Re Mark: An Application Relating to Parental Responsibilities

Case [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…

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

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

Orders of the court

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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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