Carlton & Bissett & Anor - [2013] FamCA 143

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

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…

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 Carlton & Bissett & Anor

Details

AGLC: CARLTON & BISSETT AND ANOR [2013] FamCA 143
Case: [2013] FamCA 143
Decision Date: 19 February 2013

CaseChat Overview and Summary

In the matter of *Carlton & Bissett & Anor*, Justice Ryan of the Family Court of Australia considered a dispute concerning the legal parentage of children born via an overseas surrogacy arrangement. The applicant, Mr Carlton, sought declarations of parentage and parenting orders in relation to the children, who were born in South Africa pursuant to a surrogacy arrangement that was legal under South African law. The respondent, Mr Bissett, was identified as the intended parent.

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

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

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 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.

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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