Vallance and Marco

[2012] FamCA 653

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

1. 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

1. For a period of a little under two months, Ms Vallance was in a relationship with Mr J, who is now deceased.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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