The Supreme Court allowed an appeal by two respondents and discharged an interim order that had prevented the child’s mother from travelling to Australia with the child for just under a year. The court did not decide whether the applicant should be appointed guardian or what contact, if any, he should have with the child.
In a judgment delivered on 19 July 2007, Fennelly J said the application concerned interim relief only. The applicant’s relationship to the child was as a sperm donor, and his standing in the guardianship proceedings arose from his ability to apply under section 6A of the Guardianship of Infants Act 1964. The judge said that provision gave him a right to apply, not a right to be appointed guardian. The child’s welfare would be the first and paramount consideration in deciding any guardianship application.
The judge said the proposed trip to visit the mother’s parents in Australia was a normal and reasonable choice. The High Court had focused on the possibility that a year away would interrupt the development of a bond between the applicant and the child. Fennelly J said that reasoning effectively anticipated a decision on guardianship and access before a full hearing on the merits.
The applicant referred in an affidavit to advice from a child psychologist that the child would benefit from knowing and spending time with him. But the Supreme Court said there was no affidavit or report from an expert, and no expert or other evidence that the trip would jeopardise or compromise the child’s welfare. The applicant bore the burden of establishing grounds for the injunction.
The judgment also considered a written agreement described in the proceedings. It said the applicant had agreed to act as sperm donor, described his intended role as similar to a “favourite uncle”, and accepted that the two respondents would be responsible for the child’s upbringing. The applicant argued that the agreement was void or unenforceable as contrary to public policy. Fennelly J left that issue for determination at the full High Court hearing and said the agreement could not be assumed invalid at the interim stage.
The Supreme Court also declined to make an order under section 47 of the Family Law Act 1995 at this stage, treating such an order as dependent on the injunction it had refused. Its decision addressed interim relief only; it expressed no view on the eventual guardianship application or the child’s welfare after a full hearing.