Bernieres & Dhopal
[2017] FamCAFC 180
•1 September 2017
FAMILY COURT OF AUSTRALIA
| BERNIERES AND ANOR & DHOPAL AND ANOR | [2017] FamCAFC 180 |
| FAMILY LAW – APPEAL – CHILDREN – PARENTAGE – Where the child of the relationship was born as a result of a surrogacy arrangement – Where the appellants complain that the primary judge failed to make declarations of parentage in relation to the child as sought by them and to grant leave to apply for a step-parent adoption – Where the appellants submit that it was open to the Court to apply s 69VA of the Family Law Act 1975 (Cth) – Where s 69VA of the Family Law Act 1975 (Cth) is not available here, s 60HB of the Family Law Act 1975 (Cth) covers the field and s 60H of the Family Law Act 1975 (Cth) does not apply – Where the unfortunate result of that conclusion is that the parentage of the child is in doubt – Where there is no question here that the father is the biological father of the child but that does not translate into him being a parent for the purposes of the Family Law Act 1975 (Cth) – Where the mother is not the biological mother and is even less likely to be the “legal parent” – Where in the alternative the appellants sought a declaration pursuant to s 67ZC of the Family Law Act 1975 (Cth) – Where s 67ZC of the Family Law Act 1975 (Cth) does not apply – Where it is alleged by the appellants that the primary judge failed to address their application for leave to apply for a step-parent adoption pursuant to s 60G of the Family Law Act 1975 (Cth) – Where the transcript shows differently – Where it was only necessary for the primary judge to address s 60G of the Family Law Act 1975 (Cth) if there was a declaration of parentage in favour of the second appellant but not in favour of the first appellant – Where the primary judge did not make a declaration in favour of either party and thus on the appellants’ own case the primary judge was not obliged to address the application pursuant to s 60G of the Family Law Act 1975 (Cth) – Where the primary judge did not address s 60G of the Family Law Act 1975 (Cth) in his reasons for judgment but given there was no basis to make an order under that section a lack of reasons specifying that should not result in the appeal being allowed – Where there is no merit in the grounds of appeal – Appeal dismissed. |
| Adoption Act 1974 (Vic) s 33 Family Law Regulations 1984 (Cth) regs 12C, 12CA and 12CAA |
| Keyes, M and Chisholm, R, ‘Commercial Surrogacy – Some Troubling Family Law Issues’ (2013) 27 Australian Journal of Family Law 105 Commissioner of Taxation v Hornibrook (2006) 156 FCR 313 |
| FIRST APPELLANT: | Ms Bernieres |
SECOND APPELLANT | Mr Bernieres |
| RESPONDENTS: | Ms Dhopal and Mr Kesai |
| FILE NUMBER: | MLC | 4167 | of | 2014 |
| APPEAL NUMBER: | SOA | 69 | of | 2015 |
| DATE DELIVERED: | 1 September 2017 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bryant CJ, Strickland and Ryan JJ |
| HEARING DATE: | 13 October 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 9 September 2015 |
| LOWER COURT MNC: | [2015] FamCA 736 |
REPRESENTATION
| COUNSEL FOR THE FIRST AND SECOND APPELLANTS: | Dr Smith |
| SOLICITOR FOR THE FIRST AND SECOND APPELLANTS: | Boers Associates |
| COUNSEL FOR THE RESPONDENTS: | No appearance |
| SOLICITOR FOR THE RESPONDENTS: | Not represented |
Orders
The appeal be dismissed.
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 Bernieres and Anor & Dhopal 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 69 of 2015
File Number: MLC 4167 of 2014
| Ms Bernieres and Mr Bernieres |
Appellants
And
| Ms Dhopal and Mr Kesai |
Respondents
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed on 25 August 2016, Ms Bernieres (“the first appellant”) and Mr Bernieres (“the second appellant”) appeal against orders made by Berman J on 9 September 2015.
Though the appellants do not complain of the orders actually made, they appeal on the basis that his Honour failed to make orders which they had sought in their affidavits, and in a statement of issues, namely, orders seeking declarations of parentage in relation to Q (“the child”), pursuant to s 69VA of the Family Law Act 1975 (Cth) (“the Act”), and leave to apply for a step-parent adoption pursuant to s 60G of the Act.
The respondents to the appeal are the child’s birth mother (Ms Dhopal) and her husband (Mr Kesai). They have not taken any part in the appeal proceedings.
Brief Background
The first appellant was born in 1970. She and the second appellant were married in May 2004 in Melbourne.
The appellants decided to enter into an international surrogacy agreement pursuant to which the second appellant would donate his sperm to be used to fertilise an ovum belonging to an anonymous donor. The arrangement was entered into by the appellants on 13 August 2013 and was signed by all parties to the appeal.
The child was born as a result of the surrogacy arrangement in 2014.
The second appellant underwent a DNA test on 25 February 2014 and the child underwent a DNA test on 29 April 2014. The results of the child’s sample were matched with those of the second appellant and the “relative chance of paternity” was found to be 99.995 per cent (at [37]).
Approval was given for the child to receive an Australian Certificate of Citizenship by Descent on 9 May 2014 and the child was issued an Australian passport. The birth mother consented to this course.
The Trial Judge’s Reasons for Judgment
His Honour first noted that the appellants sought “parenting orders and a declaration of parentage in relation to [the child]” and that the respondents (the birth mother and her partner) had not “filed a response to the application, nor [did] they seek any orders and by implication [supported] the orders sought by the [appellants]” (at [1] – [2]).
