Johnson & Anor and Chompunut - [2011] FamCA 505

FAMILY COURT OF AUSTRALIA

JOHNSON AND ANOR & CHOMPUNUT

[2011] FamCA 505

FAMILY LAW - CHILDREN - overseas surrogacy arrangement – where the male applicant provided the sperm – where the applicants are resident and domicile in NSW – where at the time the arrangements were entered into NSW law did not have extraterritorial effect – where Australia is yet to grant a visa for the child to live in Australia – whether it is appropriate to make a finding as to parentage - child to live with the applicants - the applicants to have equal shared parental responsibility of the child

Family Law Act 1975 (Cth)
Assisted Reproductive Technology Act 2007 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Surrogacy Act 2010 (NSW)

Status of Children Act 1996 (NSW)

Dudley and Anor & Chedi [2011] FamCA 502

1^st APPLICANT:

Mr Johnson

2^nd APPLICANT:

Ms Johnson

RESPONDENT:

Ms Chompunut

FILE NUMBER:

SYC

7147

2010

DATE DELIVERED:

30 June 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

21 February 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Lewis Law

Orders

The child W, born … September 2010 (“the child”) live with the applicants, Mr Johnson and Ms Johnson.
The applicants have equal shared parental responsibility for making decisions about long term issues and day to day issues in respect of the child.

It is noted that publication of this judgment under the pseudonym Johnson and Anor & Chompunut is approved pursuant to s 121 (9) (g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7147 of 2010

Mr Johnson and Ms Johnson

Applicants

And

Ms Chompunut

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The child was born by a surrogacy arrangement in Bangkok, Thailand. This was overseen by a fertility centre in Bangkok. Mr Johnson, the first applicant, provided his sperm, to be used in an artificial conception procedure with a donated egg. The anonymous donor of the egg is not a party to these proceedings. The surrogate mother was not the egg donor and was impregnated with the fertilised egg. The child was born in September 2010.
The child’s birth mother consents to the applicants having orders made in their favour under the Family Law Act 1975 (Cth) (“FLA”) for parental responsibility and for the child to live with them at their home in New South Wales. It seems that at all times the applicants intended to maintain their permanent residence in New South Wales.
The surrogate mother placed the child into the sole care of the applicants almost immediately after the birth of the child and has been in the applicants’ care in Thailand since that time. The applicants intend to return to New South Wales with the child when a visa is awarded.

BACKGROUND

The first applicant, Mr Johnson, was born in NSW in 1962 and is now 49 years of age. The second applicant, Ms Johnson, was born in…

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 Johnson & Anor and Chompunut

Details

AGLC: Johnson & Anor and Chompunut [2011] FamCA 505
Case: [2011] FamCA 505
Decision Date: 30 June 2011

CaseChat Overview and Summary

In the matter of *Johnson & Anor and Chompunut*, heard before Watts J, the applicants, Mr and Ms Johnson, sought orders for the child W, born in September 2010, to live with them and for them to have equal shared parental responsibility for the child. The respondent was Ms Chompunut.

The primary legal issue before the court was whether it was in the best interests of the child for W to live with the applicants and for them to share parental responsibility. This required the court to consider the relevant provisions of the *Family Law Act 1975* (Cth) concerning parental responsibility and the principles governing the determination of a child's best interests in parenting proceedings.

Watts J made orders that the child W live with the applicants, Mr and Ms Johnson. Furthermore, the court ordered that the applicants have equal shared parental responsibility for making decisions regarding both long-term and day-to-day issues concerning the child.

Orders

Orders of the court

The child W, born … September 2010 (“the child”) live with the applicants, Mr Johnson and Ms Johnson.

The applicants have equal shared parental responsibility for making decisions about long term issues and day to day issues in respect of the child.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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