FAMILY COURT OF AUSTRALIA
| MASON & MASON AND ANOR | [2013] FamCA 424 |
| FAMILY LAW – STANDING – Overseas surrogacy arrangement - Where DNA parentage testing is accepted by Australian authorities as sufficient to establish citizenship by descent – Where the children have resided since birth with the applicant and respondent - Standing pursuant to s 65(c). FAMILY LAW – CHILDREN – Where the applicant is the children’s biological father – Whether the biological father is a parent of the children for the purposes of the Family law Act 1975 (Cth) – Consideration of ss 60H and 60HB of the Family Law Act 1975 (Cth) – Whether the effect of later specific provisions (60H and 60HB) prohibits reliance on earlier general provisions (general presumptions) – Where the application of the generalia specialibus rule of statutory construction operates so that the specific provision must be followed and the general provisions are displaced – Where s 60H and 60HB evinces 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- HELD – Declaration of parentage is not permitted to be made FAMILY LAW – CHILDREN – Parenting orders – Where neither the birth mother nor the biological mother seeks to have a role in the children’s lives – Where the Family Consultant’s evidence that it is in the best interests of the children to formalise the current parenting arrangements is accepted – HELD - It is in the children’s best interests for the applicant and respondent to have equal shared parental responsibility and the children live with them |
| Adoption Act 2000 (NSW) Family Law Act 1975 (Cth) Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 Family Law Regulations 1984 (Cth) Status of Children Act 1996 (NSW) Surrogacy Act 2010 (NSW) |
| Aldridge v Keaton (2009) 42 Fam LR 369 Associated Minerals Consolidated Ltd v Wyong Shire Council (1974) 4 ALR 353 Commissioner of Taxation v Hornibrook (2006) 156 FCR 313 Dudley and Anor & Chedi [2011] FamCA 502 Ellison and Anor & Karnchanit [2012] FamCA 602; (2013) 48 Fam LR 33 G v H (1994) 181 CLR 387 Sweeney v Fitzhardinge (1906) 4 CLR 716 DC Pearce RS Geddes, Statutory Interpretation in Australia (LexisNexis, Butterworths, 7th ed, 2011) |
| APPLICANT: | Mr A Mason |
| FIRST RESPONDENT: | Mr B Mason |
| SECOND RESPONDENT: | Ms Tisya |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 918 | of | 2012 |
| DATE DELIVERED: | 7 June 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Justice Ryan |
| HEARING DATES: | 5 March 2012, 15 June 2012 & 31 August 2012 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Andrea Wilson & Associates |
| SOLICITOR FOR THE FIRST RESPONDENT: | Andrea Wilson & Associates |
| FOR THE SECOND RESPONDENT: | No appearance |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission NSW |
Orders
That Mr A Mason (“the applicant”) and Mr B Mason (“the respondent”) have equal shared parental responsibility for…
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- AGLC
- Mason & Mason and Anor [2013] FamCA 424
- Case
- [2013] FamCA 424
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was the operation and effect of section 60H of the *Family Law Act*, which addresses children born as a result of artificial conception procedures. The court was required to determine how this section interacts with general presumptions of parentage and the significance of biological parentage in light of statutory deeming provisions.
The court referred to the High Court's decision in *G v H* (1994) 181 CLR 387, which discussed parenting presumptions and declarations of parentage. It was noted that determinations of parentage under the Act, while serious, are not declarations of paternity in the traditional sense. The presumptions operate in the interests of the child to establish parental duties and responsibilities, unless rebutted by proof on the balance of probabilities. Section 60H specifically deems a child to be the child of a woman and her partner if certain conditions are met regarding consent to artificial conception procedures, irrespective of biological parentage. The court highlighted that subsection (5) of section 60H creates a presumption of consent to the procedure, which can only be rebutted by proof on the balance of probabilities.
Orders
Orders of the court
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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
In the context of a maintenance case concerned with inferences that may be drawn from a failure to comply with a parentage testing order (then s 66W(5) now s 69Z), the High Court in G v H (1994) 181 CLR 387 discussed parenting presumptions and declarations of parentage (then Div 7 now Div 12) made under the Act. Their Honours Deane, Dawson and Gaudron JJ [400] said:… Moreover, while a determination of parentage for the purposes of Family Law Act proceedings is obviously a serious matter for both the child and the putative parent, such a determination cannot properly be regarded as a declaration of paternity in the traditional sense… (my emphasis) Their Honours continued [400]: As earlier indicated, there are several presumptions in Div. 7 of Pt VII which are “rebuttable by proof on a balance of probabilities”. Those presumptions proceed on a basis which is diametrically opposed to the notion that, in maintenance proceedings, the biological fact of parentage involves an important or grave allegation to which due regard must be had before a finding is made in that regard. Rather, the presumptions operate in the interests of the child and provide the basis for the imposition of parental duties and responsibilities unless and until proof to the contrary is forthcoming… (footnotes omitted) (my emphasis) In G v H Brennan and McHugh JJ said at [391]:We do not suggest that paternity is not a serious issue. It is serious because paternity carries with it both significant privileges and grave responsibilities, only some of which relate to monetary obligations. The attribution of paternity may be seen by a child’s mother to be no more than the means of procuring a maintenance order during the child’s infancy, but a finding that a particular man is the child’s father might well be of the greatest significance to the child in establishing his or her lifetime identity… (my emphasis) Before consideration is given to the general presumptions of parentage, it is necessary to address those that specifically refer to children born as a result of artificial conception procedures (s 60H) and children born under surrogacy arrangements (s 60HB). Section 60H concerns children born as a result of artificial conception procedures and deems a child to be the child of a woman or man in certain situations. Section 60H provides:CHILDREN BORN AS A RESULT OF ARTIFICIAL CONCEPTION PROCEDURES(1)If:(a)a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent); and(b)either:(i) the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or(ii) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act:(c)the child is the child of the woman and of the other intended parent; and(d)if a person other than the woman and the other intended parent provided genetic material—the child is not the child of that person.(2)If:(a)a child is born to a woman as a result of the carrying out of an artificial conception procedure; and(b)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman;then, whether or not the child is biologically a child of the woman, the child is her child for the purposes of this Act.(3)If:(a)a child is born to a woman as a result of the carrying out of an artificial conception procedure; and(b)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of a man;then, whether or not the child is biologically a child of the man, the child is his child for the purposes of this Act.(5)For the purposes of subsection (1), a person is to be presumed to have consented to an artificial conception procedure being carried out unless it is proved, on the balance of probabilities, that the person did not consent.(6)In this section:this Act includes:(a)the standard Rules of Court; and(b)the related Federal Magistrates Rules.