His Honour then set out the orders sought by the appellants. Relevantly, his Honour explained that although “not self-evident from the orders sought in the application, at paragraph 29 of the second [appellant’s] affidavit filed 20 October 2014” he sought an order in the following terms (at [9]):
[The first appellant] and I seek leave of the court to amend our Initiating Application to seek a declaration of parentage on my part pursuant to section 69VA Family Law Act, and leave to apply for a step-parent adoption pursuant to section 60G Family Law Act. If the Declaration of Parentage and leave to apply for a step-parent adoption is granted, then we intend to apply to the County Court of Victoria for a step-parent adoption in order that [the first appellant] may then become a legal parent of [the child] thereby formalising our parent/child relationship with her.
His Honour noted that this order was supported by the first appellant and they relied upon a Statement of Issues document which was “directed to a submission that would see a declaration of parentage under s 69VA of the Act being granted to the non-biological party namely, the first [appellant]”. His Honour recorded that he would consider the original orders sought, and the proposed amendment “to include a declaration in favour of each of the [appellants]” (at [10] – [12]).
His Honour subsequently turned to the commercial surrogacy arrangement. First, his Honour noted that the current arrangement could be described as “gestational surrogacy” pursuant to which the birth mother had no genetic link with the child and the second appellant had donated his sperm. Thus, the only genetic relationship was between the child and the second appellant. His Honour then considered the concept of and various expressed attitudes towards surrogacy, particularly commercial surrogacy, and noted that the concerns relevant to this issue “enlivens the need to give close consideration to the circumstances in which a commercial international surrogacy is undertaken and the application of Part VII of the [Act] to the proceedings” (at [27]).
In relation to these parties, his Honour set out the reasons for the appellants’ decision to undertake a commercial surrogacy agreement on 13 August 2013 in the circumstances they did. His Honour then summarised some of the provisions contained in the surrogacy agreement.
His Honour summarised the issues for determination and explained that the “principal submission of the [appellants was] that a declaration of parentage should be made in their favour notwithstanding that the first [appellant] is not the biological progenitor of [the child]”. His Honour noted that the appellants relied upon s 69VA of the Act in this regard and that there was an assumption throughout the submissions that “it is axiomatic that the second [appellant] will be entitled to a declaration arising from the biological connection, but that the focus and complexity of the legislative matrix dealing with parentage focusses on the first [appellant]”. In the event s 69VA did not apply to the first appellant, his Honour noted the appellants’ reliance on s 67ZC of the Act (at [45] – [47]).
Although not argued by the appellants, his Honour explained that a “further relevant consideration is whether there is an emphasis in Pt VII of the Act that focusses upon a biological connection to the effect that ‘parent’ equates with a child’s biological parent”, and further, whether there was “something in the Act which would promote a special relationship with a child, namely that of a parent, simply because of the biological connection unless specifically excluded, or is more required” (at [48]). His Honour then said:
49.It is necessary therefore to determine whether the second [appellant] is a parent and if so, whether that can be extended to include the first [appellant].
50.A second consideration is that notwithstanding a finding that a party is a parent for the purposes of the Act, whether the power exists to make an order for a declaration of parentage.
51.Following a determination of whether the [appellants] are parents under the Act, the parenting issues need to be considered.
His Honour turned to the definition of “parents”, and noted that there was no general definition of a parent and that the definition in s 4(1) of the Act was unhelpful. His Honour then cited Groth v Banks (2013) 49 Fam LR 510, Hunt v Minister for Immigration and Ethnic Affairs (1993) 113 ALR 509, Donnell v Dovey (2010) 42 Fam LR 559 and Re Patrick (2002) 28 Fam LR 579 and discussed how these cases defined a “parent”.
His Honour then referred to s 60HB of the Act in relation to children born under surrogacy arrangements and noted that for the purposes of this case the relevant legislation pursuant to reg 12CAA of the Family Law Regulations 1984 (Cth) (“the Regulations”) was the Status of Children Act 1974 (Vic) (“the Status of Children Act”). His Honour discussed ss 20 and 22 of that Act and explained that demonstrably the appellants were “not able to gain any assistance from the relevant Victorian legislation” as the surrogacy arrangement was “clearly commercial as opposed to altruistic, was not commissioned with the assistance of a registered ART provider and overarchingly, and (sic) the procedure was not carried out in Victoria”. Thus, s 60HB of the Act did not apply to this case (at [67] – [73]).
Given that, his Honour turned to consider whether s 69VA of the Act provided a power for making a parentage declaration. His Honour noted the appellants’ submission that “biological evidence is not required for the court to issue a declaration of parentage under s 69VA” and that s 69VA merely requires the court to receive such evidence as is material to the question of parentage (at [75]).
In this regard, his Honour was not satisfied that s 69VA was a “stand alone power but rather requires ‘parentage’ of a child to be in issue in proceedings in respect to another matter”. His Honour noted the construct of subdivision E of Division 12 of Part VII of the Act in relation to parentage evidence and the steps to be taken in determining the parentage of a child. His Honour accepted on the basis of the legislation that the “focus is to ensure that the court has a wide discretion in relation to the types of orders that can be made in order to determine the parentage of a child in issue” and explained that the “reference to ‘receiving evidence’ in s 69VA is directed to determining the biological connection and therefore the parentage of a child” (at [76] – [77]).
However, his Honour reiterated that s 69VA was not a stand-alone power and the issue of parentage of a child must be in issue in respect to another matter in the proceedings. His Honour noted that such power was “limited by the fact that the court can only make a declaration if it finds that a person is a biological progenitor” (at [78]).
