Batkin & Anor and Bagri & Anor
[2019] FamCA 979
•19 December 2019
FAMILY COURT OF AUSTRALIA
| BATKIN AND ANOR & BAGRI AND ANOR | [2019] FamCA 979 |
| FAMILY LAW – CHILDREN – commercial surrogacy – where the children were born in India as a result of a commercial surrogacy arrangement – where the first applicant is the step-father and the second applicant is the biological father – where the applicants seek parenting orders – where the respondent surrogate mother is unable to be located – where the requirements of service have been dispensed with – order that the applicants have equal shared parental responsibility – order that the children live with the applicants. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) ss 60CA, 60CC, 61B, 61DA, 64B, 65C, 69ZN Family Law Rules 2004 (Cth) |
| Bernieres and Anor & Dhopal and Anor [2015] FamCA 736 Ellison & Anor and Karnchanit [2012] FamCA 602 Fisher-Oakley & Kittur [2014] FamCA 123 Mankiewicz and Anor & Swallow and Anor [2016] FamCAFC 153 Masters and Anor & Harris [2017] FamCA 450 |
| FIRST APPLICANT: | Mr A Batkin |
| SECOND APPLICANT: | Mr B Batkin |
| FIRST RESPONDENT: | Ms Bagri |
| SECOND RESPONDENT: | Mr Bagri |
| FILE NUMBER: | MLC | 14145 | of | 2018 |
| DATE DELIVERED: | 19 December 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Johns J |
| HEARING DATE: | 13 December 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANTS: | Ms Swann |
| SOLICITOR FOR THE APPLICANTS: | Wilckens Roche Lawyers |
| THE FIRST RESPONDENT: | No appearance |
| THE SECOND RESPONDENT: | No appearance |
Orders
That the first and second-named applicants have equal shared parental responsibility for the children, X and Y, both born … 2013.
That the children live with the first and second-named applicants.
That all extant applications be otherwise dismissed.
That 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 Batkin & Bagri 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: MLC 14145 of 2018
| Mr A Batkin |
First Applicant
And
| Mr B Batkin |
Second Applicant
And
| Ms Bagri |
First Respondent
And
| Mr Bagri |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In November 2013, the twin children of the proceedings, X and Y, arrived in Australia for the first time. The children were conceived and born in India as a result of an artificial conception procedure, pursuant to an overseas commercial surrogacy arrangement. They have been in the applicants’ care since their birth.
Some five years later, on 7 December 2018, the first and second applicants initiated proceedings in the Family Court of Australia seeking final parenting orders in relation to the two children. They seek orders that they have equal shared parental responsibility and that the children live with them. The applicants filed an amended Initiating Application on 24 October 2019 in which they also sought a declaration as to parentage. Ultimately, they did not press their application for that declaration at the hearing.
The first respondent, the surrogate mother and the second respondent, the surrogate mother’s husband (“the respondents”), have not been served with the applicants’ application. Further, the respondents have filed no material in response to these proceedings. On 25 January 2019 a registrar ordered that the applicants serve upon the respondents their application, affidavits and orders at the respondents last known address in India. Pursuant to the terms of the surrogacy agreement between the second applicant and the first respondent, the first respondent was to notify him of any of change of address for a period of 18 years following the birth of the children.[1] Notwithstanding that provision, the first applicant deposes that the applicants have not received notice from the first respondent of any change in her address.
[1] Exhibit A-1, p 27.
An affidavit of service was filed on 10 May 2019 by Ms H, confirming the documents, including the Initiating Application, affidavits of the applicants and the orders made 25 January 2019 were translated into Hindi and posted to the respondents at their last known address. No response to that correspondence was received by the applicants or their lawyers.
On 15 May 2019, the registrar made orders requiring the respondents to file material in the proceedings, and for the applicants to serve those orders on the respondents.
A further affidavit of service sworn by Mr C was filed on 7 June 2019. Mr C deposes that the applicants’ court documents together with the orders made 25 January and 15 May 2019 were translated to Hindi and again posted to the respondents at their last known address. No response was received by the applicants or their lawyers to that correspondence.
On 2 August 2019, the applicants filed an Application in a Case seeking orders that the service of the documents referred to in the orders of 25 January 2019 and 15 May 2019 be dispensed with, pursuant to r 7.18 of the Family Law Rules 2004 (Cth) (“the Rules”). An affidavit was filed the same date, sworn by Ms H. Ms H deposes that the applicants had engaged process servers in India to assist in the service of documents on the respondents, but that those agents were unable to locate the respondents at their last known address or surrounds. Further, Ms H deposes that her firm had communicated with the surrogacy agency based in City F in an attempt to locate the respondents, to no avail.
