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

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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

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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)
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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 be able to conceive naturally. While [Mrs G] was not ready to have children during the course of the relationship, she wished to preserve her ability to do so at some later stage and underwent an IVF procedure where her eggs and the [Mr G]’s sperm were harvested and then the eggs were fertilised. The resulting embryos were then frozen.

4 On 13 March 2004 the parties signed a “REQUEST FORM FOR CRYOPRESERVATION AND STORAGE OF EMBRYOS”. Paragraph 7 of that form stated as follows:

“In the event of separation we wish for the embryos to be; donated/discarded/the responsibility of the woman,/partner/equally shared. In the event we disagree over the usage of our embryos, either a court order or Agreement will be needed to enact a usage.”

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5 The parties circled

the word “discarded” and signed the agreement. Six embryos were frozen and stored. They consented to the storage of the embryos for a maximum of three years.

6 In November 2004 [Mrs G] moved some of her possessions to [her northern suburban home] and commenced to reside in that property. [Mrs G] continued to spend some time with [Mr G] in [his] property, on occasions one to two nights a week. The parties finally separated on 5 March 2005 when an argument took place at [her property].

[Mr G]’s position

7 [Mr G] was self represented. At trial he stated the orders sought by him were as set out in the application filed by him in January 2006, although he was not seeking some of those orders at trial. His position at trial was that he should retain [his suburban] property and [her northern suburban] property should be sold and divided 80% to him and 20% to [Mrs G].

8 In relation to the embryos he sought an order that they be “transferred to (his) custody only”.

9 [Mrs G]’s position was that the assets of the parties, excluding superannuation, be divided 55% to her and 45% to [Mr G]. [Mrs G] also sought the return of various items of property currently at [his] property.

10 In relation to the embryos she sought an order that they be

discarded.

Credibility of the parties

11 I did not find either of the parties to be particularly credible witnesses. I did not accept [Mr G]’s evidence as being reliable, particularly when he gave evidence about the income, or lack of it, earned by him since separation. In my view, he has let [his] property run down to a terrible state so as to decrease its value. I am satisfied that he has not obtained a full-time position since January 2005 as he did not wish to improve his financial position because he did not think it would assist him in relation to these proceedings.

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12	In my view, [Mrs G] exaggerated or lied about the extent of her financial contribution during the time the parties lived together. I will refer to these matters in more detail when I examine the evidence.

The embryos

13 [Mrs G] has had a long history of endometriosis and ovarian cysts. As a result of her condition [Mrs G] has had endometrial growths removed on four separate occasions and has to take progesterone. She undergoes medical check every six months.

14 [Mrs G] says that she was concerned about not being able to have children in the future. The couple had not attempted to conceive naturally. She says that although they decided they were not ready to have children at this stage they would undergo IVF and have the resulting embryos frozen to allow them to have children in the future. [Mrs G] says that she would have preferred to have her eggs frozen in an unfertilised state but she says that she was advised at the time by Dr [S] that the procedure was not yet available in Australia due to limited technology and limited chance of success.

15 In March 2004 the parties underwent IVF treatment at [Name Clinic] (“Clinic”). The process involved [Mrs G]’s eggs being fertilised with [Mr G]’s sperm and the resulting embryos were to be frozen for later use by [Mrs G] and [Mr G]. Six embryos were frozen as a result of the treatment. Prior to the procedure the parties were required by the Clinic to have a discussion with Clinic staff and sign a Request Form for Cryopreservation and Storage of Embryos on 13 March 2004 indicating their intentions for the use and storage of the embryos.

16 Not long after the IVF treatment the parties’ relationship began to deteriorate. They separated around the end of 2004 but continued to see each other regularly until March 2005. Their relationship has now completely deteriorated. As a result of the breakdown of the relationship the parties are in dispute as to the fate of the six frozen embryos.

Orders Sought

17 In [Mr G]’s application for property settlement filed in the Family Court of Western Australia on 19 January 2006 he seeks orders that the six frozen embryos be transferred to his sole custody. [Mr G] wants sole authority of the embryos so that they can be

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donated either to an infertile couple or used for surrogacy. At trial [Mr G] said he would agree to any donation of the embryos except destruction.

18 [Mrs G] responded by filing an application on 14 February 2006 requesting that the embryos be destroyed (or as it is technically referred to succumb) as per the agreement signed by both parties on 13 March 2004.

19 A court order was made on 27 March 2006. The parties were restrained and an injunction was granted restraining them from instructing any third party to destroy the six embryos.

20 [Mrs G] wants the embryos discarded because she says that at the time of undergoing the IVF treatment with [Mr G] the parties were in a committed relationship and were planning to have children together at some stage in the future. She says that since separation her relationship with [Mr G] has completely deteriorated to the point that she cannot have a rational conversation with him and does generally not get along with him. She says she does not want to have children with [Mr G] as she wants to move on in her life and does not want him to be a part of it. She says that if she and [Mr G] had children together they will not be able to have separate lives. She is concerned that this is what [Mr G] wants to achieve.

21 [Mr G] wants the embryos to use the embryos for donation because he considers the embryos to be his only opportunity to have his own children as he is not currently in a relationship and cannot see himself at 39 years finding a suitable partner to have his own children. He also states in his affidavit that there is the possibility that he may become infertile in the future but provides no medical evidence of this. He also says in his affidavit that [Mrs G] never intended to carry the embryos after their creation as she told him prior to the end of their relationship that she did not want to ruin her body and would never carry them. Further, he says in his affidavit filed on 2 June 2006 that he believes that [Mrs G]’s intention to discard the embryos was to facilitate an easy exit from the relationship.