Further, his Honour explained that the use of “the power by the Family Court is limited to situations where the application is incidental to the determination of another matter within Commonwealth power” which could create “difficulties for the applicants in circumstances where a parent may be seeking a declaration of parentage for the purposes of obtaining a passport for a child that is not ‘incidental to the determination of any other matter within the legislative powers of the Commonwealth’ before the court”. His Honour cited M v H (1993) 17 Fam LR 416 and Brock v White (unreported) in this regard (at [79]).
His Honour then discussed the cases of Ellison and Anor & Karnchanit (2013) 48 Fam LR 33 and Mason & Mason and Anor [2013] FamCA 424 (“Mason”), both decisions of Ryan J. In relation to Ellison and Anor & Karnchanit, his Honour noted that Ryan J had the opportunity to reflect on this decision in Mason, where she demonstrated “some reservation as to the correctness of what was said in relation to the availability of general parenting presumptions when applied to children born through surrogacy” (at [82]).
Next, his Honour considered whether there was an inherent power for a superior court to grant a parentage declaration. His Honour noted that the Family Court was a superior court of record, but explained that despite its unique position in relation to inherent powers, the jurisdiction of the court was “statutorily limited” and the court does not have power “to make declaratory orders other than those authorised by the Act and its inherent power extends only to administer justice and prevent abuse of process” (at [84]). In support of these propositions his Honour cited and discussed Manning & Manning (1977) 3 Fam LR 11,518, Re Sarah [2014] FamCA 208, Ex parte Green (1984) 156 CLR 185 and DJL v The Central Authority (2000) 201 CLR 226. His Honour thus found that there was no inherent power to make a declaration as sought (at [85] – [90]).
His Honour then turned to ss 60H and 60HB of the Act. As to s 60H, his Honour referred to Groth & Banks at [18] where Cronin J summarised the three instances in which a donor is not a parent of a child born as a result of artificial conception. His Honour explained that this section had been “interpreted as a provision designed to ‘enlarge, rather than restrict the categories of people who may be regarded as the child’s parents’” and cited Re Mark: An Application Relating to Parental Responsibilities (2003) 31 Fam LR 162 (“Re Mark”) at [40] per Brown J (at [91] – [92]).
His Honour noted that it was “considered potentially unnecessary to refer to the State laws to establish the applicant as a parent” (at [93]).
His Honour then explained that if s 60H of the Act was “not interpreted as providing an exhaustive definition of a parent for a child conceived through assisted reproductive technology, the authorities suggest that the ordinary meaning of the word ‘parent’ is to be preferred”. His Honour again referred to Groth & Banks at [16] and found that Cronin J’s judgment in this regard “emphasised the interpretation of ‘parent’ as extrapolated by Brown J [in Re Mark] thereby enabling or perhaps requiring each case to be determined on its particular facts” (at [94]). His Honour considered the decisions in Baker & Landon (2010) 43 Fam LR 675 and Mason as to ss 60H and 60HB of the Act, and concluded as follows:
98.I consider that reliance upon s 69VA for the declaration as sought by the [appellants] is of no assistance and is not an independent source of power.
99.The ability for a court to decide the issue of parentage is only to be embarked upon if an “issue” arises. The evidence that is to be received can encompass a broad category but must be focussed and directed to the determination of the “issue of parentage”. Section 69VA is directed to a determination of the biological connection that a party may have with a child and it is only thereafter that the court can consider whether to issue a “declaration of parentage”. The purpose of the declaration is as conclusive evidence of parentage for the purposes of the laws of the Commonwealth.
100.In the present case there is no dispute or issue as to parentage. The second [appellant] is the biological progenitor of Q. There is no need to produce evidence of parentage pursuant to s 69V, nor to invoke the provisions of s 69W as to orders for the carrying out of parentage testing procedure, nor 69X being orders associate with parentage testing orders.
In the alternative, his Honour considered s 67ZC of the Act which the appellants argued could be “interpreted such that it confers power on the court to allocate parental responsibility to non-parents namely, parental responsibilities that are able to be allocated to parents only”. His Honour explained that the scope of this section was “confined by s 69ZH that where there is a reference to a child it is confined to a ‘child of the marriage’”, which his Honour noted the child in these proceedings was clearly not (at [101] – [104]).
The appellants had argued that the expression “child of the marriage” as used in s 67ZC (by virtue of s 69ZH(2)(a)) was ambiguous and that the definition of “child of the marriage” provided for in s 60F(1) of the Act was not exhaustive. The appellants supported this proposition by reference to art 3.2 of the United Nations Convention on the Rights of the Child (“the Convention”) and asserted that “such an interpretation would ensure that children with an intended parent who cannot be declared a parent under s 69VA will receive the care and protection that is necessary for their wellbeing” and would “enable the court to allocate the full range of parental responsibilities and provide appropriately for the welfare of the child”. His Honour rejected this argument as he was not satisfied there was any ambiguity in the term “child of the marriage” and thus there was no need to consider the Convention. His Honour therefore found that the child was not a child of the marriage and s 67ZC did not apply (at [105] – [108]).
His Honour then referred to s 65C of the Act and explained that consistent with the Convention, “s 65C provides an appropriate pathway for all persons concerned with the care, welfare and development of a child, whether they be a parent of the child or otherwise pursuant to Part VII of the Act”. His Honour also referred to the objects in s 60B of the Act and concluded by saying that “[i]t could not be said that without relying upon s 67ZC in some way there has been insufficient regard [in the Act] to Article 3.2 of the Convention” (at [109] – [112]).