On 9 August 2019 the registrar made orders in chambers acceding to the applicants’ application. Order 1 provided that “further service of the documents referred to in Order 2 of the Orders of 25 January 2019 and Order 3 of the Orders of 15 May 2019 be dispensed with.”
Having regard to the efforts of the applicants to effect service on the respondents I am satisfied that there is little more the applicants could do or be required to do in order to give notice to the respondents of these proceedings.
As the requirement to effect service pursuant to the Rules has been dispensed with, and the respondents have not engaged in the proceedings, having filed no material to date, the applicants’ application is unchallenged and unopposed. The evidence adduced by them as to the circumstances of the children’s conception and their parenting arrangements since that time is thus not contradicted. Given that position on 9 October 2019, I made orders for the preparation of a family report pursuant to s 62G(2) of the Family Law Act 1975 (Cth) (“the Act”). That report, dated 12 November 2019, was released to the parties on 14 November 2019.
The applicants’ application was heard on 13 December 2019. These are my Reasons for Judgment with respect to that application.
The parties
The first applicant, Mr A Batkin, is aged 49. He is currently employed as a medical professional.
The second applicant, Mr B Batkin, is aged 50. He is engaged in home duties. The second applicant is the biological father of the children of the proceedings.
The first and second applicant (“the applicants”) have been in a de facto relationship for more than 16 years.
The applicants currently reside together with the children, X and Y Batkin, both aged 6. The children have lived with the applicants since they were born.
The first respondent, Ms Bagri, is the surrogate mother of the children. The second respondent, Mr Bagri, is the first respondent’s husband. The respondents are married and reside in India together. Little other information is known about the respondents as they have filed no material in these proceedings.
The children were conceived as a result of in vitro fertilisation procedures in India, using the second applicant’s sperm with donated ova from an anonymous donor.
Background
In or around 2012, the applicants made the decision to explore options to have children pursuant to a surrogacy arrangement.
The applicants subsequently contacted the Department of Foreign Affairs and Trade to obtain approval to undergo a commercial surrogacy program overseas, and to notify the department that they would be applying for Australian citizenship by descent for any child born as a result. That approval was granted.
On 1 October 2012, the applicants entered into a consultancy agreement with D Pty Ltd.[2] This contract authorised D Pty Ltd to liaise with Indian based surrogacy services on the applicants’ behalf.
[2] Exhibit A-1, p 3-6.
On 22 November 2012, the applicants then entered into an agreement with E Inc.[3] This agreement provided the provision of consultancy services in India, which facilitated the applicants in accessing assisted reproductive technology.
[3] Exhibit A-1, p 8-11.
On or around 20 December 2012, the second applicant entered into a surrogacy arrangement with the respondents (“the Surrogacy Agreement”).[4] That agreement provides that the first respondent consented to being a surrogate and understood the associated medical risks. Further, the first respondent signed a Declaration of Intent, acknowledging that she had no intention of having physical or legal custody of the children, and that the second respondent was the intended parent. This declaration was attached to the Surrogacy Agreement.[5]
[4] Exhibit A-1 p 14-38.
[5] Exhibit A-1, p 34.
The circumstances surrounding the Surrogacy Agreement remain unknown. The applicants depose that the mother spoke little English. There is no evidence before the Court as to whether the Surrogacy Agreement was translated into Hindi prior to its execution by the first respondent.
The second respondent also signed an affidavit, as the first respondent’s guardian, acknowledging that he would not seek to assert any parental rights or seek custody or visitation with the children.[6] Again there is no evidence before the Court that this document was translated into Hindi prior to its execution by the second respondent.
[6] Exhibit A-1, p 36.
The lack of information regarding the respondents’ circumstances, including whether they read and understood the Surrogacy Agreement or received independent legal advice with respect to the agreement reinforce the concerns of this Court as to international commercial surrogacy arrangements. I have previously highlighted those in the decision of Masters and Anor & Harris [2017] FamCA 450. Similar concerns have also been highlighted in the decisions of Cronin J in Fisher-Oakley & Kittur [2014] FamCA 123, Ryan J in Ellison & Anor and Karnchanit [2012] FamCA 602 and Berman J in Bernieres and Anor & Dhopal and Anor [2015] FamCA 736.
