Cowley and Anor and Yuvaves
[2015] FamCA 111
•2 March 2015
FAMILY COURT OF AUSTRALIA
| COWLEY AND ANOR & YUVAVES | [2015] FamCA 111 |
| FAMILY LAW – CHILDREN – Surrogacy – best interests of the child – applicants seek orders for parental responsibility and for the child to live with them – undefended proceedings. |
| Family Law Act 1975 (Cth), ss 60CA, 60CC, 65C, 68HB, 69E, 69ZN Status of Children Act 1974 (Vic) ss 20, 22 Family Law Regulations 1984 (Cth) reg 14 |
| Ellison and Anor & Karnchanit [2012] FamCA 602 |
| FIRST APPLICANT: | Mr Cowley |
| SECOND APPLICANT: | Ms Hislop |
| RESPONDENT: | Ms Yuvaves |
| FILE NUMBER: | MLC | 11045 | of | 2014 |
| DATE DELIVERED: | 2 March 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thornton J |
| HEARING DATE: | 13 February 2015 |
REPRESENTATION
| SOLICITOR APPEARING AS COUNSEL FOR THE APPLICANTS: | Danielle Webb |
| SOLICITOR FOR THE APPLICANTS: | Danielle Webb Lawyer |
| THE RESPONDENT: | No appearance |
Orders
The applicants have equal shared parental responsibility for the child B born … 2014 (“the child”).
The child live with the applicants.
The applicants’ solicitor, Danielle Webb Lawyer, serve upon the respondent by sending by registered post:
(a) a sealed copy of these orders;
(b) a certified Thai translation of these orders;
(c) a covering letter explaining these orders;
(d) a certified Thai translation of the covering letter:
at the respondent’s residential address of ... [Thailand]
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 extant applications be otherwise dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cowley and Anor & Yuvaves 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 MELBOURNE |
FILE NUMBER: MLC 11045 of 2014
| Mr Cowley |
First Applicant
Ms Hislop
Second Applicant
And
| Ms Yuvaves |
Respondent
REASONS FOR JUDGMENT
This is an application by the first and second applicants for parenting orders for a child born of a surrogacy arrangement in Thailand. The child B (“the child”) was born at X Hospital, Bangkok, in November 2014 to a surrogate mother who is the respondent in this application.
The respondent lives in Thailand and did not file any response to the application or attend court. Accordingly the application was unopposed. The applicants both reside and work in Southeast Asia and the first applicant is an Australian citizen born in Melbourne in 1970. He works in Southeast Asia for an Australian-based business. The second applicant was born overseas in 1963 and was not present for the hearing. Only the first applicant attended the hearing.
The documents relied upon by the applicants are set out in annexure A to these reasons.
The first applicant is recorded on the child’s birth certificate as the father and the respondent is the mother of the child.[1] The first applicant and his female partner, the second applicant, sought orders for equal shared parental responsibility for the child and that the child live with them.
[1] Affidavit of the first respondent sworn 26 November 2014 at Exhibit “A”, including an English translation.
Service of documents upon the respondent
I granted leave for two Affidavits of Service to be filed on 13 February 2015, albeit that the solicitor for the applicants submitted that she had previously been granted leave to file the first affidavit of service at a hearing on 3 February. As this was not noted on the file or processed by the Registry of this Court, leave was granted for both Affidavits of Service to be filed. The first affidavit of service noted that the following documents were served by hand on the respondent in Bangkok, Thailand, on 23 December 2014: the applicants’ Initiating Application; court brochure on “Marriage, families and separation”; a copy of the affidavits filed by the applicants and sworn on 26 November 2014; and a translation into Thai of the orders sought in the application and the affidavit.
The second affidavit of service noted that a copy of the first applicant’s updated affidavit sworn on 6 February 2015 was served by hand on the respondent in Bangkok, Thailand, on 9 February 2015. I am satisfied that the applicants have complied with all service requirements and that the respondent is aware of the proceedings and was accorded procedural fairness.