22 [Mrs G] does not want the embryos to be donated as suggested by [Mr G] because she does not want children who are unknown to her. She says any children that result from the embryos will be able to obtain her contact details at the age of 16 years. She is also concerned that if the children are born with any genetic defects that she and [Mr

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G] will be legally liable for non-disclosure of any known genetic conditions. She says all these possibilities are extremely worrying for her and will have long-term consequences on her emotional health. [Mrs G] says in her affidavit filed on 18 August 2006 that she feels so strongly about not having children from the six frozen embryos that even if she cannot have children in the future she still wants the embryos discarded.

Position of the Clinic

23 The parties were ordered on 1 September 2006 to notify the Clinic of their current proceedings in the Court. The parties were required to provide the Clinic with a copy of the orders they were seeking in relation to the embryos and notification of the date of trial. The Court was informed at the Pre-Trial Conference on 8 November 2006 that the parties complied with the order and the Clinic had responded to the effect that they do not wish to be heard at trial.

24 As per the agreement made between the parties on 13 March 2004, the embryos were due to succumb on 13 March 2007. In a letter dated 15 November 2006, [Mr B], Managing Director of the Clinic informed [Mrs G] that the embryos would now be stored for the current maximum storage period, being 10 years.

25 [Mr B] also stated in his letter that as the embryos were now the subject of a dispute within the Family Court the Clinic would not allow the embryos to succumb before the extended time period unless the Clinic received an agreement from [Mrs G] and [Mr G] or upon receipt of an order from the Court. [Mr B] was unavailable at the time of trial, however; the Clinic’s position was confirmed at trial by [Dr P], the Scientific Director of the Clinic. [Dr P] also confirmed that the Clinic had not received an application by either party for the extension of the three year period.

The Request Form for Cryopreservation and Storage of Embryos signed by each party

26 On 13 March 2004 prior to receiving the treatment the parties both signed a Request Form for Cryopreservation and Storage of Embryos (“Form”). The Form set out their elected details for which they sought to use the embryos. The terms of the Form are not in my opinion ambiguous. The Form clearly provides the couple or individual undertaking IVF treatment with a number of options in relation to the use and storage of an embryo. The couple or individual

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who completes the Form is instructed to cross out the option which is not applicable. Although I am not bound by the terms of the Form, for the purposes of the dispute between [Mr G] and [Mrs G], the Form contains a number of relevant clauses that shed light on the parties’ intention at the time of undertaking the IVF treatment.

27 Clause 7 provides an option in relation to the embryos in the event that the parties separated. Namely, the embryos can be donated, discarded or become the responsibility of the woman, the partner or shared equally. [Mr G] and [Mrs G] elected that the embryos be discarded in the event of a separation. The clause also states that in the event of a disagreement between the parties as to the usage of the embryos the parties need either a court order or agreement to enact a usage. [Mr G] seem to interpret this further statement within the clause as though it made the parties’ agreement to discard the embryos redundant if they disagreed to usage after separation. The clause appears to reflect the legislation which basically requires the Clinic to have the consent of both parties to deal with the embryos and if there is a disagreement then a court order or agreement must be obtained to allow the Clinic to use or discard the embryos. The statement does not detract from the original intentions of the parties when they entered the agreement in the event they separated.

28 Further [Mr G] says that at the time of signing the Form he was led to believe that the embryos would be still used in the event that [Mrs G] conceived naturally. He says that he and [Mrs G] discussed that if [Mrs G] conceived naturally the parties would donate the embryos. [Mrs G] disagrees that she had such an agreement with [Mr G] and rather their intentions are indicated in their selection on the Form.

29 Clause 4 of the Form allows the parties to specify the storage period of the embryos. [Mrs G] and [Mr G] have selected three years. The governing legislation has since been amended to allow frozen embryos to be stored for a maximum of 10 years.

30 Clause 10 of the Form provides for the incapacity of a party to make a decision regarding their consent in relation to the embryos. [Mr G] argues in his affidavit filed on 2 June 2006 that as [Mrs G] is not completely infertile and her health has improved since separation this has caused [Mrs G]’s state of mind to be altered towards the destruction rather than the donation of the embryos. Further he says

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that if [Mrs G] was completely infertile this may alter her state of mind towards donation to a couple who may never have children. It appears that [Mr G] is confused about the interpretation of the clause. I do not think that any of the reasons [Mr G] has provided in his affidavit support the proposition that [Mrs G] is in some way incapable of understanding her right to vary or withdraw her consent.

31 In clause 11 the parties have acknowledged that they have been provided with the opportunity to receive counselling. However the parties have provided no response in clause 12 which asks the parties to states who has explained to them the procedures, the material risks, side effects, material complications and chance of success. However I do not conclude from this that the parties were not provided with a discussion by clinic staff regarding such information.

32 The terms of the Form are not ambiguous. The parties are asked on the Form to cross out the intention that does not apply to them. [Mr G] and [Mrs G] have clearly made their selection as to the intended use of the embryos on their Form. Further the parties have phrased the Form as a couple. The “I/we” and “my/our” options have all been selected by [Mr G] and [Mrs G] as “we” and “our”. The Form is signed by both parties and they are witnesses for each other.

Relevant Law

33 The legislation that deals with the regulation and use of human embryos is the Human Reproductive Technology Act 1991. There are several relevant sections of the Act that apply to the particular situation faced by [Mr G] and [Mrs G].

(i) Definition of “human embryo”

34 Section 3A provides:
(1) In this Act –
“human embryo” means a live embryo that has a human
genome or an altered human genome and that has been
developing for less than 8 weeks since the appearance of 2 pro-
nuclei or the initiation of its development by other means.
(2) For the purposes of the definition of “human embryo” in
subsection (1), in working out the length of the period of
development of a human embryo, any period when the
development of the embryo is suspended is to be disregarded.

