Dahlin & Barda
[2023] FedCFamC1F 839
•5 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dahlin & Barda [2023] FedCFamC1F 839
File number: MLC 5881 of 2023 Judgment of: HARTNETT J Date of judgment: 5 October 2023 Catchwords: FAMILY LAW – PARENTING – ADOPTION – SURROGACY – Where the joint applicants seek leave to commence adoption proceedings in the County Court of Victoria – Where the applicants seek orders for the child to live with them and have equal shared parental responsibility – Where the applicants seek to change the name of the child – Where the respondent is the surrogate mother who gave birth to the child – Where the child does not have any genetic material of the respondent – Where the child was conceived through IVF – Where the first applicant is the biological father of the child – Where there was an overseas egg donor – Where a commercial surrogacy agreement was signed in Country F – Where the respondent supports the orders sought by the applicants – Where a legal practitioner in Country F has attested to the legality of the surrogacy agreement – Where compliance with rule 1.10 of the Family Law Rules is satisfied - Orders made as sought by the applicants Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4, 60C, 60F, 60G, 60I, 60CC, 60HA, 61E, 64B, 65F, 65J, 149
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 25, 149
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 1.10
Adoption Act 1984 (Vic)
Births Deaths and Marriages Registration Act 1996 (Vic) s 29
Cases cited: Masson v Parsons [2019] HCA 21 Division: Division 1 First Instance Number of paragraphs: 56 Date of hearing: 3 October 2023 Place: Melbourne (via video link) Counsel for the Applicants: Ms Swann Solicitor for the Applicants: Saunders Family & Estate Lawyers Solicitor for the Respondent: No appearance ORDERS
MLC 5881 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DAHLIN
First Applicant
MR RUTHIE
Second Applicant
AND: MS BARDA
Respondent
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
3 OCTOBER 2023
THE COURT ORDERS THAT:
1.The requirement of the First and Second Applicants to file a certificate pursuant to section 60I of the Family Law Act 1975 (Cth) is dispensed with.
2.The requirement of the parties to engage in counselling as provided for in section 65F(2) of the Family Law Act 1975 (Cth) is dispensed with.
3.The documents contained in the tender bundle as provided by the First and Second Applicants are tendered into evidence.
4.Pursuant to section 60G(1) of the Family Law Act 1975 (Cth), leave be granted to the parties to commence proceedings in the County Court of Victoria for adoption of the child X born 2014 ("the child").
5.The First and Second Applicants have shared joint parental responsibility of the said child.
6.The child live with the First and Second Applicants.
7.The First and Second Applicants be authorised to apply to the registrar of Births Deaths and Marriages for the State of Victoria. That the child presently registered as X DAHLIN born 2014 now be registered as X RUTHIE-DAHLIN.
8.Pursuant to Section 29 of the Births Deaths and Marriages Registration Act 1996 (Victoria) the Registrar register the said child's name in the form specified in Order 7 of these Orders.
9.The First and Second Applicants as soon as practicable serve a sealed copy of these Orders upon the Registrars of Births Deaths and Marriages for the State of Victoria.
10.The First and Second Applicants as soon as practicable serve a sealed copy of these Orders upon the Respondent.
11.Otherwise all extant applications be dismissed and the matter removed from the list.
AND THE COURT NOTES THAT:
A.There is no objection by the Respondent to Orders being made as sought by the First and Second Applicants which are Orders numbered 4 to 9 inclusive. The respondent’s support for the making of these Orders is detailed at paragraph 8 of her affidavit filed in the proceedings on 11 July 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dahlin & Barda has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
PRELIMINARY
This proceeding comes before the Court as a result of an Initiating Application filed by the first applicant and the second applicant (collectively "the applicants") wherein they sought orders in relation to the child X born 2014 ("the child"). The applicants are the fathers of the child, and the respondent is a surrogate who gave birth to the child ("the respondent"). The respondent resides in Country F. The biological father of the child is the first applicant, and the biological mother of the child is an egg donor whom resides in Country O.
The applicants sought orders, relevantly, that they be granted leave pursuant to s 60G of the Family Law Act 1975 (Cth) ("the Act") to commence proceedings in the County Court of Victoria for adoption of the child; that they have equal shared parental responsibility for the child; that the child live with them; that they be authorised to apply to register the child as ' X Ruthie-Dahlin'; that pursuant to s 29 of the Births Deaths and Marriages Registration Act 1996 (Vic) the Registrar register the child's name in the form as described herein; and that the applicants serve a sealed copy of the orders upon the Registrar of Births Deaths and Marriages for the State of Victoria.
