Dennis & Anor and Pradchaphet
[2011] FamCA 123
•22 February 2011
FAMILY COURT OF AUSTRALIA
| DENNIS AND ANOR & PRADCHAPHET | [2011] FamCA 123 |
| CHILDREN – Consent orders – Surrogate Mother – Child to live with the father and father’s wife – Court orders equal shared parental responsibility to the father and the father’s wife |
| Family Law Act 1975 (Cth), ss 61DA, 65C |
| 1st APPLICANT: | Mr Dennis |
| 2nd APPLICANT: | Mrs Dennis |
| RESPONDENT: | Ms Pradchaphet |
| FILE NUMBER: | SYC | 7140 | of | 2010 |
| DATE DELIVERED: | 22 February 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Stevenson J |
| HEARING DATE: | 7 February 2011 |
REPRESENTATION
| SOLICITOR FOR THE FIRST AND SECOND APPLICANT: | Lewis Law |
| SOLICITOR FOR THE RESPONDENT: | No appearance |
Orders
That the child L, born on … August 2009 live with the applicants Mr Dennis and Mrs Dennis.
That the applicants have equal shared parental responsibility for making decisions on both day-to-day and long-term issues in relation to the child.
It is noted that publication of this judgment under the pseudonym Dennis and Anor & Pradchaphet is approved pursuant to s 121 (9) (g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 7140 of 2010
| Mr Dennis and Mrs Dennis |
Applicant
And
| Ms Pradchaphet |
Respondent
REASONS FOR JUDGMENT
THE PROCEEDINGS
On 12 November 2010 Mr Dennis (“the father”) and Mrs Dennis (“the father’s wife’) conjointly filed an application for consent orders in relation to the child L who was born in August 2009. The respondent, Ms Pradchaphet, is the child’s surrogate mother and has no biological relationship with him. Mr Dennis is his biological father.
On 25 October 2010 the father, the father’s wife and Ms Pradchaphet entered into a parenting plan regarding L. The substance of the plan is that:
·Ms Pradchaphet relinquishes all parental rights and obligations in relation to L;
·L lives with the father and his wife;
·The father and his wife have joint equal responsibility for making decisions on all day-to-day and long-term issues relating to the child.
Background
The father was born in 1968 in New Zealand and is now 42 years old. The father’s wife was born in 1968 in Asia and is now 42 years old. The father is an Australian citizen and his wife is a permanent resident of this country. They married in Sydney in 1998 and live permanently in northern Queensland.
The father and his wife spent ten years trying unsuccessfully to have children, with the assistance of IVF technology. Finally they approached doctors at a fertility clinic in Thailand.
Two eggs provided by anonymous donors were fertilised with the father’s genetic material and implanted in surrogate mothers Ms C and Ms Pradchaphet. In August 2009 Ms Pradchaphet gave birth to the child L. On the same day Ms C gave birth to twins, B and C.
The births of the three babies were registered in Thailand, showing the father and the respective surrogate mothers as parents. The father and his wife applied unsuccessfully for Australian citizenship by descent for the three children.
The father also commenced proceedings in a Thai court to establish that each surrogate mother had relinquished all her parental rights. These proceedings were unsuccessful, apparently because Thai courts do not make such orders until a child attains “the age of reason” at about seven or eight years.
A few days after the births, the surrogate mothers gave the children into the care of the father and his wife. They lived in rented accommodation in Bangkok until they returned to Australia in April 2010. Their return followed the granting of visas for the children, after DNA testing established that the father is their biological father.
The father and his wife have entered into parenting plans with each of the surrogate mothers and applied for consent orders to give effect to those provisions, in relation to all three children. Only the application in relation to the child L was before me, as proceedings relating to the twins B and C have been listed separately.
Evidence in Support of the Application
The applicants relied on the following affidavits:
1. Mr Dennis (the biological father) sworn 22 October 2010;
2. Mrs Dennis (the biological father’s wife) sworn 23 September 2010;
3. Ms Pradchaphet (the surrogate mother) sworn 29 October 2010;
4. Mr P (the former husband of Ms Pradchaphet) sworn 31 October 2010;
5. Suwatchau Samakkasettakorn (a Thai lawyer) sworn 29 October 2010;
6. S (a Thai interpreter) sworn 29 October 2010.
In her affidavit the Thai interpreter deposed that she translated to Ms Pradchaphet her own affidavit and those of the father and his wife; the parenting plan; the application for consent orders; specified sections of the Family Law Act and a provision of the Thai Civil Code. Ms Pradchaphet then swore and signed her affidavit, the application for consent orders and the parenting plan. The Thai interpreter further deposed that Ms Pradchaphet is personally known to her.
The Thai lawyer deposed that he or she advised Ms Pradchaphet of her and the father’s rights and obligations under Thai law in relation to the child. The lawyer also deposed that under Thai law only a birth or surrogate mother has any parental rights in relation to a child born when she was not married to a man. The lawyer was of the view that no parental rights vest in the biological mother or father in the case of the surrogate birth. The lawyer deposed further that no Thai law governs surrogacy arrangements.