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(ii) Consent

35 Section 22 of the Act specifies the consents that are required for the storage and use of embryos:

(1) For the purposes of the licence conditions referred to in

section 33(2)(e) –

(a) the gametes of a person shall not be used, or for such a use be received by a licensee or participant, unless –

(i) there is an effective consent, by that person, to the gametes being so used; and

(ii) the gametes are used in accordance with that consent;

(b) the gametes of a person shall not be kept in storage unless –

(i) there is an effective consent, by that person, to the storage; and

(ii) the gametes are stored in accordance with that consent;

(c)	the gametes of a person shall not be used in an in vitro fertilisation procedure unless there is an effective consent, by that person, to any human egg undergoing fertilisation or human embryo thereby derived being used for a consequential purpose authorised by this Act;
(d)	where the development of an egg undergoing fertilisation or a human embryo was brought about by an in vitro fertilisation procedure it shall not be kept in storage unless –

(i) there is an effective consent, by each person from whom gametes the egg or embryo was derived, to the storage; and

(ii) the egg or embryo is stored in accordance with that consent;

(e) where the development of a human egg undergoing fertilisation or a human embryo was brought about by an in vitro fertilisation procedure, it shall not be used

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for any purpose, or for such a purpose received by a
licensee or participant, unless –

(i) there is an effective consent, by each person from whose gamete the egg or embryo was derived, to the use for that purpose;

(ia)	in the case of a use outside the body of a woman, there is an effective consent to that use for that purpose by the woman on whose behalf it is being developed and her spouse or de facto partner, if any;
(ib)	in the case of implantation in the body of a woman, there is an effective consent to the implantation by the woman and her spouse or de facto partner, if any;
(ii)	the purpose is authorised by this Act; and
(iii)	that egg or embryo is used in accordance with that consent,

and the Code may make further provision in relation to such,
or related, matters.

(2) Where a consent is given in general terms to the use or storage of human gametes separately, whether human eggs or human sperm, that consent shall be taken to relate to the use or storage of any of those eggs or sperm, and also to any human egg undergoing fertilisation or human embryo derived from the use of the human gametes, for any purpose, save that

(a)	any such consent may be given subject to specific conditions in its terms; and
(b)	notwithstanding subsection (4) or that a human egg undergoing fertilisation or a human embryo, may have developed which is derived from the use of human gametes the subject of any particular consent, in so far as it relates to any human egg or human sperm that has not been used that consent may be varied or withdrawn,

but where a human egg in the process of fertilisation, or a human embryo, has been developed from any human gametes the consent thereafter to be required is not a consent to the

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use of those human gametes but a specific consent relating to
that particular egg undergoing fertilisation or embryo only.

(3) The terms of the any effective consent may from time to time be varied or the consent withdrawn, unless subsection (4) applies, by notice given to the person who gave the consent to the person keeping the human gametes, human eggs undergoing fertilisation or human embryos to which the consent is relevant.

(4) The terms of any effective consent to the use of any human gametes, a human egg undergoing fertilisation or a human embryo can not be varied, and such a consent can not be withdrawn, once the gametes have, or that egg or embryo has, been used.

(5) A consent to the use of a human egg undergoing fertilisation or a human embryo must specify the purposes for which the egg or embryo may be used and may specify conditions subject to which the egg or embryo shall or shall not be used.

(6) A consent to the keeping of any human gametes, a human egg

undergoing fertilisation or a human embryo must –

(a)	specify the maximum period of storage, if that is to be less than such limit as may be prescribed or may be determined in accordance with section 24(1)(b); and
(b)	give instructions as to what is, subject to this Act, to be done with the gametes, the egg or the embryo if the person who gave the consent is unable by reason of incapacity or otherwise to vary the terms of the consent or to withdraw it,

and may specify conditions subject to which the gametes, or
the egg or embryo, shall or shall not remain in storage.

(7) Before a licensee gives effect to a consent given for the purposes of his Act the licensee shall ensure that each participant has been provided with a suitable opportunity to receive –

a) proper counselling about the implications of the

proposed procedures; and

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(b) such other relevant and suitable information as is proper or

as may be specifically required by the Code or directions,
including an explanation of the effect of subsection (3) and
subsection (4).

(8) For the purposes of this Act a consent to the use or keeping of any human gametes, a human egg undergoing fertilisation or a human embryo shall not be taken to be effective unless –

(a) it is given in writing;
(b) any condition to which it is subject is met;

(c) it has not been withdrawn; and

(d) those gametes are, or that egg or embryo is, kept and used in accordance with the consent.

(9) Where a consent required by or under this Act is not given, or is not effective, or is not complied with that matter may be a cause for disciplinary action or proceedings for an offence but does not necessarily affect the rights of any person.

(iii) Storage

36 In relation to storage of embryos section 24(1) provides that 10 years is the maximum storage period for a human embryo. Application can be made to have this period extended but only if there are special reasons for doing so in a particular case.

(iv) Control of embryo

37 Section 26 of the Act refers to the control in relation to the dealing and disposal of an embryo. It provides:

(1a) This section does not apply in relation to an excess ART embryo except in relation to the use of such an embryo that is an exempt use as defined in section 53W(2).

(1) Subject to section 24(4), in relation to rights to the control of, or power to deal with or dispose of, any human egg undergoing fertilisation or human embryo that is outside the body of a woman –

(a) each person on whose behalf it is developed or is being or is to be, kept has, subject to section 53Q, the right to decide how a human egg undergoing fertilisation or a

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human embryo is to be dealt with or disposed of, so that
_

(i) such a person shall have, while storage continues, the right to review the decision to store from time to time and may withdraw consent or vary the terms of any consent; and

(ii) any question as to the nature or extent of the respective rights or powers may, subject to subsection (2), be referred to a court of competent jurisdiction.