The respondent was not in attendance at the hearing, however, does not object to the orders as sought by the applicants and indeed supports the making of such orders.
MATERIAL RELIED UPON
The applicants relied on the following documents:
(1)Initiating Application filed 31 May 2023;
(2)affidavit of the applicants filed 31 May 2023. This affidavit was jointly signed and affirmed by both of the applicants;
(3)affidavits of the respondent filed 11 July 2023 and 28 September 2023;
(4)Acknowledgement of Service signed by the respondent filed 11 July 2023;
(5)affidavits of Ms B filed 19 July 2023 and 28 September 2023;
(6)affidavit of Mr D filed 8 September 2023; and
(7)tender bundle which is in evidence before the Court which contained the following documents:
(a)certified copy of the child’s Country F birth certificate;
(b)certified English translation of the child’s Country F birth certificate;
(c)certified copy of the child’s Australian Citizenship by Descent certificate dated mid-014; and
(d)C Company – DNA Labs Parentage Testing Procedure Report dated mid-2014 indicating there is a 99.99 per centage probably of paternity in relation to the first respondent and the child.
Statements of fact in these reasons are findings of fact on the balance of probabilities.[1] The evidence before the Court was that as contained in the materials relied upon as described above.
[1] Evidence Act 1995 (Cth) s 140.
RELEVANT FACTUAL FINDINGS
The respondent was born in 1974 and was aged 49 years at the time of hearing. She resides in Region E, Country F. She is married and has two children, aged 15 and 22 years of age.
The first applicant was born in 1982 and was aged 40 years at the time of hearing. He is self‑employed and operates a business.
The second applicant was born in 1983 and was 39 years at the time of hearing. He is co‑director of the first applicant’s business and is studying at university with the intention of becoming a health professional.
The applicants commenced living together in 2006 and were married in 2018. The applicants have been cohabitating for approximately seventeen years.
The child was born in City G, Country F in 2014. The child is in good health and has recently attended upon a paediatrician, as arranged by the applicants, and has received a diagnosis of attention deficit hyperactive disorder (ADHD). The child is in Grade 3 at H School.
On the child’s Country F Birth certificate, the first applicant is registered as the child’s father and the respondent is registered as the mother of the child.
The applicants have a second child, K, who was born in 2017 and is aged six years (“the child’s brother”). The child’s brother was born in State J, United States of America as a result of a commercial surrogacy agreement. The applicants are both registered as the fathers of the child’s brother on his birth certificate and do not seek any orders in relation to him.
In 2013, the first applicant signed a Surrogacy Agreement with L Limited (“the donor egg agency”) in relation to the provision of the donor egg.
The next day, the first applicant signed a Surrogacy Agreement with M Limited (“the surrogacy agency”), being an associate company to the donor egg agency.
In 2013, the respondent signed a Surrogacy Agreement with the surrogacy agency.
Copies of the abovementioned agreements are in evidence before the Court, as annexed to the applicants’ affidavit filed 31 May 2023.
In or about 2013, it was confirmed that the respondent was pregnant. After receiving confirmation of pregnancy, the applicants and the respondent communicated regularly.
Throughout the respondent’s pregnancy, the applicants paid for all the expenses associated with the pregnancy including travel, food and hospital expenses.
In 2014, the applicants travelled to City G, Country F in anticipation of the birth of the child.
In 2014, the child was born. The same day, the respondent signed an Application for an Australian Travel document consenting to the child travelling to Australia with the respondents.
A short time later, the child was discharged from hospital into the care of the applicants. Shortly thereafter, the applicants facilitated a visit between the respondent and the child prior to the respondent returning home to her residence in Region E.
In 2014, the child obtained Australian Citizenship by descent.
In 2014, the applicants returned to Australia with the child on a passport obtained with the consent of the respondent. The child has remained living with the applicants for a period in excess of 9 years.
SURROGACY - RULE 1.10 OF THE FAMILY LAW RULES
The evidentiary requirement for matters in relation to a child who was born under a surrogacy agreement (if no final parenting order in relation to the child has been made under Part VII of the Act) is set out in r 1.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Family Law Rules”). The requirements therein were satisfied on: (a) the factual findings above which went to the surrogacy arrangements between the first applicant and the respondent; (b) the evidence before the Court as contained in the applicants’ tender bundle documents described in paragraph 4 above; and (c) the further evidence as set out hereafter.
