McQuinn and Shure - [2011] FamCA 139

FAMILY COURT OF AUSTRALIA

MCQUINN & SHURE

[2011] FamCA 139

FAMILY LAW – CHILDREN –ADOPTION –Whether to grant leave to commence proceedings pursuant to s 60G of the Act – Surrogate mother

Adoption Act2009 (Qld)
Adoption of Children Act1964 (Qld)
Family Law Act 1975 (Cth) Div 12A, ss 60G, 69ZN, 69ZT
Family Law Rules 2004 (Cth)
Surrogacy Act 2010 (Qld)

Carlson & Bowden (2008) 40 FLR 327
Fogwell & Ashton (1993) FamCA 113

APPLICANTS:

Mr McQuinn & Mrs McQuinn

RESPONDENT:

Mrs Shure

FILE NUMBER:

BRC

11624

2010

DATE DELIVERED:

15 February 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

15 February 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Best of Best Wilson Family Law

THE RESPONDENT:

In person

Orders

IT IS ORDERED THAT

The Applicants exercise equal shared parental responsibility for all long term and day to day issues concerning the care, welfare and development of M born … August 2006 (hereinafter referred to as “the child”).
The child live with the Applicants.
In furtherance of paragraph 1 herein, each Applicant be at liberty to liaise and provide direction or instruction pertaining to the child to any school, learning institution, doctor, health professional or medical institution.
Pursuant to section 60G(1) of the Family Law Act1975 (Cth) the Applicants shall be granted leave for proceedings to be commenced for the adoption by the First-named Applicant of the child, it being determined that such Order is in the best interests of the child.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11624 of 2010

Mr & Mrs McQuinn

Applicants

And

Mrs Shure

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

M was born in August 2006, as a result of an altruistic surrogacy arrangement entered into between Mr and Mrs McQuinn, who are applicants to the current proceedings, and Mrs Shure, who is the respondent to these proceedings.
Mr and Mrs McQuinn apply for orders in this court that they exercise equal shared parental responsibility for all long-term and day-to-day issues concerning M’s care, welfare, and development, that M live with them, and that:
In furtherance of the order for equal shared parental responsibility] each applicant be at liberty to liaise and provide direction or instruction pertaining to the child to any school, learning institution, doctor, health professional, or medical institution.
A further order is sought, pursuant to section 60G of the Act, for leave for proceedings to be commenced for the adoption of M pursuant to state legislation in Queensland.
Mrs McQuinn was diagnosed with a medical condition many years ago, as a result of which she is almost certainly unable to conceive a child or, if conception occurs, to carry her own child to full term. A number of attempts were made by Mr and Mrs McQuinn – who commenced cohabiting in 1997, and subsequently…

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 McQuinn and Shure

Details

AGLC: McQuinn and Shure [2011] FamCA 139
Case: [2011] FamCA 139
Decision Date: 15 February 2011

CaseChat Overview and Summary

In *McQuinn and Shure*, the applicants sought orders concerning the parental responsibility and living arrangements for a child born in August 2006. The court was asked to determine the best interests of the child in relation to these arrangements and to consider an application for adoption.

The primary legal issues before the court were whether to grant equal shared parental responsibility for both long-term and day-to-day matters concerning the child's care, welfare, and development, and whether the child should live with the applicants. Additionally, the court had to consider whether to grant leave for proceedings to be commenced for the adoption of the child by the first-named applicant, pursuant to section 60G(1) of the *Family Law Act 1975* (Cth).

The court reasoned that granting equal shared parental responsibility and ordering that the child live with the applicants was in the child's best interests. This decision facilitated the applicants' ability to liaise with and provide direction to educational and medical professionals on behalf of the child. Furthermore, the court determined that it was in the child's best interests to grant leave for adoption proceedings to commence.

Orders

Orders of the court

IT IS ORDERED THAT

The Applicants exercise equal shared parental responsibility for all long term and day to day issues concerning the care, welfare and development of M born … August 2006 (hereinafter referred to as “the child”).

The child live with the Applicants.

In furtherance of paragraph 1 herein, each Applicant be at liberty to liaise and provide direction or instruction pertaining to the child to any school, learning institution, doctor, health professional or medical institution.

Pursuant to section 60G(1) of the Family Law Act 1975 (Cth) the Applicants shall be granted leave for proceedings to be commenced for the adoption by the First-named Applicant of the child, it being determined that such Order is in the best interests of the child.

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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