Vallance and Marco
[2012] FamCA 653
•8 August 2012
FAMILY COURT OF AUSTRALIA
| VALLANCE & MARCO | [2012] FamCA 653 |
| FAMILY LAW – JURISDICTION – where the deceased froze his sperm – where the applicant with whom the deceased had a relationship sought access to the frozen sperm with the intention of becoming pregnant – where the executor of the deceased’s estate supported her application – where the applicant and the deceased were not married nor in a de facto relationship – where the application was made after the death of the deceased – where there is no jurisdiction to make the orders sought |
| Family Law Act 1975 (Cth); Sections 4; 4AA; 31(1); 69H(1); Part VII |
| In the marriage of F (1989) 13 FamLR 189 In the marriage of Sims 7 Fam LR 667 at 672 Jocelyn Edwards: re the estate of the late Mark Edwards [2011] NSW SC478 Talbot & Norman [2012] FamCA 96 |
| APPLICANT: | Ms Vallance |
| RESPONDENT: | Ms Marco |
| FILE NUMBER: | CSC | 449 | of | 2012 |
| DATE DELIVERED: | 8 August 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 31 July 2012 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | O'Reilly Stevens Bovey Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Litigant in person |
Orders
The Application for Final Orders filed on 25 July 2012 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vallance & Marco 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 SYDNEY |
FILE NUMBER: CSC 449 of 2012
| Ms Vallance |
Applicant
And
| Ms Marco |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
For a period of a little under two months, Ms Vallance was in a relationship with Mr J, who is now deceased.
Shortly before Ms Vallance met Mr J, he was diagnosed with Non-Hodgkin Lymphoma. That disease had been successfully treated by chemotherapy. However, the treatment seems to have affected Mr J’s mental health and he tragically ended his own life.
Prior to the commencement of his treatment and before he met Ms Vallance, Mr J deposited and stored his semen for use in the future.
During their short relationship, Mr J informed his family and friends that he wished to marry Ms Vallance this year and start a family with her immediately.
The institution which holds the semen has indicated that since no partner was listed on Mr J’s signed consent to have his semen frozen, a court order would be required to allow the institution to use the semen to attempt to obtain a pregnancy for Ms Vallance.
Mr J, joined by Mr J’s sister Ms Marco (an executor and trustee of the deceased’s estate) seeks orders that:
6.1.Ms Marco be granted ownership of the deceased’s frozen semen specimen;
6.2.the service that holds that specimen continue storage of the frozen semen specimen; and
6.3.the service that holds the specimen coordinate the provision of the reproductive treatment to Ms Vallance by a fertility specialist with a view to obtaining pregnancy for Ms Vallance.
SUBMISSIONS
The lawyer for the applicant provided the following written submissions:
Jurisdiction of the Family Court of Australia
The jurisdiction, and especially the original jurisdiction of the Family Court is set out principally in section 31(1) and 69H(1) of the Family Law Act 1975.
Section 21 (2) of The Family Law Act 1975, the Family Court of Australia is stated to be “A superior Court of record.” Because a superior Court exercises general jurisdiction, there is a legal presumption that no matter is beyond its jurisdiction unless this can be established.
The Family Court of Australia, like any other Court, has the power to decide the existence of any fact upon which its jurisdiction depends, though its decision on this matter is not conclusive. A decision concerning jurisdiction maybe reviewed either by the Family Court itself or by the High Court on Appeal or by prerogative writ… Until it is properly set aside, a decision of the Family Court of Australia stands and has full authority.
Put more shortly, a decision of the Family Court of Australia which exceeds jurisdiction is simply voidable and not void. (Reference: DMW vs CGW (Supra) at PP77,559, 77,561 (Gibbs CJ) 77,562 (Mason, Murphy, Wilson, Brennan and Deane JJ)
It is conceded:
·There is no marriage;
·There is no child - nor even the conception of a child.
Legislation relating to donor treatment procedures and parentage
Family Law Act 1975 - (Section 60H)
Assisted Reproductive Treatment (ART)
No Commonwealth or Queensland legislation enacted to date.
National Guidelines for ART
NHMRC – Ethical Guidelines on the use of Assisted Reproductive Technology in Clinical Practice & Research.
6.15 Use of gametes from deceased or dying persons or from persons in postcoma unresponsive state.
The facilitation of conception in circumstances where the child born will never know one of his or her genetic parents is, by analogy, a serious act of profound significance for the person born. In addition, state or territory legislation may prohibit the use of gametes after a person has died.
Clinics must not facilitate use of gametes to achieve pregnancy in such circumstances, unless all of the following conditions are met:
· a deceased person has left clearly expressed and witnessed directions consenting to the use of his or her gametes; and
· the prospective parent received counselling about the consequences of such use; and
· the use does not diminish the fulfilment of the right of any child who may be born to knowledge of his or her biological parents.
Case Law
Jocelyn Edwards; Re the estate of the late Mark Edwards [2011] NSWSC 478
· IVF treatment is banned in NSW without the consent of the donor.
