Abney & Anor & Pramod & Anor

[2016] FamCA 1059

FAMILY COURT OF AUSTRALIA

ABNEY AND ANOR & PRAMOD AND ANOR [2016] FamCA 1059

FAMILY LAW – CHILDREN – Commercial surrogacy – best interests of the child – where applicants seek orders that four children live with them – where applicants seek orders for equal shared parental responsibility – where respondent surrogates, Independent Children’s Lawyer and evidence of family consultant support the application and there are no other proposals.

Family Law Act 1975 (Cth), ss 60CA, 60CC, 61B, 64B(2)(i), 64C, 65C(c), 69ZN(7)

Mankiewicz and Anor & Swallow and Anor [2016] FamCAFC 153

FIRST APPLICANT:    Mr Abney

SECOND APPLICANT: 

FIRST RESPONDENT: 

Mr Knutsen

Ms Pramod

SECOND RESPONDENT: Ms Kunchai

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: (P)MLC 1170 of 2016

DATE DELIVERED: 9 December 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 13 September 2016

REPRESENTATION

THE APPLICANTS: In person

THE FIRST RESPONDENT: No appearance

THE SECOND RESPONDENT: No appearance

SOLICITOR ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Daniel Piekarski

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders made 13 September 2016

1. That the First and Second named Applicants have equal shared parental responsibility for the children:

   (a)       A born … 2014

   (b)        B born … 2014

   (c)       C born … 2014 and

   (d)       D born … 2014;

   (collectively “the children”).

2. That the children live with the Applicants.

3. The appointment of the Independents Children’s Lawyer be and is hereby discharged.

4. Otherwise all extant applications be and are hereby dismissed.

5. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Abney and Anor & Pramod and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: (P)MLC 1170 of 2016

Mr Abney and Mr Knutsen

First and Second Applicants

And

Ms Pramod

First Respondent

And

Ms Kunchai

Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The applicants sought orders that they have equal shared parental responsibility for four children A, B, C and D, and that the children live with them.  A and B are twins aged two years and B and C are twins aged two years.  On 13 September 2016, I made those orders and these are my reasons.

2. The children were born in Thailand (A and B were born in X province and C and D in Y province) as a result of a commercial surrogacy arrangement.

3. The application was supported by the Independent Children’s Lawyer and the applicants’ proposal was in accordance with recommendations of the family consultant.

4. The respondents, who are the two surrogate mothers of the children, filed no response to the application but instead provided affidavits in support of the applicants’ joint application.  Thus, the applicants’ application was unchallenged and unopposed by any party.  The evidence adduced was not contradicted.

5. The embryos were created using an unknown egg donor and the sperm of Mr Abney.  The first applicant, Mr Abney, is listed on the Thai birth certificates of each of the children as their father.  The first respondent, Ms Pramod, is the surrogate mother of A and B and is listed on their Thai birth certificates as their mother.  The second respondent, Ms Kunchai, is the surrogate mother of C and D and is listed on their Thai birth certificates as their mother. 

Background

1. The first applicant, Mr Abney, was born in 1969 and is a personal service provider.  The second applicant, Mr Knudsen, was born in 1946 and is now retired.  The applicants own a business where Mr Abney works on a part-time basis.  They have been in a relationship since 2001.  In March 2012, they commenced the process of becoming parents through surrogacy.  The first applicant deposed that, following a number of failed attempts through one organisation in Thailand, the parties engaged with a second clinic in Thailand in or about December 2013.  In consultation with the doctor at that clinic, the applicants elected to transfer two separate embryos to each of two separate surrogate mothers, anticipating that either one or possibly two of the four embryos would result in a viable pregnancy and live birth.  As it transpired, all four embryos transferred successfully.

2. On 12 December 2013, the applicants signed a Memorandum of Intent document with Ms Pramod, the first respondent, and a separate Memorandum of Intent document with the second respondent, Ms Kunchai.  These documents specified each of the respondents as the surrogates and the applicants as the intended parents of the children.  These documents set out the terms of the arrangement between the applicants and each of the respondents, including providing that:

   a)The respondents had no intention of raising the children and relinquished all parental rights they might have in relation to the children;

   b)The respondents intended for the children to be the children of the applicants;

   c)The respondents would provide any cooperation deemed necessary to make the applicants the legitimate parents of the children through whichever process may be required in accordance with the relevant laws and would cooperate in any legal proceeding to declare a parental relationship between the children and the intended parents;

   d)The respondents would immediately relinquish the children into the care of the applicants upon the birth of the children; and

   e)All decisions concerning the health of the children, in utero and after delivery, would be made by the applicants.