As to the consequences of there being a biological connection between the second appellant and the child, his Honour began by discussing Green-Wilson & Bishop [2014] FamCA 1031 per Johns J as to a declaration of parentage for a biological father in circumstances of commercial surrogacy. His Honour particularly noted her Honour’s reasons in relation to the law regarding surrogacy in Victoria at [41] – [43] and her conclusion that “it was appropriate to make a declaration with respect to a child born in those circumstances and now living in Victoria”. His Honour explained that “[u]ltimately, the tension as contended by her Honour was to balance the interests of the child and public policy considerations” (at [113] – [119]).
His Honour then opined that the circumstances surrounding the birth of the child were “not dealt with directly either by the relevant state legislation or by reference to s 60HB of the Act” and that this may be an unsatisfactory position. However, his Honour did not consider that “the definition of a parent should be extrapolated because of a legislative vacuum” (at [121]). Though his Honour recognised that the category of persons who satisfy the definition of a parent were “not necessarily closed” pursuant to s 60H and s 60HB, his Honour considered that “any perceived hiatus is a matter for legislation and not judicial interpretation” (at [122]).
His Honour then discussed the problems and tensions arising in respect of surrogacy agreements such as this. In particular, his Honour noted that the “potentially onerous obligations as set out in the [surrogacy] agreement, despite their almost certain lack of enforceability, may nonetheless represent a powerful and persuasive element weighing heavily upon the [birth] mother”. Further, his Honour found that although the “legislation has not kept pace with the reality of international surrogacy arrangements… it cannot be assumed that the only approach is to revert to the biological connection as an alternative definition of ‘parent’”. Rather, his Honour considered that care “must be taken in respect of any approach which has as its heart a determination based purely on a genetic connection without more being considered”. Thus, in conclusion his Honour found that as the state legislation did not provide for the circumstances of the child’s birth, the second appellant was not the parent of the child for the purposes of the Status of Children Act (at [124] – [127]).
As to the parenting orders to be made, his Honour noted that the appellants sought equal shared parental responsibility, which was governed by Part VII of the Act. His Honour explained that he had had regard to the principles in ss 69ZN(3)–(7) and found that an order for equal shared parental responsibility was “entirely appropriate” (at [128] – [132]).
His Honour then noted s 65DAA(2) and found that as the “child remains in the care of each of the [appellants his Honour was] satisfied as to the child’s current circumstances” (at [134]). His Honour then found as follows, referring generally to the proposals of the parties, the objects in s 60B of the Act and the considerations in ss 60CC(2) and (3):
138.Notwithstanding that I did not hear from the respondents, I accept without reservation that the [birth] mother and her husband have no interest or intention to seek any relationship with [the child] whatsoever.
139.Accordingly, the care, welfare and development of [the child] falls exclusively to the [appellants].
140.Notwithstanding that I have significant misgivings in respect of the surrogacy process and in particular the purported contracted relationship as between the [appellants] and the respondents as evidenced by the surrogacy agreement the terms of which are disturbing, I have no doubt that the [appellants] have overarching love for [the child] and have the ability, capacity and intention to meet the child’s needs.
141.In the circumstances of this case it is not necessary to give separate consideration to each of the relevant provisions of s 60CC. I do however bring to account s 60CC(3)(m) and am easily persuaded that orders as sought by the [appellants] are in the child’s best interests.
In conclusion, his Honour summarised the policy considerations surrounding international commercial surrogacy and explained that he could “well understand the dismay of the [appellants] that they are not able to secure for all purposes that which they fervently seek namely, recognition and a declaration of parentage”. His Honour thus noted the need for “urgent legislative change” in this regard (at [142] – [148]).
The appeal
Ground 1
The learned judge at first instance erred in failing to declare the second appellant a parent pursuant to s 69VA of the Family Law Act 1975.
Ground 2
The learned judge at first instance erred in failing to declare the first appellant a parent pursuant to s 69VA of the Family Law Act 1975.
These two grounds can conveniently be addressed together.
As is apparent, the appellants here are suggesting that it is open to the Family Court of Australia to apply s 69VA to make the declarations sought.
It is said that s 60HB of the Act does not apply to exclude the appellants as parents of the child because that section only applies where there is an order of a State or Territory transferring parentage to the commissioning parties.
It is then put that where s 60HB does not apply, as here on their argument, it is necessary to look at s 60H, but that does not provide an exhaustive definition of who is a parent in these circumstances, and thus declarations can be made under s 69VA if the threshold questions of whether the proceedings involve a matter in which parentage is an issue, and whether there is evidence that places the parentage of a child in doubt (G & H (1993) FLC 92–380) are satisfied. The appellants submit that that is the case here.
However, the issue that must be considered is whether it is in fact open to apply s 69VA here, and that would depend on whether s 60HB covers the field in relation to surrogacy arrangements, and where s 60H sits in the statutory scheme.
Section 60H provides as follows:
CHILDREN BORN AS A RESULT OF ARTIFICIAL CONCEPTION PROCEDURES
60H(1) If:
(a)a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent); and
(b) either:
(i)the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or
(ii)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;
then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act:
(c)the child is the child of the woman and of the other intended parent, and
(d)if a person other than the woman and the other intended parent provided genetic material – the child is not the child of that person.
60H(2) If:
(a)a child is born to a woman as a result of the carrying out of an artificial conception procedure; and
(b)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman;
then, whether or not the child is biologically a child of the woman, the child is her child for the purposes of this Act.
