BETWEEN: DAVID JOHN FARNELL
First Applicant
WENYU LI
Second Applicant
AND
PATTARAMON CHANBUA
Respondent
AND
CEO, DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT
First Intervener
AND
AUSTRALIAN HUMAN RIGHTS COMMISSION
Second Intervener
AND
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Third Intervener

Catchwords:

CHILDREN – Surrogacy – With whom a child lives – The applicants entered into surrogacy arrangement with the respondent birth mother – Twins born in Thailand as a result – The girl was brought to Western Australia to live with the applicants, while the boy remained in Thailand with the birth mother – The applicants seek an order for the girl to continue living with them – The birth mother seeks an order for the girl to live with her in Thailand – The male applicant is a convicted sex offender but expert evidence indicates that there is a low risk of him abusing the girl – This risk must be weighed against the high risk of harm to the girl if she is removed from her current home – Orders for the girl to live with the applicants and for them to have parental responsibility – No orders requiring the applicants to allow the birth mother to spend time with or communicate with the girl – Applicants required to send some of the girl's schoolwork to the birth mother – Formal findings made that the applicants did not abandon the boy and did not try to access his trust fund.

JURISDICTION – Parentage – Powers of the Family Court of Western Australia (“FCWA”) – Whether the matter falls for determination under the Family Law Act 1975 (Cth) (“the federal Act”) or the Family Court Act 1997 (WA) (“the State Act”) – Turns on whether the child is a “child of a marriage” – s 60H and s 60HB of the federal Act override the parentage presumptions in that Act – The Surrogacy Act 2008 (WA) does not apply – By operation of the Artificial Conception Act 1985 (WA), the child’s parents are the birth mother and her husband, who were in a de facto relationship at the time of the artificial fertilisation procedure – s 60H(1) of the federal Act does not apply to surrogacy – s 60F(1)(b) of the federal Act does not apply to children born as a result of artificial conception procedures – The child is therefore not a “child of a marriage” and the State Act applies.

DECLARATION – Parentage – The applicants seek a declaration that the male applicant is a parent of the child – Discussion of the source of power for making a declaration of parentage in proceedings under the State Act – The Artificial Conception…

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 Farnell v Chanbua

Details

AGLC: Farnell & Anor and Chanbua [2016] FCWA 17
Case: [2016] FCWA 17
Decision Date: 14 APRIL 2016

CaseChat Overview and Summary

The applicants, Farnell and Chanbua, entered into a surrogacy arrangement with the respondent, the birth mother. As a result of this arrangement, twins were born in Thailand. The applicants brought the girl to Western Australia to live with them, while the boy remained in Thailand with the birth mother. The applicants sought an order for the girl to continue living with them, while the birth mother sought an order for the girl to live with her in Thailand. The male applicant is a convicted sex offender, but expert evidence indicated that there was a low risk of him abusing the girl. This risk had to be weighed against the high risk of harm to the girl if she was removed from her current home.

The court had to determine the legal issues concerning the best interests of the child, parental responsibility, and the powers of the Family Court of Western Australia. The court had to consider the risk of harm to the girl if she was removed from her current home, as well as the risk of harm if she remained with the applicants. The court also had to consider the risk of harm to the girl if the birth mother was allowed to spend time with or communicate with her. The court had to determine whether the applicants abandoned the boy and whether they tried to access his trust fund.

The court found that the girl's best interests were served by continuing to live with the applicants. The court also found that the risk of harm to the girl if she was removed from her current home was too high. The court found that the risk of harm to the girl if the birth mother was allowed to spend time with or communicate with her was also too high. The court found that the applicants did not abandon the boy and did not try to access his trust fund. The court ordered that the girl continue to live with the applicants and that they have parental responsibility. The court also ordered that the applicants send some of the girl's schoolwork to the birth mother. No orders were made requiring the applicants to allow the birth mother to spend time with or communicate with the girl.

Orders