(b)	in the event of the death of one member of a couple in whom the rights are vested, those rights vest solely in the survivor;
(c)	where from any human gametes, a human egg undergoing fertilisation or a human embryo is developed, whether or not with effective consent, the individual rights of a human gamete provider or person to whom the human gametes were provided and of a licensee cease at the moment fertilisation begins and the rights thereafter vest jointly in the couple on whose behalf that egg or embryo was developed, or vest in the woman on whose behalf that egg or embryo was developed;
(d)	where a human egg undergoing fertilisation or a human embryo has been developed on behalf of a couple or a woman and is no longer required for that purpose, the egg may be used if all the participants in a proposed procedure give an effective consent; and
(e)	on the commencement of an implantation procedure the rights in a human egg undergoing fertilisation or a human embryo vest in the woman receiving it, whether or not –

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(i) that recipient was eligible to undergo the procedure; or

(ii) any consent required was given or, if given, was effective.

(2) Where the rights in relation to a human egg undergoing fertilisation or a human embryo are vested in a couple and the couple disagree about its use or continued storage, the CEO shall, on application by a member of that couple, direct the licensee storing the egg or embryo to ensure that the storage is maintained subject to –

(a)	payment of the proper charges of the licensee for the storage;
(b)	any limitations as to the time of storage prescribed or determined in accordance with section 24(1)(b); and
(c)	any order made by a court of competent jurisdiction which otherwise requires.

Ethical guidelines on the use and assisted reproductive technology in clinical practice and research

38 The parties have referred to the National Health and Medical Research Council Guidelines on the use and assisted reproductive technology in clinical practice and research in their affidavits. The Guidelines, most recently published in September 2004, deal with the regulation of Assisted Reproductive Technology (“ART”) procedures.

39 [Mr G] refers to clauses 5.1 and 5.2 of the Guidelines in his affidavit filed on 2 June 2006. Clause 5.1 states that assisted reproductive technology procedures must be conducted in a way that is respectful of all involved. Whereas clause 5.2 deals with the respect to be given to human embryos, in particular the view that embryos are not to be treated as mere tissue.

40 [Mrs G] in her affidavit filed on 18 August 2006 refers to clauses 6.1 and 9.6. Clause 6.1 states that Clinics must not use donated gametes unless the donor has consented to the release of identifying information to the persons conceived using their gametes. The relevant clause in this case would be clause 7.1 which is similar to clause 6.1 but applies to donated embryos rather than donated gametes. [Mrs G] also refers to clause 9.6 which requires Clinics to recognise that in most circumstances participants have the right to

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withdraw or vary their consent at any time in relation to the donation of embryos. [Mrs G] goes on to state in her affidavit that she does not consent to the release of any identifying information about herself to persons conceived using the embryos and she withdraws her consent to the use of the human embryos.

41 The particularly relevant provisions of the guidelines, for the purposes of [Mr G] and [Mrs G]’s dispute, are echoed in some form in the Human Reproductive Technology Act and the Form signed by both parties.

Case Law

42 I have not been able to locate any cases in Australia that deal with a similar situation, nor was I referred to any by either of the parties. In A and B (1990) FLC 92-126 a couple was in dispute as to the use of frozen embryos after the breakdown of their marriage. The wife sought to use the embryos to become pregnant whereas the husband sought to have the embryos discarded. The actual outcome of this case in relation to the embryos is unknown as the case before the Court in this instance was to determine the wife’s application to prevent the husband’s solicitor from representing him due to a conflict of interest.

43 However there have been cases in overseas jurisdictions relating to disputes over frozen embryos. In the United States of America there have been a number of decisions that deal with the use of frozen human embryos after the breakdown of a couple’s relationship (for example, Davis v Davis 842 SW 2d 588 (Supreme Court of Tennessee 1992); Kass v Kass 91 N.Y.2d 554, 696 N.E.2d 174, 673 N.Y.S.2d 350 (1998); A.Z. v B.Z. 725 N.E 2d 1051 (Supreme Judicial Court of Massachusetts 2000)).

44 Recently the English High Court (Family Division) was faced with the same issue in Evans v Amicus Healthcare Ltd & Ors; Hadley v Midland Fertility Services Ltd & Ors [2003] 4 All ER 903. The case involved a joint claim by two women to use the frozen embryos produced with their respective partners after the breakdown of their relationship. Their partners sought that the embryos be discarded. The High Court dismissed the women’s application based on a number of reasons, including that the men’s original consents to the treatment were no longer effective as the couples had consented to

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“treatment together” and for no other purpose, and that the men had an
unconditional statutory right to withdraw or vary their consent.

Jurisdiction

45 Counsel for [Mrs G] sought to rely on s 25(a) of the Human Reproductive Technology Act as a source of jurisdiction for the Court to deal with the application in relation to the embryos as the section specifies an embryo as personal property. Although I consider this Court to have jurisdiction and be the appropriate forum to hear such a dispute between the parties, I am not of the opinion that s 25(a) refers to embryos as personal property.

46 The section states, in respect of both human eggs and human sperm, all rights remain vested in the respective gamete providers, unless and until otherwise dealt with, as though personal property. This is subject of course to the fact that it is an offence under the Act to commercially trade in human eggs or sperm. The section specifically refers to “gametes” not “embryos”. Gametes are separate and distinct under the Act to embryos. Gametes are defined as a human egg or a human sperm whereas a human embryo is defined in section 3A of the Act as stated earlier in this judgment. The terms are used separately and distinctively throughout the Act. It appears the intentions of legislation, in referring only to gametes in s 25(a), is that only gametes are to be treated as personal property and not embryos. Further, s 25 deals solely with the rights in relation to gametes whereas s 26 deals with control to dispose or use embryos. S 26 does not refer to embryos at any stage as personal property rather s 26(1)(a) states that each person on whose benefit the embryo is developed has the right to decide how the embryo is to be dealt with or disposed of.