3. The respondent’s affidavits in support of the applicants’ application must be read in light of the terms of the arrangement.  Mr Abney also deposed in his affidavit that “pursuant to the law in Thailand at the time of the children’s birth, [the respondents] have no legal rights over any child conceived as a result of the surrogacy arrangement”.

4. Mr Abney deposed that the applicants travelled to Thailand in preparation for the birth of the children.  The children A and B were born.  Several days later, B and C were born.  Following the birth of the children, the respondents each signed a further document providing that they terminated their parental rights and responsibilities and relinquished custody of the children to Mr Abney as the intended parent of the children.

5. Mr Abney deposed that the applicants were present for the births, and took care of the children immediately following their birth.  The children remained in the hospital nursery of the maternity ward for several days before being released into the care of the applicants.  Ms Kunchai breastfed C and D for the first two days following their birth.  Both of the respondents visited the children prior to the applicants leaving Thailand for Australia, but the children remained in the applicants’ sole care during the month following their birth.

6. On 24 September 2014, the four children were granted Australian Citizenship by Descent and returned to Australia with the applicants.

7. The applicants and the children now reside in a large home in country Victoria, which will allow for each of the children to have their own bedroom in time, although they currently share one bedroom.  Mr Abney works part time, while Mr Knutsen is retired and is at home full time. Both applicants are actively involved in all aspects of the children’s care.  The applicants are assisted in caring for the children by several childcare professionals including at times au pairs living with them on a full time basis.

8. The applicants now seek equal shared parental responsibility for the children as they wish to ensure that they both have the legal status to enable them to make significant decisions regarding all aspects of the children’s welfare and ensure that in case of an emergency, either of them are able to provide consent for medical treatment.  They also wish to formalise their current arrangements in a way that reflects their commitment to equally sharing the responsibilities of raising the children. 

9. As the application involved the care of four very young children of the same age, I considered it appropriate in the circumstances of the case to appoint an Independent Children’s Lawyer to represent the four children, and made orders accordingly on 3 May 2016.

Documents relied upon

1. The applicants relied upon the following documents:

   ·Initiating Application filed 15 February 2016;

   ·Affidavit of Mr Abney filed 15 February 2016;

   ·Affidavit of Mr Knutsen filed 15 February 2016;

   ·Affidavit of Ms J (full time childcare worker engaged to care for the four children) filed 15 February 2016;

   ·Affidavit of Ms Pramod filed 18 February 2016;

   ·Affidavit of Ms Kunchai filed 18 February 2016;

   ·Affidavit of Mr W (founder and Chief Executive Officer of the surrogacy agency utilised by the parties) filed 31 March 2016; and

   ·Affidavit of Mr Knutsen filed 28 April 2016.

2. A family report was prepared in this matter by family consultant Ms H in accordance with orders made by me on 10 June 2016.  The orders provided that the report was to address the following matters:

   a)The nature of the children’s relationships with the persons seeking parenting orders;

   b)An assessment of the persons seeking the parenting orders’ capacity and commitment to the long-term welfare of the children;

   c)Advice in relation to issues which may arise concerning the children’s identities and how those issues are best managed; and

   d)The views of the birth mothers, in particular their consent to the proposed parenting orders, and other matters with respect to the birth mothers.

3. I also ordered that the material produced under subpoena by Victoria Police and the Department of Health and Human Services be released for inspection.

Evidence

1. In her affidavit, the child care worker, Ms J, deposed that she was engaged through an agency to care for the children in or about April 2014.  She deposed that the children were “happy, confident and loving children who are thriving … meeting all of their milestones and have a very strong sibling relationship with one another”, that they are “growing up in a loving and safe environment which is meeting all their needs” and that both of the applicants “adore the children and provide them with all the love and care and all the facilities necessary for their upbringing”.  She supported the application for orders.

2. In their affidavits, the contents of which were nearly identical, both respondents confirmed the contents of the Memoranda of Agreement and their intention for the applicants to be the parents of the children, and that the respondents each consented to terminating all parental rights and responsibilities for the children, as well as confirming that the children could not biologically be their own in the sense that they were the product of eggs from an anonymous donor.  They each deposed that the respondents were “signing” their affidavits “free of duress, coercion or under any influence”.

