Collins and Tangtoi

[2010] FamCA 878

FAMILY COURT OF AUSTRALIA

COLLINS & TANGTOI [2010] FamCA 878

FAMILY LAW – CHILDREN – With whom a child lives – Equal shared responsibility – Surrogacy

Family Law Act1975 (Cth)

APPLICANTS: Mr and Mrs Collins

RESPONDENT: Ms Tangtoi

FILE NUMBER: SYC 4264 of 2010

DATE DELIVERED: 9 August 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 9 August 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Lewis Law Solicitors

RESPONDENT: No appearance

Orders

1. That the children A born … January 2010 and N also born … January 2010, live with the applicants and that the applicants have equal shared parental responsibility for making decisions on both day to day and long term issues relating to the children

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4264 of 2010

MR AND MRS COLLINS

Applicant

and

MS TANGTOI

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to two children, N and A Collins.  They were born in January 2010.  Orders are sought in terms consented to by the parties that the children live with the applicants and that they have equal shared parental responsibility for them.  That is not what the engrossed orders says, but there is a document that indicates consent to a variation.

2. Probably little more than that needs to be said.  All of the parties agree to the orders.  The matter is of some interest in a technical sense because the children were born as a result of a surrogacy arrangement made in Thailand whereby the male applicant, Mr Collins, provided sperm with which an egg from an anonymous donor was fertilised and that fertilised egg was then implanted in a Thai citizen, Ms Tangtoi, who was a party to the surrogacy arrangement. The children were born in January.

3. There is some evidence about Thai law, whereby the surrogate mother is the mother of the children, albeit that she has no genetic link with the children.  The mother sets out the facts that I have repeated.  She says that she doesn’t know the egg donor.  She believes that the egg was fertilised with sperm provided by Mr Collins.  She acknowledges Mr Collins as the biological father of the children and she says she gave consent to him being recorded as the children’s father on their birth certificates. Copies of their birth certificates and translations are in the material.

4. The mother says that prior to the procedure she met with the applicants and spoke to them with the assistance of a Thai interpreter.  She says that she subsequently entered into an agreement whereby she agreed to act as surrogate mother and she consented to Mr Collins having sole responsibility for the children.  She carried the children through the course of the pregnancy and gave birth to them.  She remained in hospital for a couple of days and on discharge she placed the children in the sole care of the applicants.

5. The mother says that the applicants have agreed to have sole care and responsibility for the children and she is satisfied that they will do this and that they will care for and nurture them. She says that she has received legal advice as to her rights and obligations under Thai law and as to the rights and obligations of the father, Mr Collins. 

6. The mother says that interpreters read all the documents to her and she understand the import of them, including of the affidavit she has given, a parenting plan, the application for consent orders, the details of the consent orders, relevant sections of the Family Law Act, a section of the Thai Civil Code and the applicant’s affidavits. She says she signed the relevant documents. The mother says she understands that the egg donor has no rights and she asks the Court to make orders. As I said, there is a subsequent document signed by her and there is an attestation clause, although it is not a sworn document, indicating that the mother agrees to the change in the wording of the orders.

7. The parenting plan says that the children were born to the mother; that she wasn’t married; that she was a surrogate; and she understands the egg or eggs were fertilised by sperm provided by the father. She agrees that Mr Collins is the father; that she has had legal advice; that at the date of the agreement, which was 22 June 2010, the children were living with the father, who is the principal provider for them. She understands that the father is an Australian citizen, she understands. She says that she has never lived with the father. She acknowledges that the document was read to her. She relinquishes all parental responsibility and rights in respect of the child.  She agrees that the children should live with Mr Collins and his wife, that they should have parental responsibility and so on. The mother consents to an application by the father on behalf of the children for Australian citizenship by descent and, if necessary, for visas for the children to travel to and reside in Australia. She consents to the children leaving Thailand.  She consents to an application for passports.  She consents to an application for Australian or Thai passports and any other application the father might make.

8. In his affidavit Mr Collins says that he was born in England; he is 36 years of age and in good health; he came to Australia in 1981; became a citizen in 1993 and has lived here since. The father married Ms Collins in 2005.  He has one child from a former marriage, L, who was born in September 1997 and she lives with and is cared for by the applicants. The father says that Ms Collins is unable to have children; that they had discussed the possibility of surrogacy; they made inquiries and in 2007 travelled to Thailand to look for arrangement; they met with an IVF specialist; were put in touch with a Fertility Centre in Bangkok; spoke with a doctor and decided to go ahead. He says that they were shown profiles of women as egg donors. No identifying information was given for the women. They were referred to by aliases. He says that he and Ms Collins chose a woman who was 25 years of age. He says that they have had no contact with that woman. Similarly, he says that they selected Ms Tangtoi. An arrangement was entered into where she agreed to act as surrogate. Mr Collins provided sperm; an egg was harvested from the donor and the IVF process occurred. The resultant embryo was implanted in the uterus of Ms Tangtoi and the twins were born. Mr Collins says that the twins were placed in the care of the applicants and have been cared for by them in Thailand and Australia since.

9. Mr Collins says that he and his wife stayed in Thailand for three months, attempting to apply for Australian citizenship by descent, on behalf of the children.  They obtained Thai passports for the children with household registration on their behalf and birth certificates. The birth certificates are annexed and they show him as the father and Ms Tangtoi as the mother.

