Carlton & Bissett & Anor
[2013] FamCA 143
•19 February 2013
FAMILY COURT OF AUSTRALIA
| CARLTON & BISSETT AND ANOR | [2013] FamCA 143 |
| FAMILY LAW – CHILDREN – SURROGACY – Whether the respondent is a legal parent under the terms of the Family Law Act 1975 (Cth) of children born pursuant to an overseas surrogacy arrangement –Where the surrogacy arrangement is legal under South African laws –Where legal parentage is determined by the laws of the country where you are ordinarily resident and the children’s domicile at the time of their birth – Whether presumptions of parentage apply – Where South Africa is not a prescribed overseas jurisdiction under the Family Law Regulations 1984 (Cth) which allows for overseas child orders to be registered in Australia – Whether a presumption in favour of parentage can apply where a reciprocating jurisdiction has found that a person is a parent of a particular child – Where a declaration of parentage is made because it is in the children’s best interests to do so. FAMILY LAW – STANDING – Where the applicant is a person who is concerned with the care welfare or development of the children and accordingly has standing to apply for a parenting order. |
| Family Law Act 1975 (Cth): ss 69VA; 65DA; 62B; 60CC; 69E; 65C; 65G; 69A; 69B; 69S; 70G; 110; 60HB; 60H Family Law Regulations 1984 (Cth): s 25 The Children’s Act 38 of 2005 (South Africa): s 297 |
| Ellison and Anor & Karnchanit [2012] FamCA 602 G v H (1994) 181 CLR 387 Minister for Immigration & Multicultural and Indigenous Affairs & B (2004) 219 CLR 365 Tobin v Tobin (1999) FLC 92-848 |
| APPLICANT: | Mr Carlton |
| FIRST RESPONDENT: | Mr Bissett |
| SECOND RESPONDENT: | Ms Schmidt |
| FILE NUMBER: | SYC | 5205 | of | 2012 |
| DATE DELIVERED: | 19 February 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 25 October 2012 |
REPRESENTATION
| FOR THE APPLICANT: | Mr Carlton in Person |
| COUNSEL FOR THE FIRST RESPONDENT: | Ms Lawson |
| SOLICITOR FOR THE FIRST RESPONDENT: | Steiner Legal |
| FOR THE SECOND RESPONDENT: | No appearance for or on behalf of the second respondent |
Orders
Pursuant to s 69VA of the Family Law Act 1975 (Cth) it is declared that Mr Bissett is a parent, namely the father of the children … born in October 2010.
That Mr Carlton and Mr Bissett have equal shared parental responsibility for the care, welfare and development of the children of the relationship, the children ….
That Mr Carlton and Mr Bissett are jointly responsible for making decisions about major long term issues in respect of the children including but not limited to:
(a) the children’s education;
(b) the children’s health; and
(c) the children’s residence.
That Mr Carlton and Mr Bissett will be responsible for day to day decisions concerning the care of each child when any child is living with Mr Carlton and Mr Bissett or either of them or spending time with Mr Carlton and Mr Bissett or either of them.
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.
All outstanding applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Carlton & Bissett and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 5205 of 2012
| Mr Carlton |
Applicant
And
| Mr Bissett |
First Respondent
And
| Ms Schmidt |
Second Respondent
REASONS FOR JUDGMENT
This is an application by Mr Carlton (“the applicant”) for a suite of parenting orders pursuant to the Family Law Act (1975) (“the Act”) in relation to two year old children to whom he is unrelated.
The children were born to Mr Carlton’s partner, Mr Bissett and Ms Schmidt (“the birth mother”) in South Africa. By an agreement dated 31 May 2009, Mr Bissett commissioned Ms Schmidt as a surrogate to have his children. The effect of the agreement was that Mr Bissett’s sperm was used to fertilise an egg provided by an unknown donor with the resultant embryos implanted in the birth mother. The birth mother, in accordance with her agreement with Mr Bissett, relinquished the children to him.
