G and G - [2007] FCWA 80

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT:	FAMILY LAW ACT 1975
LOCATION:	PERTH
CITATION:	G and G [2007] FCWA 80
CORAM:	PENNY J
HEARD:	21 & 22 NOVEMBER 2006
DELIVERED:	22 JUNE 2007
FILE NO/S:	PT 308 of 2006
BETWEEN:	G

Applicant/Husband
AND
G
Respondent/Wife

(Page 2)

Catchwords:

Dispute as to disposal of embryos created by the parties - jurisdiction to make orders - Human Reproductive Technology Act 1991 - intention of parties - consent of parties - embryos to be discarded

Property settlement - short marriage - contributions - turns on own facts

Legislation:
Human Reproductive Technology Act 1991

Family Law Act 1975

Category: Not Reportable

Representation:

Counsel:

Applicant:	Self Represented Litigant
Respondent:	Mr R Hooper

Solicitors:

Applicant:	Self Represented Litigant
Respondent:	Bowen Buchbinder & Vilensky

(Page 3)

Case(s) referred to in judgment(s):

A and B (1990) FLC 92-126

A.Z. v B.Z. 725 N.E 2d 1051 (Supreme Judicial Court of Massachusetts

2000)

Attorney-General (Qld) (ex rel Kerr) v T (1983) 8 Fam LR 871
Davis v Davis 842 SW 2d 588 (Supreme Court of Tennessee 1992)

Evans v Amicus Healthcare Ltd & Ors; Hadley v Midland Fertility Services

Ltd & Ors [2003] 4 All ER 903

Hickey and Hickey and Attorney-General for the Commonwealth of

Australia (Intervener) (2003) FLC 93-143

Kass v Kass 91 N.Y.2d 554, 696 N.E.2d 174, 673 N.Y.S.2d 350 (1998)
(Page 4)

1 The husband, [Mr G], and the wife, [Mrs G], have been unable to resolve issues relating to the proportion in which their property should be divided and whether embryos created for use by them when they were living together should be allowed to succumb, as sought by [Mrs G], or placed under the control of [Mr G].

Short background and history of the parties and the relationship

2 [Mr G] is aged 38 and the [Mrs G], 35. They commenced living together in 1998. At this time they lived either at [Mr G]’s mother’s or sister’s home. At the time they commenced living together [Mr G] owned a property in [the suburbs]. In July 1999 the parties moved to reside in [that suburban] property. In October 1999 [Mrs G] purchased a property in [the northern suburbs], which was rented during the course of their relationship. The parties married on 22 July 2000. While they resided together the parties were mostly in employment. During the relationship [Mrs G] completed her studies for a Bachelor Degree in [a particular subject area] and subsequently completed a Master’s Degree. [Mr G] ceased work on 21 January 2005 and has not returned to employment since that time. In July 2003 [Mrs G] established a consulting business known as [XYZ] Pty Ltd. She continued to operate this for the remainder of the relationship and continues to do so.
3 [Mrs G] has a long history of endometriosis and ovarian cysts. She has surgery for this condition on a number of occasions. She was advised by a gynaecologist that the longer she delayed having children the less likely she would…

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 G and G

Details

AGLC: G and G [2007] FCWA 80
Case: [2007] FCWA 80
Decision Date: 22 JUNE 2007

CaseChat Overview and Summary

The case of G and G involved a dispute between two former partners over the disposition of embryos created through assisted reproductive technology. The matter was heard in the Family Court of Australia. The primary issue before the Court was the legal framework governing the disposal of embryos created through in vitro fertilisation and whether the Court had jurisdiction to make orders concerning the embryos. The case also involved a property settlement between the parties, considering the short duration of their marriage and their respective contributions.

The Court was required to determine whether it had the jurisdiction to make orders regarding the embryos, given the provisions of the Human Reproductive Technology Act 1991. Additionally, the Court had to ascertain the intentions of the parties regarding the embryos and whether they had consented to the disposition of the embryos. The Court also needed to decide on the appropriate property settlement between the parties, taking into account the short length of their marriage and their respective contributions.

The Court found that it did have jurisdiction to make orders regarding the embryos under the Human Reproductive Technology Act 1991. It concluded that the parties had intended for the embryos to be discarded and had consented to this outcome. The Court further determined the property settlement between the parties, taking into account the short duration of their marriage and their respective contributions. The Court ordered that the embryos be discarded and made a property settlement between the parties.

In summary, the Court found that it had jurisdiction to make orders regarding the embryos and that the parties had intended for the embryos to be discarded and had consented to this outcome. The Court also made a property settlement between the parties, taking into account the short duration of their marriage and their respective contributions.

Orders