FAMILY COURT OF AUSTRALIA
| ELLISON AND ANOR & KARNCHANIT | [2012] FamCA 602 |
| FAMILY LAW – CHILDREN – Overseas commercial surrogacy arrangement FAMILY LAW – JURISDICTION - Whether presumptions of parentage that deal with artificial conception procedures and children born under surrogacy arrangements apply to children born overseas – Sections 69ZE and 69ZG of the Family Law Act 1975 (Cth) reflect the terms of the references of power by the States and Territories to the Commonwealth they do not establish other geographical limits to the application of Part VII. FAMILY LAW – CHILDREN – DNA evidence – Whether the male applicant is the children’s biological father – Where DNA evidence did not comply with the Family Law Regulations 1984 (Cth) – Where sections 69W and 69ZB of the Family Law Act 1975 (Cth) render admissible DNA reports that would otherwise be inadmissible – Whether the Family Law Regulations 1984 (Cth) provides a code that DNA testing must be carried out in accordance with the Regulations if there is no DNA parentage testing order – Where proceedings conducted in accordance with the evidentiary rules contained in Division 12A of Part VII of the Family Law Act 1975 (Cth) – Where non-ordered DNA evidence is not excluded provided the material complies with the general evidentiary requirements for admission – Where DNA and other admitted evidence establishes that the male applicant is the children’s biological father. FAMILY LAW – PARENTAGE – Whether the biological father is a parent of the children for the purposes of the Family Law Act 1975 (Cth) – Where presumptions of parentage contained in sections 60H and 60HB of the Family Law Act 1975 (Cth) apply to the circumstances set out in the sections - If those circumstances are not present then the sections have no application - Re Mark: an application relating to parental responsibilities (2003) 31 Fam LR 162 and Stone v Bowman [2000] FamCA 1280 approved – Where general presumptions of parentage contained in sections 69R, 69S and 69T of the Family Law Act 1975 (Cth) do not apply to the facts of this case – Whether a declaration of parentage under s 69VA of the Family Law Act 1975 (Cth) should be made in favour of the biological father – Discussion of the meaning of “parentage” – Consideration of Tobin v Tobin (1999) FLC 92-848 – Section 69VA relates to whether a declaration of parentage should be made in favour of a biological parent - Whether a declaration pursuant to s 69VA of the Family Law Act 1975 (Cth) is a parenting order as defined in s 69B of the Family Law Act 1975 (Cth) – Consideration of Brianna v Brianna (2010) 43 Fam LR 309 and Tryon & Clutterbuck (No 2) (2009) FLC 93-412 – Whether the Court should have regard to the United Nations Convention on the Rights of the Child – Where even if there is no legislative ambiguity it is still permissible for the Court to have regard to the United Nations… |
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- Ellison and Anor & Karnchanit [2012] FamCA 602
- Case
- [2012] FamCA 602
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the geographical limitations within Division 12 of Part VII of the *Family Law Act* meant that provisions such as section 60H (children born as a result of artificial conception procedures) and section 60HB (children born under surrogacy arrangements) only applied to children born in Australia. Furthermore, the court needed to consider the conferral of jurisdiction on the Family Court in relation to matters arising under Part VII, particularly in light of the High Court's decision in *MIMIA v B*.
Justice Ryan's reasoning drew upon the High Court's discussion in *G v H* regarding parenting presumptions and declarations of parentage. The court acknowledged that while a determination of parentage is a serious matter, the presumptions within the Act operate in the child's interests to establish parental duties and responsibilities unless rebutted. Regarding jurisdiction, the court applied the principles from *MIMIA v B*, noting that section 69H(1) of the Act, which confers jurisdiction on the Family Court in relation to matters arising under Part VII, is not a self-contained conferral of federal jurisdiction. Instead, the "matters" over which the Court has jurisdiction are identified by reference to other provisions within Part VII, requiring a search for a relevant matter arising under that Part.