During the pregnancy the applicant met Mr Bissett. The applicant, who is also from South Africa, was then visiting South Africa from Australia where he was ordinarily resident. The applicant has a senior position in a multi-national company. They quickly formed a close and what they intend will be a lifelong relationship. Work commitments required the applicant to return to Australia, which he did. Nonetheless, they were able to spend time together at regular intervals during the pregnancy. This pattern continued after the children were born. By the time the children were born the applicant and Mr Bissett were agreed that the applicant would take on a parental role in the children’s lives, which has happened.
The children were born in South Africa in October 2010. In accordance with Mr Bissett’s agreement with the birth mother, they have lived with him ever since. Mr Bissett and the birth mother have a cooperative relationship and she supports this application.
In South Africa, surrogacy arrangements are regulated by The Children’s Act 38 of 2005 (“the Children’s Act”). By that act, commercial surrogacy is illegal. Altruistic surrogacy, of the type entered into between Mr Bissett and the birth mother is legal, provided that the steps and safeguards contained in the Children’s Act are followed. Relevantly, this includes approval for the surrogacy agreement by order of the High Court of South Africa. The surrogacy agreement is in evidence, as is the order made in the High Court on 27 September 2010 to the effect “[t]he agreement concluded on 31 May 2010 is made an order of court”. As a consequence of court ratification of the agreement by s 297(1)(a) of the Children’s Act, the children are “for all purposes” Mr Bissett’s children. By s 297(1)(c) of that act, the birth mother has no rights of parenthood or care of the children. Thus, South Africa issued birth certificates for each child which record Mr Bissett as their sole parent. As well as South Africa conferring rights of citizenship on the children, based on Mr Bissett’s Israeli citizenship, the State of Israel conferred rights of citizenship on the children on the basis of citizenship by descent.
Having continued their long distance relationship, by mid 2012, the time was right for Mr Bissett and the children to join the applicant in Australia. Thus, in June 2012, they arrived in Australia and have lived with the applicant ever since. At that time, the applicant had permanent residency in Australia and was eligible to be granted citizenship in December 2012, which he has now secured.
The applicant and Mr Bissett registered their relationship with Births, Deaths & Marriages NSW. Having originally entered on a Tourist Visa, Mr Bissett was then granted a Bridging Visa A. This gives him a right to residency and enables him to work. An application for permanent residency for him and the children is pending.
As well as affidavit evidence from Mr Bissett sworn 23 October 2012, he and the applicant gave oral evidence. Their evidence in relation to the strength of their relationship and the high quality of care afforded to the children was corroborated by Mr T. Each of them was an impressive witness. The effect of their evidence is that the applicant and Mr Bissett are committed to each other as partners and to the children as parent and in loco parentis. They have set up a child focussed family in which the children’s interests and needs have priority. Both are well informed about how they will need to deal with the children’s inevitable questions about their identity and ensure their lives are enriched by a range of role models. In both of their families, the children have been welcomed with joy. Although their families remain in South Africa, contact between them all is reasonably regular. Relevantly, the children’s birth mother maintains contact with Mr Bissett who keeps her informed of their progress.
The applicant and Mr Bissett are confident about the future of their relationship. They anticipate they will remain living in Australia, where the applicant’s career is established and they will be able to provide for the children. At present the children attend day care and it is anticipated Mr Bissett will return to work, probably into business on his own account. Where necessary, they will retain household assistance with the children. The substance of the evidence is basically that whatever they need to do in order to provide for the children will be done. I have no difficulty accepting their evidence. Because of the applicant’s involvement in the children’s day to day care, it is accepted that it is desirable he is able to make and implement decisions about them. Their lives are simply made easier if, for example, as well as their father, the applicant can collect them from school, enrol them in activities and authorise urgent medical assistance.
No doubt, those who screened and assessed Mr Bissett in South Africa as suitable for this surrogacy arrangement would be pleased to learn how well the children fare. The psychological assessment undertaken as part of that process is in evidence which provides ample evidence for confidence in Mr Bissett’s parenting capacity.
It will be apparent that I am satisfied that it is in the children’s best interests that they continue to live with the applicant and Mr Bissett and their argument that it is beneficial for the children that the applicant also has parental responsibility finds favour.
