Lowe and Barry and Anor - [2011] FamCA 625

FAMILY COURT OF AUSTRALIA

LOWE & BARRY AND ANOR

[2011] FamCA 625

FAMILY LAW - CHILDREN – surrogacy- parental responsibility – with whom a child lives

Family Law Act 1975 (Cth) ss 60B, 60CC, 61B, 64, 65D
Surrogacy Contracts Act 1993 (Tas) s 3

Dudley and Anor & Chedi [2011] FamCA 502
Wilkie and Anor & Mirkja [2011] FamCA 667
Aldridge & Keaton [2009] FamCAFC 229

Brown L, The New Shorter Oxford Dictionary on historical Principles, Clarendon Press, Oxford 1993
Watson Janu P “Surrogacy Arrangements in Australia: Analysis of the Legal Framework” (1995) 9 Australian Journal of Family Law
Harland A, Cooper D, Rathus Z and Alexander R “Family Law Principles” (2011)

APPLICANTS:

Ms Lowe and
Mr Lowe

RESPONDENT:	Ms Barry
SECOND RESPONDENT:	Mr Taylor

FILE NUMBER:

HBC

2011

DATE DELIVERED:

5 August 2011

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart in Chambers

JUDGMENT OF:

Benjamin J

HEARING DATE:

25 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not applicable

SOLICITOR FOR THE APPLICANT:

Not applicable

COUNSEL FOR THE RESPONDENT:

Not applicable

SOLICITOR FOR THE RESPONDENT:

Not applicable

Orders

L Lowe born … November 2010 (“the child”) live with the applicants.
The applicants have sole parental responsibility for the child.
The child spend time with the first and second respondents at such times as may be agreed between the parties or otherwise ordered by a Court exercising jurisdiction under the Family Law Act 1975 (Cth).
Reasons will be published in due course.
IT IS NOTED that the father will provide the child with an age appropriate explanation of his origins at a time to be decided by the applicants.
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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Lowe & Barry and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: HBC: 71 of 2011

Ms Lowe and Mr Lowe

Applicants

And

Ms Barry and Mr Taylor

Respondents

REASONS FOR JUDGMENT

INTRODUCTION

Surrogacy in one form or another is probably as old as humankind itself, whether the arrangements are by way of commercial, altruistic or other method. This case involves an apparently informal altruistic surrogacy entered into by some members of a family in respect of the child, L, who was born in November 2010.
Surrogate is defined in this context as:-[1]
Taking the place of or standing for something else … . Surrogate baby a baby borne by a surrogate mother.
[1] Brown L, The New Shorter Oxford Dictionary on historical Principles, Clarendon Press, Oxford 1993.
In a community understanding, surrogacy is said by Wikipedia to be:-
… an arrangement in which…

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 Lowe and Barry and Anor

Details

AGLC: Lowe and Barry and Anor [2011] FamCA 625
Case: [2011] FamCA 625
Decision Date: 5 August 2011

CaseChat Overview and Summary

The applicants, Lowe and Barry, sought orders for the child, L Lowe, to live with them and for them to have sole parental responsibility. The first and second respondents are the child's parents. The dispute concerned the living arrangements and parental responsibility for the child. The decision was made by Benjamin J.

The primary legal issue before the court was to determine the best interests of the child, L Lowe, in relation to where the child should live and who should hold parental responsibility. This involved considering the various factors relevant to the child's welfare and development as prescribed by the relevant legislation.

Benjamin J ordered that the child, L Lowe, live with the applicants and that the applicants have sole parental responsibility for the child. The court further ordered that the child spend time with the first and second respondents at such times as may be agreed between the parties or otherwise ordered by a Court exercising jurisdiction under the *Family Law Act 1975* (Cth). Reasons for the decision were to be published at a later date.

Orders

Orders of the court

L Lowe born … November 2010 (“the child”) live with the applicants.

The applicants have sole parental responsibility for the child.

The child spend time with the first and second respondents at such times as may be agreed between the parties or otherwise ordered by a Court exercising jurisdiction under the Family Law Act 1975 (Cth).

Reasons will be published in due course.

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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