47 I am not of the opinion that the Act intended to treat embryos as property. Further, there is no Australian case law to suggest that an embryo is property. This is not to say that an embryo has rights of its own. The High Court has stated that a foetus has no legal right of its own until it is born. Attorney-General (Qld) (ex rel Kerr) v T (1983) 8 Fam LR 871. Obviously an embryo is at a different stage to a foetus but parallels can be drawn. If the same principle applied to embryos then the control of the embryo vests in others. Presumably, Parliament intended this to be the case as it is specifically stated in s 26(1)(a) of the Human Reproductive Technology Act that the right to decide how the embryo is used or disposed of lies with each person on

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whose benefit the embryo was created. I am not of the opinion that this necessarily converts the legal status of an embryo to personal property otherwise the legislation would use such words as it did when referring to the rights in relation to gametes. Further if an embryo was treated as simply property, it would not be appropriate that the usual principles of law relating to property settlement contained in s 79 of the Family Law Act 1975 would apply to an embryo. There is something more to be attached to the status of an embryo. In such a context it appears that an embryo is not strictly “property” or “person”.

48 Ultimately, I do not consider it necessary for an embryo to be classed as “property” for this issue to be determined by this Court.

49 The Human Reproductive Technology Act states in s 26(2) that in the event of a dispute between the parties as to the use or continued storage of an embryo, storage is to be maintained subject to any order made by a court of competent jurisdiction. The Act specifically places the burden of the decision making to the Courts but does not go as far to identify which court is a “court of competent jurisdiction”. In this particular case the parties were married. The orders sought by the parties deal with subject matter that arises out of the marital relationship, namely, the embryos they created during their marriage for the purpose of producing children together at some stage in the future. The Family Court has jurisdiction to hear matters relating to matrimonial causes. Matrimonial causes is defined in s 4(1) of the Family Law Act and includes, in para (e), proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship.

50 S 114 of the Family Law Act provides:
“In proceedings of the kind referred to in paragraph (e) of the
definition of “matrimonial causes” in sub-section 4(1), the court
may make such order or grant such injunction as it considers
proper with respect to the matter to which the proceedings relate,
including…”

51 The Human Reproductive Act specifically requires a court order under s 26(2) to resolve a dispute between couples who disagree about the use or continued storage of an embryo. The Family Court has jurisdiction under s 114(1) to make such an order between the parties

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in dispute in this particular case as it is a circumstance arising out of
their marital relationship.

Attitude of the Parties

52 There has been some criticism directed by each party at other for their attitude towards the embryos. [Mr G] has said that [Mrs G] has offered to “sell” the embryos. [Mrs G] does not agree that this occurred.

53 [Mrs G] says that on 30 May 2006 she had a telephone conversation with [Mr G] in which he told her words to the effect that he will agree to the destruction of the embryos if she agreed to give him 80% of the assets. [Mr G] denies this.

54 [Mr G] was also cross-examined on several remarks he has made in relation to the embryos. He admits that at a barbeque he told one female, in response to her offer to be surrogate, that he preferred her other friend because she had big hips and would be able to carry triplets. He inferred that for this purpose all six embryos should be implanted in the woman. This comment shows [Mr G] ignorance in relation to issues surrounding implantation of the embryos. [Dr P] gave evidence that in a woman under 35 years only one embryo would be implanted at a time. In a woman over that age two embryos would be implanted. He also admits that he left a message on [Mrs G]’s phone threatening that he would send the “right to lifers” over to her work in attempt to change her mind about allowing the embryos to succumb.

55 In my opinion [Mr G] has enjoyed the notoriety which has arisen as a result of the dispute over the embryos. I have serious doubts about his motives in seeking, at all costs, that the embryos not be destroyed.

56 In cross-examination [Mrs G] admits that she did at one point reluctantly agree with [Mr G] that she would donate the embryos but only because [Mr G] threatened her that he would take the matter to the Supreme Court. [Mrs G] says that after reading the donation form and the conditions she did not want to go through with donation.

57 I accept that [Mrs G] is genuine in her desire not to have a child with [Mr G] nor does she wish to donate the eggs to another person.

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Conclusion

58 S 26(2)(c) of the Human Reproductive Technology Act specifies that in the event of a disagreement between the parties as to the use or storage of an embryo requires the parties to obtain a court order to resolve their dispute. The Act does not provide any other avenue for resolution of a dispute and therefore the decision must be made by the Courts.

59 Both [Mr G] and [Mrs G] have a statutory right to decide how the embryos are to be dealt with. S 26(1)(a) of the Act provides this. Prior to dealing with an embryo, either through use, disposal or storage, the Act requires the consent of the parties. This consent can be varied or withdrawn under the Act, with the exception of when the embryo has already been used. [Mr G] and [Mrs G] have both exercised their rights under the Act. [Mr G] admits that he has varied his consent since the parties’ separated. He now wants the embryos used for donation. [Mrs G] says that she has withdrawn any consent to use the embryos and wants them removed from storage to be discarded as per their agreement.