60H(3) If:
(a)a child is born to a woman as a result of the carrying out of an artificial conception procedure; and
(b)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of a man;
then, whether or not the child is biologically a child of the man, the child is his child for the purposes of this Act.
60H(4) (Repealed by No 115 of 2008, Sch 3A[7].)
60H(5)For the purposes of subsection (1), a person is to be presumed to have consented to an artificial conception procedure being carried out unless it is proved, on the balance of probabilities, that the person did not consent.
60H(6) In this section:
This Act includes:
(a) the standard Rules of Court; and
(b) the related Federal Circuit Court Rules
The words “artificial conception procedure” are defined in s 4 of the Act as including:
a)artificial insemination; and
b)the implantation of an embryo in the body of a woman.
Pursuant to reg 12C of the Regulations, for the purpose of s 60H(1)(b)(ii), the Status of Children Act is prescribed. In relation to s 60HB(2), s 14 of that Act is prescribed (reg 12CA). There are no laws prescribed in relation to s 60H(3).
Section 60HB provides as follows:
CHILDREN BORN UNDER SURROGACY ARRANGEMENTS
60HB(1) If a court has made an order under a prescribed law of a State or Territory to the effect that:
(a) a child is the child of one or more persons; or
(b) each of one or more persons is a parent of a child;
then, for the purposes of this Act, the child is the child of each of those persons.
60HB(2) In this section:
This Act includes:
(a) the standard Rules of Court; and
(b) the related Federal Circuit Court Rules.
Regulation 12CAA of the Regulations sets out the prescribed laws referred to in s 60HB(1), and for Victoria it is again the Status of Children Act.
Section 60HB was introduced into the Act in 2008 at the same time as s 60H was amended by the substitution of a new s 60H(1) (Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) (“the Amending Act”)).
The Revised Supplementary Explanatory Memorandum accompanying the Amending Act explains these amendments in the following terms:
Item 5: Subsection 60H(1)
76.This item repeals subsection 60H(1) and substitutes a new subsection 60H(1) that deals with both married and opposite and same-sex de facto couples. Opposite-sex de facto couples were previously covered in subsection 60H(4). This subsection is repealed.
77.These changes will mean that section 60H(1) applies, as well as to married couples, to current or former de facto partners who are of the same-sex and to current or former de facto partners who are of different sexes where children are born as a result of artificial conception procedures. This would mean that female same-sex de facto couples would be recognised as the parents of a child born where the couple consent to the artificial conception procedure and one of them is the birth mother. In addition, genetic material from other than the couple must be used with the relevant donor’s consent. The provision provides that the child is to be the child of the woman giving birth and her de facto partner.
…
Item 7: At the end of Subdivision D of Division 1 of Part VII
79.This item inserts new sections 60HA and 60HB into Subdivision D of Division 1 of Part VII.
…
Section 60HB – Children born under surrogacy arrangements
81.New section 60HB deals with children born under surrogacy arrangements. It provides that where a court order has been made under a prescribed law of a State or Territory relating to the parentage of a child that order will determine the parentage of the child.
As is apparent this does not necessarily assist in answering the question that we have posed.
Section 69VA provides as follows:
DECLARATIONS OF PARENTAGE
69VAAs well as deciding, after receiving evidence, the issue of the parentage of a child for the purposes of proceedings, the court may also issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.
This section is in that part of the Act (Part VII) where a number of general provisions dealing with parentage, presumptions and declarations of parentage appear, and the obvious question is whether specific sections such as ss 60HB and 60H prevail over these general provisions where they conflict. The answer to that question is assisted by the rule of statutory construction known as generalia specialibus non derogant. That provides that if there is a specific section or sections of the Act that apply, then that section or those sections prevail, particularly where, as here, the specific sections, namely s 60HB and the amended s 60H were enacted after the general (Commissioner of Taxation v Hornibrook (2006) 156 FCR 313).
The proposition that ss 60H and 60HB prevail over the general provisions can also be supported by a consideration of the meaning and effect of those two sections. As Chief Judge Thackray explained in Farnell & Anor and Chanbua (2016) FLC 93–700 at [143]; [2016] FCWA 17 at [231]:
Sections 60H and 60HB, at least to the extent that they expressly determine the status of children coming within their ambit, would be rendered meaningless if they were not interpreted to displace the presumptions in Division 12 [of the Act]. It should also be noted that ss 60H and 60HB appear in Subdivision D of Division 1 of Part VII, which is entitled “Interpretation – how this Act applies to certain children”. I conclude that while the rules of maternity and paternity in ss 60H and 60HB are not expressed as non-rebuttable presumptions, in effect they are, and they therefore trump the rebuttable Division 12 presumptions.
(Footnotes omitted)
We agree with that interpretation.
We note that this issue was also tentatively addressed by Ryan J in Mason where her Honour said this:
33.The application of these principles [namely the application of the generalia specialibus rule of statutory construction] to s 60H and s 60HB was not discussed in this hearing. It follows, that without the benefit of argument, a cautious approach to the issue is necessary. However, it is my preliminary view that for the purposes of the Act, the 2008 amendments evince an intention by Parliament that the parentage of children born as a result of artificial conception procedures or under surrogacy arrangements will be determined by reference to those provisions and not the general parentage provisions. This interpretation achieves, on a state by state (and territory) basis, a uniform system for the determination of parentage.
34.The effect of this is that unless an order is made in favour of the applicant pursuant to the Surrogacy Act [of New South Wales], the provisions of the [Family Law Act] do not permit this Court to make a declaration of parentage in his favour. Thus, on reflection, I am inclined to respectfully agree with Watts J in Dudley and Anor & Chedi [2011] FamCA 502, where at [29] his Honour determined that ultimately state law will govern the determination of parentage [of children born under surrogacy arrangements] and that state law will be recognised by federal law.
