Masters & Anor and Harris - [2017] FamCA 450

FAMILY COURT OF AUSTRALIA

MASTERS AND ANOR & HARRIS

[2017] FamCA 450

FAMILY LAW – CHILDREN – Commercial surrogacy – where the children were born in Country B as a result of a commercial surrogacy arrangement – where the applicants seek parenting orders – where the respondent surrogate has been unable to be located – order that service required under rule 7.18 of the Family Law Rules 2004 (Cth) be dispensed with– order made for the applicants to have equal shared parental responsibility – order that the children live with the applicants

Family Law Act 1975 (Cth) ss 60CA, 60CC(2), 60CC(2A), 60CC(3), 61B, 61DA, 64B , 65C, 69ZN
Family Law Rules 2004 (Cth) r 7.18

Bernieres & Anor & Dhopal & Anor [2015] FamCA 736
Ellison & Anor and Karnchanit [2012] FamCA 602
Fisher-Oakley & Kittur [2014] FamCA 123
Mankiewicz & Anor & Swallow & Anor [2016] FamCAFC 153

FIRST APPLICANT:

Mr Masters

SECOND APPLICANT:

Mr Watson

RESPONDENT:

Ms Harris

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

MLC

10753

2016

DATE DELIVERED:

28 June 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

8 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANTS:

Mr Theoharopoulou

SOLICITOR FOR THE APPLICANT:	Lander & Rogers
THE RESPONDENT:	No Appearance

SOLICITOR APPEARING FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Piekarski

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

That pursuant to Rule 7.18 of the Family Law Rules the requirement that the first-named respondent be served with the applicants’ Amended Initiating Application filed 14 November 2016 be dispensed with.
That the first and second-named applicant have leave to withdraw their application for a declaration as to parentage sought in paragraph 1 of the final orders sought in their Amended Initiating Application filed 14 November 2016.
That the first and second-named applicants have equal shared parental responsibility for the children, C and D both born … 2015.
That the children live with the first and second-named applicants.
That the appointment of the Independent Children's Lawyer be and is hereby discharged.
That all extant applications be otherwise dismissed.
That 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.

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 Masters & Anor and Harris has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation…

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 Masters & Anor and Harris

Details

AGLC: Masters & Anor and Harris [2017] FamCA 450
Case: [2017] FamCA 450
Decision Date: 28 June 2017

CaseChat Overview and Summary

In the matter of *Masters & Anor and Harris*, heard before Johns J of the Family Court of Australia, the applicants sought orders concerning their children, C and D. The proceedings involved an application to dispense with service on the first-named respondent, leave to withdraw an application for a declaration as to parentage, and ultimately, orders for equal shared parental responsibility and the children to live with the applicants.

The court was required to determine whether to dispense with service on the first-named respondent, grant the applicants leave to withdraw their parentage declaration application, and make final orders regarding parental responsibility and the children's residence. Additionally, the court considered the discharge of an Independent Children's Lawyer and the dismissal of extant applications.

Johns J ordered that service on the first-named respondent be dispensed with pursuant to Rule 7.18 of the Family Law Rules. Leave was granted for the applicants to withdraw their application for a declaration as to parentage. The court then made orders for equal shared parental responsibility for the children, C and D, and that the children live with the first and second-named applicants. The appointment of the Independent Children's Lawyer was discharged, and all other extant applications were dismissed. The court also included particulars of obligations, consequences of contravention, and assistance details in a Fact Sheet attached to the orders, pursuant to sections 65DA(2) and 62B of the relevant legislation.

Orders

Orders of the court

That pursuant to Rule 7.18 of the Family Law Rules the requirement that the first-named respondent be served with the applicants’ Amended Initiating Application filed 14 November 2016 be dispensed with.

That the first and second-named applicant have leave to withdraw their application for a declaration as to parentage sought in paragraph 1 of the final orders sought in their Amended Initiating Application filed 14 November 2016.

That the first and second-named applicants have equal shared parental responsibility for the children, C and D both born … 2015.

That the children live with the first and second-named applicants.

That the appointment of the Independent Children's Lawyer be and is hereby discharged.

That all extant applications be otherwise dismissed.

That 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.

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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