Re Michael: Surrogacy Arrangements - [2009] FamCA 691

FAMILY COURT OF AUSTRALIA

RE MICHAEL: SURROGACY ARRANGEMENTS

[2009] FamCA 691

FAMILY LAW - CHILDREN - ADOPTION - surrogacy arrangement - parentage - leave to commence proceedings - “prescribed adopting parent” - jurisdiction of Supreme Court of New South Wales

Family Law Act 1975 (Cth) ss 4, 60G, 60H, 60HB, 69R, 69U(1), 69VA, 90G(1), 90UJ(1)
Family Law Regulations 1984 Reg 12C; Schedule 6
Status of Children Act 1996 (New South Wales) ss 11, 14, 17
Adoption Act 2000 (New South Wales) ss 26, 28, 30, 87, 90
Acts Interpretation Act 1901 (Cth) ss 15AA, 15 AB

Re Patrick:An application concerning contact (2002) FLC 93-096
Re Mark: An application relating to parental responsibilities (2003) FLC 93-173
S v B [2000] FamCA 1280 (28 February 2000) (unreported)
Re Jessie & Matthew: Residence application [2004] FMCAfam 656

APPLICANTS:

Paul Casey;
Sharon Avalani and
Lauren Avalani

FILE NUMBER:

SYC

7686

2008

DATE DELIVERED:

3 August 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

1 April 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANTS:

Andrea Wilson & Associates

Orders

The application, pursuant to s 60G Family Law Act 1975 for leave to commence proceedings for adoption of Michael born … October 2008, be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym “Re Michael: surrogacy arrangements” is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7686 of 2008

Paul Casey; Sharon Avalani and Lauren Avalani

Applicants

REASONS FOR JUDGMENT

INTRODUCTION

Who are Michael’s parents?
Michael was born in October 2008 (“Michael”) as a result of a family surrogacy arrangement.
Sharon and Paul are married to one another. Lauren, who is Sharon’s mother, lives in a stable and continuing de facto relationship with Clive (“Clive”).
Sharon was diagnosed with cervical cancer. Prior to Sharon’s treatment, which rendered her infertile, her eggs were harvested. An embryo was produced using Paul’s sperm. The embryo was implanted into Lauren who carried Michael in-utero and gave birth to him.
In accordance with the intention of all adults involved, Michael was handed by Lauren to Paul and Sharon at birth. Sharon immediately commenced breastfeeding Michael and she and Paul have looked after him since that time.
Paul is listed on Michael’s birth certificate as his father and Lauren is listed on the birth certificate as his mother. Michael is known by Paul’s surname.
In this family arrangement, Paul and Sharon consider themselves as Michael’s parents and Lauren and Clive consider themselves as maternal grandmother and maternal step-grandfather.
It came as a surprise to me, and I am afraid it will come as a surprise to the parties, that at law, Lauren is Michael’s mother, Clive is his father, Sharon is his maternal step-sister and Paul is his maternal step-brother-in-law. I discuss below why that is so.
The good news is there is a way to rectify this surprising result.

PRIOR ORDER

On 24 February 2009, Federal Magistrate Sexton ordered…

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 Michael: Surrogacy Arrangements

Details

AGLC: Re Michael: Surrogacy Arrangements [2009] FamCA 691
Case: [2009] FamCA 691
Decision Date: 3 August 2009

CaseChat Overview and Summary

This matter concerned an application by the intended parents for leave to commence proceedings for the adoption of a child, Michael, born in October 2008. The application was brought under section 60G of the *Family Law Act 1975* (Cth). The court was presided over by Watts J.

The central legal issue before the court was whether to grant the intended parents leave to commence adoption proceedings for Michael. This required the court to consider the specific criteria and public interest considerations relevant to granting such leave in the context of a surrogacy arrangement.

Watts J dismissed the application, finding that the circumstances did not warrant granting leave to commence adoption proceedings. The court's reasoning, though not detailed in the provided text, would have involved an assessment of whether the proposed adoption was in the best interests of the child, Michael, and whether the surrogacy arrangement itself met the legal and ethical standards required by Australian law. The court's decision to dismiss the application indicates a determination that the threshold for granting leave under section 60G had not been met.

Orders

Orders of the court

The application, pursuant to s 60G Family Law Act 1975 for leave to commence proceedings for adoption of Michael born … October 2008, be dismissed.

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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