60 The Act also imposes an obligation that a consent made by a party must provide a purpose. S 22(5) states that consent to the use of an embryo must specify the purpose for which the embryos are to be used for and may specify conditions subject to that use. Further, s 22(1)(e)(i) does not allow an embryo to be used for any purpose unless there is consent to the use for that purpose by each person from whom the embryo was derived. The Clinic’s Form provides insight to the purposes for which [Mr G] and [Mrs G] originally consented to deal with their embryos. The Form indicates that the parties consented to storing their embryos for three years and if they did not decide within this time what their requirement were concerning the embryos and they were unable to contact the Clinic then they wished for embryos to be discarded; in the event of the death of both partners they wished for the embryos to be discarded and, in the event of separation they wished for the embryos to be discarded. At no part of the Form did they indicate that they wanted the embryos to be donated. Further, both [Mr G] and [Mrs G] agree that the embryos were created for the purpose to enable [Mrs G] to fall pregnant at a later date if she could not conceive naturally because of endometriosis. This purpose can no longer be achieved as the parties’ relationship has broken down.

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61	I am of the opinion that the terms of the agreement between the parties about the use of their embryos should be implemented. The embryos should be allowed to succumb as the parties have now separated and can no longer achieve the purpose for which they consented to create and use the embryos.

Property

62 The approach to be taken in relation to an application for property settlement pursuant to s 79 of the Family Law Act 1975 is a four step process. Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143. Those steps are:

• identify the value of the assets and liabilities of the parties;

• consider the contributions made by the parties within paragraph (a) to (c) of s 79(4);

• consider the s 75(2) factors, together with any matters relevant pursuant to s 79(4)(d)-(g); and

• consider whether the order proposed is just and equitable.

Assets and liabilities of the parties

63 The assets and liabilities of the parties at trial were largely agreed. [Mr G] disputed the valuation of [Mr N], the Single Expert, in relation to [Mrs G]’s property [in the northern suburbs]. Two months before the trial [Mr N] valued [her property] at $250,000 and [his property] at $365,000. [Mr N] was cross-examined by [Mr G] in relation to [his] valuation. [Mr G] had provided to [Mr N] some further evidence about sales which he though should influence [Mr N]’s opinion as to the value, but which he had not referred to in his report. [Mr N] confirmed that the valuation evidence had not been available to him at the time that he had prepared his report, however, once it was referred to him he then spoke to agents responsible for the sale of those properties. [Mr N] stated that on the basis of the information he obtained from the agents and details of the properties which had been sold, it was still his view that [her northern suburbs] property was valued at $250,000 and no higher. On the basis of that evidence I accept the value is as stated by [Mr N].

64 In [Mrs G]’s schedule of assets and liabilities she has valued the [XYZ] Pty Ltd business at $1,500. [Mr G] relied on [Mrs G]’s

(Page 23)

accounts for [XYZ] as at 30 June 2006, which showed the net assets of the business totalling $12,041. In my view, the only appropriate manner of valuing the business is the total of its assets.

65 [Mrs G] has paid legal expenses of $36,278. These expenses have been financed by way of a personal loan of $30,000 and the balance paid from her earnings. I do not intend to take into account either the legal expenses or the loan.

66 [Mrs G] seeks to have included as a liability a BankWest Visa card debt of $11,887. This relates to expenses incurred since separation and I do not intend to take it into account.

67 Both parties have liquidated assets of the marriage since separation. [Mr G] withdrew $5,800 from a bank account in February/March 2005. He says he took the money in cash and kept it in his house for some time. He said he gradually used it to pay bills. [Mrs G] has taken funds from the Cash Management Account. She did not declare these funds had been accessed by her in her financial statement. The funds received from the Cash Management Account amounted to $5,200. I do not intend to take these cash amounts taken by [Mr G] or [Mrs G] into account as they are roughly equal.

68 [Mr G] seeks to have taken into account personal loan from his mother of $4,000. There is no evidence of his mother in relation to that loan, and on that basis I do not intend to take it into account. On the other hand, there is evidence from [Mrs G]’s mother, [Mrs B], about the monies owing by [Mrs G] to her. [Mr G] has agreed that this sum is owing.

Assets:

[Mrs G]’s Jewellery $5,290.00

[Mrs G]’s Chattels 2,445.00

[Mrs G]’s CBA account 379.00

[Mrs G]’s [XYZ] Pty Ltd business	1,241.00
[Mrs G]’s [Make] motor vehicle	6,900.00

[Mrs G]’s [Northern suburbs] property 250,000.00

Wine collection 1,870.00

[Mr G]’s [own] property 365,000.00

(Page 24)

[Mr G]’s furniture and chattels 2,815.00

[Mr G]’s jewellery	940.00
[Mr G]’s [make] motor vehicle	100.00

[Mr G]’s ALN shares 4,400.00

$641,380.00

Liabilities:

[Mrs G]’s Loan from [her mother]	16,209.00
Mortgage [her] property	84,536.00
Mortgage [his] property	68,625.00

$169,370.00

Net Assets	$472,010.00
Superannuation:
[Mrs G]’s superannuation	$94,546.00
[Mr G]’s superannuation	$36,956.00

68 [Mr G] seeks to have taken into account personal loan from his mother of $4,000. There is no evidence of his mother in relation to that loan, and on that basis I do not intend to take it into account. On the other hand, there is evidence from [Mrs G]’s mother, [Mrs B], about the monies owing by [Mrs G] to her. [Mr G] has agreed that this sum is owing.

69 At the commencement of the parties’ relationship [Mrs G] lists her assets to be as follows:

Assets:

Superannuation $54,490.00

[motor vehicle]	4,000.00
Commonwealth bank shares	2,672.00
National Mutual shares	1,294.00
Jewellery	7,022.00
Furniture	6,680.00

(Page 25)

Books 2,000.00

$78,158.00

Liabilities:

Mastercard	1,600.00
Personal loan	5,604.00
HECS debt	3,094.00
Personal loan to [her mother]	10,000.00

$20,298.00

Total Assets $57,860.00

70 [Mrs G]’s proposal is that I should not take into account the parties’ superannuation entitlements as an asset of the marriage when determining the assets of the parties. I intend to do this for reasons I will set out later. This being the case, the value of [Mrs G]’s superannuation at the commencement of the relationship should be deducted from her initial contributions. This would leave the contribution by her of $3,370. During the course of the relationship the Commonwealth Bank shares and the National Mutual shares have been sold. The jewellery, furniture and books are now worth significantly less than they were at the commencement of the relationship.

