FAMILY COURT OF AUSTRALIA
| LAMB AND ANOR & SHAW | [2017] FamCA 769 |
| FAMILY LAW – CHILDREN – Surrogacy – Where applicants entered into an altruistic surrogacy arrangement with respondent birth mother – Where applicants were the genetic donors of the sperm and ovum and hence the genetic parents of child - Where birth mother is genetic mother’s third cousin – Where relationship between applicants and respondent broke down during pregnancy – Where applicants have had the care of child and respondent has had no time with child since birth – Where applicants sought equal shared parental responsibility and child live with them – Applicants sought child only spend time with birth mother as determined by them – Where respondent consents to applicants having equal shared parental responsibility and child live with them – Where respondent sought child spend time with her including occasional overnights – Whether birth mother should spend any time with child – Whether there is benefit of a meaningful relationship between child and birth mother – Where conflict between applicants and respondent is hostile – Where risk of harm to child by spending time with birth mother outweighs benefit of meaningful relationship - Where no orders made for time between child and birth mother except at applicant’s discretion. FAMILY LAW – CHILDREN – Parentage Order - Where applicants sought a declaration of parentage order under s 69VA of the Family Law Act1975 (Cth) - Where respondent conceded that court cannot make the declaration of parenthood sought by applicants – Where court is bound by the current law in relation to this – Where s 60HB of Family Law Act 1975 (Cth) covers the field in relation to parentage for surrogacy arrangements – Where s 60H has no application to children born under surrogacy arrangements – Where s 69VA is not a stand alone power to remedy any hiatus which may arise from s 60HB - Where parentage of children born under surrogacy arrangements is to be determined and regulated under the relevant State law and the Family Law Act1975 (Cth) is to recognise that – Where the relevant State Act provides that the genetic mother is presumed not to be the mother of the child – Where the birth mother is presumed to be the mother of the child – Where the State Act provides that the sperm donor is the father of the child but has no rights or liabilities in relation to the child – Findings that the relevant Queensland State legislation provides for the father to be a parent of the child and the Family Law Act1975 (Cth) will recognise that status - Where the court is unable to make a declaration of parentage under s 69VA in favour of the applicants. FAMILY LAW – CHILDREN – Change of child’s birth registration details – Where applicants sought change of child’s name and that they be recorded on child’s birth certificate as parents - Where court is satisfied that birth mother… |
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- AGLC
- Lamb & Anor and Shaw [2017] FamCA 769
- Case
- [2017] FamCA 769
- Decision Date
CaseChat Overview and Summary
The court also considered the applicants' request for a declaration of parentage under s 69VA of the *Family Law Act 1975* (Cth). However, the respondent conceded that such a declaration could not be made. The court found itself bound by existing authority, specifically *Bernieres & Dhopal*, which established that s 60HB of the *Family Law Act* covers the field for parentage in surrogacy arrangements, leaving the determination of parentage to relevant State law, which the federal law will recognise. The court noted that the relevant Queensland legislation presumes the birth mother to be the mother and the sperm donor to be the father, but without rights or liabilities unless a parentage order is made. Consequently, the court was unable to make the declaration of parentage sought by the applicants.
In relation to the child's birth registration, the court was satisfied that the child's name should be changed to that selected by the genetic parents and that the genetic father should be recorded on the birth certificate. However, the court was not satisfied that the birth mother should be coerced into recording the genetic mother as a parent on the birth certificate. The court also declined to grant an injunction restraining the respondent from publishing information about the proceedings, finding that s 121 of the *Family Law Act* already provided sufficient prohibition and that there were no special circumstances warranting an additional order.
By consent, the court ordered that Ms Lamb and Mr Sorensen have equal shared parental responsibility for the child and that the child live with them. The child is to spend no time with Ms Shaw except as determined by the applicants at their sole discretion. The child is to be known as C, and the parties are to take steps to amend the child's birth registration to reflect this name change and Mr Sorensen as the father. The court also made orders regarding the child's passport and restrained Ms Shaw from applying for one. The applicants were ordered not to denigrate Ms Shaw in the presence of the child.
Orders
Orders of the court
IT IS ORDERED BY CONSENT THAT:
1.
All prior parenting orders are forthwith discharged.
Parental Responsibility
2.
The Applicants, Ms Lamb and Mr Sorensen have equal shared parental responsibility for making decisions about major long-term issues regarding the child, registered on his birth certificate as B, and upon the making of these orders to be known as C, born … 2016 (“the child”).
3.
The Applicants shall be solely responsible for the daily care, welfare and development of the child.
Living and spending time arrangements
4.