· However, on 23 May 2011, Justice Robert Hulme of the NSW Supreme Court ruled that the wife was entitled to possession of the sperm recovered from the body of her late husband.
· Justice Hulme found the late husband’s sperm to be the wife’s “property”.
· Justice Hulme found in the wife’s favour as the administrator of her late husband’s estate.
· Medical Director of IVF Australia, Associate Professor Peter Illingworth, said he hoped an interstate service would be “brave” enough to agree to fulfil Ms Edwards’ wish to have her husband’s baby. “This is an exceptional case because there is such strong inferential evidence of their intent to have children.”
· Chairwoman of the Australian Health Ethics Committee, Dr Sandra Hacker, said “…states without specific ART laws relied on the federal government’s 2007 ethical guidelines, which require “clearly expressed and witnessed consent”, but not written consent.”
Floyd, Re [2011] QSC 218
· On 12 July 2011, an urgent application was brought in the Supreme Court of Queensland by the wife of a man who was killed earlier that day in a level crossing accident.
· An oral application was made seeking an Order from the Court allowing the removal of sperm from the deceased husband.
· The Court authorised the removal of any testes and spermatozoa from the deceased.
· The Court authorised the provision of that material removed to an IVF organisation nominated by the wife.
· That Court authorised the storage of the sperm obtained pending a future application to the Court for the use of that sperm.
To be distinguished from Talbot & Norman [2012] FamCA 96
· Justice Murphy examined the Family Court’s jurisdiction in respect of ex-nuptial children and was of the view that it extended only to ex-nuptial children once born.
· However, that case involved an application brought by the biological father seeking to restrain the mother from terminating the pregnancy.”
DISCUSSION
I accept on the evidence that has been filed that notwithstanding the short period of time before his death in February 2012, Ms Vallance and Mr J formed a loving and committed relationship and discussed between themselves and family members the intention to marry and start a family.
I further accept that the purpose of Mr J storing a frozen semen specimen was in the anticipation that it would be used to conceive a child and that he subsequently formed the intention that the mother of that child would be Ms Vallance. The director of the scientific service with which the sperm is deposited has confirmed that he would be in a position to abide by the order of any court of competent jurisdiction.
Unfortunately I conclude this court does not have any jurisdiction to make orders in accordance with the application that has been made.
Section 31(1) Family Law Act 1975 (Cth) (“FLA”) provides for the original jurisdiction of the Family Court. Relevantly jurisdiction is conferred on the Family Court with respect to:
(a)matters arising under this Act…..in respect of which matrimonial causes are instituted or continued under this Act;
(aa)matters arising under this Act in respect of which de facto financial causes are instituted under this Act;
(b)matters arising under the Marriage Act 1961 .....
(c)matters arising under a law of a Territory.....
(d)matters (other than matters referred to in any of the preceding paragraphs) with respect of which proceedings may be instituted in the Family Court under this Act or under any other Act.
“Matrimonial cause” is defined in s 4 FLA and has as its fundamental requirement that the parties are parties to a marriage. Ms Vallance and Mr J did not marry. Nor was Mr J alive at the date Ms Vallance filed her application (see In the marriage of Sims 7 Fam LR 667 at 672).
Section 4 FLA defines what a de facto financial cause means to include:
(c)proceedings between parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them.
It may be that the frozen sperm specimen can be treated as property (see Jocelyn Edwards: re the estate of the late Mark Edwards [2011] NSW SC478). The difficulties in this case are that firstly upon the evidence, the parties at no time lived in a de facto relationship (de facto relationship has the meaning given to it by s 4AA FLA). Secondly, the relationship between Ms Vallance and Mr J did not break down. Mr J took his own life (see the definition of “breakdown” in s 4 FLA). Thirdly, Mr J was not alive at the date Ms Vallance filed her application.
The applicant also refers to s 69H(1) FLA which gives the Family Court of Australia jurisdiction in relation to matters arising under Part VII FLA. As a result of powers referred by the State, that jurisdiction includes the ability to make parenting orders in relation to ex nuptial children. It is clear, that jurisdiction is only enlivened once a child is born (see In the marriage of F (1989) 13 FamLR 189; Talbot & Norman [2012] FamCA 96). Consequently that section does not provide a basis for making the orders sought.
I accept the proposition that a decision of the Family Court of Australia which exceeds jurisdiction is voidable and not void. That however is no basis for the making of a voidable order without jurisdiction. The Family Court of Australia, although a superior court of record, has a jurisdiction which is limited by statute. The Family Court does not exercise a general jurisdiction and the submission that there is no legal presumption that no matter is beyond its jurisdiction, is without foundation.
If there is any power to entertain Ms Vallance’s request for the orders sought, it must lie in State law. It might, for example, be that Ms Marco is entitled to Mr J’s frozen semen specimen as the executor and trustee of his estate. Unaccompanied by any other relevant application, I am unable to exercise any accrued jurisdiction.
Accordingly I have no alternative but to dismiss the application filed 25 July 2012.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 8 August 2012.
Associate:
Date: 8 August 2012
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