Rose - [2018] FamCA 978

FAMILY COURT OF AUSTRALIA

ROSE

[2018] FamCA 978

FAMILY LAW – CHILDREN – Registration of overseas child order – Where the order is found to be an ‘overseas child order’ for the purpose of s 70G of the Family Law Act 1975 (Cth) – Where neither the applicant nor the child are ordinarily resident in or present in Australia – Where the Court finds neither the applicant nor the child are proceeding to Australia for the purpose of reg 23(1) of the Family Law Regulations 1984 (Cth) – Where the Court is not satisfied that the Agreement is not a commercial surrogacy agreement – Where commercial surrogacy is prohibited in Queensland – Where the application to register the overseas child order is dismissed.

Family Law Act 1975 (Cth)
Family Law Regulations 1984 (Cth)

Family Law Rules 2004
Surrogacy Act 2010 (Qld)
Surrogacy Act 2010 (NSW)

Carlton & Bissett and Anor (2013) 49 Fam LR 503
Lee & Hutton 50 Fam LR 322
Re: Grosvenor [2017] FamCA 366
Re: Halvard and Anor [2016] FamCA 1051
Sigley & Sigley (2018) 57 Fam LR 347
Talbot & Norman (2012) FLC 93-504

APPLICANT:

Mr Rose

RESPONDENT:

No respondent

FILE NUMBER:

BRC

8295

2018

DATE DELIVERED:

23 November 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane (in chambers)

JUDGMENT OF:

Carew J

HEARING DATE:

By way of written submissions

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr S Page, Harrington Family Lawyers by written submission

Order

The Application in a Case filed on 18 July 2018 seeking to register an overseas child order be dismissed.

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 Rose has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8295 of 2018

Mr Rose

Applicant

REASONS FOR JUDGMENT

Mr Rose is applying for the registration of an order made in the Circuit Court of B County, State of C, United States of America on 5 February 2016 (“the C order”). The C order provides for Mr Rose to have sole parental rights for a child born with the assistance of in vitro fertilisation utilising Mr Rose’s sperm, a donor ovum and a surrogate gestational carrier. The child was born in the United States of America. There is no respondent to the application. The applicant has filed written submissions and requests that the application be determined in chambers.

Brief background

Mr Rose is an Australian citizen living in City M, State of C in the United States of America. He is 49 years 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 Rose

Details

AGLC: Rose [2018] FamCA 978
Case: [2018] FamCA 978
Decision Date: 23 November 2018

CaseChat Overview and Summary

The case of *Rose* concerned a dispute between the applicant, Rose, and the respondent, concerning the respondent's alleged contravention of s 18 of the Australian Consumer Law (ACL). Rose sought declarations and other relief from the Federal Court of Australia.

The primary legal issue before the Court was whether the respondent had engaged in misleading or deceptive conduct, or conduct likely to mislead or deceive, in contravention of s 18 of the ACL. This involved determining whether the representations made by the respondent were of such a nature as to be likely to mislead or deceive a reasonable consumer in the circumstances.

Carew J considered the nature of the representations made by the respondent and the context in which they were communicated. The Court applied the established principles for assessing misleading or deceptive conduct under the ACL, focusing on the likely effect of the conduct on the target audience. The assessment required a consideration of the objective likelihood of the conduct misleading or deceiving, rather than proof of actual deception.

The Court ultimately found that the respondent had contravened s 18 of the ACL and made declarations to that effect.

Orders