The legal questions which arise are the applicant’s standing to make an application for a parenting order and whether for the purposes of the Act Mr Bissett is a parent. The only significance of the latter issue is that it will influence the factors which must be considered in order to determine the application. The point being, unless Mr Bissett is recognised under the Act as a parent, the proceedings concern parenting orders between two people who are legally strangers to the children.
For reasons that will be explained shortly, Mr Bissett is the children’s parent as that term is used in ss 60CC and 69E. Because I am also satisfied that the applicant is a person concerned with the care, welfare or development of the children (s 65C(c)), it follows that s 65G, which relates to a parenting order which would result in a child not living with “a parent, grandparent or other relative of the child”, does not apply.
The jurisdictional basis to Part VII is contained in Division 12 of that Part, which accordingly “controls and limits the operation of the balance of Pt VII.” (Minister for Immigration & Multicultural and Indigenous Affairs & B (2004) 219 CLR 365 per Gummow, Hayne & Heydon JJ [95]).
Section 69A, in Subdivision A of Division 12 provides:
This Division deals with:
(a) the institution of proceedings and procedure (Subdivision B); and
(b) jurisdiction of courts (Subdivision C); and
(c) presumptions of parentage (Subdivision D); and
(d)parentage evidence (Subdivision E); and
(e) the places and people to which this Part extends and applies (Subdivision F).
The effect of s 69B is to render the provisions of Part VII imperative; that is, proceedings under the Part are not to be instituted other than in accordance with the Part. Section 69C is to the effect that in relation to the type of orders sought by the applicant, these may be instituted by the category of person referred to in s 65C.
In s 4 of the Act the term “parent” is defined as meaning “when used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child”. Similar inclusive definitions of the word “child” are found in s 4. The term “parent” is not otherwise defined, with the focus generally being on the term “child” in the context of how the Act applies to those children (ss 60F-60HB). Those definitions have no application to Mr Bissett. Simply put, whether he is the children’s parent is to be determined in the first instance by the application of the laws where he was ordinarily resident and the children’s domicile (of origin) at the time of their birth; namely South Africa.
In a report dated 26 April 2010, Dr R stated that Mr Bissett’s sperm was used to fertilise the unknown donor’s eggs by which the birth mother was impregnated. Mr Bissett is recorded on the children’s birth certificates as their father and has the South African order to which reference has already been made. Thus I am satisfied that Mr Bissett is recognised at law as the children’s father and that he is their biological father. Submissions were not addressed as to whether s 60CC or indeed s 69E are directed to a biological parent or persons who may not be biologically connected but are recognised at law as a parent. The words in s 60CC “either or both” hint at biology whereas s 69E(1)(a) merely refers to “a parent”, which suggests the broader view. Whichever approach is adopted, Mr Bissett satisfies the requirement.
Proceedings may be instituted under this Act in relation to a child only if, on the day the application is filed, one of the factors listed in s 69E(1) is established. The proceedings were commenced after the children arrived in Australia.
Thus the Court has jurisdiction to determine the application. As has already been mentioned, the factors set out in Part VII which must be considered weigh in favour of the orders sought.
It is accordingly unnecessary to turn to the presumptions of parentage contained in the Act to determine whether for the purpose of the Act Mr Bissett is the children’s parent. However, for an abundance of caution it is appropriate to do so.
Spread across different divisions in Part VII are a number of provisions that deal with parentage, presumptions and declarations of parentage. Those in Division 1 subdivision D operate to irrebuttably deem a child, for the purposes of the Act, in the circumstances there identified, the child of designated people. Those in Division 12 subdivision D create rebuttable presumptions for the purpose of the Act. Then, in Division 12 subdivision E, the Court is empowered to issue a declaration of parentage that is conclusive for the purposes of all laws of the Commonwealth. In essence, there is a scheme which operates so that, for the purpose of the Act or federal law, children may variously be deemed, presumed or declared the child of a person.