It was the respondent’s position she voluntarily signed a surrogacy agreement with the first applicant and consented to undergo in vitro fertilisation to ‘gestate his embryo in my uterus’.[2] The surrogacy agreement was translated and fully explained to the respondent by a Country F translator prior to the respondent signing the agreement. The respondent did not receive legal advice and to her knowledge ‘there was no legal requirement that I had to receive any legal advice prior to entering into the surrogacy agreement’.[3]
[2] Respondent’s affidavit filed 11 July 2023, paragraph 3.
[3] Respondent’s affidavit filed 28 September 2023, paragraph 5
The respondent deposed she consented to waiving any action regarding the legal custody of the child and understood the embryo implanted in her did not ‘belong to her’.[4]
[4] Respondent’s affidavit filed 11 July 2023, paragraph 3.
The applicants submitted that the respondent’s affidavits filed in this proceeding are silent as to whether the respondent received counselling prior to entering into the surrogacy agreement and the Court may infer that she did not receive any professional counselling from a qualified psychologist or social worker. The Court does make the inference the respondent did not receive any counselling. I also observe that the respondent, at the relevant time, had a spouse and two children. Further, that in the intervening years, the respondent has remained satisfied with her choice to be a surrogate pursuant to a surrogacy agreement.
It was the respondent’s evidence that she received full payment in accordance with the surrogacy agreement.
The Court was assisted by an affidavit of evidence of Mr D, a legal practitioner of some years in Country F. Mr D deposed that it was his opinion the surrogacy agreement the respondent and first applicant entered into was a valid agreement as at the time of the respondent entering into it and at the time of the child’s birth. Pursuant to it, the respondent and her spouse have no rights of custody in relation to the child, subject to one exception, being that ‘unless the surrogate mother becomes aware of evidence that the Applicants engaged in illegal acts endangering the life or the health and well-being of the surrogate child’.[5] This exception is one that clearly does not apply in this case.
[5] Affidavit of Mr D filed 8 September 2023, paragraph 11.
RELEVANT LEGAL PROVISIONS
Adoption proceedings are not determined by the Court and are instead determined by State courts pursuant to the relevant State legislation. The relevant State legislation in Victoria is the Adoption Act 1984 (Vic). Notwithstanding this, there is provision in the Act for the Court to provide leave to commence adoption proceedings.
Section 60G of the Act relevantly provides:
(1)Subject to subsection (2), the Federal Circuit and Family Court of Australia (Division 2), 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.
(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 s 60F(4)(a) of the Act, or s 60HA(3)(a) of the Act, and of ss 61E and 65J of the Act.
Notwithstanding s 60G(1) of the Act expressly providing the Federal Circuit and Family Court of Australia (Division 2) may grant leave, pursuant to s 25 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) this Court has jurisdiction to hear matters which have been transferred from Division 2 to Division 1 under s 149 of the FCFCOA Act.
Whilst this proceeding commenced in the Federal Circuit and Family Court of Australia (Division 2), a transfer Order was made on 19 July 2023, pursuant to s 149 of the FCFCOA Act. The effect of such Order was to transfer the proceeding to the Court to be heard and determined.
Relevant to s 60G(1) of the Act, the meaning of a prescribed adopting parent, in relation to a child, is included in s 4(1) of the Act which provides:
(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.
The first applicant is a parent of the child and the second applicant is the spouse of the first applicant.
Relevant to s 60G(2) of the Act, the best interests considerations the Court must have regard to are as set out in s 60CC of the Act. Indeed, the Court must have regard to the best interests considerations as the paramount consideration when deciding to make a particular parenting order in relation to a child. A parenting order, pursuant to s 64B of the Act, may deal with the person or persons which whom a child is to live and the allocation of parental responsibility for a child.
Pursuant to s 61E of the Act, the effect of adoption on parental responsibility is if:
(1)…
(a) a child is adopted; and
(b)immediately before the adoption, a person had parental responsibility for the child, whether in full or to a limited extent and whether because of section 61C or because of a parenting order.
(2)The person’s parental responsibility for the child ends on the adoption of the child, unless the adoption is by a prescribed adopting parent and leave was not granted under section 60G for the adoption proceedings to be commenced.
