Shaw and Lamb & Anor - [2018] FamCAFC 42

FAMILY COURT OF AUSTRALIA

SHAW & LAMB AND ANOR

[2018] FamCAFC 42

FAMILY LAW – APPEAL – CHILDREN – SURROGACY – where the primary judge made an order requiring the parties to do all acts and things to ensure that the male respondent’s name was entered as the father of the child on the child’s birth certificate – where that conclusion was based on his Honour’s interpretation of s 23 of the Status of Children Act 1978 (Qld) – where the preconditions necessary for the application of s 23 were not addressed in his Honour’s reasons – where the submissions of counsel below did not assist his Honour in addressing those preconditions – where there is demonstrated error – where that error was not contained in the appellant’s grounds of appeal – where nevertheless an appellate court is authorised and obliged to discharge its appellate duties – appeal allowed – matter remitted for a rehearing – each party ordered to bear their own costs.

Acts Interpretation Act 1954 (Qld)
Family Law Act 1975 (Cth)

Status of Children Act 1978 (Qld)

Surrogacy Act 2010 (Qld)

Bernieres & Dhopal (2017) FLC 93-793; [2017] FamCAFC 180
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Lenova & Lenova (Costs) [2011] FamCAFC 141
Nada & Nettle (Costs) (2014) FLC 93-612; [2014] FamCAFC 207
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

APPELLANT:

Ms Shaw

FIRST RESPONDENT:

Ms Lamb

SECOND RESPONDENT:

Mr Sorensen

INDEPENDENT CHILDREN’S LAWYER:

Susan Gray

FILE NUMBER:

CSC

197

2016

APPEAL NUMBER:

NOA

2017

DATE DELIVERED:

13 March 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Thackray, Murphy & Kent JJ

HEARING DATE:

23 February 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

21 September 2017

LOWER COURT MNC:

[2017] FamCA 769

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Fredericks

SOLICITOR FOR THE APPELLANT:

Anderson Fredericks Turner Lawyers & Advocates

COUNSEL FOR THE RESPONDENTS:

Mr Victoire

SOLICITOR FOR THE RESPONDENTS:

Marino Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Lawrence

INDEPENDENT CHILDREN’S LAWYER:

Susan Gray

Orders

The appeal be allowed.
Order 7(b) of the orders made by the Honourable Justice Tree on 21 September 2017 be set aside.
The question of whether the second respondent is the father of the child the subject of the orders made on 21 September 2017 and hence should be entered as such on the child’s birth certificate be remitted for rehearing, if practicable before the Honourable Justice Tree.
Each party bear their own costs of and incidental to the appeal.

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 Shaw & Lamb and Anor 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…

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 Shaw and Lamb & Anor

Details

AGLC: Shaw and Lamb & Anor [2018] FamCAFC 42
Case: [2018] FamCAFC 42
Decision Date: 13 March 2018

CaseChat Overview and Summary

In the case of Shaw and Lamb & Anor, the Queensland Court of Appeal addressed a complex dispute involving a child born through surrogacy. The primary judge had ruled that the male respondent's name should be listed as the father on the child's birth certificate, based on an interpretation of section 23 of the Status of Children Act 1978 (Qld). The appellant contested this decision, arguing that certain preconditions necessary for the application of section 23 had not been properly addressed in the original judgement.

The legal issues before the Court of Appeal centred on the interpretation and application of section 23 of the Status of Children Act. The court was required to determine whether the primary judge's order was correct, particularly in light of the specific preconditions that must be met for section 23 to apply. Additionally, the court needed to consider whether the submissions made by counsel during the original proceedings sufficiently addressed these preconditions.

The Court of Appeal found that there was an error in the primary judge's reasoning, as he did not properly consider the preconditions necessary for section 23 to apply. This error was not explicitly identified in the grounds of appeal but was identified by the appellate court as a demonstrated error. Given the importance of this error, the court allowed the appeal, set aside the contested order, and remitted the question of paternity for rehearing before the original judge, if practicable. Both parties were ordered to bear their own costs associated with the appeal.

Orders

Orders of the court

The appeal be allowed.

Order 7(b) of the orders made by the Honourable Justice Tree on 21 September 2017 be set aside.

The question of whether the second respondent is the father of the child the subject of the orders made on 21 September 2017 and hence should be entered as such on the child’s birth certificate be remitted for rehearing, if practicable before the Honourable Justice Tree.

Each party bear their own costs of and incidental to the appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.