The ex-husband of the surrogate mother deposed that they divorced on 15 June 2009. He further deposed that he did not consent to the artificial conception procedure in relation to the child which she carried out as a surrogate mother.
Ms Pradchaphet deposed that she is not the biological mother of L and confirmed the account of the IVF procedure described by the father in his affidavit. She also deposed that the Thai lawyer gave advice as to her rights and obligations in relation to the child pursuant to Thai law and, with that knowledge, she consents to the father and his wife having sole care of and responsibility for L. She confirmed that she and her ex-husband were separated at the time of the procedure, to which he did not consent. She further confirmed the evidence of the Thai interpreter as to the documents which were translated to her.
The father swore an affidavit in which he detailed the IVF procedure and set out the arrangements which he proposed for the care of the child L. He detailed the proceedings in the Thai court and his attempts to obtain Australian citizenship and visas for all three children. This evidence was corroborated by the affidavit of the father’s wife.
RELEVANT LAW
Section 65C of the Family Law Act 1975 (Cth) (“the Act”) provides that a parent, grandparent, the child or any other person concerned with the care welfare and development of the child may apply for a parenting order. The Act contains no definition of the term “parent”.
If the father is not L’s “parent”, the provisions of s 65G of the Act apply because the proposed orders would result in the child living with a person other than a parent, grandparent or other relative and because no such person would have parental responsibility. Consequently, a parenting order must not be made unless parties to the proceedings discuss the matter with a family consultant or the Court is satisfied that it is appropriate to make the order even though that condition is not satisfied.
I am satisfied and I find, that the father is a “parent” of the child L for the following reasons:
· He and the surrogate mother both say on their oath that he provided his genetic material to fertilise the anonymously donated egg in the IVF process;
· DNA testing has established that he is the child’s biological father;
· He is registered as the father on the child’s Thai birth certificate and “House Registration” document;
· He assumed the role of father to the child almost immediately on his birth;
· He intends, jointly with his wife, to provide ongoing care and support for the child;
· The surrogate mother and, obviously, the anonymous egg donor intend to play no role whatsoever in the child’s life.
I stress that I have found the father to be L’s “parent” in the particular circumstances of this case. I intend my finding to have no wider implications.
Ms Pradchaphet, as surrogate, is L’s mother pursuant to Thai law. She and Mr P were divorced on 15 June 2009, that is, prior to the child L’s birth. Accordingly, Ms Pradchaphet was not married to a man at the time of the birth so she has sole parental rights to the child. Under s 61DA of the Act, it is necessary to apply the presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility (s 61DA(1)) unless that presumption does not apply or is rebutted (s 61DA(4)). Thus it may be necessary to consider whether the presumption of equal shared parental responsibility does not apply or has been rebutted. I have no hesitation in finding that it would not be in L’s best interests that there be equal shared parental responsibility, in circumstances where Ms Pradchaphet proposes to play no role whatsoever in his life. As noted, she consents to the father and his wife having equal shared parental responsibility to her total exclusion. Equal shared parental responsibility is thus a meaningless concept in circumstances where one parent proposes to play no role whatsoever in a child’s life. It would be absurd to go through the motions of considering equal or substantial and significant time with each of the father and Ms Pradchaphet.
A decision as to parenting orders for L is thus determined by what is in his best interests. I am comfortably satisfied that the orders sought by the father and his wife would best meet his interests.
The father and his wife offer a high standard of care for L. They live in northern Queensland in a four bedroom home which they own jointly. L’s twin brothers C and B live with them. There is no reason to doubt that the three children are developing bonds as siblings. They have known only the father and his wife as their carers.
The father and his wife are in comfortable financial circumstances. They operate a business from which they each draw an annual income of about $60,000. As they are the sole proprietors of the business, their work commitments are flexible and they can arrange for one of them to be with L and his brothers at all times.
The father and his wife intend to ensure that L and his brothers grow up with an awareness of his Thai culture. The father’s brother is married to a Thai lady and the father’s wife, being of Asian ethnicity, is very conscious of the need for L and his brothers to maintain a connection with this side of their culture.
If I am erroneous in concluding that the father is L’s parent in the relevant sense, I would still make the orders sought by the applicants. I am of the clear view that it would be unnecessary and futile for the parties to discuss the proposed orders with a family consultant. Ms Pradchaphet lives in Thailand and would be put to substantial inconvenience if she were required to attend such a conference, even if only by telephone. She could be expected simply to confirm her intention to relinquish all of her rights and obligations in relation to L and her consent to the proposed orders. I would reach the same conclusion as to the proposed orders being in L’s best interests in these circumstances.
I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 22 February 2011.
Associate:
Date: 22 February 2011
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