Clarence & Crisp

Case [2016] FamCAFC 157

FAMILY COURT OF AUSTRALIA

CLARENCE & CRISP [2016] FamCAFC 157
FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – PARENTAGE – The appellant is the birth mother of the child, but the child was conceived using the respondent’s egg – Appeal against a finding that the parties were in a de facto relationship at the time of the child’s conception and that the respondent is therefore a parent of the child – Comparison of statutory tests relating to married couples and de facto couples – The relevant question was not whether the parties separated when the respondent moved out of their home, but whether the relationship subsisted at the time of the conception – The existence of a de facto relationship is a finding of fact that depends upon an assessment of all of the circumstances of the relationship – The trial judge did not err – Appeal dismissed – Order for the appellant to pay the respondent’s costs.
Acts Interpretation Act 1901 (Cth) – s 13(2)(d)
Family Law Act 1975 (Cth) – s 4AA, s 44(5), s 48, s 60CC, s 60H(1), s 117
Farnell and Chanbua (2016) FLC 93-700
Fox v Percy (2003) 214 CLR 118
Golosky v Golosky [1993] NSWCA 111
H v P [2011] WASCA 78
Hibberson v George (1989) 12 Fam LR 725
Jonah & White (2012) FLC 93-522
Lynam v Director-General of Social Security (1983) 52 ALR 128
Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
S v B [2005] 1 Qd R 537
Sinclair & Whittaker (2013) FLC 93-551
Singer v Berghouse (1994) 181 CLR 201
Vigolo v Bostin [2004] HCATrans 406
Wrensted & Eades (2016) FLC 93-697
APPELLANT: Ms Clarence
RESPONDENT: Ms Crisp
FILE NUMBER: ADC 3416 of 2013
APPEAL NUMBER: SOA 75 of 2015
DATE DELIVERED: 18 August 2016
PLACE DELIVERED: Perth
PLACE HEARD: Adelaide
JUDGMENT OF: Thackray, Ainslie-Wallace & Aldridge JJ
HEARING DATE: 7 July 2016
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 9 November 2015
LOWER COURT MNC: [2015] FamCA 964

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Foley
SOLICITOR FOR THE APPELLANT: Harrington Family Lawyers
COUNSEL FOR THE RESPONDENT: Dr Brasch QC with Ms Chesterman
SOLICITOR FOR THE RESPONDENT: Hartley Healy

Orders

  1. The appeal be dismissed.

  2. The appellant pay the respondent’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.  

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Clarence & Crisp has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation…

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AGLC
Clarence & Crisp [2016] FamCAFC 157
Case
[2016] FamCAFC 157
Decision Date

CaseChat Overview and Summary

The appeal in Clarence & Crisp involved the birth mother of a child, who was conceived using the egg of another woman, the respondent. The primary dispute was whether the parties were in a de facto relationship at the time of the child’s conception, and if so, whether the respondent was to be recognised as a parent of the child. The matter was heard in the Family Court of Australia, where the initial decision found in favour of the respondent, leading to the appellant’s appeal against this determination.

The legal issues that the court needed to resolve included the interpretation and application of the statutory tests for determining the existence of a de facto relationship, as well as the comparison between the tests applicable to married couples and those for de facto couples. Central to the appeal was the question of whether the relationship between the parties had continued to exist at the time of conception, despite the respondent moving out of the shared home. The court was tasked with assessing whether the trial judge had erred in finding that the relationship subsisted and that the respondent was a parent under the Family Law Act.

The court found that the existence of a de facto relationship is a question of fact that requires a holistic assessment of all circumstances surrounding the relationship. The court held that the relevant inquiry was not whether the parties had separated when the respondent left the home, but whether the relationship continued at the time of the child’s conception. The court concluded that the trial judge had not erred in their assessment of the relationship, and therefore dismissed the appeal. Consequently, the respondent was affirmed as a parent of the child. The court also ordered the appellant to pay the respondent’s costs associated with the appeal.

Orders

Orders of the court

1.

The appeal be dismissed.

2.

The appellant pay the respondent’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.

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

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