Similar to s 61E of the Act, s 65J of the Act provides the effect of adoption on a parenting order is if:
(1)…
(a) a child is adopted; and
(b)immediately before the adoption, a parenting order was in force in relation to the child.
(2)The parenting order stops being in force on the adoption of the child, unless the adoption is by a prescribed adopting parent and leave was not granted under section 60G for the adoption proceedings to be commenced.
Having regard to s 61E and s 65J of the Act, I note that the definition of prescribed adopting parent as detailed above includes provision for a parent of the child being an applicant in addition to the spouse of a parent.
CONSIDERATION
I find the matters set out below go to the establishment of the promotion of the child’s best interests.
The second applicant is the child’s primary carer and is responsible for taking the child to and from school and is involved in the child’s bedtime routine. The first applicant is primarily involved in the child’s weekend activities.
The applicants provide for all of the child’s physical, financial, psychological and emotional needs and have a demonstrated capacity to continue to do so.
The applicants currently reside in a four-bedroom house which has separate bedrooms for them and each of the children.
The applicants intend that both the child and the child’s brother will transition from H School to N School for their secondary education. N School is located approximately one kilometre from the family home.
Both children are involved in extracurricular activities including sports. Both children have also enjoyed overseas travel with the applicants including a recent trip to an amusement park and a skiing trip.
The child and the child’s brother have a close relationship with their paternal grandparents and see their extended family members, including an aunty and cousins, on a regular basis.
The child is ‘aware of her origins’ and the applicants are open to facilitating and introducing the child to the respondent,[6]and the child to her biological mother, if it is the child’s wish for that to occur.
[6] Applicants’ affidavit filed 31 May 2023, paragraph 20.
The respondent has had no involvement in the child’s life since the applicants returned to Australia with the child in 2014. It is the respondent’s position she has ‘no wish to be a part of [X’s] life and I am happy that she is loved and being taken care of’.[7] The respondent has not made any financial contribution to the child and nor does she have a financial obligation to maintain the child.
[7] Respondent’s affidavit filed 11 July 2023, paragraph 8.
The applicants and the respondent have maintained semi-regular communication, with the applicants having provided the respondent with photographs of the child. The applicants have also, from time to time, gifted the respondent money.
The applicants submitted, in relation to seeking orders for the name change of the child, that they sought to harmonise the surnames of the child and the child’s brother. In essence, for siblings’ names to be in unison. It was further submitted it is in their best interests to identify as brother and sister by having the same surname as each other and their fathers, who are their primary care givers.
An adoption order, once made by the County of Victoria, and as submitted by the applicants, would likely promote the welfare of the child and is in her best interests. Further, such order would effectively provide that the child and the child’s brother are ‘legally the same’ and there would be ‘no uncertainty or legal ambiguity about who has legal responsibility’ for the child as submitted by the applicants.[8] I agree with those submissions.
[8] Applicants’ written submissions dated 3 October 2023, paragraph 27.
The applicants referred the Court to the effect of adoption on parental responsibility as provided for in s 61E of the Act and submitted ‘in circumstances where no other person other than the Applicants are involved with the care, welfare and development of the child, the cessation of parenting orders upon the adoption order being made would have no confusing or negative effects and would be consistent with the child’s best interests’.[9] I accept that submission.
[9] Applicants’ written submissions dated 3 October 2023, paragraph 24.
CONCLUSION
All parties should be commended on their approach to the child. It is clear the child has grown up in a very loved environment, and that is a testament to the child focussed approach of the applicants and the respondent.
While consent is not required from the respondent for the Court to be satisfied it is appropriate for an order to be made granting the applicants leave to commence adoption proceedings pursuant to s 60G of the Act, I note the respondent is supportive of the orders as sought by the applicants and her material goes to the Court being satisfied that it is appropriate to make the s 60G of the Act order. Such an order will promote the welfare and interests of the child.
In relation to changing the child’s name such that she has the same surname as her brother, I am satisfied, that the making of such an order as sought by the applicants would be in the best interests of the child.
Having regard to the circumstances of the parties and the totality of the evidence, it is also appropriate for orders to be made granting the applicants an exemption from obtaining a certification pursuant to s 60I of the Act, and an exemption in relation to obtaining counselling pursuant to 65F(2) of the Act.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 5 October 2023
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