Saliba & Anor & Romyen - [2015] FamCA 927

FAMILY COURT OF AUSTRALIA

SALIBA AND ANOR & ROMYEN

[2015] FamCA 927

FAMILY LAW – CHILDREN – where the parties seek an order for parental responsibility – where the parties have engaged in an overseas gestational surrogacy arrangement – where first applicant is the biological progenitor of the children – where the ovum produced was from an anonymous donor – where the children are Australian citizens by decent – where consideration is given to the best practice principles as determined in Ellison & Karchanit (2012) Fam LR 33 – where consideration is given to the circumstances of the surrogacy arrangement and the birth mother to ensure that she has not been the subject of exploitation, coercion or duress – where it is found that the orders sought by the applicants are in the children’s best interests – where it is ordered that the applicants have equal shared parental responsibility and that the children live with them.

Family Law Act 1975 (Cth) – s 60B, s 60H, s 60HB, s 62B, s 65C, s 65DA, s 69ZN, Part VII

Bernieres & Anor & Dhopal & Anor [2015] FamCA 736
Ellison & Anor & Karchanit (2012) Fam LR 33
Green-Wilson & Bishop (2014) FamCA 1031
Groth v Banks (2013) 49 Fam LR 510
Mason & Mason [2013] FamCA 424

APPLICANTS:

Mr Saliba and Ms Lepidi

RESPONDENT:

Ms Romyen

FILE NUMBER:

ADC

1781

2015

DATE DELIVERED:

22 October 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

22 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McGinn

SOLICITOR FOR THE APPLICANT:

Nicholes Family Lawyers

COUNSEL FOR THE RESPONDENT:

No appearance

Orders

The applicants Mr Saliba and Ms Lepidi have equal shared parental responsibility for the care, welfare and development of the children A Saliba and Z Saliba both born … 2014.
The said children live with the applicants.
That pursuant to section 65DA(2) and section 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the fact sheet attached hereto and these particulars are included in these orders.
That all proceedings be removed from the pending list of cases.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Saliba and Anor & Romyen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1781 of 2015

Mr Saliba and Ms Lepidi

Applicants

And

Ms Romyen

Respondent

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

By Initiating Application filed 21 May 2015 Mr Saliba, being the first applicant, and Ms Lepidi, being the second applicant, seek parenting orders in respect of A Saliba and Z Saliba, twin children born in 2014. Whilst the Initiating Application names Ms Romyen (“the birth mother”), as the respondent to the…

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 Saliba & Anor & Romyen

Details

AGLC: Saliba & Anor & Romyen [2015] FamCA 927
Case: [2015] FamCA 927
Decision Date: 22 October 2015

CaseChat Overview and Summary

The applicants, Mr Saliba and Ms Lepidi, sought orders concerning the parental responsibility and living arrangements for their children, A Saliba and Z Saliba. The matter came before Berman J.

The court was required to determine the nature of parental responsibility for the children and their primary residence. Additionally, the court needed to consider the appropriate mechanism for outlining the obligations and consequences associated with any parenting orders made, as well as the provision of assistance for parties to comply with those orders.

Berman J made orders for equal shared parental responsibility for the children, reflecting a joint approach to their care, welfare, and development. The court further ordered that the children live with the applicants. In accordance with sections 65DA(2) and 62B of the relevant legislation, the court directed that a fact sheet detailing the specific obligations, potential consequences of contravention, and available support services be attached to and incorporated into the orders. The court also ordered that all proceedings be removed from the pending list.

Orders

Orders of the court

The applicants Mr Saliba and Ms Lepidi have equal shared parental responsibility for the care, welfare and development of the children A Saliba and Z Saliba both born … 2014.

The said children live with the applicants.

That pursuant to section 65DA(2) and section 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the fact sheet attached hereto and these particulars are included in these orders.

That all proceedings be removed from the pending list of cases.

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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