The applicants travelled to City F, India for the birth of the children in 2013. The second respondent was recognised on the children’s Indian birth certificates as being the biological father, and the mother is listed as “not known”.[7] The applicants depose that a DNA test was conducted at a testing facility in Melbourne, confirming that the second applicant is the biological father of the two children, with a relative chance of paternity of 99.999996% for X,[8] and a relative chance of paternity of 99.99998% with respect to Y. [9]
[7] Exhibit A-1, p 54-55.
[8] Exhibit A-1, p 61.
[9] Exhibit A-1, p 66.
Once the children were born, the applicants stayed with the children in the hospital for three days until they were discharged. Upon discharge, the applicants moved into temporary accommodation in City F with the children. The respondents and their two children visited the applicants and the twins at their accommodation in City F. This was the last time the applicants had contact with either of the respondents.
The applicants received an affidavit from the first respondent on or about 21 October 2013,[10] in which she deposes:-
· That she had undergone surrogacy treatment;
· That she had delivered twin girls in 2013;
· That she had received full and final payment from the second applicant; and
· That she had no objection to the second applicant travelling with the children anywhere in the world.
[10] Exhibit A-1, p 79-80.
After paternity had been confirmed, the applicants applied for Australian citizenship for the children through the Australian High Commission in City J; that application was approved on 17 October 2013.[11]
[11] Exhibit A-1, p 72-77.
The applicants returned to Australia with the children on 2 November 2013, and the children have lived with the applicants in their care since their arrival.
Material relied upon
The applicants relied on the following material:-
·Amended Initiating Application filed 24 October 2019;
·Affidavit of the second applicant filed 7 December 2018;
·Affidavit of the first applicant filed 4 April 2019;
·Affidavit of the first applicant filed 24 October 2019;
·Affidavit of the second applicant filed 24 October 2019;
·Exhibit A-1 being annexures to the affidavit of the first applicant affirmed 3 April 2019;
·Exhibit A-2 being annexures to the affidavit of the second applicant affirmed 23 October 2019; and
·Family Report dated 12 November 2019.
Orders sought
At the final hearing, the applicants sought the following final parenting orders as set out in their Amended Initiating Application filed 24 October 2019:-
· That the First Applicant and the Second Applicant have equal shared parental responsibility for the children.
· That the children live with the First Applicant and the Second Applicant.
Parenting order
Legal principles
Section 65C of the Act provides that a parenting order in relation to a child may be applied for by:-
(a) either or both of the child’s parents; or
(b) the child; or
(ba) a grandparent of the child; or
(c)any other person concerned with the care, welfare or development of the child.
I am satisfied that the second applicant, who is the biological father of the children and named on their birth certificates has standing to seek parenting orders as he falls within s 65C(a) of the Act.
The Full Court considered the issue of standing to bring an application for a parenting order pursuant to s 65C of the Act in the decision of Mankiewicz and Anor & Swallow and Anor [2016] FamCAFC 153 (“Mankiewicz”). At paragraph 10 Ryan and Austin JJ stated:-
…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.
Having regard to the considerations identified in Mankiewicz as to who may fall within s 65(c) of the Act, I am satisfied that the first applicant is a person concerned with the children’s care, welfare and development. Together the applicants engaged in a surrogacy process and I am satisfied that the children born as a result of those efforts were longed for by both applicants who have attended to all of the children’s physical, intellectual and emotional needs since their birth.
The applicants seek parenting orders pursuant to Part VII of the Act. A parenting order may deal with any aspect of the care, welfare or development of the children or any other aspect of parental responsibility for a child (s 64B).
Parental responsibility is defined under s 61B of the Act and means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
In making parenting orders, the child’s best interests are the paramount consideration (s 60CA). Section 60CC(2) and (3) of the Act set out the primary and additional considerations the Court must consider in determining what is in the child’s best interests.
As the first applicant is not a parent of the children within the meaning of the Act, the presumption as to equal shared parental responsibility pursuant to s 61DA of the Act does not apply.
Primary considerations
The primary considerations pursuant to 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.
In applying those primary considerations, greater weight must be given to the need to protect children from physical or psychological harm or from being subjected to or exposed to, abuse, neglect or family violence (s 60CC(2A)). The unchallenged evidence in this matter is that there is no allegation that the children are exposed to or subjected to physical or psychological harm in the applicants’ care and the children are not in need of protection from such harm. Indeed, Ms G confirms in the Family Report that the children present as well-cared for and that the applicants are attentive to all of their needs. I accept that evidence.
