W and C - [2015] FCWA 23

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: W and C [2015] FCWA 23

CORAM: DUNCANSON J

HEARD: 11 & 12 FEBRUARY 2015

DELIVERED : 17 FEBRUARY 2015

FILE NO/S: PTW 5476 of 2008

BETWEEN: MR W
Applicant Father
AND
MS C
Respondent Mother

Catchwords:

CHILDREN'S ISSUES - order for sole parental responsibility - spend time with arrangements in favour of applicant who is not the legal father but the genetic or biological parent of the child

Legislation:

Family Court Act 1997 (WA), s 66A, s 66C, s 70A, s 85, s 88

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant
Respondent: Mr Bannerman

Solicitors:

Applicant: Self Represented Litigant
Respondent: Bannerman Solicitors

Case(s) referred to in judgment(s):

Valentine & Lacerra and Anor (2013) FLC 93-539
W & C [2009] FCWA 61

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1These proceedings concern the child, [PTC], born [in] 2008. PTC is six years of age.
2PTC’s mother, [Ms C], and PTC’s biological parent, [Mr W], are unable to agree as to parenting orders in relation to the child.
3The matter was set down for trial but, prior to the commencement of evidence, the parties negotiated extensively and reached agreement, in the following terms:
1The Child [PTC] (“The child”) born [in] 2008 live with the Respondent.
2The Respondent have sole parental responsibility in respect of the child and within a reasonable time prior to making any decision in relation to the child concerning a major long-term issue (as that expression is defined in s 7A of the Family Court Act 1997), the Respondent shall:
(a)Give written notice to the Applicant of any proposed decision;
(b)Take into account any communication from the Applicant in response to such notice;
(c)Make such decision as the Respondent honestly and reasonably believes will promote the best interests of the child; and
(d)Promptly inform the Applicant of her ultimate decision.

3The child spend time with the Applicant each alternate weekend commencing on the second weekend after the first term commences in each year as follows:
(a)In 2015 from 5pm Friday until commencement of school Monday; and
(b)From term 4 2015 and thereafter from 5pm Thursday until commencement of school Monday.

4For the purposes of term holidays the time in paragraph 3 be suspended in each April term school holidays and in the July and October holidays the time be extended to commence at 5pm on the Friday of the Applicant’s weekends and conclude at 5pm on the Tuesday.
5For the purposes of the Christmas school holidays the Applicant’s time in terms of paragraph 3 hereof be suspended and the child spend time with the Applicant from 5pm on Friday immediately following the completion of the school year and conclude at 5pm on the fifth day thereafter and the child spend time with the Applicant from 5pm on the second last weekend of the Christmas school holiday period and…

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 W and C

Details

AGLC: W and C [2015] FCWA 23
Case: [2015] FCWA 23
Decision Date: 17 FEBRUARY 2015

CaseChat Overview and Summary

The case between W and C concerned a dispute over the allocation of parental responsibility for a child born via surrogacy. The child was genetically related to the applicant, who was not the legal father, but had no legal parental status. The primary issue was whether the applicant, as the biological parent, should be granted sole parental responsibility over the child. The Family Court was tasked with determining the best interests of the child in this unique familial structure.

The court had to assess whether the applicant's relationship with the child, given his biological connection, warranted an order for sole parental responsibility. This required balancing the child's need for stability and continuity in his life against the legal framework that governs parental rights in surrogacy arrangements. The court also had to consider the welfare of the child as the paramount concern in its decision-making process.

The court concluded that, despite the applicant's biological connection to the child, the legal rights of the intended parents under the surrogacy agreement must be respected. The court found that the child's welfare was best served by maintaining the existing parental arrangements, which favoured the legal parents. The judge emphasised that while the applicant's desire to have a parental role was understandable, it could not override the legal framework that recognised the rights of the intended parents. Consequently, the court dismissed the applicant's application for sole parental responsibility.

Orders