Ganter v Whalland [2001] NSWSC 1101

Reported Decision : 54 NSWLR 122 (2002) DFC 95-240

New South Wales Supreme Court

CITATION : Ganter v Whalland [2001] NSWSC 1101 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4747/98 HEARING DATE(S) : 5 November 2001 JUDGMENT DATE : 12 December 2001

PARTIES : Shan Tina Ganter (Plaintiff) Paul Martin Whalland (Defendant) JUDGMENT OF : Campbell J

COUNSEL : NC Hutley SC (Plaintiff) No appearance (Defendant) SOLICITORS : Clayton Utz (Plaintiff) No appearance (Defendant) CATCHWORDS : STATUTES - ACTS OF PARLIAMENT - Interpretation - Section 14 Status of Children Act 1996 - FAMILY LAW AND CHILD WELFARE DE FACTO RELATIONSHIPS - Children - born through artificial fertilization procedures - sperm donor in de facto relationship with mother at time of donation but not at time of implantation of embryo - whether father of resulting child Property (Relationships) Act 1984 LEGISLATION CITED : Status of Children Act 1996 (NSW) Interpretation Act 1987 (NSW) CASES CITED : Cooper Brookes (Wollongong) Pty Ltd v Federal Commission of Taxation (1981) 147 CLR 297 Hall v Jones (1942) 42 SR NSW 203 DECISION : When sperm donor is in de facto relationship with woman at time of sperm donation and of creation of embryo, but de facto relationship has ended by time that woman becomes pregnant as a result of implantation of that embryo, sperm donor is not father of any resulting child (subject to ss 17 & 18 Status of Children Act 1996)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CAMPBELL J 12 December 2001 4747/98 SHÂN TINA GANTER v PAUL MARTIN WHALLAND Judgment 1 HIS HONOUR: Between early 1988 and the end of 1996 Ms Ganter and Mr Whalland lived together in a de facto relationship. In September 1993 Ms Ganter was diagnosed as suffering from chronic myeloid leukaemia. She was advised that she should have a course of treatment which included chemotherapy. She was also advised that if she had extensive chemotherapy it would probably make her sterile, but that it was possible to have eggs removed from her ovaries, fertilised and frozen as embryos so that she could use them when she recovered. 2 She and Mr Whalland were referred to the IVF clinic at Royal North Shore Hospital. In January 1994 ova were collected from her, and fertilised with semen obtained from Mr Whalland. Six embryos resulting from this procedure were frozen. 3 The embryos have come to be stored on terms of an agreement dated 13 August 1996 made between Ms Ganter, Mr Whalland, and a company called North Shore A R T Pty Ltd ("NSART"). 4 In about November 1996 Ms Ganter and Mr Whalland separated. Their relationship has not resumed since then. Ms Ganter gives evidence that she does not intend ever to marry or to recommence any domestic relationship with Mr Whalland. 5 Ms Ganter wants to have the embryos transferred into her uterus in an attempt to become pregnant. 6 The agreement between Ms Ganter, Mr Whalland and NSART requires any decision on the future management of the embryos to be a joint decision of Ms Ganter and Mr Whalland. Mr Whalland has, so far, refused to permit the embryos to be used in the way Ms Ganter wants. He has told Ms Ganter, in effect, that a reason for taking this attitude is that he does not want to have any financial responsibility for any child which might result. 7 Ms Ganter has commenced proceedings against Mr Whalland under the Property (Relationships) Act 1984 (NSW). In those proceedings she seeks a division of the net proceeds of sale of a house of which she and Mr Whalland were registered proprietors, and also the following: "…33 An Order that the Defendant do all such things and execute all such documents as are necessary to direct NSART to distribute all embryos which are the subject of agreements made between the Plaintiff and the Defendant and NSART to the Plaintiff for her use in attempts to achieve pregnancy. 34 An Order that the Defendant do all such things and execute all such documents as are necessary to donate the embryos to the Plaintiff for her use in attempts to achieve pregnancy. 35 A Declaration that in the event that the Plaintiff becomes pregnant as a result of any embryo transfer procedure undertaken as a consequence of the Defendant's compliance with Orders 33 and 34, the Defendant will be irrebuttably presumed at law not to be the father of any child born as a result of the pregnancy." 8 Counsel for Ms Ganter informs me that one of the bases on which these orders will be sought, is that the rights under the agreement between Ms Ganter and Mr Whalland and NSART are property capable of being the subject of an order under the Property (Relationships) Act 1984. 9 On 20 March 2000 Master McLaughlin ordered that there be a separate decision of the following questions: "Whether on the true construction of sections 3 and 14 of the Status of Children Act 1996 (NSW): (a) there is an irrebuttable presumption of law that a man, from whom sperm is obtained, but who is not the husband (within the meaning of sub-section 14(6) of the Status of Children Act 1996) of a woman, at the time when that woman undergoes a fertilisation procedure to transfer into her body an ovum which was fertilised outside her body and becomes pregnant, is not the father of any child born as a result of the pregnancy; and whether (b) there is an irrebuttable presumption of law that if an ovum which has been fertilised outside the applicant's body using sperm obtained from the Respondent, is transferred, with the Respondent's consent, into the body of the Applicant at a time when the Respondent is not the husband of the Applicant (within the meaning of sub-section 14(6) of the status of Children Act 1996), and the Applicant becomes pregnant, the Respondent is not the father of any child born as a result of the pregnancy. 10 Those questions were listed for argument before me on Monday 5 November 2001. 11 Mr Whalland did not appear at the hearing. I was informed that Mr Whalland continues to instruct solicitors in the proceedings under the Property (Relationships) Act 1984. I was also informed that those solicitors had contacted Ms Ganter's solicitors recently and stated that Mr Whalland did not intend to appear on 5 November, and did not consent to, or oppose, the orders sought on that day. There is no material before me to suggest that he has ceased to oppose the orders which Ms Ganter claims under the Property (Relationships) Act 1984.