We agree with that preliminary view, and significantly this interpretation does not leave it open to find that where, as in Victoria, the relevant State legislation does not apply to the particular circumstances of the case, that lacuna can be filled by recourse to s 69VA. That is the approach though that Johns J took in Green-Wilson & Bishop where her Honour reasoned as follows:
44.In circumstances where the state legislation is silent with respect to the determination of parentage of children born of commercial surrogacy procedures (which are not prohibited in Victoria), I am satisfied that it is appropriate to make a declaration with respect to a child born of such procedures who is now living in Victoria. To do otherwise would be to elevate public policy considerations (as to the efficacy or otherwise of commercial surrogacy arrangements) above a consideration of the welfare of children born of such arrangements. In my view, the interests of the child must outweigh such public policy considerations.
In our view it is not possible to discard the plain meaning of legislation where public policy considerations may not be seen to be in the best interests of the children affected.
There is then the question of where s 60H fits in.
As was explained in an helpful article by Mary Keyes and Richard Chisholm entitled ‘Commercial Surrogacy – Some Troubling Family Law Issues’ (2013) 27 Australian Journal of Family Law 105, 112:
Section 60H deals with the status of children born as a result of fertility procedures. It was not designed for surrogacy situations, but it can affect them, because fertility procedures are often used in commercial surrogacy. Most of the sub-sections of s 60H incorporate reference to the state and Territory legislation relevant to determining parental status. Together, these provisions form a national scheme (although there are some inconsistencies between the federal and state and territory provisions), the effect of which is to recognise the birth mother and her consenting spouse or partner as the parents of a child born as a result of a fertility procedure irrespective of their biological connection to the child. The scheme also denies parental status to gamete donors in such cases, although as we will see there are different views about whether it does so in all situations.
Although, as the authors comment in that article, “fertility procedures are often used in commercial surrogacy”, and that is demonstrated by the second limb of the definition of “artificial conception procedure”, such that theoretically s 60H could apply to a surrogacy arrangement, a close consideration of the section reveals otherwise.
On its plain meaning, if s 60H(1) is applied to a surrogacy arrangement (including the arrangement here), it results in the birth mother and her husband or partner being the parents, and the child not being the child of any person who provided genetic material. Thus, neither of the commissioning parties can be the parents of the child under this subsection, and it is clearly designed to cover conventional artificial conception arrangements where the birth mother and her partner are to be the parents of the child.
For completeness, we note that unlike s 60H(1), ss 60H(2) and (3) do not expressly exclude any donor of genetic material from recognition as a parent. As was pointed out in the article by Mary Keyes and Richard Chisholm (at page 113), judicial opinion is divided as to whether those sub-sections impliedly exclude such a donor. However, because we have not heard argument in relation to this matter, we are not able to express any informed view about the same. Further, and in any event, it is unnecessary for this court to consider that issue because neither ss 60H(2) or (3) apply in this case; paragraph (b) in both sub-sections cannot be satisfied.
The appellants did mount an argument that the words “the other intended parent” in s 60H(1) must be “read down so as to require the other person (being the ‘other intended parent’) to intend to be the parent of the relevant child”. In other words, interpreting that phrase as a substantive provision rather than a definitional provision.
Watts J in Re Michael: surrogacy arrangements (2009) 41 Fam LR 694, (at [32]) held in effect that the words “the other intended parent” in s 60H(1) were not operative in rejecting the interpretation promoted here by the appellants. Further, the use of those words in s 60H(1) was considered in extenso by Chief Judge Thackray in Farnell. Indeed, his Honour went so far as to examine the debates recorded in Hansard when the Amending Act was introduced into Parliament in 2008 ([209] – [219]), and concluded as follows:
220.Hansard provides no support for the proposition that Parliament countenanced the possibility that a man and woman who commissioned the birth of a child, whether in Australia or overseas, would be afforded the status of a parent of that child without a court order made under state surrogacy laws. It is equally untenable to suggest that Parliament, in referring to “intended parent” in s 60H(1), had in mind the husband or partner of a woman who had agreed to be a surrogate mother.
Thus, it is plain that s 60HB now specifically addresses the position of children born under surrogacy arrangements, leaving s 60H to address the status of children born by means of conventional artificial conception procedures. Further, the plain intention of s 60HB is to leave it to each of the States and Territories to regulate the status of children born under surrogacy arrangements, and for that to be recognised for the purposes of the Act. In other words, s 60HB covers that field, leaving, as we say, s 60H to address conventional artificial conception procedures.
In conclusion then, s 69VA is not available here because s 60HB covers the field, and s 60H does not apply.
The unfortunate result of that conclusion is that the parentage of the child here is in doubt. There is no order made under the relevant State legislation (and nor could there be, as explained in Green-Wilson & Bishop).
There is no question that the father is the child’s biological father, but that does not translate into him being a parent for the purposes of the Act. Further, the mother is not even the biological mother, and thus is even less likely to be the “legal parent”.
His Honour found that s 60HB did not “apply in the circumstances of this case” (at [73]), and he did so finding that “the [appellants] are not able to gain any assistance from the relevant Victorian legislation” (at [72]).
His Honour then turned to consider s 69VA of the Act, and although we have set out above the relevant paragraphs where his Honour arrived at his conclusion, we consider it necessary to set them out again as follows:
98.I consider that reliance upon s 69VA for the declaration as sought by the [appellants] is of no assistance and is not an independent source of power.