71 [Mr G]’s assets at the commencement of the relationship were as

follows:

[His] property	$125,000.00
Liabilities:
Personal loan to [Ms A]	20,000.00
ANZ mortgage	105,000.00

$125,000.00

72 While [Mr G] did not have any realisable net assets, he owned the [his suburban] property which is now the most significant asset of the parties, valued at $365,000.

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Financial contributions during the course of the marriage

73 After the parties commenced residing together, [Mrs G] purchased a property [in the northern suburbs]. This was to be an investment property, and it was not the intention of the parties that they would reside in it. The purchase price of the property was $88,000 and [Mrs G] contributed $3,500 by way of deposit and borrowed $87,915 to effect the purchase. During the course of the relationship [Mrs G] received income by way of rent from that property and incurred interest and other expenses. In most years she made a loss of $2,000. This amount was deducted from her income for the purposes of taxation.

74 Exhibit “W.2” sets out the taxable income of the parties from 30 June 1998 until 30 June 2005. The parties’ taxable incomes were very similar. [Mrs G]’s was $211,827 and [Mr G]’s $229,247. [Mr G] says while their incomes were similar, their contributions to their joint account and joint expenses were not equal.

75 When the parties moved into [his suburban] property in July 1999, [Mr G], the registered proprietor of the property, continued to pay the mortgage payments. A few months later [Mrs G] purchased [her] property. She was to be responsible for the payment of that mortgage.

76 On 20 October 2000 a joint account was opened for the parties as a means to pay their joint expenses. Annexure “M” to her affidavit sets out the expenses she says the parties agreed to pay from the joint account annually. It was estimated that their expenses for the year would total about $27,500. This equated to the parties jointly contributing around $530 per fortnight to the joint account. As they were each responsible for their own mortgages, it was agreed that [Mr G] would pay $300 towards his mortgage payment per fortnight, hence his fortnightly contributions to the joint account would be $230. [Mrs G], on the other hand, was contributing only $100 per fortnight towards her mortgage payment and her fortnightly contributions were to be $430.

77 Exhibit “H.2” is a schedule prepared by [Mr G] of the amount paid by [Mrs G] and he into the joint account from 20 October 2000 to November 2004. [Mr G] alleges that he contributed the sum of $42,233 to that account and [Mrs G] contributed $22,660.

(Page 27)
78	In cross-examination [Mrs G] stated that the sum of $931 was going into the joint account monthly as her contribution. [Mrs G] then stated that this sum was paid into the account from the beginning of 2004 and reduced to $600 later that year.
79	[Mrs G] prepared a schedule, which was exhibit “W.3.1” setting out payments she said were made by herself and [Mr G] into the joint account from 2000 until the end of 2004. Exhibit “W.2” was a list of contributions made, [Mrs G] says, for joint expenses paid through her Mastercard. [Mrs G] confirmed that payments made by her as indicated in “W.3.2” were for personal expenses and joint expenses. Personal expenses paid through the credit card included her personal education expenses of $1,100, her mobile phone expenses, others were for airline tickets for herself and for expenses on behalf of her mother.
80	[Mrs G] confirmed that she travelled without [Mr G] during the course of the relationship. She had a holiday [overseas] in 2002 and [another overseas holiday] in June 2003.
81	An examination of the schedules prepared by [Mrs G] and the evidence given by her shows that she has grossly exaggerated payments she has made towards their joint expenses.
82	[Mrs G] in schedule “W.3.1” sets out payments she says were made by her into the joint account. She was cross-examined in relation to those payments by [Mr G]. In the statement she states that on 24 July 2001 she put $3,050 into the joint account. What she did not say was that she took it out again the next day. On 7 August 2001, $1,181.28 went into the account, but was taken out the next day.
83	I did not accept [Mrs G]’s evidence in relation to the payments she made into the joint account as accurate. Although the account was set up in October 2000, the first payments into the account by [Mrs G] were in July 2001. In the meantime [Mr G] had paid almost $10,000 into the account. The next payment by her was on 13 August 2001 for $400, and a further one on 29 August 2001 for $900. She did not then make another payment into the joint account until May 2002. Payments increased during 2002. She was paying approximately $666 per fortnight. In 2003 she was paying approximately $390 per fortnight. On some occasions it was as much as $900 per fortnight.
84	I am satisfied that the schedules of [Mr G] are more accurate than those of [Mrs G]. These records show that from October 2000 to November 2004 he made a contribution of $42,233 into the joint
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account and [Mrs G] contributed approximately $22,660. This excludes their contributions to the mortgage payments. On 24 November 2000 [Mrs G] became redundant at her employment] and received a cash payout of $38,000. $25,000 of this sum was paid into the mortgage account. The balance was used to pay living expenses.
85	The following month the wife became entitled to receive some funds from her [Employers] Superannuation fund. She was paid about $17,700 in cash. This sum was used by her to buy a car. Aside from contributions to the joint expenses, as I have mentioned previously, the parties contributed to the mortgage payments on the properties registered in their own names. At the commencement of their relationship the mortgage sum owed by [Mr G] was $105,000, at the date of trial, the mortgage sum owing was $68,625. Upon [Mrs G] purchasing [her property], the sum was $87,000. Even after paying a lump sum of $25,000 in reduction of the mortgage outstanding in 2003, the mortgage at the date of trial stood at $84,536.