3. The affidavit of the founder and Chief Executive Officer of the surrogacy agency engaged by the applicants deposed to the legal situation in relation to surrogacy at the time the children were conceived and born.  He deposed that commercial surrogacy in Thailand was common at the time and there were no laws in Thailand regarding surrogacy, although Thai law concerning surrogacy has since changed in ways that would now render commercial surrogacy inaccessible to the applicants today.  He deposed that each of the respondents received a total of $19,000 US dollars for their surrogacy services including funds for living and travel allowance and a sum provided due to their both giving birth to twins.  He deposed that both surrogates were provided with advice regarding the surrogacy process and their legal rights, were extensively screened and received counselling when they applied to become surrogates, and deposed that they were fully informed of their rights before signing the Memorandum of Intent and received advice regarding the consequences of signing the document.  He described the respondents’ circumstances at the time of their applications to become surrogates.  He deposed that Ms Pramod had been 27 years old, single with one child aged three years and employed earning a minimum wage, and that Ms Kunchai had been 26 years of age, single with four children aged between two and ten, and employed earning a “very nominal” wage and living in shared accommodation with other families.  Neither of the respondents had been surrogates before.  He deposed that during their pregnancies, the respondents were both housed individually in single bedroom apartments with a doctor located in close proximity and on call at all times to assist if required, and that “their wellbeing was at the forefront of all arrangements”.

4. In his second affidavit Mr Knutsen elaborated upon the reasons for selecting the surrogacy agency and deposed that the applicants were concerned that any surrogates they engaged should be treated properly and enjoy a comfortable and safe standard of living in close proximity to medical services and to their families.  Mr Knutsen deposed that he and Mr Abney visited the respondents on a number of occasions during their pregnancies and were “very happy” with the state of their living arrangements and the medical attention and facilities available to them.  Mr Knutsen also deposed that during the pregnancies and during a period of international scrutiny into surrogacy practices in Thailand, the majority of surrogacy clinics in Thailand closed down, meaning that the respondents were removed from their housing and were left without a place to live and could not afford medical expenses.  Mr Knutsen deposed that, upon being advised that this was occurring, the applicants arranged to independently house the respondents close to medical facilities during the period of the relevant clinic’s closure, and paid all medical expenses for the respondents.  Upon the reopening of the relevant surrogacy service, the respondents returned to the housing arranged through the surrogacy service which also resumed responsibility for their care.

5. Mr Knutsen deposed that he has maintained contact with both respondents following the pregnancies.  He deposed that Ms Pramod is now in a substantially improved financial position following the surrogacy, and that she now runs her own independent business, and is able to afford comfortable accommodation for herself and her daughter, as well as schooling, work travel and holidays.  He deposed that Ms Kunchai and her family used the funds from the surrogacy to move into independent accommodation for the first time, and to pay for heart surgery for her mother.  He deposed that in addition to the funds received from the surrogacy, the applicants gifted Ms Kunchai an additional $5,000 US dollars in order to allow her to undertake a course of study in aged care, and that this will allow her to substantially raise her future earning capacity.

6. In her family report, Ms H noted that the applicants acknowledged the importance of routine in their home in light of having four children about to turn two years old in their home. They described to her “detailed and age appropriate routines that they implement together with their child care workers, nannies and others who provide assistance”. The applicants reported that Mr Abney’s parents live nearby and the children see them regularly and are beginning to form and enjoy relationships with them.  The applicants advised that they have joined a fathers’ group run by the local community health centre and that although they are unable to attend each weekly session, they have found it useful to share information and hear about other caregivers’ experiences.  The applicants acknowledged they have some differences in parenting styles which has at times resulted in arguments between them; for example, Mr Abney supports the idea that the children should learn to “self-settle”, whereas Mr Knutsen finds this distressing and tends to pick up the children when they cry.  The report writer noted that they described arriving at a compromise and supporting each other in implementing that compromise.  The report writer suggested that, given it is likely there will be other areas where they may disagree regarding child rearing, the applicants were encouraged to consider attending sessions with a child psychologist or counsellor with knowledge of child development to assist them in managing areas of disagreement.

