FAMILY COURT OF AUSTRALIA
| CARLTON & BISSETT AND ANOR | [2013] FamCA 143 |
| FAMILY LAW – CHILDREN – SURROGACY – Whether the respondent is a legal parent under the terms of the Family Law Act 1975 (Cth) of children born pursuant to an overseas surrogacy arrangement –Where the surrogacy arrangement is legal under South African laws –Where legal parentage is determined by the laws of the country where you are ordinarily resident and the children’s domicile at the time of their birth – Whether presumptions of parentage apply – Where South Africa is not a prescribed overseas jurisdiction under the Family Law Regulations 1984 (Cth) which allows for overseas child orders to be registered in Australia – Whether a presumption in favour of parentage can apply where a reciprocating jurisdiction has found that a person is a parent of a particular child – Where a declaration of parentage is made because it is in the children’s best interests to do so. FAMILY LAW – STANDING – Where the applicant is a person who is concerned with the care welfare or development of the children and accordingly has standing to apply for a parenting order. |
| Family Law Act 1975 (Cth): ss 69VA; 65DA; 62B; 60CC; 69E; 65C; 65G; 69A; 69B; 69S; 70G; 110; 60HB; 60H Family Law Regulations 1984 (Cth): s 25 The Children’s Act 38 of 2005 (South Africa): s 297 |
| Ellison and Anor & Karnchanit [2012] FamCA 602 G v H (1994) 181 CLR 387 Minister for Immigration & Multicultural and Indigenous Affairs & B (2004) 219 CLR 365 Tobin v Tobin (1999) FLC 92-848 |
| APPLICANT: | Mr Carlton |
| FIRST RESPONDENT: | Mr Bissett |
| SECOND RESPONDENT: | Ms Schmidt |
| FILE NUMBER: | SYC | 5205 | of | 2012 |
| DATE DELIVERED: | 19 February 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 25 October 2012 |
REPRESENTATION
| FOR THE APPLICANT: | Mr Carlton in Person |
| COUNSEL FOR THE FIRST RESPONDENT: | Ms Lawson |
| SOLICITOR FOR THE FIRST RESPONDENT: | Steiner Legal |
| FOR THE SECOND RESPONDENT: | No appearance for or on behalf of the second respondent |
Orders
Pursuant to s 69VA of the Family Law Act 1975 (Cth) it is declared that Mr Bissett is a parent, namely the father of the children … born in October 2010.
That Mr Carlton and Mr Bissett have equal shared parental responsibility for the care, welfare and development of the children of the relationship, the children ….
That Mr Carlton and Mr Bissett are jointly responsible for making decisions about major long term issues in respect of the children including but not limited to:
(a) the children’s education;
(b) the children’s health; and
(c) the children’s residence.
That Mr Carlton and Mr Bissett will be responsible for day to day decisions concerning the care of each child when any child is living with Mr Carlton and Mr Bissett or either of them or spending time with Mr Carlton and Mr Bissett or either of them.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and…
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- AGLC
- CARLTON & BISSETT AND ANOR [2013] FamCA 143
- Case
- [2013] FamCA 143
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether Mr Bissett was a legal parent of the children under the *Family Law Act 1975* (Cth), given the overseas surrogacy. Key issues included whether legal parentage was determined by the laws of the country of ordinary residence and domicile at the time of birth, the applicability of presumptions of parentage, and the effect of South Africa not being a prescribed overseas jurisdiction for the registration of child orders. The court also considered whether a presumption in favour of parentage could apply where a reciprocating jurisdiction had made a finding of parentage, and whether a declaration of parentage was in the children's best interests. Furthermore, the court addressed Mr Carlton's standing to apply for parenting orders, finding he was a person concerned with the care, welfare, or development of the children.
Justice Ryan reasoned that while South Africa was not a prescribed overseas jurisdiction, the *Family Law Act* did not preclude a declaration of parentage in such circumstances. The court applied the principle that legal parentage in Australia is generally determined by the laws of the country where the child is ordinarily resident and domiciled at the time of birth, and that the best interests of the child are paramount. The court found that it was in the children's best interests to declare Mr Bissett a parent, and that Mr Carlton had standing to seek parenting orders.
Consequently, the court declared Mr Bissett to be the father of the children. It further made orders for equal shared parental responsibility between Mr Carlton and Mr Bissett for the children's care, welfare, and development, including joint responsibility for major long-term decisions and day-to-day care. All outstanding applications were dismissed.
Orders
Orders of the court
1.
Pursuant to s 69VA of the Family Law Act 1975 (Cth) it is declared that Mr Bissett is a parent, namely the father of the children … born in October 2010.
2.
That Mr Carlton and Mr Bissett have equal shared parental responsibility for the care, welfare and development of the children of the relationship, the children ….
3.
That Mr Carlton and Mr Bissett are jointly responsible for making decisions about major long term issues in respect of the children including but not limited to:
(a) the children’s education;
(b) the children’s health; and
(c) the children’s residence.
4.
That Mr Carlton and Mr Bissett will be responsible for day to day decisions concerning the care of each child when any child is living with Mr Carlton and Mr Bissett or either of them or spending time with Mr Carlton and Mr Bissett or either of them.
5.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
6.
All outstanding applications are dismissed.
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
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