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GENERAL PRACTICE

100

LSJ

I

ISSUE 31

I

MARCH 2017

Parenting – relocation – trial

Judge did not err inmaking orders

against wishes of 15 and 17 year

old children to remain in New York

with their father

In

Bondelmonte & Bondelmonte

[2016] FamCAFC 48 the full Court

(Ryan, Aldridge and Le Poer Trench JJ)

considered a father’s appeal against

orders requiring him to return the parties’

two boys aged almost 15 and 17 to

Australia pending final determination

regarding residence.

2014 consent orders provided for equal

shared parental responsibility and that the

children live with the parties as agreed

or at the children’s own election (at [18]).

The eldest son lived with the mother and

the younger son largely lived with the

father. The parties’ daughter lived with

the mother.

In January 2016 the father and boys

went on a two week holiday to New York

with the mother’s consent. Prior to their

anticipated return, the father’s solicitor

informed the mother that the father had

decided to remain in the United States

indefinitely and the boys had elected to

stay with him (at [35]). The mother filed

an urgent application seeking orders the

children return to Australia, and pending

further order, live with her. She later

acknowledged the boys may not want to

live with her and proposed other persons

they could live with.

The trial Judge found it was in the

best interests of the boys to return to

Australia pending final determination

as to whether they could relocate to

the United States. The father appealed

on the basis the trial Judge failed to

give appropriate weight to the views

expressed by the boys.

By majority, Ryan and Aldridge JJ

dismissed the father’s appeal. Their

Honours stressed a Judge is not ‘obliged

to make orders consistent with a child’s

stated views

.

’ Instead a Court must

consider the weight to give a child’s view

including not just maturity and age, but

also

‘context is critical and it is a matter

for the judge to determine how giving

effect to a child’s stated view accords

with the child’s best interests’ (at [97]).

Ryan and Aldridge JJ found the trial Judge

carefully considered

the boys’ wishes,

found they were genuinely held, but that

the father’s desire to live in the United

States had influenced the boys (at [103])

and in their recent ‘bedazzlement’ and

‘excitement’ with New York they failed to

‘reflect on the loss of important aspects

of their lives in Australia, for example, their

sister and mother’ (at [104].) Ryan and

Aldridge JJ found this approach was open

to the trial Judge in making orders in the

children’s best interests.

Le Poer Trench J dissented on the basis

the trial Judge should have obtained

additional evidence before ordering the

boys’ return (at [209]) and ‘there was a

failure to obtain any view of children,

whose age dictated their views could be

given significant weight, in relation to a

proposal which effectively was a residence

order in favour of’ either a parent they did

not usually live with or other persons who

had not acted in any parenting capacity

towards them (at [211]).

International surrogacy – child to

remain in Perth with family she was

attached to including convicted sex

offender and not relocate to live

with biological mother and twin

brother in Thailand

In

Farnell & Anor and Chanbua

[2016]

FCWA 17 Thackary CJ found a child

should remain living with the family she

was already residing with and not be

placed with her biological family.

Pipah and her twin Gammy were born in

Thailand on 23 December 2013 pursuant

to a surrogacy arrangement between

the Farnells and Mrs Chanbua using Mr

Farnell’s sperm and Mrs Chanbua as

surrogate. The Farnells left Thailand with

Pipah in January 2014 who thereafter

remained in their care. The Farnells

accepted Mrs Chanbua would not facilitate

them taking Gammy who had Down

syndrome and he remained in Thailand

with Mrs Chanbua and her husband.

Unable to regularise Pipah’s status, the

Farnells applied to the Family Court

of Western Australia for equal shared

parental responsibility and falsely deposed

Mrs Farnell had supplied the eggs for the

embryo (at [47]).

A media frenzy followed, revealing Mr

Farnell’s conviction as a sex offender and

it was depicted the Farnells abandoned

Gammy due to having Down syndrome

(at [50]).

In April 2015 Mrs Chanbua applied for

Pipah to live with her, arguing she was

at risk in the Farnells care and should be

reunited with her biological family. The

Farnells argued Pipah had lived with them

and would be traumatised if removed.

Thackary CJ determined Mrs Chanbua

was the mother of Pipah, under the

Artificial Conception Act 1985

(WA)

,

her husband was thus Pipah’s father,

and declared Mr Farnell (despite having

provided sperm) was not the ‘parent’ of

Pipah. However, Thackary CJ made orders

the Farnells have parental responsibility

for Pipah to the exclusion of the mother

Mrs Chanbua and also Pipah live with the

Farnells and ’not be removed from the

only family she has ever known’ (at [66]).

Key factors were the attachment Pipah

had to the Farnells, the quality of care

she was receiving and whilst Mr Farnell’s

conviction was of grave concern, expert

evidence was risk of harm was low in their

care (at [67]). Safety measures were also

considered, namely orders the Farnells

work closely with the Department for

Child Protection (DCP) in WA. In terms

of wider policy implications, Thackery

CJ stressed his focus was Pipah’s best

interests and his decision did not endorse

commercial surrogacy.

In terms of future application of this case,

Thackery CJ warned whilst the judgement

may be misinterpreted as ‘encouragement

to other couples to beg forgiveness rather

than seek permission, the outcome might

have been very different had the dispute

come before me much earlier in Pipah’s

life. At that point, it may well have been

decided it was in her best interests to

return to live with her birth mother and

twin brother’ (at [755]).

FAMILYLAW

By Zoë Durand, principal at Mediation Solutions Sydney and family lawyer at Armstrong Legal