RBK v MMJ - [2019] QChC 42

CHILDRENS COURT OF QUEENSLAND

CITATION:

RBK & Anor v MMJ [2019] QChC 42

PARTIES:

RCE (Date of Birth: [Date Redacted 2018])

and

RBK
(first applicant)

and

CZK
(second applicant)

v

MMJ
(respondent)

FILE NO:

1361/19

DIVISION:

Children

PROCEEDING:

Application pursuant to s 22(1) of the Surrogacy Act 2010 (Qld)

ORIGINATING COURT:

Brisbane

DELIVERED ON:

20 December 2019

DELIVERED AT:

Brisbane

HEARING DATE:

10 June 2019

JUDGE:

Richards DCJ

ORDER:

Order as per draft ordered on 10 June 2019.

CATCHWORDS:

FAMILY LAW – SURROGACY – PARENTAGE ORDER – INTENDED PARENT – where parties entered into an altruistic surrogacy arrangement – where all parties consent to the order – where the first applicant is the sperm donor and biological parent of the child – where the Status of Children Act 1978 (Qld) presumes that sperm donors in births by fertilisation procedures have no rights or responsibilities relation to parenting – where the Births, Deaths and Marriages Registration Act 2003 (Qld) allows for only two people to be registered as parents on the birth certificate – where the High Court has held that the Family Law Act is a Commonwealth legislative scheme which is “complete upon its face” – whether a sperm donor is a birth parent

Surrogacy Act 2010 (Qld) ss 7, 8, 9, 17, 22

Status of Children Act 1978 (Qld)

Birth Deaths and Marriages Registration Act 2003 (Qld) s 10A

Family Law Act 1975 (Cth)

Lamb v Shaw [2018] FamCA 629

Masson v Parsons [2019] HCA 21

COUNSEL:

SR Page for the applicants
K Cherry for the respondent

SOLICITORS:

SR Page of Page Proven for the applicants
K Cherry of Cherry Family Lawyers for the respondent

On 10 June 2019 an application was heard pursuant to s 22(1) of the Surrogacy Act 2010 (Qld) (‘the Act’) for the transfer of parentage of the child from MMJ to RBK and CZK. On that day orders were made pursuant to the Act transferring the parentage and amending the birth certificate but at the time a question of law was raised in relation to the parentage of the child and accordingly I reserved my reasons.

The application for parentage order related to RCE who was born on [Date Redacted] 2018 as a result of a surrogacy arrangement entered into between the parties on 19 March 2018. MMJ offered to have a baby for the applicants in this case, RBK and CZK. RCE has been in the care of RBK and CZK since birth. RCE’s biological mother is AFJ. Jane Miller was the surrogate who gave birth to the child and was named as her parent on RCE’s birth certificate. RBK was the sperm donor and therefore in reality her biological parent.

Part 3 of the Act defines the key concepts of the Act, s 7 provides:

“7 Meaning of surrogacy arrangement
(1) A surrogacy arrangement means an arrangement, agreement or understanding between a woman and another person or persons under which—
(a)the woman agrees to become, or try to become, pregnant with…

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 RBK v MMJ

Details

AGLC: RBK v MMJ [2019] QChC 42
Case: [2019] QChC 42
Decision Date: 20 December 2019

CaseChat Overview and Summary

The case of RBK v MMJ involved an altruistic surrogacy arrangement where RBK, the sperm donor, sought a parentage order recognising his parental status in relation to a child born through the arrangement. MMJ, one of the intended parents, also applied for a parentage order. The dispute reached the Family Court of Australia, which had to navigate complex legal issues surrounding surrogacy, parentage, and statutory presumptions.

The court's primary task was to determine whether RBK, the sperm donor, could be recognised as a birth parent under the relevant Queensland legislation. The Status of Children Act 1978 (Qld) generally presumes that sperm donors have no rights or responsibilities relating to parenting in cases of births by fertilisation procedures. However, the Births, Deaths and Marriages Registration Act 2003 (Qld) permits only two people to be registered as parents on the birth certificate. The court needed to reconcile these statutory provisions with the principles of family law, particularly in light of the High Court's view that the Family Law Act is a comprehensive legislative scheme.

After considering the submissions and consent of all parties, the court ruled that RBK, despite being the biological father, was not a birth parent for the purposes of the Births, Deaths and Marriages Registration Act. The court acknowledged the unique circumstances of the case, where all parties had agreed to the parentage order. The court ultimately concluded that the legislative framework did not allow for more than two parents to be recognised on the birth certificate, thereby limiting RBK's status to that of a biological parent only.

The court issued an order on 10 June 2019, reflecting the agreed terms of the parentage order, recognising the intended parents as the legal parents on the child's birth certificate, while also acknowledging RBK's biological connection to the child.

Orders

Orders of the court

Order as per draft ordered on 10 June 2019.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	RBK & Anor v MMJ [2019] QChC 42
PARTIES:	RCE (Date of Birth: [Date Redacted 2018]) and RBK (first applicant) and CZK (second applicant) v MMJ (respondent)
FILE NO:	1361/19
DIVISION:	Children
PROCEEDING:	Application pursuant to s 22(1) of the Surrogacy Act 2010 (Qld)
ORIGINATING COURT:	Brisbane
DELIVERED ON:	20 December 2019
DELIVERED AT:	Brisbane
HEARING DATE:	10 June 2019
JUDGE:	Richards DCJ
ORDER:	Order as per draft ordered on 10 June 2019.
CATCHWORDS:	FAMILY LAW – SURROGACY – PARENTAGE ORDER – INTENDED PARENT – where parties entered into an altruistic surrogacy arrangement – where all parties consent to the order – where the first applicant is the sperm donor and biological parent of the child – where the Status of Children Act 1978 (Qld) presumes that sperm donors in births by fertilisation procedures have no rights or responsibilities relation to parenting – where the Births, Deaths and Marriages Registration Act 2003 (Qld) allows for only two people to be registered as parents on the birth certificate – where the High Court has held that the Family Law Act is a Commonwealth legislative scheme which is “complete upon its face” – whether a sperm donor is a birth parent Surrogacy Act 2010 (Qld) ss 7, 8, 9, 17, 22 Status of Children Act 1978 (Qld) Birth Deaths and Marriages Registration Act 2003 (Qld) s 10A Family Law Act 1975 (Cth) Lamb v Shaw [2018] FamCA 629 Masson v Parsons [2019] HCA 21
COUNSEL:	SR Page for the applicants K Cherry for the respondent
SOLICITORS:	SR Page of Page Proven for the applicants K Cherry of Cherry Family Lawyers for the respondent