99.The ability for a court to decide the issue of parentage is only to be embarked upon if an “issue” arises. The evidence that is to be received can encompass a broad category but must be focussed and directed to the determination of the “issue of parentage”. Section 69VA is directed to a determination of the biological connection that a party may have with a child and it is only thereafter that the court can consider whether to issue a “declaration of parentage”. The purpose of the declaration is as conclusive evidence of parentage for the purposes of the laws of the Commonwealth.
100.In the present case there is no dispute or issue as to parentage. The second [appellant] is the biological progenitor of Q. There is no need to produce evidence of parentage pursuant to s 69V, nor to invoke the provisions of s 69W as to orders for the carrying out of parentage testing procedure, nor 69X being orders associate with parentage testing orders.
Pausing there, regrettably his Honour did not address the more relevant question of whether s 69VA applies at all given the presence of s 60HB (and perhaps s 60H). Thus, although in our view his Honour was correct in refusing to make a declaration of parentage under s 69VA, he did so for reasons that need not have been expressed.
For completeness though, we note that his Honour also referred to the approach of Johns J in Green-Wilson & Bishop. His Honour found that it was not open to fill the legislative vacuum identified by Johns J by judicial interpretation; it could only be done by legislation. With that finding we respectfully agree.
Accordingly there is no merit in these grounds of appeal.
Ground 3
The learned judge at first instance erred in failing to declare the first and second appellants as the parents of the child pursuant to s 67ZC of the Family Law Act 1975.
As indicated above, in the alternative the appellants sought a declaration pursuant to s 67ZC of the Act that each of them was a parent.
That section provides as follows:
ORDERS RELATING TO WELFARE OF CHILDREN
67ZC(1)In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.
Note: Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of a court to make an order relating to the welfare of a child.
67ZC(2)In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Note: Sections 60CB to 60CG deal with how a court determines a child’s best interest.
In its terms, the literal meaning of s 69ZH(2) of the Act is that for s 67ZC to apply the child must be “a child of a marriage”.
The definition of “child of a marriage” appears in s 60F(1), namely:
CERTAIN CHILDREN ARE CHILDREN OF MARRIAGE ETC.
60F(1)A reference in this Act to a child of a marriage includes, subject to subsection (3), a reference to each of the following children:
(a)a child adopted since the marriage by the husband and wife or by either of them with the consent of the other;
(b) a child of the husband and wife born before the marriage;
(c)a child who is, under subsection 60H(1) or section 60HB, the child of the husband and wife.
Importantly, s 60F(4A) goes on to provide:
(4A)To avoid doubt, for the purposes of this Act, a child of a marriage is a child of the husband and of the wife in the marriage.
As can be seen the child here does not come within the definition in s 60F(1).
At trial, and on appeal, the appellants argued that that definition is not exhaustive and can be extended such that s 67ZC can apply where it is necessary to ensure the welfare of the subject child.
It is true that the definition is not exhaustive, but it is not apparent how s 67ZC can be utilised to expand that definition such that this child can be found to be a child of a marriage.
A review of cases decided at first instance reveals that a number of judges have applied s 67ZC to advance the welfare of children who are not children of a marriage (see for example Re Alex (Hormonal Treatment for Gender Dysphoria) (2004) FLC 93–175; Re Lucy (gender dysphoria) (2013) Fam LR 540). As Re Lucy demonstrates, the application of s 67ZC to children other than children of a marriage is not without controversy. However, we have found that in relation to children born under surrogacy arrangements, the intent of the legislature is that s 60HB covers the field, and is the operative provision in the Act concerning parentage of those children. The effect of this is that even if in some respects s 67ZC could arguably apply to the child here, in relation to parentage, this general provision could not prevail over the specific provision, namely s 60HB. Moreover, the application of s 67ZC is not at large; if it were, there would be no need for s 60H, s 60HB, or even s 69VA.
In any event, as this appeal was conducted without a contradictor, it is not the vehicle to address the larger question of whether s 67ZC could permissibly be applied to a child who is not a child of a marriage.
Thus, in relation to this ground, we find that s 67ZC cannot be utilised to make a declaration of parentage, but for different reasons than his Honour provided. His Honour proceeded on the basis that s 67ZC only applies where the child is a child of a marriage, whereas our finding is based on the circumstance that s 60HB covers the field. Accordingly, although his Honour was correct in concluding that s 67ZC cannot be utilised to make a parenting declaration, we find that it is correct for reasons other than his Honour expressed.
Ground 4
The learned judge at first instance erred in failing to find it was in the best interest of the child for leave to adopt.
Section 60G of the Act provides as follows:
FAMILY COURT MAY GRANT LEAVE FOR ADOPTION PROCEEDINGS BY PRESCRIBED ADOPTING PARENT
60G(1)Subject to subsection (2), the Family Court, the Supreme Court of the Northern Territory or the Family Court of a State may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent.
60G(2)In proceedings for leave under subsection (1), the court must consider whether granting leave would be in the child’s best interests, having regard to the effect of paragraph 60F(4)(a), or paragraph 60HA(3)(a), and of sections 61E and 65J.
Note: Sections 60CB to 60CG deal with how a court determines a child’s best interests.
The appellants sought leave to apply for a step-parent adoption pursuant to this section, but the complaint is that the trial judge failed to address that application.
It is apparent that, although his Honour identified this as an application that was before the court, his Honour then did not address it at all in the balance of his reasons for judgment.