Lest it be thought that the issue has been overlooked, it is common ground that although s 70G of the Act confirms that the Family Law Regulations 1984 (Cth) (“the regulations”) may make provision for the registration of “overseas child orders” the definition for which is satisfied by the South African order, South Africa is not a “prescribed overseas jurisdiction” as a consequence of which the order cannot be registered.
The applicant and Mr Bissett also rely on s 69S(1A), being a provision which applies a presumption in favour of parentage where a court of reciprocating jurisdiction has found expressly that the person is a parent of a particular child or made a finding that it could not have made unless the person was a parent of particular children.
Section 69S(1A) is set out below:
(1A) If:
(a) during the lifetime of a particular person, a court of a reciprocating jurisdiction within the meaning of section 110 or a jurisdiction mentioned in Schedule 4 or 4A to the regulations has:
(i) found expressly that the person is a parent of a particular child; or
(ii) made a finding that it could not have made unless the person was a parent of a particular child; and
(b) the finding has not been altered, set aside or reversed;
the person is presumed to be a parent of the child.
Because South Africa is not mentioned in either schedule 4 or 4A, unless it is a reciprocating jurisdiction “within the meaning of section 110” the presumption cannot apply. According to the applicant and Mr B, the words “a court of a reciprocating jurisdiction within the meaning of section 110” is not intended to limit or apply the presumption to matters involving international maintenance orders (that being the purpose to which s 110 is addressed). The definition of “reciprocating jurisdiction” for the purpose of s 110 is found in reg 25 of the regulations. The term is defined as follows:
Each of the jurisdictions specified in Schedule 2 is declared to be a reciprocating jurisdiction for the purposes of section 110 of the Act.
Section 110 is concerned with the international reciprocal enforcement of maintenance orders and agreements. Thus, as far as that section is concerned, the term reciprocating jurisdiction specified in schedule 2 operates in relation to maintenance matters of the type referred to in that section. However, does this mean that the words in s 69S(1A) “within the meaning of s 110” refer to the definition of reciprocating jurisdictions in that section or, as the applicant and Mr Bissett argue, simply incorporates the jurisdictions specified in schedule 2?
Clearly, the words in s 69S(1A) “reciprocating jurisdiction within the meaning of section 110” pick up the s 110 definition. Because the definition includes the words “for the purposes of”, reference to s 110 means that the presumption reliant thereon is limited to matters involving international maintenance orders. Were it otherwise, the drafter need not have mentioned s 110 and, as was done with the balance of s 69S(1A)(a), would simply have referred to schedule 2 along with the other schedules.
It follows that the argument predicated on s 69S(1A)(a)(ii) that the South African order results in a presumption of parentage in favour of Mr Bissett must fail.
In the alternative, in counsel for Mr Bissett’s submissions, application was made for a declaration of parentage pursuant to s 69VA. Section 69VA is set out below:
As 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.
The word “parentage” is s 69VA was considered in Tobin v Tobin (1999) FLC 92-848. The gravamen of that decision is that s 69VA is concerned with whether a declaration of parentage should be made in favour of a biological parent. Reference has already been made to the evidence which satisfies me that Mr Bissett is the children’s biological father.
For the reasons I gave at pars 78-80 inclusive in Ellison and Anor & Karnchanit [2012] FamCA 602, resolution of whether a declaration pursuant to s 69VA should be decided is driven by the children’s best interests along with other matters relevant to the exercise of my discretion. Here, the only factors relate to what is in the children’s best interests; there being no issues of public policy which might intrude into those deliberations. As was made clear by the High Court in G v H (1994) 181 CLR 387, the presumptions operate in the interests of the child. With the children’s interests at the forefront, I agree with the applicant and Mr Bissett that for an abundance of caution a s 69VA declaration of parentage should be made.
It will be apparent that I have accepted that Mr Bissett is able to rely on the general presumptions of parentage notwithstanding the provisions of s 60H and s 60HB, both of which were inserted into the Act after the general presumptions. Those provisions are not directed to children born in another country to a person or people ordinarily resident in that country at the time of conception and birth.
For these reasons, I am satisfied that the orders and declarations that I will make are in the children’s best interests.
I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 19 February 2013.
Associate:
Date: 19 February 2013
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