Re Evelyn

(1998) 145 FLR 90; (1998) 23 Fam LR 53; (1998) FLC 92-807; [1998] FamCA 55
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“Evelyn” was born to Mrs. S as a result of a surrogacy arrangement with Mr. and Mrs. Q. Mr. and Mrs. Q and Mr. and Mrs. S had been close friends for some years and had shared several joint holidays. Mrs. Q had discussed her infertility with Mrs. S and after much deliberation, Mrs. S offered to bear a child for the Qs. Under the arrangement, Mr. Q inseminated Mrs. S and Mrs. S was to hand the child to the Qs. After the birth, Mrs. S initially agreed to Evelyn living with the Q’s, but later changed her mind and took the child from the Q’s household. She had been particularly distressed by what she perceived to be an inadequate amount of contact between the two couples after the birth of Evelyn. Both the Ss and the Qs sought orders that the child live with them or, in the alternative, for contact with Evelyn.

At the trial, the judge heard evidence from a total of five expert witnesses called by the parties. The judge found that both sets of adults were capable of providing a very high standard of care for Evelyn. The judge ordered that Evelyn live with the Ss; that the Ss have responsibility for Evelyn’s day to day care, welfare and development; that the Ss and the Qs share responsibility for Evelyn’s long term care, welfare and development; and that the Qs have defined contact with Evelyn. The judge attached particular weight to Evelyn’s long term need to be brought up in the household containing as many of her biological relatives as possible.

The Qs appealed against the decision on four grounds:

  1. that the trial judge had insufficient expert evidence before him on which to decide the matter;
  2. that expert evidence was lacking in respect of a number of key issues in the case, and that the judge erred in not appointing a court expert to provide such evidence;
  3. that the judge placed too much weight on long term and hypothetical, as opposed to short term and immediate, matters affecting Evelyn’s welfare; review and
  4. that the judge erred in placing weight on evidence that the removal of Evelyn from Mrs. S would adversely affect Mrs  S’s mental stability.

The Court held that the trial judge had sufficient evidence on which to decide the matter and was not obliged to appoint a court expert. The Court held that there are circumstances in which a trial judge should refuse to proceed with a hearing if the evidence is manifestly inadequate to enable a proper decision to be made, and where it is possible for that evidence to be obtained. The present case was not such a case. The judge had evidence from five experts and was entitled to take the view that the evidence was the best available.

The Court further found that the trial judge had not placed too much emphasis on long term and hypothetical concerns to the detriment of short term immediate impacts. The trial judge found that nurturing biological relationships would best equip Evelyn to deal with identity and rejection issues in her adolescence. Consequently, it was held that Evelyn living with her biological mother and siblings (rather than her biological father and a step-sibling) would be in her best interests. Counsel for the Q’s attacked this finding, suggesting that it was based on future and hypothetical findings and that if such an approach was endorsed, it would inevitably mean that, save in the most exceptional circumstances, the biological mother would always succeed in a residence application for infant surrogate children. The Court held that there is no presumption in favour of the natural parent and that each case must be decided on the facts, according to the child’s best interests. The Court found that the trial judge awarded residence to the biological mother based on the facts of the case at hand and that as this finding was open on the facts, there was no appealable error.

Finally, the Court found that the mental state of Mrs. S was not the real basis of the trial judge’s finding but was rather incidental to the decision.

The Q’s sought special leave to appeal to the High Court; however, this was dismissed in JRN and ANOR and IEG and ANOR B18/1998, 11 September 1998.

“The reality of the matter was that the trial judge had the reports and evidence of five experts in front of him. The situation is therefore distinguishable from Marquet’s case, where no expert evidence was available. It is true that his Honour was dealing with a ground breaking area of the law, but in our view, in the circumstances of this case, he was entitled to take the view that the evidence that was called was likely to be the best evidence available, given its nature and the nature of the legal representation in the case. Moreover, it was not suggested to the trial judge that the hearing be adjourned to enable any of the experts who had not seen both the Qs and the Ss to interview them or any other relevant persons.” 23 Fam LR p. 66.

“In our view, his Honour correctly applied this approach in the present case. While it is true that he ultimately gave the biological mother a preferential position, he did so on the evidence before him in the particular circumstances of this case and after considering the various parenting capacities of the persons concerned, and the opinions of the expert witnesses on the subject. It is not asserted that in this process, the trial judge was not entitled to place any weight on what may be described as future hypothetical issues, but rather, that he placed too much emphasis on those issues and insufficient weight on short term issues which favoured the appellants.” 23 Fam LR p. 70.