7. The report writer noted that consultation with the Department of Health and Human Services/Family Court Liaison confirmed that there has been one report to the Department regarding the children, received on 28 July 2016, with concerns raised including family violence and risk of harm to the children.  The report was investigated, with the Department and Victoria Police attending together for a home visit.  The reported concerns were not substantiated and the matter was closed on 5 August 2016 with no further action required.  The report writer noted that the subpoenaed documents from Victoria Police in relation to the applicants revealed that “[n]o disclosable court outcomes exist on LEAP” in relation to either of the applicants.

8. One of the four children, B, was born with a medical condition and remained in hospital for one week following his birth, as well as receiving outpatient treatment.  When he was nine months old, B underwent surgery at the Royal Children’s Hospital in Melbourne.  The applicants informed the family report writer that B will also require further surgery at some stage in the future.  The applicants advised that the Maternal and Child Health Nurse has attended their home regularly since the birth of the children, and that no concerns have been raised regarding the children’s health or development.  The report writer noted that the children are reportedly up to date with their immunisations and have all attended the same GP for the purposes of continuity of care, which the applicants identified as being in the children’s best interests.  The children are reportedly meeting their developmental milestones within expected parameters, which is a positive sign given that they were all born prematurely.  When observed in the Court play room, the report writer noted that they were steady on their feet with gross motor skills well within expected parameters, although it was not possible to comment on their language development or fine motor skills given the brief observation.  The applicants reported that the children “have a close sibling bond and are learning to play together” and provided additional information about their development and social milestones.

9. Ms H noted that the children have had the opportunity to form significant relationships with both of the applicants “and to experience them as a source of security, nurture and comfort”.  When observed, albeit briefly and informally, the interaction between the applicants and the children was “affectionate, spontaneous and appear[ed] to be mutually responsive” with both of the applicants appearing “attuned” to the children.  Ms H commented that within the limited scope of the assessment, the applicants appeared to have “made a firm commitment to being effective parents” with their primary focus being ensuring that the children’s wellbeing was prioritised and supported to allow them to reach their full potential.  The applicants made reference to exploring options that would allow the children to socialise with other children, consideration of options for their first school and long term financial planning for the children’s future.  They also clearly responded to the children’s medical needs, and ensured the children had access to relationships with an extended family in the form of Mr Abney’s parents.

1. In relation to the question of the children’s identities, Ms H suggested it was anticipated that the children would grow up identifying as “Australian in both culture and heritage”.  The applicants have considered what they might tell the children in future, and believe they should be told the truth about the circumstances of their births in a child focused and age appropriate manner.  They are aware the children will need an explanation about why they have two fathers.  Ms H made recommendations about the usefulness of age appropriate literature about diverse families, as well as the resources provided by Surrogacy Australia.

2. Regarding the views of the respondent surrogate mothers, the report writer referred only to the Memoranda of Intent and the affidavits signed by each of them.

3. Based on her assessment, Ms H recommended that it would be in the best interests of the four children for the applicants to have equal shared parental responsibility for them.  She also recommended that it would be in the children’s best interest for the applicants to participate in parenting programmes to increase their understanding of the children’s needs from a developmental perspective.

The relevant law

1. The applicants did not seek an order declaring parentage in relation to the children, and I am thus not obliged to consider the issues arising from any such application.  Rather, they sought an order that they have equal shared parental responsibility for the children. 

2. Accordingly, the application is brought pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”). A parenting order may deal with any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child (s 64B(2)(i)).

3. Parental responsibility is defined under s 61B for Part VII of the Act in relation to a child, to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”

4. In making any parenting order, the child’s best interests are the paramount consideration mandated under s 60CA of the Act.

5. Under s 64C of the Act parenting orders may be made in favour of parents or other persons. There is no definition of “parent” in the Act other than a definition which includes an adoptive parent in relation to a child who has been adopted.

6. In Mankiewicz & Anor & Swallow & Anor [2016] FamCAFC 153 at paragraph 10, Ryan and Austin JJ said of the issue of standing to bring an application for a parenting order:

   The effect of s 65C is that the only people who have an unconditional right to apply for parenting orders are those identified in ss 65C(a), (b) and (ba). Applicants who only fall within s 65C(c) have the right to do no more than bring an application to attempt to establish facts which would permit them to apply for a parenting order and have no right to seek substantive relief until they do so. The point being that they can only apply for a parenting order where a court determines they are such a person and thereby grants permission. Whether or not permission should be given is a question of fact and to be determined on the basis that an applicant can demonstrate he or she is concerned with the care, welfare or development of the child. It will be a matter for the judge to decide in the individual case whether this issue is addressed as a discrete issue early in the case or at some other stage.