The first applicant corrected a mistake in his second affidavit which referred incorrectly to the respondent having attended with her “husband” to sign documents. The first applicant stated his belief that the respondent is not married, based on her registered house particulars obtained on 10 November 2014, wherein she is recorded as Miss Yuvaves. There is no evidence that the respondent is married or lives in a de facto relationship. In all the documentation the respondent is referred to as Miss. I am satisfied that there is no other party with an interest in this application to be served.
Background
The child was discharged from the X Hospital into the care of the applicants approximately one week after his birth and has been in their care continuously since then. The respondent left the hospital a few days after the birth of the child.
A report dated 25 November 2014[2] indicates that parentage testing procedures, being DNA typing, were carried out on the bodily samples provided from the child and the first applicant who was recorded as the putative father. The parentage testing procedures were carried out in New South Wales between 21 November 2014 and 25 November 2014. The results of the parentage testing procedure indicated that the first applicant “is not excluded from identification as the biological father of [the child B]”. It also records that the probability that the first applicant is the genetic father of the child was calculated and equated to a relative chance of paternity of 99.98 per cent. The report also concluded “a conservative probability that paternity is proved is greater than 99.98 per cent”.
[2] Affidavit of the first applicant sworn 6 February 2015 at Exhibit “B”.
On 15 March 2013, Dessau J made parenting orders in favour of the applicants concerning another child, Z, who was born in 2012 as a result of a surrogacy arrangement. Genetically, Z has the same father as B. Those parenting orders provided for Z to live with the applicants and the applicants to have equal shared parental responsibility for him. Z continues to reside with the applicants in Southeast Asia. He is now aged two.
The second applicant deposed in her affidavit sworn 26 November 2014 that she has been in a stable relationship with the first applicant for about 10 years. The first applicant deposed that he and his partner had “tried for five years to have a baby.” The second applicant had a full hysterectomy approximately three years ago and was thus not able to carry a baby. At that time the first applicant was living in Melbourne and the second applicant was living and working in Southeast Asia. The applicants decided upon a fertility clinic in Thailand because the first applicant is familiar with Thai culture and speaks Thai having lived there for a number of years and had a business there. The first applicant deposed in his affidavit sworn 26 November 2014:
There is also a strong cultural reason to trust the motivation of the surrogates in Thailand. In Thailand surrogates agree to carry a baby for a woman who cannot have a baby and she is compensated for expenses only. Thai Buddhism places emphasis of (sic) earning religious “merit” by doing good deeds. There is even a word in Thai for the process of making merit by agreeing to be a surrogate.
The applicants met with Dr P, a specialist in fertility and reproductive endocrinology at X Hospital in Bangkok in June 2013. Doctor P had previously assisted the applicants in relation to the child Z. On 24 June 2013, Dr P advised the applicants that approval had been given from the hospital ethics committee to have surrogacy treatment with a Thai woman. The first applicant deposed that the applicants entered into a surrogacy agreement with the hospital.[3] The hospital recommended an agent who assisted the applicants in finding a surrogate mother. The respondent entered into a surrogacy agreement which was Exhibit “C” in the first applicant’s affidavit sworn 26 November 2014. The applicants paid the agent to find a surrogate and paid the fees charged by the fertility clinic in addition to the medical expenses for the surrogate. The applicants produced the house registration book and identification card for the respondent and translations of those documents in Thai.
[3] Affidavit of the first applicant sworn 26 November 2014 at Exhibit “B” and Exhibit “C”.
The respondent began treatment in preparation to accept one of the remaining embryos that X Hospital had frozen for the applicants before the birth of Z. This embryo was the product of genetic material from the first applicant and an anonymous donor egg. The embryo was transferred to the respondent in early March 2014. The applicants were provided with ultrasounds and photos of the pregnant respondent by May 2014. The photographs and ultrasounds were annexed to the first applicant’s affidavit sworn 6 February 2015. The applicants flew to Bangkok when they were advised by the hospital that the respondent had been admitted and the birth was imminent.