The court declared Mr Ellison to be the father of both children and that Mr Ellison and Ms Solano shared parental responsibility. It was further ordered that the children live with the applicants, and all outstanding applications were dismissed. The orders also included particulars of obligations, consequences of contravention, and assistance for compliance, as set out in an attached Fact Sheet.
Orders
Orders of the court
1.
Pursuant to s 69VA of the Family Law Act 1975 (Cth) it is DECLARED that Mr Ellison is a parent, namely the father of L Ellison born … January 2011.
2.
Pursuant to s 69VA of the Family Law Act 1975 (Cth) it is DECLARED that Mr Ellison is a parent, namely the father of R Ellsion born … January 2011.
3.
That Mr Ellison and Ms Solano (“the applicants”) have shared parental responsibility for the child L and the child R each of whom was born … January 2011 (“the children”).
4.
That the children live with the applicants.
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
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In the context of a maintenance case concerned with inferences that may be drawn from a failure to comply with a parentage testing order (then s 66W(5) now s 69Z), the High Court in G v H (1994) 181 CLR 387 discussed parenting presumptions and declarations of parentage (then Div 7 now Div 12) made under the Act. Their Honours Deane, Dawson and Gaudron JJ [p 400] said:… Moreover, while a determination of parentage for the purposes of Family Law Act proceedings is obviously a serious matter for both the child and the putative parent, such a determination cannot properly be regarded as a declaration of paternity in the traditional sense… (my emphasis) Their Honours continued [400]: As earlier indicated, there are several presumptions in Div. 7 of Pt VII which are “rebuttable by proof on a balance of probabilities”. Those presumptions proceed on a basis which is diametrically opposed to the notion that, in maintenance proceedings, the biological fact of parentage involves an important or grave allegation to which due regard must be had before a finding is made in that regard. Rather, the presumptions operate in the interests of the child and provide the basis for the imposition of parental duties and responsibilities unless and until proof to the contrary is forthcoming… (footnotes omitted) (my emphasis) In G v H Brennan and McHugh JJ said, [at 391]:We do not suggest that paternity is not a serious issue. It is serious because paternity carries with it both significant privileges and grave responsibilities, only some of which relate to monetary obligations. The attribution of paternity may be seen by a child’s mother to be no more than the means of procuring a maintenance order during the child’s infancy, but a finding that a particular man is the child’s father might well be of the greatest significance to the child in establishing his or her lifetime identity… (my emphasis) Before consideration is given to the application of the various presumptions of parentage called in aid of Mr Ellison’s claim that for the purpose of the Act and/or laws of the Commonwealth he is the children’s parent, it is appropriate to address the submission made by the AHRC that those provisions of the Act which deal with children born as a result of artificial conception procedures (s 60H) and children born under surrogacy arrangements (s 60HB) may not apply to children born overseas. It is submitted by the AHRC and the applicants that the geographical limits contained in Division 12 of Part VII may mean that these provisions only apply to children born in Australia. Section 69H(1), in Subdivision C of Division 12, confers jurisdiction on the Family Court “in relation to matters arising under [Part VII]”. However, MIMIA v B established that this section is not of itself a conferral of jurisdiction. Gleeson CJ and McHugh J explained at [47]:… ss 69H(1) and 69M, even when read together, do not operate to confer jurisdiction on the Court in respect of “matters” for the purpose of s 77 of the Constitution. As we have indicated, s 69H(1) confers jurisdiction on the Family Court “in relation to matters arising under this Part”. However, s 69H(1) is not a self-contained conferral of federal jurisdiction: the “matters” over which the Court has jurisdiction can be identified only by reference to other provisions of Pt VII. Thus, s 69H requires a search for a relevant “matter” arising under Pt VII. It no more determines the question of the Family Court’s jurisdiction in respect of children than does the reference to “jurisdiction” in s 67ZC. Section 69M, to which the majority also referred as giving jurisdiction, does not take the position any further. It simply declares that the jurisdiction conferred or invested by Div 12 “is in addition to any jurisdiction conferred on or invested in the court apart from this Division”.