10. The father has been advised that the children are entitled to Australian citizenship by descent. However, he has been told by the Australian Embassy in Bangkok that they won’t process the application unless he can produce a Court order to the effect that Ms Tangtoi has relinquished her rights as a parent.  He has obtained legal advice about that and has been told that it is not possible to obtain such an order under Thai law. Indeed, he understands that there are no laws in relation to surrogacy in Thailand. He understand that the only person who has any parental rights in respect of a child born to an unwed surrogate mother is that mother and he understand that neither of the persons who provided genetic material, the egg donor or the sperm donor, have any rights.

11. Plan B was to obtain a visa for the children to travel to Australia.  That occurred on 19 March 2010. The children came to Australia with the applicants on 21 March 2010 and they live in a suburb of Brisbane. The orders sought are that the children live with the applicants, Mr Collins and Ms Collins, and that they have equal shared parental responsibility for making decisions about day to day and long term issues relating to the children. There is no impediment to the making of such an order.

12. This Court has jurisdiction in a number of ways. The children are here. The applicants are citizens.  To make orders in the best interest of the children there is a tree of logic in what has been described as a labyrinthine provision, in Part VII of the Act. The aim is an outcome which is in the best interests of children.

13. There are presumptions that follow from decisions made or to be made in relation to parental responsibility but they are triggered by orders to be made between the parents. It is submitted on behalf of the applicant that I would be comfortable in being able to make a decision to the effect that Mr Collins is the father of the children. There is not only the fact of the agreed evidence between the parties, there is an entry on the birth certificate of the children. Further, in this case, rather unusually, there is evidence from DNA parentage testing for both children under cover of letters of 23 February 2010 whereby an expert, who is a nominated reporter for the purposes of the legislation, says that there is a chance of Mr Collins being the father of the children at 99.996 per cent. He is 25,041 times more likely to be the father of the children than somebody else.

14. I have been referred to some decisions made of Brown J. Particularly a decision in Re Mark[1] whereby her Honour was faced with a not dissimilar situation and traced through the issue of whether a person in Mr Collins’ situation who had provided sperm for a child could be found to be the parent of the child. As Mr Lynch says, on behalf of the applicants, her Honour traced through a number of decisions including a decision of Guest J, whereby his Honour said that it wasn’t possible to make a finding in those circumstances. Her Honour found that it rather tortured logic that a person in Mr Collins’ position would not be a parent. Nevertheless, for reasons to do with unintended consequences, and it may be, I am not sure, that related to the not so happy connection between the positive aspects of parenting and the potential for a consequence in relation to parental support or child support that might arise, her Honour was not willing to make the finding.

    [1] [2003] FamCA 822; (2003) FLC 93-173

15. Indeed, it is not necessary for me, as it was not necessary for her Honour, to make that decision. The legislation says that an application can be made by a parent or somebody else with an interest in the children can make an application. An applicant for parenting orders need not be a parent.

16. In the circumstances here, even though no formal declaration is sought on behalf of the applicants, it seems to me that Mr Collins is the father of the children. He is recorded on the birth certificate. He is acknowledged by the person who, under Thai law is the mother of the children. We have scientific evidence that the children are his. In those circumstances I am comfortable that Mr Collins is the father of these children.

17. The tree of logic in the legislation would have one look at a presumption of equal shared decision-making but that is not practicable in a case where the mother does not wish to have a role in relation to the children. Indeed she wishes that the children to live in another country. It is not practicable in those circumstances that there would be equal shared parental responsibility. That is the end of the presumptions. It is obviously not practical for the children to live for equal times or for substantial and significant times between the parents in circumstances where one of them does not want that to happen.

18. Therefore, the Court is left with the aspirations in Part VII for orders in the best interests of children. The applicants live in a three-bedroom unit in Brisbane, together with Mr Collins’ older child.  Mr Collins is employed as a project manager.  He earns about $125,000 a year.  Although she is a practice manager, Ms Collins presently works from home.  They are the only occupants of the home.  All of the children are in good health and are thriving.

19. It is intended by the applicants that the children will attend local schools and tertiary education, if they wish.  The home is conveniently located to facilities.  The applicants intend to preserve the children’s Thai culture.  They intend to travel to Thailand with the children.  They are considering learning the Thai language themselves and they want to ensure the children have an opportunity of being able to speak and also read and write in Thai.

20. There are always concerns in relation to a case where one of the parties is outside the jurisdiction and does not speak English. Here there is evidence which, on its face, one would accept as coming from a lawyer, qualified to give advice in relation to Thai matters, who has advised the mother.  We have the affidavit of a translator who was satisfied that the mother seemed to understand the documents that were translated for her.  We have the affidavit of the mother.  We have the fact that the children were able to be removed from Thailand and one would expect in the normal course, although there is no evidence about it, that there would need to be at least an opportunity for the registered mother of the children to be heard in relation to the removal of her children from that jurisdiction, at least in respect of removal for substantial or indefinite periods.

21. I have not been taken to any requirements under inter-government conventions on service and or execution of documents, nor to independent evidence about the qualifications of the Thai law expert. Nevertheless, I am satisfied on the balance of probabilities, in relation to the above findings.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 9 August 2010.

Associate: 

Date:  1 October 2010