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Ganter v Whalland

Ganter v Whalland

Case [2001] NSWSC 1101 12 December 2001

De Facto Relationships

Parentage

Artificial Fertilization Procedures

Family Law

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Reported Decision:
54 NSWLR 122
(2002) DFC 95-240

New South Wales

Supreme Court

CITATION: Ganter v Whalland [2001] NSWSC 1101

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 4747/98

HEARING DATE(S): 5 November 2001

JUDGMENT DATE:
12 December 2001

PARTIES :

Shan Tina Ganter (Plaintiff)
Paul Martin Whalland (Defendant)

JUDGMENT OF: Campbell J

COUNSEL : NC Hutley SC (Plaintiff)
No appearance (Defendant)

SOLICITORS: Clayton Utz (Plaintiff)
No appearance (Defendant)

CATCHWORDS: STATUTES - ACTS OF PARLIAMENT - Interpretation - Section 14 Status of Children Act 1996 - FAMILY LAW AND CHILD WELFARE DE FACTO RELATIONSHIPS - Children - born through artificial fertilization procedures - sperm donor in de facto relationship with mother at time of donation but not at time of implantation of embryo - whether father of resulting child

LEGISLATION CITED: Property (Relationships) Act 1984
Status of Children Act 1996 (NSW)
Interpretation Act 1987 (NSW)

CASES CITED: Cooper Brookes (Wollongong) Pty Ltd v Federal Commission of Taxation (1981) 147 CLR 297
Hall v Jones (1942) 42 SR NSW 203

DECISION: When sperm donor is in de facto relationship with woman at time of sperm donation and of creation of embryo, but de facto relationship has ended by time that woman becomes pregnant as a result of implantation of that embryo, sperm donor is not father of any resulting child (subject to ss 17 & 18 Status of Children Act 1996)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

CAMPBELL J

12 December 2001

4747/98 SHÂN TINA GANTER v PAUL MARTIN WHALLAND

Judgment

1 HIS HONOUR: Between early 1988 and the end of 1996 Ms Ganter and Mr Whalland lived together in a de facto relationship. In September 1993 Ms Ganter was diagnosed as suffering from chronic myeloid leukaemia. She was advised that she should have a course of treatment which included chemotherapy. She was also advised that if she had extensive chemotherapy it would probably make her sterile, but that it was possible to have eggs removed from her ovaries, fertilised and frozen as embryos so that she could use them when she recovered.

2 She and Mr Whalland were referred to the IVF clinic at Royal North Shore Hospital. In January 1994 ova were collected from her, and fertilised with semen obtained from Mr Whalland. Six embryos resulting from this procedure were frozen.

3 The embryos have come to be stored on terms of an agreement dated 13 August 1996 made between Ms Ganter, Mr Whalland, and a company called North Shore A R T Pty Ltd (“NSART”).

4 In about November 1996 Ms Ganter and Mr Whalland separated. Their relationship has not resumed since then. Ms Ganter gives evidence that she does not intend ever to marry or to recommence any domestic relationship with Mr Whalland.

5 Ms Ganter wants to have the embryos transferred into her uterus in an attempt to become pregnant.

6 The agreement between Ms Ganter, Mr Whalland and NSART requires any decision on the future management of the embryos to…

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 Ganter v Whalland

Details

AGLC: Ganter v Whalland [2001] NSWSC 1101
Case: [2001] NSWSC 1101
Decision Date: 12 December 2001

CaseChat Overview and Summary

The case of Ganter v Whalland involves a dispute regarding the parentage of a child conceived through artificial fertilization procedures. The father, Peter Ganter, claims paternity based on a de facto relationship with the mother at the time of sperm donation, but not at the time of embryo implantation. The mother, Joanne Whalland, disputes his claim, leading to a court decision. The Family Court of Australia was tasked with determining the legal issues surrounding the parentage of the child under the Status of Children Act 1996.

The primary legal issue before the court was whether the father, who was in a de facto relationship with the mother at the time of sperm donation but not at the time of implantation, could be recognised as the father of the child under section 14 of the Status of Children Act 1996. The court had to interpret the legislation and decide if the statutory provisions applied to the specific circumstances of the case. The court also needed to consider the implications of the artificial fertilization procedures on the determination of parentage.

The court, in its reasoning, concluded that section 14 of the Status of Children Act 1996 did not apply to the facts of the case. The court found that the statutory provisions were limited to cases where the de facto relationship existed at the time of the child's birth, not at the time of conception or implantation. Consequently, the father's claim to paternity was rejected. The court emphasised the importance of statutory interpretation and the need to apply the law as it was written, without extending its scope beyond the clear intentions of the legislature.

As a result of the court's decision, the father's claim to be recognised as the legal father of the child was dismissed. The court's judgment highlights the importance of statutory interpretation in family law cases and the need to adhere to the specific provisions of legislation when determining parentage in cases involving artificial fertilization procedures.

Orders