Re: Halvard - [2016] FamCA 1051

FAMILY COURT OF AUSTRALIA

RE: HALVARD AND ANOR

[2016] FamCA 1051

FAMILY LAW – CHILDREN – REGISTRATION OF OVERSEAS CHILD ORDER – Whether the Court should exercise its discretion to have an overseas order registered in Australia – Where the applicants seek to register certain orders made by a Court in the United States of America – Where the child’s birth was facilitated by surrogacy arrangement between the applicants and a “gestational carrier” – Where the applicants are the biological parents of the child – Whether the order is an “overseas child order” for the purposes of the Act – Whether the applicants are “proceeding to” Australia – Where the Court is satisfied the overseas order should be registered with this Court.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the Court seeks to protect the identity of the applicants, child and gestational carrier – Where any person seeking to search the Court’s file in this matter must first obtain leave from a Judge of this Court.

Family Law Act 1975 (Cth) ss 4, 64B, 70G, 70H, 70J
Family Law Regulations 1984 (Cth) 14, 23, Schedule 1A
Family Law Rules 2004 (Cth) Division 4.2.8, Chapter 18
Surrogacy Act 2010 (Qld)

Carlton & Bissett and Anor [2013] FamCA 143

FIRST APPLICANT:

Mr Halvard

SECOND APPLICANT:

Ms Fyodor

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED:

5 December 2016

JUDGMENT OF:

Forrest J

HEARING DATE:

By way of Written Submissions

REPRESENTATION

By Court Order the names of lawyers have been suppressed

Orders

That the Orders of the … Court …, … in the State of Tennessee, United States of America on 16 December 2014, be registered with this Court.
That the full names of the applicants and their occupations, the full name of the child, X, this Court’s file number, the name of the applicants’ lawyers, and any other fact or matter that may identify the child or his parents shall not be published in any way, and only anonymised Reasons for Judgment and Orders (with cover sheets excluding the registry, file number, and lawyers’ names and details, as well as the parties’ real names) shall be released by the Court to non-parties without further contrary order of a Judge of this Court, it being noted that the applicants will be provided, through their solicitors, with one copy of the orders, one copy of the Reasons for Judgment and one cover sheet of the Reasons for Judgment that includes the file number and lawyers’ names.
That no person shall be permitted to search the Court file in this matter without first obtaining the leave of a Judge of this Court.

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

Note: This copy of…

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 Re: Halvard

Details

AGLC: Re: Halvard [2016] FamCA 1051
Case: [2016] FamCA 1051
Decision Date: 5 December 2016

CaseChat Overview and Summary

In this matter before Forrest J, the applicants sought to register certain orders made by a Court in the United States of America concerning their child. The dispute arose from the child's birth, which was facilitated by a surrogacy arrangement, with the applicants being the biological parents. The central question was whether the US court order constituted an "overseas child order" for the purposes of the Family Law Act and whether the Court should exercise its discretion to register this order in Australia, given the applicants were proceeding to Australia.

The Court was required to determine two primary legal issues. Firstly, whether the order made by the US court qualified as an "overseas child order" under the Family Law Act, considering the definitions provided within the Act. Secondly, the Court had to consider whether it should exercise its discretion to register the order, taking into account the circumstances of the case and the welfare of the child. The Court also considered its inherent power to protect the identity of the parties and the child.

Forrest J reasoned that the order made by the US court met the definition of an "overseas child order" as it determined with whom the child was to live and provided for the parents to have custody and spend time with the child, and the US was a prescribed overseas jurisdiction. The Court applied sections 70G, 70H, and 70J of the Family Law Act, which provide for the registration of overseas child orders and outline the effect of such registration on the exercise of Australian court jurisdiction. The Court was satisfied that the criteria for registration were met and that it was appropriate to exercise its discretion to register the order. Furthermore, the Court exercised its inherent jurisdiction to protect the privacy of the applicants, the child, and the gestational carrier by imposing strict publication restrictions on the judgment and orders, and requiring leave to search the court file.

The Court ordered that the orders of the Court in the State of Tennessee, United States of America, made on 16 December 2014, be registered with this Court. Additionally, the Court made orders to protect the identity of the applicants, the child, and the gestational carrier, stipulating that no identifying information be published and that any search of the court file would require prior leave from a Judge.

Orders

Orders of the court

That the Orders of the … Court …, … in the State of Tennessee, United States of America on 16 December 2014, be registered with this Court.

That the full names of the applicants and their occupations, the full name of the child, X, this Court’s file number, the name of the applicants’ lawyers, and any other fact or matter that may identify the child or his parents shall not be published in any way, and only anonymised Reasons for Judgment and Orders (with cover sheets excluding the registry, file number, and lawyers’ names and details, as well as the parties’ real names) shall be released by the Court to non-parties without further contrary order of a Judge of this Court, it being noted that the applicants will be provided, through their solicitors, with one copy of the orders, one copy of the Reasons for Judgment and one cover sheet of the Reasons for Judgment that includes the file number and lawyers’ names.

That no person shall be permitted to search the Court file in this matter without first obtaining the leave of a Judge of this Court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Relevantly, ss 70G, 70H and 70J of the Family Law Act provide: 70G Registration of ordersThe regulations may make provision for and in relation to the registration in courts in Australia of overseas child orders, other than excluded orders.70H Effect of registration—generalAn overseas child order registered in a court under section 70G has the same force and effect as if it were an order made by that court under this Part.Note: Division 4 of Part XIIIAA (International protection of children) may affect the operation of a registered overseas child order.70J Effect of registration on exercise of jurisdiction(1)A court in Australia that is aware that an overseas child order is registered under section 70G must not exercise jurisdiction in proceedings for the making of a Subdivision C parenting order in relation to the child concerned unless:(a) each person:(i) with whom the child is supposed to live; or(ii) who is to spend time with the child; or(iii) who is to have contact with the child; or(iv) who has rights of custody or access in relation to the child;under the overseas order consents to the exercise of jurisdiction by the court in the proceedings; or(b)the court is satisfied that there are substantial grounds for believing that the child’s welfare requires that the court exercise jurisdiction in the proceedings.(2)If a court exercises jurisdiction in proceedings for a Subdivision C parenting order in relation to a child who is the subject of an overseas child order, the court must not make a Subdivision C parenting order in relation to the child unless it is satisfied:(a)that the welfare of the child is likely to be adversely affected if the order is not made; or(b)that there has been such a change in the circumstances of the child since the making of the overseas child order that the Subdivision C parenting order ought to be made. Section 4 of the Family Law Act defines the relevant terms, “excluded order”, “overseas child order” and “overseas jurisdiction” as follows:excluded order means:(a)an interim order; or(b) an order made in favour of a person where:(i) the order was made on the application of the person; and(ii)notice of making the application was not served on any other person; and(iii) no other person appeared at the hearing of the application.overseas child order means:(a)an order made by a court of a prescribed overseas jurisdiction that:(i) however it is expressed, has the effect of determining the person or persons with whom a child who is under 18 is to live, or that provides for a person or persons to have custody of a child who is under 18; or(ii) however it is expressed, has the effect of providing for a person or persons to spend time with a child who is under 18; or(iii) however it is expressed, has the effect of providing for contact between a child who is under 18 and another person or persons, or that provides for a person or persons to have access to a child who is under 18; or(iv)varies or discharges an order of the kind referred to in subparagraph (i), (ii) or (iii), including an order of that kind made under this Act; or (b)an order made for the purposes of the Convention referred to in section 111B by a judicial or administrative authority of a convention country (within the meaning of the regulations made for the purposes of that section).overseas jurisdiction means a country, or part of a country, outside Australia.