7. I am satisfied that the applicants have standing to make an application for parenting orders under s 65C(c) of the Act, as they are clearly persons concerned with the care, welfare and development of the children. The children have lived with and been cared for by the applicants on a full time basis virtually since birth.

Determining the child’s best interests

1. Section 60CC sets out “primary” and “additional” considerations, to which I have had regard in determining what orders are in the child’s best interests.

Primary considerations

1. The primary considerations in s 60CC(2) of the Act are:

   (a)     the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)    the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. In applying the primary considerations greater weight must be given to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[1]   On the uncontradicted evidence here, there is no evidence of a need to protect the children.  

   [1] Family Law Act 1975 (Cth) s 60CC(2A).

3. As I am satisfied the applicants have standing to make the application as persons concerned with the care, welfare and development of the children, the provision in s 60CC(2)(a) regarding a meaningful relationship with both of the children’s parents does not apply

4. The reality is that the applicants have always had the children in their care and offer the only proposal for the care of these children.  There is no other proposal for consideration. 

The additional considerations

1. The additional considerations are listed at s 60CC(3) of the Act. The views of the children are not relevant here having regard to their young age. The nature of the relationship of the children with the applicants on the evidence of the family consultant was that they experience them as “a source of security, nurture and comfort”. The children are exposed to relationships with extended family but do not have a relationship with the surrogate mothers. Both applicants have taken every opportunity to participate in decision making about major long term issues relating to the children and have always fulfilled their obligations to maintain the children. The proposal of the applicants will not change the children’s circumstances since shortly after their birth they have lived in the sole care of the applicants under the surrogacy arrangement. The children have always lived together and the proposal will not alter this. The children have developed a close sibling bond on all the available evidence.

2. On all the available unchallenged evidence, the applicants have the capacity to provide for the needs of the children including their emotional and intellectual needs.  The applicants propose that the children grow up identifying as “Australian in both culture and heritage” and this is not challenged.  On all the available unchallenged evidence the applicants have demonstrated a responsible attitude towards the children and the responsibilities of parenthood.  On the evidence of the Department of Health and Human Services obtained by the family consultant, there is no evidence of any family violence and no family violence orders.

3. I have had regard to the paramount consideration of the best interests of the children under s 60CA of the Act, as well as to the primary and additional considerations as outlined in s 60CC of the Act.

Conclusion

1. I am satisfied that the applicants have standing to make the application. 

2. I am persuaded on the unchallenged evidence of the applicants supported by the Independent Children’s Lawyer and the evidence of the family consultant that the orders sought are in the best interests of the children. 

3. In making this decision I have also had regard to the evidence about the surrogacy arrangement entered into by the applicants with each of the respondents.  The evidence presented is uncontradicted.

4. I note that the policy with respect to commercial surrogacy and the Act appears to be unclear in Victoria, and this may well be a matter of community controversy. Although the evidence in this matter indicates that the surrogacy arrangement between the applicants and each of the respondents was voluntary, this in itself is a question I do not need to decide in order to determine whether to grant the orders sought by the applicants. Despite any questions of policy surrounding commercial surrogacy arrangements, I am here tasked with determining only whether the orders sought by the applicants are in the best interests of the children.

5. I am satisfied that since their birth the children have been loved, cared for and supported by the applicants. Both applicants are concerned with the care, welfare and development of the children, and on the evidence, they appear to have the capacity and intention to responsibly support and care for the children. The s 60CC factors favour a finding on all the evidence that the applicants are responsible, dedicated and willing carers to the children, and are the only parental figures the children have ever known. The reality is that there are no other carers seeking parental responsibility for the children. In these circumstances I am satisfied that the proposals of the applicants are in the best interests of the children.

6. Division 12A of the Act reduces the significance of the evidentiary rules in relation to applications for parenting orders. As per s 69ZN(7) of the Act, child related proceedings are to be conducted without undue delay, and with as little formality, legal technicality and form as possible. Accordingly I consider that the application should be determined without the need for any further material.

7. I am also satisfied that procedural fairness has been accorded to the respondents in the circumstances of this case.  On 13 September 2016, along with the orders made, it was directed that my reasons for decision be published subsequently and when published a copy be placed on the Court file and sent to the parties.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 9 December 2016.

Associate: 

Date:  9 December 2016