Non-financial contributions

86 During the time the parties resided together, they shared the cooking and the shopping and appear to have been responsible for their own washing and ironing, they shared the gardening. They jointly painted [his suburban] house and built fences. In relation to [her] property, [Mrs G] was responsible for its maintenance and [Mr G] was responsible for renovating the kitchen.

Conclusion

87 In my view, the financial contribution made by [Mr G] was greater than that of [Mrs G]. While they earned a similar income, I am not convinced that [Mrs G]’s income was used mainly for joint expenses. I accept [Mr G]’s evidence that his financial contributions to their joint expenses were approximately 40% greater than [Mrs G]’s. I am satisfied, however, that some payments were made out of her credit card for joint expenses, and that these payments were not taken into account on the schedule. While [Mr G] has managed to reduce the mortgage on [his suburban] property by $40,000 since the parties commenced living together, [Mrs G] has reduced the mortgage on [her suburban] property by only $3,500.

88 In relation to non-financial contributions I am satisfied the parties made equal contributions to the accumulation and maintenance of their assets.

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89	In my view, there should be an apportionment of the parties’ assets, excluding superannuation, on the basis of contributions only, of 70% to [Mr G] and 30% to [Mrs G].

Section 75(2) factors

90 Neither party sought a further apportionment of assets taking into account s 75(2) factors. In all the circumstances I believe that is appropriate. They both have the capacity to earn a similar sum. They are both single and have no responsibilities to support others and are both in reasonably good health.

Just and equitable

91 An apportionment in the sum of 70% to [Mr G] would mean that he would retain the following assets:

[His] property $365,000.00

Furniture and chattels 2,815.00

Jewellery	940.00
[Make] motor vehicle	100.00

ALN shares 4,400.00

$373,255.00

Less mortgage [his] property 68,625.00

$304,630.00

92 A 70% division of the total assets would result in him receiving assets totalling $330,407 excluding superannuation. This will mean that [Mrs G] will have to pay to [Mr G] the sum of $25,777.

93 In determining whether a distribution of the parties’ assets in this manner is just and equitable I must also take into account that [Mrs G] will retain superannuation of $94,546 and [Mr G]’s superannuation of only $36,956. I accept the submission of [Mrs G] that it is appropriate not to include superannuation in the asset pool as neither has made a contribution to the other’s superannuation. [Mrs G]’s superannuation is almost three times that of [Mr G]’s. In my opinion, a settlement such that [Mr G] receives 70% of the assets of the parties is just and equitable as it reflects both his contributions and takes into account [Mrs G]’s superior position in relation to superannuation.

(Page 30)

Chattels

94 [Mrs G] has attached to an affidavit a list of chattels which she seeks to have returned to her. In his cross-examination [Mr G] stated that there was some clothing and shoes of [Mrs G]’s in the house, which he has packed up. He stated that he will make photos in the house available for her to copy. He stated that in his home there is a backpack, Christmas tree, African mask, print of giraffes available at the home. He says there is also a glass and timber bedside table, a wrought iron bed base, a wall clock, a sun lounge, kitchen crockery and teak entertainment unit are all still at his residence. Those items should be returned to [Mrs G] by [Mr G].

Proposed orders

1 The sole authority for decision making in relation to the six embryos (numbered xxxxxxx) vest in the wife;

2 The husband do all such acts and sign such documents as are required by [the Clinic] to enable them to allow the said embryos to succumb.

3 If the husband fails to comply with paragraph 2 above a registrar of the Family Court of Western Australia is to sign on behalf of the husband any documents necessary to give effect to these orders.

4 The wife retain the items described hereunder and any interest the husband may have in the items vest in the wife absolutely and the husband also sign all such document and perform such acts as may be reasonably required to effect the transfer to the wife and thereafter the wife indemnify the husband and keep him effectively indemnified in respect of any liability relating to the items:

(a)	the property situate at [address in the northern suburbs]
(b)	all of the furniture, chattels and personal effects and wine collection located at the home at [the address in the northern suburbs];

(Page 31)

(c)	the wife’s [make] motor vehicle;
(d)	all the jewellery in the wife’s possession;
(e)	all the wife’s accounts with any bank or financial institution;
(f)	the wife’s superannuation entitlements;
(g)	the business and company known as [XYZ] Pty Ltd”;
(h)	the items described in the schedule marked “A” annexed to this order which are to be returned to the wife pursuant to paragraph 95 herein and which the husband is to deliver up within 7 days;
(i)	any monies owing by the wife to members of her family including [her mother];
(j)	the wife’s mortgage to Commonwealth Bank in respect of the property at [the address in the northern suburbs] and;
(k)	any liability incurred by the wife in her sole name.

5 The husband retain the items described hereunder and any interest the wife may have in the items vest in the husband absolutely and the wife also sign all such documents and perform such acts as may be reasonably required to effect the transfer to the husband and thereafter the husband indemnify the wife and keep her effectively indemnified in respect of any liability relating to the items:

(a)	the property situate at [his address];
(b)	all the chattels and contents located in the property at [his address] save and except the items described in the schedule marked “A” annexed to these orders;
(c)	the husband's [make] motor vehicle;
(d)	the husband’s interest in any bank accounts or financial institution;
(e)	the husband’s superannuation entitlements;
(f)	the husband's investments, shares and interest in any company or trust;

(Page 32)

(g)	any monies that may be owing to members of the husband’s family;
(h)	mortgage over the property [at his address]; and
(i)	debts incurred in the husband’s sole name.

6 The husband forthwith remove any caveat or other encumbrance that he may have caused to have registered against the title to the home at [the address in the northern suburbs].

7 Within 45 days the wife pay to the husband the sum of $25,777.

8 The application and response otherwise be dismissed.

I certify that the preceding [94] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate: