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) 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 | of | 2016 |
| APPEAL NUMBER: | NOA | 57 | of | 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…
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- AGLC
- Shaw and Lamb & Anor [2018] FamCAFC 42
- Case
- [2018] FamCAFC 42
- Decision Date
CaseChat Overview and Summary
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
1.
The appeal be allowed.
2.
Order 7(b) of the orders made by the Honourable Justice Tree on 21 September 2017 be set aside.
3.
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.
4.
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
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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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