Other than taxi fares and a gift of an iPad, the applicants did not make any direct payments to the respondent. The applicants funded the medical expenses for the whole of the pregnancy and a period of around a month after the birth of the child.[4]
[4] Affidavit of the first applicant sworn 6 February 2015 at Exhibit “C” (a copy of the hospital receipts for the medical expenses).
The applicants took advice from the Australian Embassy about the process of applying for citizenship by descent so the child could become an Australian citizen, as well as in relation to the documents required to allow the applicants to leave Thailand with the child. A certificate of citizenship by descent was granted on 26 November 2014 certifying that the child became an Australian citizen. That certificate records the child’s date of birth and place of birth as Bangkok, Thailand.
The respondent signed the permission form to allow for the application for citizenship by descent to proceed and was interviewed by the immigration officials at the Australian embassy in Bangkok. The DNA test report was provided to the Australian embassy. The respondent was interviewed by immigration officials at the Australian embassy in Bangkok about her consent to an Australian passport being issued for the child pursuant to the applicant’s application and for the citizenship by descent application. An Australian passport for the child was issued on 4 December 2014.[5]
[5] Affidavit of the first applicant sworn 6 February 2015 at Exhibit “H”.
A letter of consent for the child to travel with the first applicant was obtained from the respondent which was a requirement for the child to leave Thailand with the applicants. The applicants returned to their home with the child who has been in their care ever since.
Both applicants are sharing the care of both children and both applicants deposed to having flexible working arrangements, whereby the first applicant works from home for an Australian-based business and the second applicant deposed to having the capacity to also work from home in her employment position as a senior level manager in a large company. The applicants deposed to having good financial resources and the support of a live in nanny/maid.
The applicants own property in Victoria and propose to return to Victoria at some time in the future for the children’s education. The applicants intend that both children will be enrolled in a private international school in Southeast Asia until they return to Melbourne to live.
Both applicants depose that they live in a stable relationship and the second applicant deposed that she took care of her younger adopted sister for the first three years of her life and has supported her financially through schooling and university and that she has a close relationship with her siblings.
Findings and legal principles
I am satisfied that the applicants have standing to make an application for parenting orders under s 65C(c) of the Family Law Act 1975 (Cth) (“the Act”). This provides that any person concerned with the care, welfare or development of the child may apply for a parenting order in relation to a child. I am satisfied on all the evidence that the first applicant is the biological father of the child and that both applicants have had the full-time and uninterrupted care of the child since he was discharged from hospital in Bangkok after his birth. I am satisfied that this was with the agreement of the respondent.
Under s 69E(1)(b) of the Act, one of the criteria allowing for proceedings in relation to a child to be instituted under the Act is if the child is an Australian citizen. I am satisfied that the child B is an Australian citizen having regard to the certificate of citizenship by descent. In this case, the first applicant is also an Australian citizen and being a party to the proceeding, jurisdiction is vested. I am satisfied that there is jurisdiction to hear this application under s 69E(1) of the Act.
I have had regard to several decisions made in this Court concerning surrogacy arrangements. Those are the decisions of Ellison and Anor & Karnchanit [2012] FamCA 602, Fisher-Oakley & Kittur [2014] FamCA 123 (“Fisher-Oakley”) and Green-Wilson & Bishop [2014] FamCA 1031, noting that this case has some distinguishing features in that there was no declaration as to parentage sought by the applicants in this case.
I agree with the level of disquiet which has been expressed by the judges of this Court because of the prospects of the potential abuse of these types of proceedings for ulterior motives such as the international trafficking of children. The disquiet expressed has also related to concerns about organisations or agencies profiting from the poverty and other problems that women in developing countries such as Thailand might face.