All of the evidence supports a finding that the children have a meaningful relationship with the applicants and will benefit from the continuation of that relationship. From the children’s perspective, the reality of their world is that they know no other life other than being cared for and nurtured by the applicants. The evidence of the Family Consultant, Ms G is that the children are thriving in the applicants’ care. Accordingly, I am satisfied that the children will benefit from having a meaningful relationship with the applicants.
Additional considerations
The Family Consultant did not seek the children’s views as to their living arrangements. During observation, both children identified and drew pictures of their family, which included the applicants as well as members of their extended family.
As to the nature of the children’s relationship with the applicants, Ms G observed both children as being comfortable and familiar in their interactions with the applicants. She observed that there was “a natural sense of comfort and warmth in those interactions”. [12]
[12] Family Report dated 12 November 2019, para 37.
Further, the evidence of both the first and second-named applicant is that they enjoy loving and close relationships with both children. The first and second- applicants attend to every aspect of the children’s physical and emotional needs. Both applicants have arranged their work lives and have taken periods of paternal leave in order to care for the children.
When the children were aged 12 months, they commenced attending child-care two days per week. The applicants each worked part-time to support and care for the children during that period. Since July 2017, the second-named applicant has been a “stay-at-home” parent.
The children attended four-year-old kindergarten in 2018 and commenced school this year. The applicants depose that the children have settled well into their school life and are making good progress.
The first-named applicant relied upon a report from the children’s child-care centre. That report dated 9 October 2017 noted that the children are “happy well-balanced children with a love of learning and have well developed social skills.”[13]
[13] Exhibit A-1, p 86.
Further, the applicants were reported to have “contributed to [the child-care centre] community, attending family activities, information sessions and donating craft resources. They have always had positive relationships with [the children’s] educators and the [child-care] team. They are always interested in their daughters’ development and display a strong loving family bond.”[14]
[14] Exhibit A-1, page 86.
The semester one school reports for both children indicated that they are progressing well in all areas at school.
In addition to their school activities, the applicants have enrolled the children in a range of extra-curricular activities including gymnastics and swimming. The children communicated to the Family Consultant a strong enjoyment of both their school and extra-curricular activities.
Having regard to all of the evidence, I am satisfied that the applicants have supported and nurtured all aspects of the children’s physical, emotional and intellectual development.
In addition, I am satisfied that the applicants have been responsible for all aspects of the children’s financial support since their birth. The first applicant deposes that the parties and the children live in a four-bedroom home which has a large front and rear yard. Although the children currently share a bedroom, the applicants anticipate that as they grow older they will each seek to have their own bedroom.
The orders sought by the applicants will ensure that the current care arrangements for the children continue.
The Family Consultant observed that the applicants present as child-focused and insightful and have demonstrated a capacity to meet the children’s needs. Further, she observed that the applicants are conscious of the children’s potential to be curious about their parentage and family unit.
In conclusion, the Family Consultant observed that the children seem:-
settled and secure at the current time, and this is a credit to [the applicants’] efforts in providing the children with the necessary environment to meet their developmental milestones and form secure bonds. This secure base may provide the children with the comfort and confidence to further explore their parentage with the support of their fathers. In addition to this, [the applicants’] resourcefulness will assist in providing appropriate guidance and direction to [the children].[15]
I accept that evidence.
[15] Family Reported dated 12 November 2019, para 43.
Having regard to all of the evidence, I am satisfied that the applicants have provided and will continue to provide for all of the children’s physical, emotional and intellectual needs. I am satisfied that the applicants have demonstrated a consistent and positive attitude towards the responsibilities of parenthood. All of the evidence supports a finding that the children are much-loved and well cared for by the applicants and that this will continue into the future.
Conclusion
Having regard to the evidence of both the applicants and the Family Consultant, I am satisfied that it is in the children’s best interests that the applicants have equal shared parental responsibility for making decisions regarding the long-term care, welfare and development of the children. The reality is that the applicants have undertaken that decision-making responsibility since the children’s birth. An order in those terms will ensure that they continue in that role. The Family Consultant supports the making of an order in those terms.
I am also satisfied that it is appropriate and in the children’s best interests that I make an order that the children live with the applicants. Again, this order will reflect the reality of the children’s lives.
All of the evidence before the Court supports a finding that the applicants are committed to the care, welfare and development of the children. That being the case, I will make orders as sought by the applicants to ensure that such arrangements continue.
Accordingly, having made the above findings as to the primary and additional considerations required in s 60CC of the Act and being satisfied that the applicants’ proposals are in the children’s best interests, I make orders as appear at the commencement of these reasons.-
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 19 December 2019.
Associate:
Date: 19 December 2019
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