Cadet and Scribe and Anor

[2007] FamCA 1498

FAMILY COURT OF AUSTRALIA

CADET & SCRIBE AND ANOR [2007] FamCA 1498

FAMILY LAW – CHILDREN – Application in respect of child born pursuant to a surrogacy agreement in U.S.A. – Parental responsibility – Co-fathers

Family Law Act 1975  (Cth)

Re: Mark (2003) FLC 93-173

APPLICANT: Mr Cadet

FIRST RESPONDENT: Ms Scribe

SECOND RESPONDENT Mr Camden

FILE NUMBER: MLC 9726 of 2007

DATE DELIVERED: 5 November 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 5 November 2007

REPRESENTATION

THE APPLICANT: In Person

THE SECOND RESPONDENT: In Person

Orders

1. That Mr Cadet and Mr Camden have equal shared parental responsibility for the child … born … October, 2006, and pursuant to that responsibility make all decisions relating to the child’s day to day and long term care, welfare and development. 

2. That the child live with Mr Cadet and Mr Camden.

3. That all extant applications be otherwise dismissed.

4. That these proceedings be removed from the List of matters awaiting finalisation.

5. That pursuant to s.62B and s.65DA(2), of the Family Law Act1975, 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 document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

6. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

IT IS NOTED that publication of this judgment under the pseudonym Cadet & Scribe and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9726 of 2007

MR CADET

Applicant

And

MS SCRIBE  

First respondent

And

MR CAMDEN
Second respondent

REASONS FOR JUDGMENT

1. This is an application for parenting orders for a child who was born in October 2006.  Mr Cadet and Mr Camden seek parenting orders in respect of the child.  They are supported by Ms. Scribe; the evidence supports a finding that Ms. Scribe is aware of the orders sought, and consents to them.

2. The child was born as a result of a legal surrogacy arrangement made in the United States between Mr Cadet and Mr Camden (the co-fathers), on the one hand, and Ms Scribe and her husband, on the other.  The child is the biological son of Mr Cadet; the embryo carried by Ms Scribe was made up of sperm from Mr Cadet and an egg from an anonymous egg donor.  The child has no biological connection with the surrogate who carried and bore him. 

3. The Family Law Act 1975 provides that parents and others interested in the particular child may seek parenting orders. The child’s co-fathers come within that category; they can seek parenting orders. 

4. Pursuant to an order of an Ohio court, the child’s birth certificate shows his father to be Mr Cadet, who is his biological father. 

5. I am satisfied that the child came to Australia with his co‑fathers soon after his birth, arriving in early November 2006. Since then, he has obtained Australian citizenship, by reason of descent. He now has an Australian passport.  He also has a United States passport, on which he travelled with his co‑fathers to Australia.  Mr Camden has deposed that he has taken the child back to U.S.A. on one occasion, and that the child spent time with Ms. Scribe there. 

6. While she has no genetic connection with him, Ms. Scribe is the child’s mother.  If Mr. Camden is his father for the purposes of the Family Law Act 1975 (see Re: Mark (2003) FLC 93-173) the court must consider whether the presumption of equal shared parental responsibility applies. Ms. Scribe seeks no parental responsibility. To do so would no doubt be in breach of her contractual obligations in the U.S.A. but that is not a relevant consideration in this court, surrogacy agreements having no legal status in Victoria. Ms. Scribe is not in the jurisdiction; she remains in U.S.A.

7. The child has been looked after by his co-fathers since his birth.  It is they who attend to his needs and nurture his development, living as a family unit. They seek to share parental responsibility for him. In those circumstances, I am satisfied the child’s best interests will be met by a continuation of that arrangement and orders for the co-fathers to have equal shared parental responsibility for him.  They must understand that such an order requires them to join in making major decisions in the child’s life, including decision about his health, education and religion.  Practical decisions about the child’s day-to-day care may be made jointly or by one of them. 

8. Considering all the evidence, orders will provide for the child to live with his co-fathers; they will be responsible for making all decisions about the child's long‑term and day‑to‑day care, welfare and development. 

9. The minute of orders provided includes a note that it is the intention of the co-fathers to share financial responsibility for the child. It is not appropriate for an order to note such an intention.  The co-fathers will share parental responsibility for the child; an aspect of that responsibility is financial.  They must attend to his physical, emotional and intellectual needs and provide the financial support necessary. 

I certify that the preceding 9 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Brown AM.

Associate

5 November 2007