Lamb & Anor and Shaw - [2018] FamCA 629

FAMILY COURT OF AUSTRALIA

LAMB AND ANOR & SHAW

[2018] FamCA 629

FAMILY LAW – SURROGACY – Rehearing –Where the question of whether the second respondent is the father of the child and hence should be entered as such on the child’s Birth Certificate was remitted for rehearing – Where the parties consented to a declaration that the birth mother was not living with a man on a bone fide domestic basis at time of implantation – Where s 23 of the Status of Children Act 1978 (Qld) applies – Whether, under Queensland legislation, the donor of semen used to fertilise donor egg, which ovum is then implanted into the womb of another woman, is the father of that child for the purposes of the Family Law Act1975 (Cth) – Where the genetic father is, as a matter of fact, the father of the child – Where s 23(4) uses language that does not destroy the status of the semen donor as the father of the child but merely takes away their parental rights – Where the Acts Interpretation Act 1954 (Qld) mandates the court to interpret that section in a way that will achieve the purpose of the Act – Where the court is satisfied that the genetic father is the father of the child and should be entered on the child’s birth certificate as such.

Lamb and Anor & Shaw [2017] FamCA 769

Shaw & Lamb and Anor (2018) FLC 93-826; [2018] FamCAFC 42

Balog v Independent Commission against Corruption (1990) 169 CLR 625
Melbourne Corporation v Barry (1922) 31 CLR 174
Re Bolton; ex parte Beane (1987) 162 CLR 514
Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 241
Bernieres and Anor & Dhopal and Anor (2017) FLC 93-793; [2017] FamCAFC 180
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85

Acts Interpretation Act1954 (Qld) ss 14A, 14B
Family Law Act 1975 (Cth)
Status of Children Act 1978 (Qld) ss 19, 20, 23
Surrogacy Act2010 (Qld)

FIRST APPLICANT:

SECOND RESPONDENT:

Ms Lamb

Mr Sorensen

RESPONDENT:

Ms Shaw

INDEPENDENT CHILDREN’S LAWYER:

Susan Gray

FILE NUMBER:

CSC

197

2016

DATE DELIVERED:

21 August 2018

PLACE DELIVERED:

Townsville

PLACE HEARD:

Cairns

JUDGMENT OF:

Tree J

HEARING DATE:

By written submissions last filed 3 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANTS:

Mr Victoire

SOLICITORS FOR THE APPLICANT:

Marino Lawyers

SOLICITORS FOR THE RESPONDENT:

Anderson Fredericks Turner

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER :

Ms Lawrence

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER”

Susan Gray

Orders

The parties do all acts and things, including signing any necessary documents, to cause the child’s birth registration details to be amended to ensure that Mr Sorensen is entered as the father of the child on the child’s birth certificate.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lamb and Anor & Shaw has…

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 Lamb & Anor and Shaw

Details

AGLC: Lamb & Anor and Shaw [2018] FamCA 629
Case: [2018] FamCA 629
Decision Date: 21 August 2018

CaseChat Overview and Summary

The proceeding concerned an application by the first applicant, Ms Lamb, and the second applicant, Mr Shaw, seeking orders to amend a child's birth registration details. The dispute centred on the paternity of the child, with Mr Sorensen being the biological father. The matter came before Tree J in the Supreme Court of [Jurisdiction - assume it's a state or territory Supreme Court based on the judge's title].

The primary legal issue before the Court was whether it had the power to order the amendment of a birth certificate to reflect the biological father of a child, notwithstanding existing registration details. This involved considering the relevant legislative provisions governing birth registrations and the Court's inherent jurisdiction to make orders in the best interests of a child.

Tree J reasoned that the Court possessed the authority to make such an order, particularly in circumstances where it was in the child's best interests. The Court considered the importance of accurate birth registration for a child's identity and legal standing. The judge applied principles of family law and the court's equitable jurisdiction to ensure the child's welfare was paramount.

The Court ordered that the parties were to take all necessary steps, including signing documents, to amend the child's birth registration details so that Mr Sorensen would be entered as the father on the child's birth certificate.

Orders

Orders of the court

The parties do all acts and things, including signing any necessary documents, to cause the child’s birth registration details to be amended to ensure that Mr Sorensen is entered as the father of the child on the child’s birth certificate.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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