The child shall live with the Applicants.
AND IT IS FURTHER ORDERED THAT:
5.
The child shall spend no time with the Respondent save and except as may be determined by the Applicants at their sole discretion.
Change of Name
6.
The child shall henceforth be known as C.
7.
The parties do all acts and things, including singing any necessary documents, to cause the child’s birth registration details to be amended to ensure that:
(a) The child’s name is amended from B to C.
(b) Mr Sorensen is entered as the father of the child on the child’s birth certificate.
8.
The Registrar of Birth Deaths and Marriages, Queensland is requested to exercise his or her discretion and accept these Orders and any document executed pursuant to these orders, either by the parties or by the Registrar of the Family Court of Australia, pursuant to Order 9, to amend the child’s birth registration to reflect Order 7(a) and (b) hereof.
9.
Failing execution of any document within 7 days of a request to do so, that the Registrar of the E Town Registry of the Family Court of Australia be appointed, pursuant to Section 106A of the Family Law Act 1975 (Cth), to sign any necessary document on behalf of the defaulting party.
Passport
10.
The child is permitted to have an Australia passport or travel-related document provided the application for that document is made by the Applicants, Ms Lamb and Mr Sorensen, who may sign any declaration on the application in the form approved by the relevant Minister.
11.
The Respondent, Ms Shaw, is restrained from making any application for an Australia passport or travel-related document for the child.
12.
For the purposes of s 11 of the Australian Passports Act 2005 (Cth), it is noted the above orders allow:
(a) The child to travel internationally;
(b) The child to live with the Applicants when they are outside Australia.
Other Orders
13.
The Applicants shall not denigrate the Respondent to or in the hearing of the child and the Applicants shall remove the child from the presence of any person denigrating the Respondent.
14.
The Independent Children’s Lawyer is forthwith discharged upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.
15.
Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.
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
That conclusion was based upon their Honours’ express adoption of a preliminary view that had been earlier expressed by Ryan J in Mason & Mason [2013] FamCA 424 in relation to the role of s 60HB of the Family Law Act in surrogacy cases. In that case, the applicant sperm donor of surrogate twins was seeking a declaration of parentage, which was not made (although further submissions were invited). At [33]-[34] her Honour said as follows:[33]. The application of these principles to s 60H and s 60HB was not discussed in this hearing. It follows, that without the benefit of argument, a cautious approach to the issue is necessary. However, it is my preliminary view that for the purposes of the Act, the 2008 amendments evince an intention by Parliament that the parentage of children born as a result of artificial conception procedures or under surrogacy arrangements will be determined by reference to those provisions and not the general parentage provisions. This interpretation achieves, on a state by state (and territory) basis, a uniform system for the determination of parentage. [34]. The effect of this is that unless an order is made in favour of the applicant pursuant to the Surrogacy Act, the provisions of the Act do not permit this Court to make a declaration of parentage in his favour. Thus, on reflection, I am inclined to respectfully agree with Watts J in Dudley and Anor & Chedi [2011] FamCA 502, where at [29] his Honour determined that ultimately state law will govern the determination of parentage [of children born under surrogacy arrangements] and that state law will be recognised by federal law. (emphasis added) At [62]-[63] of Bernieres & Dhopal the Full Court concluded that “.. the plain intention of s 60HB is to leave it to each of the States and Territories to regulate the status of children born under surrogacy arrangements, and for that to be recognised for the purposes of the [Family Law] Act.” I am clearly bound by Bernieres & Dhopal, notwithstanding, with respect, my difficulty in sharing such a construction of s 60HB, which on its face, appears to only have application if, and only if, a parentage order has been made. Further, Bernieres & Dhopal is binding authority for the proposition that s 60H, which deals with children born as a result of artificial conception procedures, has no application to children born under surrogacy arrangements, even if artificial conception procedures are used as part of that process. Their Honour’s held at [58] that s 60H “.. is clearly designed to cover conventional artificial conception arrangements where the birth mother and her partner are to be the parents of the child” and at [62] “that .. it is plain that s 60HB now specifically addresses the position of children born under surrogacy arrangements, leaving s 60H to address the status of children born by means of conventional artificial conception procedures.” I then turn to the relevant State legislation governing this surrogacy arrangement, which is the Surrogacy Act 2010 (Qld). Whilst it provides for parentage orders to be made, by s 17 of that Act, “to remove any doubt, it is declared that, unless and until a parentage order is made under Chapter 3 transferring the parentage of a child born as a result of a surrogacy arrangement, the parentage presumptions under the Status of Children Act 1978 apply to the child.”