Prima facie, in these circumstances there would appear to be merit in this ground of appeal. However, the transcript reveals a different story. In discussing the applications before the court there are the following exchanges between counsel for the appellants and his Honour:
MR AMBAS:They instruct me to seek a declaration under section 69VA in relation to – well, both of the [appellants].
HIS HONOUR: Yes. And then leave to adopt under section 60G?
MR AMBAS:Well, only if it’s not the case that the declaration is issued in relation to both parties.
(Transcript 12.8.2015, page 3, lines 22 – 28)
HIS HONOUR: …So then you’re seeking a declaration in respect of both parties.
MR AMBAS: That’s correct.
HIS HONOUR: Okay. And then if I find that there shouldn’t be a declaration in respect of both parties then that’s the end of it. If I find that there can be a declaration in respect of Mr [Bernieres], but not Mrs [Bernieres], then the issue of section 60G - - -
MR AMBAS: That’s correct.
(Transcript 12.8.2015, page 4, line 19 – line 29)
HIS HONOUR: So what do I do with section 60G then? Do I do anything with it?
MR AMBAS:You would do something with it only if the mother were unable to obtain a declaration of parentage under either section 69VA or section 67ZC.
(Transcript 12.8.2015, page 4, line 47 – page 5, line 2)
HIS HONOUR: … I mean, I can understand the pathway. There’s a biological party. That biological party seeks a declaration. If I’m persuaded that that ought to be the case, the declaration is made. I then give Mrs [Bernieres] leave under section 60G, that is, leave to adopt - - -
MR AMBAS: Yes.
HIS HONOUR: - - - and she then undertakes a process in the Victorian Court under the adoption legislation as a step parent adoption. And if that adoption process is successful, then Mrs [Bernieres] will be declared a parent, by way of adoption, and for the purposes of the Family Law Act and every other purpose in every state and territory in Australia, both Mr and Mrs [Bernieres], having coming at it differently – via a different process, will be parents of the child.
MR AMBAS: Yes.
HIS HONOUR: Now, that’s as I understood it, which is why I raised what I did with you in the beginning of the hearing.
MR AMBAS: Yes.
HIS HONOUR: But then you’ve expanded that, because you consider that there is authority or that there is power under section 69VA for a declaration to be given to Mrs [Bernieres] - - -
MR AMBAS: That’s correct.
HIS HONOUR: - - - thereby leapfrogging all of that adoption process.
MR AMBAS: That’s correct.
(Transcript 12.8.2015, page 10, line 24 – page 11, line 5)
The effect of those exchanges is that it was only necessary for his Honour to address s 60G if there was a declaration of parentage in favour of the second appellant, but not in favour of the first appellant. As is apparent his Honour did not make a declaration in favour of either party, and thus on the appellants’ own case his Honour was not obliged to address the application pursuant to s 60G.
In any event, for s 60G to apply there must be a “prescribed adopting parent”. In s 4(1) a “prescribed adopting parent”, in relation to a child, is defined as:
a)a parent of the child, or
b)the spouse of, or a person in a de facto relationship with, a parent of the child; or
c)a parent of the child and either his or her spouse or a person in a de facto relationship with the parent.
Plainly neither party came within that definition.
Thus, when all the circumstances are taken into account, there can be no merit in this ground of appeal.
Before concluding this discussion though, we note that following the hearing of the appeal, and pursuant to orders made by this Court on 13 October 2016, the appellants provided written submissions dated 30 March 2016 addressing the question of whether the second appellant was a “parent” for the purposes of s 60G of the Act.
In those submissions the appellants canvassed the relevant provisions of the Adoption Act 1974 (Vic) (“the Adoption Act”) and the Status of Children Act.
The appellants concede that under the latter Act the second appellant is not a parent for the purposes of that Act, but suggest he is a parent for the purposes of the former Act.
There is no definition of “parent” in the Adoption Act, but it is submitted that the criteria set out in the section which identifies the persons whose consent must be obtained for an adoption to proceed (s 33(3)) can be seen to provide a definition of a “parent”, or if not, then the dictionary definition of “parent” applied by the Full Court in Tobin & Tobin (1999) FLC 92–848 can be utilised. Under both of those alternatives, it is said that the second appellant qualifies as a “parent”.
However, we do not accept that s 33(3) of the Adoption Act provides a definition of a “parent” for the purposes of the Adoption Act; it is quite a different context. As to the dictionary definition of a “parent”, what that overlooks, and indeed what the entire argument of the appellants overlook, is that what needs to be addressed is whether the second appellant is a “parent” within the meaning of s 60G of the Act, and given the preceding discussion about that very topic in relation to s 60HB, s 60H and s 69VA, not only is the dictionary definition of no assistance, but also the meaning of “parent” under the Adoption Act, if it can be discerned, is of no assistance.
Thus, these submissions do not advance the appellants case for leave pursuant to s 60G.
Ground 5
The learned judge at first instance erred in failing to give adequate reasons.
As counsel for the appellants explains in his written submissions, the lack of reasons relates to his Honour’s failure to address s 60G of the Act. Plainly that was the case, but given there was no basis to make an order under that section, we do not consider that a lack of reasons specifying that should result in the appeal being allowed.
Conclusion
Having found no merit in Grounds 1 – 4, and effectively no utility in Ground 5, the appeal must be dismissed.
Costs
Understandably there is no application for costs made by the appellants, and given the lack of success of the appeal there is no basis for the issuing of a costs certificate.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Strickland and Ryan JJ) delivered on 1 September 2017.
Associate:
Date: 1 September 2017
Bernieres & Dhopal [2017] FamCAFC 180
0
2
15