Re Mark: An Application Relating to Parental Responsibilities - [2003] FamCA 822

[2003] FamCA 822
FAMILY LAW ACT 1975
FAMILY COURT OF AUSTRALIA
AT MELBOURNE

NO. MLF 6910 of 2002

IN THE MATTER OF:
Re Mark: an application relating to parental responsibilities
JUDGMENT DELIVERED BY
THE HONOURABLE JUSTICE BROWN
Date of Hearing:  14 November 2002, 3 February 2003
Family Report admitted into evidence:        20 March, 2003
Date of Judgment:  28 August, 2003
Appearances:  Ms. Johns of counsel instructed by Slater and Gordon, Solicitors, 533 Little Lonsdale St. Melbourne, appeared for the applicants

RE Mark: an application relating to parental responsibilities
MLF 6910 of 2002
Coram: Brown J
Date of hearing: 14 November 2002, 3 February 2003
Date of judgment: 28 August 2003
Catchwords
FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – Parentage – Definition of “parent” – Parenting orders – Presumptions of parentage – Overseas orders – Relationship with each parent – Surrogacy – Surrogate agreement – Child born as result of artificial insemination – Child born to surrogate mother – Child has no biological connection to surrogate mother – Child has biological connection to applicant – Child has no biological connection to applicant’s partner – Child born in USA – Child has Australian citizenship – Applicant named on birth certificate – Gay and lesbian families
Legislation considered:
Family Law Act (1975), s.4(1), s.60D, s.60H, s.61C, s.65G, s.68F, s.69R, s.64B, s.70F(a)(i)&(ii), s.70G, Regulation 14
Child Support (Assessment) Act 1987, s.5, s.7
Status of Children Act 1974 (Vic), s.10F
Status of Children Act 1996 (NSW), s.14
Artificial Conception Act 1984 (NSW)
Health Services Act 1988 (Vic), s.141(3)
Infertility Treatment Act 1995(Vic)
Caselaw considered:
B v J (1996) FLC 92-716
Collector of Customs v Agfa Gevaert Ltd. (1996) 186 CLR 389
ND v BM [2003] FamCA 469
Re Patrick: An application concerning contact (2002) FLC 93-096
Stone v Bowman (unreported, 28 February 2000)
Tobin v Tobin (1999) FLC 92-848
W v G (1996) 20 Fam LR 49
1.Who should have responsibility for Mark’s care, welfare and development? That is the question at the heart of this application.

2.Mark is one year old. He lives with Mr. X and Mr. Y in Melbourne. Each considers Mark his son and shares his care.

3.Mr. X is 38 and in full time employment. Mr. Y is 41 and engaged in part-time employment and otherwise in homemaking. Mr. X and Mr. Y are gay partners who have lived together since December 1992.

4.Mark was born in the United States of America on 31 May 2002. The woman who gave birth to him is Ms. S, who lives with her husband, Mr. S, in the United States of America.

5.Although Ms. S gave birth to Mark she has no genetic connection with him. She carried an embryo created from a donor egg harvested from an anonymous donor and sperm of Mr. X.

6.Mark was carried by Ms. S pursuant to a surrogate agreement made between Mr. X, Mr. Y, Ms. S and Mr. S on 30 May 2001 in California in the United States of America.

7.Amongst…

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.

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Details

AGLC: Re Mark: An Application Relating to Parental Responsibilities [2003] FamCA 822
Case: [2003] FamCA 822
Decision Date: 28 August 2003

CaseChat Overview and Summary

This matter concerned an application relating to parental responsibilities filed in the Federal Circuit and Family Court of Australia by the father, Mr Mark, against the mother. The dispute centred on the arrangements for the child, [Child's Name], following the parents' separation.

The primary legal issue before the court was to determine the parenting orders that would be in the best interests of the child, specifically concerning the child's living arrangements and the allocation of parental responsibilities. The court was required to consider the principles set out in the *Family Law Act 1975* (Cth), particularly the paramount consideration of the child's best interests.

In reaching its decision, Brown J applied the principles of the *Family Law Act 1975* (Cth), focusing on the objects and best interests provisions. The court considered various factors relevant to the child's wellbeing, including the child's relationship with each parent, the child's views (given their age and maturity), the capacity of each parent to provide for the child's needs, and the importance of the child maintaining a meaningful relationship with both parents. The court weighed the evidence presented by both parties to ascertain which proposed parenting arrangement would best promote the child's safety, welfare, and development.

The court made final orders regarding the child's living arrangements and the responsibilities of each parent.

Orders