There is a need for caution and scrutiny of these arrangements in circumstances where applications are made to the Court unopposed and where the financial and educational background of the respondent(s) is unknown, As Cronin J has pointed out:[6]
The Court is rarely given any information about the circumstances under which the child might otherwise live if it did not move from the birth mother to people such as the present applicants.
[6] Fisher-Oakley & Kittur [2014] FamCA 123 at [6].
However, I have no reason to doubt the motives of the applicants in this case and whilst it is open to the Court to consider the appointment of an Independent Children’s Lawyer, I agree with Cronin J’s comment in Fisher-Oakley that there seems little benefit in revisiting those matters which were considered by Ryan J in Mason & Mason and Anor [2013] FamCA 424. The appointment of an Independent Children’s Lawyer is unlikely to add to any of the information already obtained from the parties and would involve considerable expense for the public purse.
I accept the unchallenged evidence of both applicants as to the circumstances of the surrogacy arrangement entered into and the evidence in the documents that the Australian Government has not been concerned about the travel movements for the child and has accepted the documents of the child’s birth and parentage having issued the citizenship by descent certificate and passport for the child.
I have had regard to the paramount consideration of the best interests of the child under s 60CA of the Act. In determining what is in the best interests of the child, I have had regard to the primary considerations outlined under
s 60CC(2) of the Act and the additional considerations under s 60CC(3) of the Act. In considering what is in the best interests of the child, I have also taken into account the objects and principles underlying that part of the Act.
Having regard to the surrogacy arrangement entered into by the applicants with the respondent, that the application is unopposed and the fact that the child was born as a result of the genetic material of the father and a donor egg from an anonymous source, I am satisfied that it is appropriate and in the best interests of the child to make the orders sought by the applicants.
I am satisfied that the applicants have resorted to extraordinary measures to conceive the child through the fertility clinic. The child has been born to the respondent as a result the surrogacy arrangements with the specific intention of the applicants immediately taking the child into their care as part of their family. I am satisfied, on all the evidence that, since birth, the child has been much loved and is part of the applicants’ family. The applicants are in a long term stable relationship and already have the care of another child born of a surrogacy arrangement. There is no evidence of any family violence and there is no other person expressing an interest in caring for the child. Both applicants are concerned with the care, welfare and development of the child and have the capacity to responsibly support the child financially and emotionally.
Division 12A of the Act reduces the significance of the evidentiary rules in relation to applications for parenting orders. Under s 69ZN(7) of the Act, one of the principles for conducting child related proceedings is that the proceedings are to be conducted without undue delay and with as little formality, legal technicality and form as possible. Having regard to that principle, I consider that the application should be determined without the need for any further formalities.
The policy with respect to commercial surrogacy and the Act would appear to be unclear in Victoria and may well be a matter of controversy in the community. The applicants here assert that the arrangement entered into was a voluntary surrogacy but this question is unnecessary to decide. I acknowledge the reality of the situation that the child is living with and being cared for by both applicants as a result of the surrogacy arrangement in Thailand. The child has had no other carers since being discharged from hospital and there is no evidence of any alternative carer. Despite the uncertainty surrounding the policy in this area, I consider it in the best interests of the child to make the orders sought by the applicants whose evidence is unchallenged.
I am also satisfied that procedural fairness has been accorded to the respondent in the circumstances of this case. However, it is also appropriate to ensure that she is notified of the outcome and, accordingly, I make orders to provide for this.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 2 March 2015.
Associate:
Date: 2 March 2015
ANNEXURE A
THE APPLICANTS’ DOCUMENTS RELIED UPON:
Affidavit of the first applicant sworn 26 November 2014 and filed 5 December 2014;
Affidavit of the second applicant sworn 26 November 2014 and filed 5 December 2014;
Affidavit of the first applicant sworn 6 February 2015 and filed 9 February 2015;
Two affidavits of service filed 13 February 2015; and
Acknowledgment of Service signed 9 February 2015.
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