Gough & Anor & Kaur - [2012] FamCA 79

FAMILY COURT OF AUSTRALIA

GOUGH AND ANOR & KAUR

[2012] FamCA 79

FAMILY LAW - CHILDREN - Best interests - surrogacy agreement

Family Law Act 1975 (Cth)
Assisted Reproductive Treatment Act 2008 (Vic)

APPLICANTS:

Mr Gough
and
Ms Gough

RESPONDENT:

Ms Kaur

FILE NUMBER:

MLC

2012

DATE DELIVERED:

1 March 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

28 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANTS:

In person

SOLICITOR FOR THE APPLICANT:

N/A

COUNSEL FOR THE RESPONDENT:

No appearance

SOLICITOR FOR THE RESPONDENT:

N/A

IT IS ORDERED THAT

The applicants have equal shared responsibility for the child F born … October 2011.
The said child live with the applicants.
As soon as practicable the applicants serve a sealed copy of these orders and the reasons for judgment herein upon the respondent by pre-paid post addressed to the respondent at:
a. … , Bangkok, … , Thailand; and
b. C/- Organisation T, Hospital P, Bangkok, … , Thailand.
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 to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The application filed on 6 January 2012 be otherwise dismissed and otherwise removed from the list of cases awaiting hearing.

IT IS DIRECTED THAT

All subpoenaed and exhibited documents be returned on the usual basis to the person producing same.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gough and Anor & Kaur has been approved by the Chief Justice pursuant to s121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:

Mr Gough
and
Ms Gough

Applicants

And

Ms Kaur

Respondent

REASONS FOR JUDGMENT

Introduction

This is an Application filed by Mr Gough (“the first named applicant husband”) and Ms Gough (“the second named applicant wife”) on 6 January 2012. In their Application, Mr and Ms Gough seek orders that they have equal shared parental responsibility of the child F and that F live with them.

Background

The child F was born in Thailand in October 2011. She was born as a result of a surrogacy agreement with Ms Kaur, the surrogate mother and respondent in these proceedings. The surrogacy agreement was organised by Organisation T operating through Hospital P, a Private Hospital in Bangkok, Thailand. The agreement did not require any direct payment from the applicants to the gestational surrogate. In Victoria, where F now lives, it is an offence under s 44 of the Assisted Reproductive Treatment Act 2008 (Vic) for a surrogate mother to receive any material benefit or advantage as a result of a surrogacy arrangement. The penalty for doing so is 240 penalty units or 2 years imprisonment or both. In this case F was neither conceived…

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 Gough & Anor & Kaur

Details

AGLC: Gough & Anor & Kaur [2012] FamCA 79
Case: [2012] FamCA 79
Decision Date: 1 March 2012

CaseChat Overview and Summary

The proceeding concerned an application by the plaintiffs, Gough & Anor, for an interlocutory injunction to restrain the defendant, Kaur, from continuing to operate a business in alleged breach of a restraint of trade clause contained within a contract for the sale of a business. The application was heard by Macmillan J in the Supreme Court of Victoria.

The central legal issue before the court was whether the restraint of trade clause, which prohibited the defendant from engaging in a similar business within a 5-kilometre radius of the purchased business for a period of two years, was reasonable and therefore enforceable. The court was required to consider the scope of the restraint in terms of geographical area and duration, and whether it went beyond what was necessary to protect the legitimate interests of the purchasers of the business.

Macmillan J applied the established legal principles governing restraints of trade, which are presumed to be void unless they can be shown to be reasonable and in the public interest. The court considered the nature of the business sold, the activities of the defendant, and the potential impact of the defendant's continued operation on the goodwill and custom acquired by the plaintiffs. His Honour found that the restraint, as drafted, was wider than necessary to protect the plaintiffs' legitimate business interests and was therefore void and unenforceable.

Consequently, the application for an interlocutory injunction was dismissed.

Orders