued that despite not meeting these requirements, the court should still make the parentage order, as the parties had entered into a written parentage agreement in good faith. The court needed to consider the transitional provisions of the Act and determine if the failure to comply with the non-mandatory requirements was sufficiently justified.

The court exercised its discretion to dispense with the non-mandatory requirements, recognising the parties' commitment to the written parentage agreement and the best interests of the child. The court granted the application, ordering the transfer of parentage from SJW and MW to BLH and MH, and declared the presumptions of parentage under the Status of Children Act 1978 (Qld) inapplicable. Additionally, the court ordered that the applicants and the Registrar of Births, Deaths and Marriages take steps to register the parentage order and amend CWH's Queensland birth certificate. The court also directed that the first and second applicants pay the costs of the first and second respondents.

Orders

Orders of the court

1. That pursuant to section 22(1) of the Surrogacy Act (Qld) 2010 parentage of CWH born 11 May 2010 be transferred from SJW and MW to BLH and MH;

2. That SJW and MW relinquish to BLH and MH custody and guardianship of CWH and that the presumptions of parentage pursuant to the provisions of the Status of Children Act 1978 (Qld) which are applicable and declarable until this order is made be declared inapplicable;

3. That BLH and MH become permanently responsible for the custody and guardianship of CWH;

4. That pursuant to section 41D of the Births, Deaths and Marriages Registration Act (Qld) 2003, that the applicants and the Registrar of Births, Deaths and Marriages take all steps to register this parentage order and hence register the transfer of parentage of CWH’s Queensland birth certificate registration number [number stated] registered in Brisbane on 21 May 2010;

5. That pursuant to section 63(4) of the Surrogacy Act (Qld) the Court dispense with the following requirements:

Under chapter 3 of the said Act:

(i) that the surrogacy arrangement was made after the parties had obtained independent legal advice about the arrangement and its implications (section 22(2)(e)(i));

(ii) that the surrogacy arrangement was made after the parties had obtained counselling from an appropriately qualified counsellor upon the surrogacy arrangement and its social and psychological implications (section 22(2)(e)(ii));

(iii) that the surrogacy arrangement was not in writing prior to the conception of the intended child (section 22(2)(e)(v)); and

(iv) that an affidavit under section 31 be produced to the court.

6. The first and second applicants pay the costs of the first and second respondents of the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	BLH & Anor v SJW & Anor [2010] QDC 439
PARTIES:	BLH and MH (Applicants) v SJW and MW (Respondents)
FILE NO/S:	2592/2010
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Children’s Court of Queensland
DELIVERED ON:	28 September 2010
DELIVERED AT:	Brisbane
HEARING DATE:	28 September 2010
JUDGE:	Irwin DCJ
ORDER:	*1. That pursuant to section 22(1) of the Surrogacy Act* (Qld) 2010 parentage of CWH born 11 May 2010 be transferred from SJW and MW to BLH and MH;** 2. That SJW and MW relinquish to BLH and MH custody and guardianship of CWH and that the presumptions of parentage pursuant to the provisions of the Status of Children Act 1978 (Qld) which are applicable and declarable until this order is made be declared inapplicable; 3. That BLH and MH become permanently responsible for the custody and guardianship of CWH; 4. That pursuant to section 41D of the Births, Deaths and Marriages Registration Act (Qld) 2003, that the applicants and the Registrar of Births, Deaths and Marriages take all steps to register this parentage order and hence register the transfer of parentage of CWH’s Queensland birth certificate registration number [number stated] registered in Brisbane on 21 May 2010; *5. That pursuant to section 63(4) of the Surrogacy Act* (Qld) the Court dispense with the following requirements: Under chapter 3 of the said Act: (i) that the surrogacy arrangement was made after the parties had obtained independent legal advice about the arrangement and its implications (section 22(2)(e)(i)); (ii) that the surrogacy arrangement was made after the parties had obtained counselling from an appropriately qualified counsellor upon the surrogacy arrangement and its social and psychological implications (section 22(2)(e)(ii)); (iii) that the surrogacy arrangement was not in writing prior to the conception of the intended child (section 22(2)(e)(v)); and (iv) that an affidavit under section 31 be produced to the court. 6. The first and second applicants pay the costs of the first and second respondents of the application.**
CATCHWORDS:	APPLICATION - SURROGACY ACT - PARENTAGE ORDER - where the application is for a parentage order to be made under s 22(1) of the Surrogacy Act 2010 (Qld) - where the respondent’s consented to the making of the order - where a verbal parentage agreement was entered into in contemplation of, but prior to, the passing or commencement of the Act - where a written parentage agreement was made retrospectively which confirmed the verbal agreement - where the application relies on the transitional provisions of the Act - where certain non-mandatory requirements have not been complied with - whether to exercise discretion to dispense with requirements - where discretion exercised - where application for a parentage order granted Acts Interpretation Act 1954 (Qld), ss 32DA(1), 32DA(5), 36 Births, Deaths and Marriages Registration Act 2003 (Qld), s 41D Status of Children Act 1978 (Qld), s 17(2) Surrogacy Act 2010 (Qld), ss 7, 8, 9(1), 12, 14(1)(b)(ii), 21(1), 22(2), 23(1), 25, 26, 27, 28, 30, 31, 32, 62, 63
COUNSEL: