BETWEEN: DAVID JOHN FARNELL
First Applicant
WENYU LI
Second Applicant
AND
PATTARAMON CHANBUA
Respondent
AND
CEO, DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT
First Intervener
AND
AUSTRALIAN HUMAN RIGHTS COMMISSION
Second Intervener
AND
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Third Intervener

Catchwords:

CHILDREN – Surrogacy – With whom a child lives – The applicants entered into surrogacy arrangement with the respondent birth mother – Twins born in Thailand as a result – The girl was brought to Western Australia to live with the applicants, while the boy remained in Thailand with the birth mother – The applicants seek an order for the girl to continue living with them – The birth mother seeks an order for the girl to live with her in Thailand – The male applicant is a convicted sex offender but expert evidence indicates that there is a low risk of him abusing the girl – This risk must be weighed against the high risk of harm to the girl if she is removed from her current home – Orders for the girl to live with the applicants and for them to have parental responsibility – No orders requiring the applicants to allow the birth mother to spend time with or communicate with the girl – Applicants required to send some of the girl's schoolwork to the birth mother – Formal findings made that the applicants did not abandon the boy and did not try to access his trust fund.

JURISDICTION – Parentage – Powers of the Family Court of Western Australia (“FCWA”) – Whether the matter falls for determination under the Family Law Act 1975 (Cth) (“the federal Act”) or the Family Court Act 1997 (WA) (“the State Act”) – Turns on whether the child is a “child of a marriage” – s 60H and s 60HB of the federal Act override the parentage presumptions in that Act – The Surrogacy Act 2008 (WA) does not apply – By operation of the Artificial Conception Act 1985 (WA), the child’s parents are the birth mother and her husband, who were in a de facto relationship at the time of the artificial fertilisation procedure – s 60H(1) of the federal Act does not apply to surrogacy – s 60F(1)(b) of the federal Act does not apply to children born as a result of artificial conception procedures – The child is therefore not a “child of a marriage” and the State Act applies.

DECLARATION – Parentage – The applicants seek a declaration that the male applicant is a parent of the child – Discussion of the source of power for making a declaration of parentage in proceedings under the State Act – The Artificial Conception Act 1985 (WA) overrides the parentage presumptions in the State Act – The court cannot declare something to be the case when the law provides to the contrary – Application for declaration dismissed.

CHILD PROTECTION – Protection order (supervision) – The child protection authority seeks a protection order (supervision) if the child remains with the applicants – Discussion of standard of proof in child protection proceedings and the meaning of “likely” in s 28(2)(c) of the Children and Community Services Act 2004 (WA) – There is a possibility that cannot sensibly be ignored that the child will suffer harm if she is left in the care of the applicants – No order principle applied because the same level of protection can be achieved under the State Act – Orders made under the State Act to protect the child.

JURISDICTION – Child protection – s 36(2) of the State Act does not limit the power of the FCWA to make orders under the Children and Community Services Act 2004 (WA) – If a protection order (supervision) is made, the consent of the child protection authority is not required under s 202(1) of the State Act before making orders under the State Act because the child would not be “under the control or in the care … of a person under a child welfare law”.

CHILDREN – Change of name – Registration of birth – The child currently has the former surname of the birth mother – The applicants seek that the child have the male applicant’s surname – Discussion of policy considerations relating to name changes in surrogacy and adoption matters – It is in the child’s best interests to have the same surname as her carers – The child’s surname cannot be changed until her birth is registered in Western Australia – The applicants cannot register the child’s birth because they are not her parents – The FCWA has power to order the Registrar of Births, Deaths and Marriages to register the child’s birth and approve changes to the child’s name – The birth mother and her husband should be recorded as the child’s parents, but the Registrar is invited to consider recording that the applicants have parental responsibility for the child.

PUBLICATION ORDER – Publication of an account of the proceedings permitted because the story is already in the public domain, there is public interest in it, and the applicants seek and are entitled to some restoration of their reputation – Conditions to protect the child.

EVIDENCE – Perjury – The applicants lied under oath concerning the genetic make-up of the child – Whether to refer the papers to the Director of Public Prosecutions – No need to refer papers as the Attorney General is already aware of the perjury.

Legislation:

Acts Interpretation Act 1901 (Cth), s 15A
Adoption Act 1994 (WA), s 4(1), s 4A, s 74(2), s 75(1)
Artificial Conception Act 1985 (WA), s 3, s 4, s 5, s 6, s 6A, s 7
Australian Citizenship Act 2007 (Cth), s 8
Australian Constitution, s 51, s 75, s 76, s 118
Births, Deaths and Marriages Registration Act 1988 (WA), s 4, s 13, s 17, s 18, s 20, s 22(5), s 33, s 49
Child Welfare Act 1947 (WA), s 4(3)
Children Act 1989 (UK), s 31(2)
Children and Community Services Act 2004 (WA), s 3, s 4, s 6, s 7, s 8, s 9, s 21, s 28, s 30, s 32, s 44(2), s 45, s 46, s 47, s 48, s 49, s 50, s 51, s 52, s 53, s 143, s 144, s 147, s 151, s 237
Convention on the Rights of the Child, art 3(1), art 7(1), art 35, art 43
Criminal Code (WA), s 12
Evidence Act 1995 (Cth), s 140(2)
Evidence Act 1906 (WA)
Family Court Act 1997 (WA), s 5(1), s 7A, s 36, s 66, s 66A, s 66C, s 69(1), s 70A(1), s 88,
s 89AC(3), s 92, s 162, s 185, s 191(1), s 192, s 202(1), s 207(2), s 243
Family Law Act 1975 (Cth), s 4(1), s 4AA, s 60A, s 60EA, s 60F, s 60H, s 60HA, s 60HB, s 64B(2), s 69S, s 69U, s 69VA, s 69ZE(2), s 69ZH
Family Law Amendment Act 1983 (Cth)
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)
Family Law Regulations 1984 (Cth), reg 12C, reg 12CA, reg 12CAA
Family Law Rules 2004 (Cth), r 6.02
Human Reproductive Technology Act 1991 (WA), s 18(1)
Interpretation Act 1984 (WA), s 5, s 13A
Judiciary Act 1903 (Cth)
Marriage Act 1961 (Cth), s 90, s 93
Prohibition of Human Cloning for Reproduction Act2002 (Cth), s 21
Surrogacy Act 2008 (WA), s 8, s 17, s 19, s 21, s 24, s 25, s 66

Category: Reportable

Representation:

Counsel:

First Applicant : Mr M Nicholls QC
Second Applicant : Mr M Nicholls QC
Respondent: Mr R Hooper SC
First Intervener : Ms C Thatcher
Second Intervener : Ms P Giles
Third Intervener : Ms N Eagling
Independent Children's Lawyer : Mr M Berry SC

Solicitors:

First Applicant : Lewis Blyth & Hooper
Second Applicant : Lewis Blyth & Hooper
Respondent: Kim Wilson & Co
First Intervener : State Solicitor's Office
Second Intervener : Human Rights Commission
Third Intervener : State Solicitor's Office
Independent Children's Lawyer : Legal Aid WA

Case(s) referred to in judgment(s):

AA v Registrar of Births, Deaths & Marriages and BB (2011) 13 DCLR (NSW) 51
AB v Chief Executive Officer, Department of Child Protection [2014] WASC 87
Aldridge & Keaton (2009) FLC 93-421
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559
Attorney-General (Vic) v The Commonwealth (1962) 107 CLR 529
B v J (1996) FLC 92-716
B v Medical Superintendent of Macquarie Hospital (1987) 10 NSWLR 440
Blake and Anor [2013] FCWA 1
Briginshaw v Briginshaw (1938) 60 CLR 336
Bropho v Western Australia (1990) 171 CLR 1
Carlton & Bissett (2013) 49 Fam LR 503
Chief Executive Officer of the Department for Child Protection and Family Support v AP [2016] WACC 1
Coco v R (1994) 179 CLR 427
Deiter & Deiter [2011] FamCAFC 82
Devries v Australian National Railways Commission (1993) 177 CLR 472
Director General for Family and Children's Services v E (1998) 23 Fam LR 546
Donnell & Dovey (2010) FLC 93-428
Dougherty v Dougherty (1987) 163 CLR 278
Dudley & Chedi [2011] FamCA 502
Ellison & Karnchanit [2012] 48 Fam LR 33
Flanagan & Handcock (2001) FLC 93-074
Foskey v L (1987) 12 Fam LR 407
G v H (1994) 181 CLR 387
Goodwin v Phillips (1908) 7 CLR 1
H v Minister for Immigration and Citizenship (2010) 188 FCR 393
Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) (1982) 148 CLR 88
Hunt v Minister for Immigration and Ethnic Affairs (1993) 41 FCR 380
In re B (Children) (Care Proceedings: Standard of Proof) [2008] 2 FLR 141
In re H (Minors) (Sexual abuse: Standard of Proof) [1996] AC 563
In re LC (Children) [2014] AC 1038
In re O (Minors) (Care: Preliminary Hearing) [2004] 1 AC 523
In re S-B (Children) (Care Proceedings: Standard of Proof) [2010] 1 AC 678
In re X & Y (Foreign Surrogacy) [2008] EWHC 3030
In the marriage of Cormick; Salmon (1984) 156 CLR 170
In the matter of Adam and Michael [2004] CLN 3
In the matter of J (a child); S v Paskos (1992) 8 WAR 561
J v Lieschke (1987) 162 CLR 447
KLR v Director General, Department of Community Services (Unreported, WASC, Anderson J, BC9201021, 11 September 1992)
Lynam v Director-General of Social Security (1983) 52 ALR 128
M v M (1988) 166 CLR 69
Maldera & Orbel (2014) FLC 93-602
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Mallett v McMonagle [1970] AC 166
Malpass & Mayson (2000) FLC 93-061
Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365
Murray v Murray (1960) 33 ALJR 521
MW v Director-General of the Department of Community Services (2008) 82 ALJR 629
Nairn v O’Reilly (1986) 11 Fam LR 472
Neat Holdings Pty Ltd v Karajan Holdings (1992) 110 ALR 449
PJ v Director General, Department of Community Services [1999] NSWSC 340
Plaintiff M70/2011 (2011) 244 CLR 144
Prantage & Prantage [2015] FamCAFC 145
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
PVS v Chief Executive Officer, Department for Child Protection (No 2) [2011] WASC 318
Qantas Airways Limited v Gama (2008) 167 FCR 537
R v Cook; Ex parte C (1985) 156 CLR 249
R v Lambert; Ex parte Plummer (1980) 146 CLR 447
R v Wallis (1949) 78 CLR 529
Re Births, Deaths and Marriages Registration Act 1997 (2000) FLC 93-021
Re C and D (1998) FLC 92-815
Re D and E (2000) 26 Fam LR 310
Re F; Ex parte F (1986) 161 CLR 376
Re Michael (Surrogacy Arrangements) (2009) 41 Fam LR 694
Reynolds & Sherman [2015] FamCAFC 128
Sedgwick and Rickards [2013] FCWA 52
Teo & Guan (2015) FLC 93-653
Tillmanns Butcheries v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367
Tobin v Tobin (1999) FLC 92-848
Truman and Clifton [2010] FCWA 91
V v V (1985) 156 CLR 228
Valentine & Lacerra (2013) FLC 93-539
Vodicka v Vodicka (2005) 194 FLR 246
W and C [2009] FCWA 61
W v G (1996) 20 Fam LR 49
Watson v Thomas (1985) 22 A Crim R 56
West Australian Newspapers Ltd & Channel 7 Perth Pty Ltd and Cuzens [2016] FCWA 6
Wilson & Roberts (No 2) [2010] FamCA 734
Yamada & Cain [2013] FamCAFC 64
Z v Dental Complaints Assessment Committee [2009] 1 NZLR 1

CONTENTS

Part 1: The essential facts and a brief explanation of the decision
Part 2: Background
Part 3: Credibility and impressions of witnesses
Part 4: The legislative framework
Part 5: Does state or federal law apply?
Part 6: Jurisdictional and procedural issues
Part 7: Human rights, public policy and the Best Practice Principles
Part 8: Who are Pipah’s parents?
Part 9: Pipah’s best interests
Part 10: Resolution of the Family Court Act issues
Part 11: Resolution of the Children and Community Services Act issues
Part 12: Publication by the media
Part 13: Referral to the Director of Public Prosecutions
Part 14: Law reform
Part 15: The orders of the court
APPENDIX 1
APPENDIX 2
APPENDIX 3
APPENDIX 4

THE PRINCIPAL REGISTRAR OF THE FAMILY COURT OF WESTERN AUSTRALIA HAS AUTHORISED THIS VERSION OF THE JUDGMENT FOR PUBLICATION BY THE MEDIA. THE NAMES OF SOME INDIVIDUALS REFERRED TO IN THE JUDGMENT HAVE BEEN REDACTED.

Part 1: The essential facts and a brief explanation of the decision

The issues

1I am asked to decide which of two outcomes is more likely to promote the best interests of Pipah, a little girl who is unaware of the international furore surrounding her conception and separation from her twin brother. In these reasons, I will touch on some contentious social and ethical issues, but my focus must be on Pipah’s welfare.
2The only options for Pipah are to remain in Australia with the couple who have raised her from birth, or to return to Thailand to live with her brother and the woman who gave birth to them pursuant to a commercial surrogacy arrangement.
3If I decide Pipah should remain here, I must also decide whether the State should be involved in keeping her safe, given she is living with a man who was convicted, although many years ago, of molesting young girls. This will involve me ruling on whether I should make a “protection order” as sought by the child protection authority.

The facts

4Pipah Li Minjaroen was born in Thailand in December 2013. She lives with David Farnell and his wife, Wenyu Li, in Bunbury, the largest regional city in Western Australia. Ms Li is sometimes known as “Wendy Farnell” and I will refer to her as “Mrs Farnell”.
5Pipah’s twin brother, Nareubet Minjaroen, is known as “Gammy”. He lives in Thailand with Pattaramon Chanbua and her husband, Nid Chanbua. Mrs Chanbua is Gammy and Pipah’s birth mother.1 She was known as Kwanrudee Minjaroen before her marriage in 2014.
6The lives of the Farnells and Mrs Chanbua were set on a tragic collision course when the Farnells saw a documentary about commercial surrogacy in Thailand. The Farnells had been trying to have a baby for years, including undergoing 10 cycles of IVF. They knew that commercial surrogacy was illegal in Australia, and saw Thailand as their last chance.
7The Farnells gained the impression from the documentary that commercial surrogacy in a country with a developing economy is a “win-win” situation for intended parents and birth mothers. They therefore engaged a business called Thailand Surrogacy to find them a suitable woman. The proprietor, Antonio Frattaroli (“Antonio”), told them that he paid his surrogates more than other agencies did.
8After taking medical advice, the Farnells abandoned their plan to have embryos created from Mrs Farnell’s eggs and instead decided to combine Mr Farnell’s sperm with ova from an unidentified woman. They were assured by the Department of Immigration that any resulting child would receive Australian citizenship.
9At around the same time, Mrs Chanbua found herself in debt, which prompted her to offer her services as a surrogate mother. She was introduced to Thailand Surrogacy by an agent. She already had two children, but was told by her agent that she was too young to become a surrogate. She therefore assumed the identity of an older relative using fake papers.
10On 23 May 2013, two embryos were implanted in Mrs Chanbua at a clinic operated by Dr Visut Suvithayasiri (“Dr Visut”). Mrs Chanbua was in a de facto relationship with Mr Chanbua at the time. He consented to the procedure. Neither he nor Mrs Chanbua had received any legal advice or counselling about the arrangement.
11On 3 June 2013, the Farnells were thrilled when advised that Mrs Chanbua may be carrying twins. After this was confirmed, the Farnells recognised that Mrs Chanbua might need better medical care and agreed to pay rent for an apartment for her that was closer to the hospital in Bangkok where she was to have the babies.2 They also arranged for Thailand Surrogacy to send a little extra money to her, which would otherwise have been refunded to them from a deposit they had previously paid.
12On 28 September 2013, the Farnells received an email from Antonio advising that a test had revealed there was a “risk of Down’s syndrome”, but reassuring them that the doctor did not think anything was wrong. Antonio advised the Farnells that another test was available if they were concerned about the initial result. They asked for the test to be undertaken.
13On 22 October 2013, the Farnells were advised that the further test had revealed that the male foetus had Down syndrome. Later in these reasons, in dealing with the Farnells’ request for a finding that they did not abandon Gammy, I will discuss what occurred from the time the results became known to when the babies were born. However, in summary, Mrs Chanbua insists she was told that the Farnells wanted her to have an abortion, while the Farnells vehemently deny ever making such a request.
14On at least one occasion in October 2013, Mrs Chanbua’s doctor discussed with her the possibility of an abortion. Mrs Chanbua also had discussions with Thailand Surrogacy in which that option was discussed. These involved Antonio and his employee, Kamonthip Musikawong (“Joy”). I am not persuaded that the Farnells ever asked for Mrs Chanbua to have an abortion, nor am I persuaded that Joy or Antonio ever discussed abortion as anything more than an option. Nevertheless, Mrs Chanbua gained the impression that the Farnells only wanted the “healthy” baby.
15Although I cannot be sure of all that was said at around this time, it is clear that Mrs Chanbua had fallen in love with the twins she was carrying and had decided she was going to keep the boy. She told Joy, “I love the babies. They are my children”. She was also told by a fortune teller that the boy would bring good luck.3 This was significant at least for her grandmother, who had taken Mrs Chanbua to the fortune teller when it was discovered the boy might have Down syndrome.
16While it is far from clear, I consider it likely that the Farnells became aware that Mrs Chanbua was talking about keeping the little boy. There was nothing they could do about this until the children were born, but I consider the Farnells were prepared to contemplate an outcome where they were only able to have the girl.
17Although the Farnells did not request Thailand Surrogacy to ask Mrs Chanbua to have an abortion, they were angry with Antonio for not ensuring the testing was done earlier, so they could have considered that option. They were also disillusioned with Antonio for other reasons. At one point, they demanded their money back.
18The Farnells nevertheless continued to prepare for the arrival of the babies. For example, they agreed with Antonio that the twins should be born at Bangkok Christian Hospital because of its expertise with Down syndrome children.
19The twins were born on 23 December 2013. They arrived even earlier than expected, so the Farnells were not present for their birth, but they made their way to Thailand as quickly as they could. Upon their arrival in Bangkok on 29 December, the Farnells were surprised to find that the twins had been born at a suburban hospital rather than at Bangkok Christian Hospital. They also learned that Mrs Chanbua had left the twins in hospital and returned to her home town.
20The Farnells were not able to see the twins without Mrs Chanbua’s permission. They saw them for the first time on 30 December 2013, when they met Mrs Chanbua and some of her relatives at the hospital, with Joy acting as an interpreter. I accept there was truth in the statement Mr Farnell later made to an interviewer from 60 Minutes that the concerns they had about Gammy having Down syndrome dissipated after they saw the babies.

21Both children were in intensive care. They were very frail and underweight. Neither could breathe without assistance. Pipah had serious complications including fungal septicaemia, kidney problems, fluid retention and swelling, and bleeding on the brain and behind the eyes. She required a blood transfusion and high doses of antibiotics. Gammy’s condition was even worse. The Farnells were told that he had a hole in his heart and a poor chance of surviving. Gammy was ultimately kept in the hospital for five months, before being moved to another hospital.
22Mr Farnell was unwell after his arrival in Bangkok and therefore unable to go to the hospital every day, although Mrs Farnell did. I accept the Farnells’ evidence, which was corroborated by Joy, that they paid the same attention to Gammy as they did to Pipah, although their capacity to handle Gammy was more limited because he was so unwell. They also bought nappies and milk for both babies.
23Mrs Chanbua was only able to visit the hospital a couple of times a week. When she did, she brought milk she had expressed for both babies. According to her husband’s evidence, Mrs Chanbua was only ever able to hold Pipah once. .
24The Farnells met Mrs Chanbua only a few times. Apart from seeing each other three times at the hospital, they saw her on 3 January 2014, when the surrogacy agreement was belatedly signed; on 21 January 2014, when DNA samples were taken; and on 3 February 2014, when Mrs Chanbua was interviewed at the Australian Embassy. Mr Farnell agreed with Mrs Chanbua’s senior counsel that Mrs Chanbua and her family seemed to be “very nice, polite, family-orientated people”, although they were not able to communicate directly because of the language barrier.
25While there is no evidence that the Farnells read the surrogacy agreement when it was presented to them to sign after the babies were born, the document stated that they were aware “of the risks that the child may possess physical, mental, genetic and/or congenital abnormalities or defects”, but that they would nevertheless “take immediate custody of the child at birth and shall assume full and absolute parental responsibility for the child, regardless of the child’s health, gender, or physical or mental condition, except as otherwise specifically provided in this agreement”.
26The Farnells say that they saw Gammy being wheeled away from the Intensive Care Unit in January 2014. He had been critically ill, and the Farnells claim they thought he was being taken away because he was about to die. On 10 January 2014, Mr Farnell emailed his daughter, Jane, saying, “We have had to say goodbye to our little, little boy”. Although the email did not say so, the implication was that Gammy had died. In fact, the Farnells saw Gammy the next day, but Mr Farnell did not contact Jane again for a week and, when he did, he did not tell her Gammy was alive. I consider it probable that, by this time, Mr Farnell knew Mrs Chanbua was not going to let them have Gammy, so he decided to lead his family to believe he had perished.
27The Farnells deposed that during their first visit to the hospital, they gave Mrs Chanbua a piece of paper on which Mr Farnell had written the proposed names for the twins, including “Noah” for the boy. Mrs Chanbua says she was only given Pipah’s name, but I am more inclined to accept the Farnells’ evidence.
28Mrs Chanbua arranged birth certificates for the children. Pipah’s was issued on 8 January 2014. Mrs Chanbua gave it to Joy, but did not hand over Gammy’s certificate. Joy arranged for Pipah’s certificate to be translated and then gave it to the Farnells on or after 11 January 2014.4 The Farnells wanted Pipah to have Mr Farnell’s family name on the certificate, but this did not happen. Pipah was registered with Mrs Chanbua’s (then) surname, although her given names were those chosen by the Farnells. The Farnells also wanted Mr Farnell to be shown as Pipah’s father, but that did not happen either.
29It is unclear precisely when the Farnells realised that Mrs Chanbua intended to carry out her plan to keep Gammy. Notwithstanding Mr Farnell’s recollection that they learned of her intentions after they were given Pipah’s birth certificate, I find it probable they already knew this was likely by 10 January 2014, when Mr Farnell sent the email to Jane about saying “goodbye” to Gammy.
30The Farnells asked Joy to plead with Mrs Chanbua for them to have both children. At one point, Joy had what she described as a “fight” with Mrs Chanbua about her wanting to keep Gammy. Joy said she was “mad” because she felt that Mrs Chanbua was breaching the agreement.
31Mrs Chanbua admitted that Joy had asked her to agree to the Farnells having both children, but says she refused because Joy told her that if the Farnells took Gammy, he would be put in an institution. I do not accept that the Farnells said this, apart from anything else because it would make no sense for them to insist on having both children if their intention was to put one in an institution, especially as they knew Mrs Chanbua wanted to keep Gammy.
32On 20 January 2014, the day that Pipah was discharged, Joy informed the Farnells that Mrs Chanbua had asked permission to discharge Gammy so she could take him to her home town, but that the hospital had refused because he was so ill.
33The Farnells were not challenged on their assertion that they continued to visit Gammy after Pipah was discharged. Mrs Farnell gave evidence that from the time of Pipah’s discharge until they left Thailand on 13 February 2014, they visited Gammy about six or seven times. As the staff would not allow Pipah to be taken into the ICU, Mrs Farnell would spend one or two hours with Gammy while Mr Farnell looked after Pipah, and then they would swap places.
34Although the Farnells still wanted both children, they finally accepted that Mrs Chanbua would not allow this. In any event, they knew Gammy could not leave the hospital, let alone travel to Australia. At the urging of Antonio and Joy, the Farnells then set about making arrangements to secure Pipah’s passage back to Australia without Gammy.
35Mrs Chanbua cooperated, including by visiting the Embassy to assist in obtaining citizenship for Pipah. Mrs Chanbua spoke to the staff in the absence of the Farnells, but neither she nor the Farnells revealed the existence of Gammy. Joy had advised the Farnells not to mention Gammy, and Mr Farnell explained that they thought that the process would otherwise have taken a lot longer, and that they might not even have been able to have Pipah. I accept they were told by Embassy staff that the necessary papers for Pipah would normally take six to eight weeks to process. However, because of the civil unrest that had broken out in Thailand, the papers were processed immediately and were available on the day after the visit to the Embassy.
36Joy continued to assist the Farnells during this time, even though she had been dismissed from her job with Thailand Surrogacy. She felt real concern for the Farnells, who she observed to be very upset about Mrs Chanbua’s decision to keep Gammy. She wanted to be sure they would keep at least one of the children they had gone to so much trouble to obtain.
37On 6 February 2014, Joy telephoned the Farnells while they were at the Embassy. She said Mrs Chanbua was becoming “difficult” and was claiming she had not been paid in full by Thailand Surrogacy. Joy also said that Mrs Chanbua was threatening to keep both children and involve the police. In this or some other conversation, Joy said Mrs Chanbua “had all the power” and that she did not know what to do about her keeping Gammy. She also said the entire arrangement may be illegal because of Mrs Chanbua’s deception about her identity.
38Later the same day, Joy sent the Farnells a message which said: “I just talked to [Mrs Chanbua]. Unfortunately, they don’t agree with what we say … I don’t understand them anymore … They said they will keep two babies ... so just for you to be prepared. I don’t know what they will do next.”
39By this time, it was unsafe to travel the streets. One day, when they were on their way to the Embassy, the Farnells heard gunshots and saw people “running and scattering everywhere”. Antonio was also encouraging them to believe that Pipah might be taken if they did not move quickly. On 7 February 2014, he emailed the Farnells urging them to change hotels immediately:
I have a call now with my staff. PLEASE take my advice. Change hotels tomorrow so she and Joy will not know where you guys are. I know Joy is helping her. That is one of the main reasons I fired Joy. I will have my staff contact [Mrs Chanbua] to calm her down. I think there was some problem with her receiving the money. She is so hungry for money. Just like some pheasant [sic] ... One thing to keep in mind. She signed up with the hospital with a FAKE ID card. If anyone is calling the police, it will be us.

40After this email, the Farnells were unable to make contact with Antonio while they were in Thailand.
41On 11 February 2014, Pipah was issued with her Australian passport. When Mr Farnell went to collect it the next day, he was told by Embassy staff that a travel warning had been issued and they should leave the country as soon as possible. Mr Farnell went straight to the airport and changed the date of their flight home.
42On 13 February 2014, the Farnells returned to their home in Bunbury, which they had set up for two babies. Although they were home, they were petrified the authorities might come to retrieve Pipah. They were also traumatised as a result of leaving Gammy behind. Being too upset, or not wanting to reveal what had really happened, they initially allowed their family in Bunbury to continue to believe that Gammy had died.
43Jane Farnell gave evidence that she asked her father and stepmother about the little boy a couple of times, but they had broken down crying. On one occasion, Mrs Farnell left the room, and Mr Farnell explained to Jane that Mrs Farnell was upset because the eggs that had been used were not hers. However, a couple of weeks after their return to Bunbury, the Farnells explained to Jane the real reason they had not been able to bring Gammy home.
44On 17 February 2014, Joy told the Farnells that Gammy had been transferred to a hospital in Mrs Chanbua’s home town, whereas Mrs Chanbua says he was not transferred until May 2014. Whatever Mrs Chanbua may have told Joy, I accept that the Farnells believed from February that Gammy was no longer in Bangkok.
45On 25 February 2014, the Farnells sent Joy $2,500 to give to Mrs Chanbua, which she did. Mr Farnell deposed that they still hoped Mrs Chanbua might agree to them having Gammy, and that the payment was to cover costs until they could collect him. I doubt this is true. Joy had a vague recollection that the Farnells, after returning to Australia, had sent her an email saying that Mrs Chanbua would take “good care of Gammy” because they believed that she and her “mother” were “very kind and good people”. The Farnells certainly took no positive action to seek to obtain Gammy. I consider they felt relieved even to have Pipah, and would have done nothing to “rock the boat”, which would have been difficult anyway, as they thought Gammy had been taken to Mrs Chanbua’s “village”.
46In about March 2014, the Farnells received advice from a politician in Bunbury that they should change Pipah’s surname so she could be registered with Medicare and other agencies. Their application to the Registrar of Births, Deaths and Marriages was refused on the basis that the consent of the birth mother was needed.
47After the dust had settled, the Farnells set about trying to regularise Pipah’s status, which was difficult because Mr Farnell was not shown as the father on the birth certificate and Pipah did not have his family name. The Farnells therefore decided to apply to the Family Court of Western Australia for an order giving them equal shared parental responsibility and permission to change Pipah’s family name. In doing so, they falsely deposed that Mrs Farnell had supplied the eggs for the embryos.
48I accept that, in lying to the court, the Farnells were motivated by a desire to present Pipah to the world as if she was genetically their own child. I also accept that they did not think Mrs Chanbua would be prejudiced by their deceit, as she anticipated they would care for Pipah and there is no reason to think she thought Pipah would keep her name. Had the Farnells sought advice, they would almost certainly have been informed that the origin of the eggs would make no difference to the outcome.
49In May 2014, someone contacted the Department for Child Protection and Family Support (“DCP”) to express concern that Mr Farnell had a child in his home.5 The concern arose from the fact that Mr Farnell is a child sex offender, albeit there is no evidence of him reoffending since his release from prison in 1999. The DCP office in Bunbury did not act on this notification due to “competing priorities”. Mr Farnell also did not appear on the DCP database as someone who may pose a risk to children.
50In August 2014, the information about Pipah living with Mr Farnell passed into the public domain. In the media frenzy that followed, the story was spread all around the world that the Farnells had abandoned “baby Gammy” because he had Down syndrome.6 The anguish this caused the Farnells was exacerbated by the fact that the story was untrue.
51During the course of these proceedings, information was leaked to the media asserting that the Farnells were trying, for their own benefit, to access a large trust fund set up for Gammy. This sparked further public outrage, but again the story was untrue. The Farnells did not seek access to the fund for their own benefit, and they had in fact donated to the fund all the money they were entitled to receive from 60 Minutes for the interview they gave when the original story broke.7
52Since arriving home in February 2014, the Farnells have had no contact with Gammy, and Mrs Chanbua has had no contact with Pipah. Pipah has settled into her new home, where she is thriving in the care of a loving network of family and friends, including Mr Farnell’s ex-wife and their three adult children and their families.
53Since being finally discharged from hospital, Gammy has settled into Mrs Chanbua’s home, where he has the love and support of the members of her extended family. He too appears to be thriving.8 Much of Gammy’s care has been provided by his great-grandmother and aunt, as Mrs Chanbua worked full-time (28 days a month) until just before the trial in November 2015.
54Mrs Chanbua has moved into a better home, which has been made available by the generosity of the members of the public who donated funds to help Gammy. She gave evidence of her belief that Gammy will become the owner of the home when he turns 20, but this is not so. Mrs Chanbua continues to receive 15,000 Baht per month from Hands Across the Water, which is the charity managing Gammy’s trust fund.
55Mrs Chanbua has now arranged for Gammy to become an Australian citizen.9 She said this was done in the hope that Australia will provide for Gammy if she becomes unable to do so. She envisages that Gammy might even come to live in Australia, although she was adamant he would never live with the Farnells.

The conflicting stories

56I accept that Mrs Chanbua believed the Farnells did not want Gammy, and that she now wants Pipah to live with her because she is appalled at the thought of Pipah living with a paedophile. However, in seeking to reconcile her evidence with the evidence of the Farnells, it is important to recognise that this case resembles a play that was watched by different people who left the performance at different times and later told others about it.10
57Mrs Chanbua saw parts of the drama, while the Farnells saw other parts. They did not share a common language, and were dependent on third parties to fill them in on what had happened when they were not personally involved in the action. One of the third parties, who had a clear conflict of interest, decided to keep part of the story to himself. Added to this muddle were not only cultural differences, but also differences in the levels of sophistication of the actors. Their ability to recall what happened, and in what order, has been impaired by the anxiety felt for the health of the babies, and by the tensions that arise when a woman’s body is rented for the benefit of others and where the unit of exchange is measured in the life of a new human being.
58It is little wonder that misunderstandings arose along the way.

The trial

59Although the proceedings have been pending since July 2014, it was only in April 2015 that Mrs Chanbua applied for Pipah to live with her. Thereafter, I have given the matter as much priority as the circumstances of the case permitted. In giving the matter priority, I recognised that if Pipah were to be returned to Thailand, it would be better for this to happen before she became even more settled in the Farnells’ home.
60The trial was held over five days in November 2015. Regrettably, Mrs Chanbua could not attend, although her presence was still being discussed as a possibility by her counsel on the first day. She ultimately gave evidence by videolink.11
61Mrs Chanbua was represented, pro bono, by Mr Rodney Hooper SC, who was instructed, pro bono, by Kim Wilson & Co. The Farnells were represented by Mr Michael Nicholls QC, who was instructed by Lewis Blyth & Hooper. Mr Michael Berry SC represented the Independent Children’s Lawyer, Ms Robin Cohen of Legal Aid WA. DCP intervened and was represented by Ms Carolyn Thatcher. The State Attorney General also intervened and was represented by Ms Naomi Eagling. The Australian Human Rights Commission, which intervened at my request, was represented by Ms Penelope Giles, who appeared pro bono, with pro bono assistance from others.
62I record my appreciation of the considerable help I have received from counsel and those who instructed and assisted them. As I sought to explain to Mrs Chanbua, the substantial public and private resources devoted to this dispute demonstrate the importance the Australian legal system has placed on Pipah’s welfare.
63After the trial, all parties filed written submissions to supplement those provided before the trial. A further day was allocated in December 2015 for oral submissions. The matter was then adjourned pending the results of DNA testing that was ordered during the trial at the request of the Farnells and Mrs Chanbua.
64There was a long delay in the DNA testing and the results were still not available more than four months after the order was made. Given the unacceptable delay, I conducted a directions hearing on 30 March 2016, at which time I published my judgment in draft. In doing so, I invited comment inter alia in relation to the proposed form of orders. I also said that the parties could make further submissions on any matters about which they felt they had not been given an adequate opportunity to be heard. Submissions were received from all involved except the Human Rights Commision and the Independent Children’s Lawyer.
65On 13 April 2016, I received advice that the samples taken in Thailand had still not been received by the DNA laboratory in Perth. The delay is unacceptable, especially as the tests were ordered only because the Farnells and Mrs Chanbua decided at the last minute that they wanted them. I therefore intend to proceed on the basis that the evidence establishes on the balance of probalities that Pipah is the product of Mr Farnell’s sperm and the eggs of an unknown woman. I stress, however, that the result would have been the same if testing had established something different. I have decided to publish my reasons now because it is in the interests of everyone, but especially Pipah, for this litigation to come to an end.

The court’s decision

66For the reasons that follow, I have decided Pipah should not be removed from the only family she has ever known, in order to be placed with people who would be total strangers to her, even though I accept they would love her and would do everything they could to care for all her needs.
67In reaching my decision, I have primarily taken into account the strong attachments that Pipah has now formed with the Farnells and many others in Bunbury, as well as the quality of the care she is receiving. While it is a matter of grave concern to leave any child in the home of a convicted sex offender, I have accepted the expert evidence that while there is a low risk of harm if Pipah stays in that home, there is a high risk of harm if she were removed. I have also taken into account the measures that can be put in place to ensure Pipah is kept safe.
68It must be stressed that there were only two options. I have chosen the one least unsatisfactory for Pipah, whose best interests are the paramount consideration.
69My decision is supported by the submissions and opinions of:
•the Independent Children’s Lawyer;
•the court-appointed Single Expert; and
•a specialist firm of consultants engaged to advise DCP.

70I have also taken into account:
•the evidence of highly experienced DCP workers who spoke very favourably of the quality of care that Pipah is receiving from the Farnells;
•the submissions made on behalf of the Australian Human Rights Commission concerning the human rights of both Pipah and Gammy; and
•the submissions made on behalf of the Attorney General for Western Australia, concerning the complex legal issues.

Part 2: Background

Mr and Mrs Farnell and their families

71David Farnell is 58 years old and a self-employed electrician. He has lived in Bunbury most of his life. He was married to Penelope Farnell for many years, although their marriage ended around the time he was charged with criminal offences.
72In 1998, Penelope and the three young Farnell children wrote poignant letters to the Parole Board pleading for Mr Farnell to be given parole. Penelope’s letter said:
David has always had and will continue to have, the full love and support of his children. There are no words to describe how important he is to them and how important they are to him. They will spend as much time as they wish with him and I will be there to provide all the support to encourage this.

73Mr Farnell and his ex-wife are still on good terms. She is a regular visitor to his home, and is known to Pipah as “Aunty Penny”. Their three adult children are also regular visitors, and appear to be close to their father and his new wife.
74Mr Farnell is now married to Wenyu Li, who is 50 years old. Mrs Farnell is a Chinese citizen, but has permanent residence here, having married Mr Farnell in 2004. She has lived with Mr Farnell in Bunbury since May 2005, and has worked and studied in and around that city. Mrs Farnell comes from a high achieving, well-off family, and is fluent in Cantonese and Mandarin. Her father, brother and sister live in China, but her mother died in August 2014 at the height of the media frenzy.12
75Mrs Farnell was introduced to Mr Farnell through a friend. After their relationship was cemented, Mr Farnell told Mrs Farnell about his criminal history and confessed that he had spent time in prison. Mrs Farnell said she did not want to know the details. She later told a DCP psychologist that she believes everyone has a past and can change if they take responsibility for their wrongdoing.
76Mr Farnell’s daughter, Jane, lived with Mr and Mrs Farnell from June 2014. Jane has a son, Jackson, who was born in January 2015. At the time of trial, Jane and Jackson were waiting to move into their new residence. Their new home is in the Bunbury area, and Jane intends to visit her father and his family regularly.
77Mr Farnell’s mother is 82 and lives in Bunbury. She is now a widow, as Mr Farnell’s father died in 2014, in the same month as these proceedings were commenced. Mrs Farnell Senior is an almost daily visitor to the home. DCP officers speak highly of her as a grandmother.

Mrs Chanbua and her family

78Pattaramon Chanbua was born in Thailand and is aged 22 years. She recently set up a small business in her home and seems now primarily to be occupied in caring for Gammy and her two other children: Game, born in April 2008; and Gam, born in September 2010.
79Mrs Chanbua’s husband, Nid Chanbua, is aged 39 years. He works as a painter six days a week. He was earning 9,000 Bhat per month in his previous job, but there was no evidence of the income he receives from his present employment.
80Mr and Mrs Chanbua have lived together since August 2012, and were married in February 2014, just after the birth of the twins. After Gammy and Pipah were born, Mrs Chanbua again advertised her services as a surrogate, but she did not pursue this when she found out international commercial surrogacy had been banned in Thailand, apparently as a result of the furore about Gammy.
81Mrs Chanbua’s father died when she was a girl and her mother died in 2013. She had little contact with her mother, and was raised by her grandmother and her grandmother’s husband, with whom she still lives.13 Her grandmother is 55 and her step-grandfather is 45. Although Mrs Chanbua has a half-brother and half-sister, she has very limited contact with them.
82Mrs Chanbua had her first child when she was 14, and her second when she was 17. I accept her evidence that she “entered into a ceremony but not a formal marriage” with the father of her children. It is significant that Mrs Chanbua was not married at the time of the procedure by which she became pregnant with Pipah and Gammy. It is equally important to know if she was in a de facto marriage at the time.
83Senior counsel for the Farnells submitted that the Chanbuas were in a de facto marriage at the time of the procedure, whereas it was argued for Mrs Chanbua that they were only in a “boyfriend/girlfriend” relationship. It is therefore necessary to give reasons for my conclusion that they were in a de facto relationship at the time.
84For reasons later explained, these proceedings are governed by Western Australian law. Subsection 13A(1) of the Interpretation Act 1984 (WA) dictates that a “reference in a written law to a de facto relationship shall be construed as a reference to a relationship … between 2 persons who live together in a marriage‑like relationship”. Subsection 13A(2) then sets out a number of indicia to assist in determining whether a de facto relationship exists.
85I discussed the difficulty in interpreting the term “marriage‑like relationship” in Truman and Clifton [2010] FCWA 91, where I asked rhetorically at [338]:
How then is a judge expected to decide whether a relationship between a man and a woman (or indeed under this legislation same-sex couples) is “marriage-like” in circumstances where married couples straddle the spectrum from the deliriously happy to the homicidally estranged?

86Gleeson CJ pointed out in MWvDirector-General of the Department of Community Services (2008) 82 ALJR 629 at [10] that there is a significant difference between “living together” and living in a relationship that is “marriage-like” or “in the nature of marriage”. Where the line is drawn will depend upon an assessment of all elements of the relationship. As the Full Court of the Federal Court said in Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131 (emphasis added):
Each element of a relationship draws its colour and significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meet the statutory test.

87It is for the Farnells to prove the de facto relationship, since it is they who assert its existence. Part of their difficulty is that the cross-examination of Mrs Chanbua touched on this issue only incidentally, and much of the evidence on which the Farnells now seek to rely came from Mr Chanbua. Nevertheless, I find that, having commenced cohabiting in August 2012, the Chanbuas were having sexual intercourse and living together in the home of Mr Chanbua’s aunt by May 2013.14 Mr Chanbua confirmed that he and Mrs Chanbua had a debt which they had “built together” (which I infer was the one that persuaded Mrs Chanbua to offer herself as a surrogate). Mr Chanbua also acknowledged that they had been in a relationship for “quite a long time” before May 2013, and that their friends at the time “look at us just like husband and wife”. Significantly, Mr Chanbua attended Mrs Chanbua’s consultations with Dr Visut, at one of which he agreed in writing to Mrs Chanbua becoming a surrogate. Considered together, the evidence persuades me that the couple were in a marriage‑like relationship when Mrs Chanbua underwent the procedure.15
88In reaching this conclusion, I have not rejected the submission of Mrs Chanbua’s counsel that “cultural norms and expectations around formative relationships … may be quite different in Thailand”. However, I have rejected his argument that it is “not proper to impose the factors set out in … the Interpretation Act to an arrangement between two non-Australian citizens in another country simply to satisfy the intellectual consideration of jurisdiction to make Orders in Australia”. This submission cannot be accepted because I am bound to apply the Interpretation Act when seeking to construe all written laws of Western Australia.

DCP’s initial involvement and first assessment

89DCP became aware of concerns about Pipah on 15 May 2014, when someone informed their Bunbury office that she was living with the Farnells. DCP commenced their investigations only after the story about Gammy surfaced in the media on 4 August 2014. A Safety and Wellbeing Assessment was then quickly undertaken. The resulting report noted that due to the “extreme media scrutiny and public interest”, the assessment had been undertaken in consultation with high-level officers, including the Acting Director General of DCP.
90Although completed in a short space of time, the DCP assessment was thorough, with many people being interviewed, including one of Mr Farnell’s victims. The report noted that while the media interest may have provided encouragement for other victims to come forward, none had done so. Although this was seen as providing some evidence that Mr Farnell had not reoffended since leaving prison, the report noted that some victims may never come forward, “due to the shame, disempowerment, trauma and risk of dysfunctionality, associated with many victims of sexual abuse”. However, the report emphasised that Mr Farnell’s offending was known to all his family, and very well known around Bunbury. This was seen as significant because of the strong link between sexual abuse and secrecy, and it was felt by DCP that the notoriety of Mr Farnell’s offending itself provided a “degree of safety” for children who might come into contact with him.
91The report commented on the many letters supporting Mr Farnell that DCP had received, and it noted that “this may indicate that [Mr Farnell] is genuinely reformed, but may also indicate that he is a well-liked member of the community who people do not conceive capable of reoffending”. The report also noted that the Farnells’ commitment to living in Bunbury “provides them with a support network and also means that people are more likely to be aware of the concerns around [Mr Farnell’s] offending”.
92The report went on:
[Mrs Farnell’s] ability to protect Pipah is somewhat incalculable at this time. [Mrs Farnell] has been seen by workers to be a loving, nurturing primary carer to Pipah. Pipah presents as well cared for, bright, responsive, very engaging and indeed very engaged in her surroundings. She appears healthy, clean and well presented. [Mrs Farnell] has been seen to tend to Pipah in a loving and nurturing way by appropriately comforting her, playing with her, cuddling her and feeding her. Pipah certainly appears to be the centre of [Mrs Farnell’s] world.
[Mrs Farnell] was not aware of the details of [Mr Farnell’s] offences. Whilst she states that prior to their marriage [Mr Farnell] told her he had spent time in prison for inappropriately touching girls, it became apparent [throughout] this assessment that [Mrs Farnell] had no idea of the details of the offending including the ages of the children or the number [of] victims or offences. On the basis that it would be impossible for [Mrs Farnell] to protect Pipah without understanding the offences and with [Mr Farnell’s] consent, [Mrs Farnell] was provided with the details … with an interpreter present. [Mrs Farnell] remains a strong advocate for [Mr Farnell] and has repeatedly identified that he is a changed man and that the past does not matter to her. [Mrs Farnell] has stated that she does not have any experience of sexual abuse and that she does not understand signs that it is taking place, other than that children might not be happy.

93The report said that Mrs Farnell was providing Pipah’s primary care, including all of her “intimate care”. It was also noted that members of the family and their friends “have come together to form an active safety network to work with the Department to address safety concerns in a [cooperative] manner”.
94The report summarised “the strengths which identify protection for Pipah and other children” and DCP’s remaining concerns. It is unnecessary for me to repeat these, since a further, more comprehensive risk assessment has been undertaken.
95Having noted information still missing, including a current assessment of the likelihood of Mr Farnell reoffending, the report set out DCP’s findings:
Due to [Mr Farnell’s] history of sexual offending, there is a significant risk of sexual harm to Pipah and children, in particular girls, who spend time with [Mr Farnell] in the future. Risk of sexual harm will be substantiated.
Substantiation of risk of sexual abuse is assessed, in part, because of the significance of the impact of sexual abuse on children, the ongoing effects into adulthood and the intergenerational effects on families and communities. Trauma such as sexual abuse and intimate violence are associated with poor physical and mental health outcomes, increased likelihood of substance misuse and lower than optimal brain development in children.
Due to the safety network, their knowledge understanding of the Department’s concerns and their [ongoing cooperation] with the Department, and the evidence which suggests [Mr Farnell] has not reoffended since leaving prison, Pipah is assessed as safe enough to remain in the care of [the Farnells].
Due to the risk of grooming, which may take place from a very young age, Pipah is assessed as not safe alone in the company of [Mr Farnell]. It is identified that Pipah should never be alone in the company of her father.
Currently, due to the incalculable level of [Mrs Farnell’s] ability to protect Pipah from grooming behaviours, [Mrs Farnell] is not to be the person who supervised contact between [Mr Farnell] and Pipah. A member of the safety network will do this. Presently [redacted] has moved into the home of the Farnells to assist with this. Other members of the network have assisted when this is not possible.
Pipah is the subject child in this assessment, however no harm has occurred to her, therefore harm is not substantiated. [Mr Farnell] does not meet the criteria to be named as a person assessed as causing harm (ASH) for this reason. Sexual harm of Pipah, does however remain a concern for the reasons discussed above.

96The report also recorded DCP’s intention to provide “Child Centred Family Support”, the aims of which were to:
•Establish a strong plan to ensure that Pipah is never left alone in the company of [Mr Farnell].
•Develop a Words and Pictures explanation to explain to Pipah why she is not to be left alone in company of her father and to explain to members of the safety network why this is the case. Members of the safety network will read this to Pipah.
•Complete further assessments. [Mr Farnell] will undertake further psychological assessment to understand more about his risk of reoffending, and interventions which may lower that risk. [Mrs Farnell] will undertake parenting capacity assessments to establish her ability to protect Pipah from sexual harm, and to establish interventions to improve this.
•Provide referrals for suggested interventions as necessary and monitor their uptake and outcomes.
•Monitor the safety plan and make adjustments where needed until such time as it is clear that the safety network are able to do this independently.
•Support the wellbeing of Pipah in relation to her complex cultural needs. Specifically, around preparing her family for explanations around her conception and her Thai heritage in partnership with her family and with advice from Departmental Clinical Psychological Services.

97It will be recalled that, at the time the report was prepared, there was no indication that Mrs Chanbua wanted to have Pipah returned. The statutory role of DCP was to assess whether Pipah was in need of protection and, if she was, to determine the best way to protect her. Appropriately, the DCP officers ignored the publicity, save to the extent that the media intrusion had impacted on the life of the family, and therefore on Pipah.
98The DCP report was not only thorough, but also well balanced in the way it emphasised the gravity of Mr Farnell’s offending; the risk of further offending; the existence of protective factors; and the quality of care being provided to Pipah. It is a testament to the independence and integrity of DCP and its workers that they resisted what must have been the temptation to remove Pipah from her home, especially in light of the negative media, and in circumstances where a senior officer had told the Farnells that “the norm would have been to remove Pipah first and then work out how she can be put back into the family safely”.

Subsequent involvement of DCP and its consultants

99DCP has worked intensively with the Farnell family since the assessment in 2014. The experienced workers who have been assigned to the case have been assisted by an expert firm known as Resolutions Consultancy, which also worked with DCP in developing its Signs of Safety Child Protection Practice Framework. That framework was developed in Western Australia, but has since been adopted in many places around the world. It has been described as a “solution and safety oriented approach to child protection casework [that] provides a way of assessing child protection issues and working with families and their networks to keep children safe”.
100Resolutions Consultancy explained the application of the Signs of Safety approach in the present case in these terms:
The aim of this approach is to achieve a more [balanced] process in relation to Pipah’s long-term welfare and safety. Most child protection departments faced with the circumstances of this case would ... remove the child believing it is not possible to reconcile safety with the child’s emotional and wider attachment needs. The Signs of Safety/resolutions work in child sexual abuse cases, enables an ongoing risk assessment that puts children at the centre of the work, balancing their emotional needs, wishes and feelings (including their primary and wider attachment bonds) with their need for clear future safety.

101Resolutions Consultancy and DCP developed a safety plan for Pipah, which included a requirement for Mr Farnell to move out of his home for six weeks. This was in accordance with the approach recommended by Resolutions Consultancy in other cases involving concerns about sexual abuse. The six-week period occurred just after Mrs Farnell and Pipah returned from China after the funeral of Mrs Farnell’s mother. The focus of the work in this period was to assess and support Mrs Farnell’s capacity to keep Pipah and other children safe. It was also designed to allow Mrs Farnell to demonstrate that she was drawing on the safety network for support and was not solely reliant upon Mr Farnell.
102Documents were prepared to assist and guide DCP’s work. One of these, created in consultation with the Farnells and the safety network, was a “Words and Pictures Story” to be read to Pipah. The “final” version of the Words and Pictures Story was completed in March 2015 (and will now be translated into Chinese for the benefit of Mrs Farnell’s family). In essence, the document records, in terms a young child will learn to understand, the history and method of Mr Farnell’s offending. It is designed to help Pipah understand why she is not permitted to spend time alone with her father, and serves as a reminder to the safety network of the need for vigilance.
103The story was first read to Pipah by Jane Farnell in the presence of the Farnells and some other members of the safety network in March 2015. It is proposed that the story will be read every three months, along with other “Keep Safe” literature. All members of the safety network have committed to sharing the story with Pipah. Since the story was first read, there have been review meetings approximately every 10 weeks involving DCP and members of the network. As part of these reviews, members of the network and the Farnells have been requested to complete a document identifying the ways they have been complying with the safety plan. It is proposed that the Farnells will continue completing that document during the period of any protection order that I might make on the application of DCP.
104DCP officers have made regular home visits to ensure that the Farnells and members of the network have been complying with the safety plan. The records indicate full compliance. There were 24 visits between September 2014 and September 2015, some scheduled, but many unannounced. Mr Farnell has never been found alone with Pipah. Mrs Farnell has always been there, and Jane or Mrs Farnell Senior have often been present.
105The DCP worker who made the home visits reported that:
Pipah has presented as a happy, healthy child who appears to have a strong bond with Mr Farnell, [Mrs Farnell], their extended family and friends ... [The Farnells] appear to be meeting effectively Pipah’s needs: they have engaged her in swimming lessons, playgroups and other activities that assist in meeting her social, emotional and developmental needs as well as making her visible in the community.

106DCP also wanted Mrs Farnell to meet with a Mandarin-speaking psychologist for counselling and to improve her understanding of safety issues relevant to Pipah. Being unable to source a suitable external psychologist, DCP engaged one of its own who speaks Mandarin. Mrs Farnell’s counselling with the psychologist commenced in July 2015. They had eight sessions (some face-to-face and some by telephone) between July and September 2015, and it is proposed that the counselling will continue during the period of any protection order.
107The DCP psychologist has made a number of recommendations for Mrs Farnell’s support, including regular ongoing counselling. In doing so, she reported (original emphasis):
Mrs Farnell has settled well into therapeutic sessions, engaging openly and enthusiastically. She appears to enjoy the opportunity to voice her thoughts and feelings in a safe environment and the one-on-one focus provided within sessions.
…
Mrs Farnell understands and knows all the details about Mr Farnell’s offences. She believed that Mr Farnell is very remorseful about his wrongdoings. Mrs Farnell further said that in the 11 years of their relationship, Mr Farnell has not done or said anything that has made her feel unsafe.
…
Mrs Farnell is aware of his criminal history and if Mr Farnell is to reoffend and [she] has any worries about Pipah’s safety, she will “do the right thing” to keep Pipah and herself safe. “Do the right things” means that she will leave Mr Farnell and go to her safety network to seek help. Mrs Farnell has demonstrated an understanding that there is a possibility that offenders can re-offend.
...
Mrs Farnell stated that it had been a long journey and a lot of hard work to have Pipah in her life. If anyone tries to harm Pipah, she will not “let them go”. Upon exploring this [phrase] further with Mrs Farnell, she states “let them go” (Mandarin) means she will not let them get away with it. She will report them to the authorities and ensure safety for Pipah. She further states that if a person is able to harm their own children, “they are worse than animals”.
Mrs Farnell reported that not being able to conceive naturally is devastating for her. She was told by friends and family that being able to raise their own children is an exceptional experience. Now she has Pipah in her life, she will do anything to make sure Pipah is safe physically and emotionally.
Mrs Farnell reported that she understands that Pipah needs to have a story of “who is Pipah?” Mrs Farnell understands that it is important for Pipah to know the full story about Pipah and her brother, Mr Farnell’s criminal history, why Pipah (and her friends) cannot be left alone with Mr Farnell, Pipah’s safety plan, and the court matters. Mrs Farnell expressed she understands that Pipah will have more questions when she gets older and Mrs Farnell wants to be ready. As such, she is planning to write a story for Pipah. She also stated that she has no intention of keeping anything from Pipah. She would rather Pipah hears this story from her than from reading or hearing it from other people.
...
Mrs Farnell has demonstrated an understanding of the safety plan that was established by [DCP]. She reported that she does not leave Pipah alone with Mr Farnell. When she has to attend appointments, she leaves Pipah with her mother-in-law, stepdaughter or Pipah’s godparents. ...

108As part of the safety planning proposed by DCP, Mr Farnell has also had counselling. This has been provided by [Mr A], who is a clinical and forensic psychologist. Mr A had eight sessions with Mr Farnell in 2014–2015, all of which involved Mr Farnell travelling to see Mr A in Perth, and all but one of which were at Mr Farnell’s expense.
109Mr A had previously provided services to Mr Farnell through a program for offenders in 1999 and 2000, and he prepared Mr Farnell’s pre-parole report in 1999. It is proposed that Mr A’s counselling will continue during the period of any protection order. His sessions with Mr Farnell were not directed at reducing the risk of him reoffending, but rather to “supporting, advising and coaching on mental health and emotional management techniques”. As Mr A pointed out, while the sessions would not be considered “sex offender treatment”, they are “a logical part of managing the risk of any aberrant or problematic behaviours”. Mr A reported that in his recent work with Mr Farnell, he did not “identify any pressing/imminent risks that I needed to focus on, beyond the negotiated agenda of ‘coping skills and emotional/mental health management’”.
110The extent of work undertaken with the Farnells by Resolutions Consultancy can be seen in the September 2015 report of [Ms B], who was previously a caseworker with DCP and held other positions in DCP before joining Resolutions Consultancy. Her report concluded that the Farnells and the safety network have shown commitment to the safety plan. Importantly, noting that this report was prepared at a time when it was known Mrs Chanbua wanted Pipah returned to her, Ms B wrote (emphasis added):
Our view is that the risk of abuse [to] Pipah is currently low, and that it is in her best interest to remain living within her family supported by their network. We are of the opinion that the risk of abuse to Pipah at this time is low.
Research in the UK has shown that on full completion of this work the risk to a child like Pipah is low, at around 4 to 7%. This is similar to the level of risk of future offending for Mr Farnell outlined in the Psychologists report. The UK research highlighted a number of key factors. The main one being the importance of regular reviews of the Safety plan and the need to alert the authorities of any changes to that plan, e.g. safety network members not being allowed into the home to see Pipah, the family moving to another district away from the safety network, and future agencies not being aware of the Safety plan. …
Our view based on our professional experience and the current research and literature, is that as long as this family continue to implement all aspects of the Safety Plan then the risk of abuse to Pipah or her future friends visiting the home is low. To ensure that the Safety plan remains in place and is reviewed regularly we would recommend the following:
a.It is important that the Safety Network members agree a Liaison/Co-ordinator person or two who will link with the Department when and if necessary. This person would eventually take over the co-ordination of reviews once the Department is no longer involved. It is recommended that [Ms C] and [Father D] jointly take on this role.
b.Mrs Farnell’s family in China will need two video link sessions so that they have a copy and understand the Words and Pictures and Safety Plan documents, (translated into Chinese). Should Mr and Mrs Farnell arrange a holiday in China with Pipah, they will need to agree some safety network people to help continue the safety plan and liaise with [DCP] or liaison person when/ if necessary.
c.Once [DCP] have ended their official involvement. There should be a named [DCP] person, whom the network can contact direct if there are any significant changes to the Safety Plan, preferably someone with detailed knowledge about the case and safety plan and with sufficient decision making capacity to decide what follow up is required and by whom. This is to make sure that such changes are easy to pick up on and check in the long term.
d.All new key professionals e.g. Doctor, health visitor, Principal of Pipah’s school, are all given a copy of the Words and Pictures and Safety Plan in order to be informed and support the future safety for Pipah and her family.
e.Finally when all the above are in place, usually at the conclusion of any official [DCP] role, we would recommend six monthly reviews by the network.

111Resolutions Consultancy advises that a good safety network is at the centre of safety planning in such cases. Importantly, they advised DCP that:
The members of the network do not have to agree with the level of danger the department might see but they must commit to taking the Departments [sic] concerns seriously. They need to show that they understand the issues in such cases; and also to demonstrate by their actions as a Safety network that they will make sure that Pipah is safe in the future. It is important to have sufficient safety network people to cover all aspects of family life. The minimum needed in a case such as this one, would be 6 to 7 people with a roughly an even number from each side of the family i.e. [Mrs Farnell’s] friends or family and [Mr Farnell’s] friends or family...

112Resolutions Consultancy stressed that whether Mr Farnell’s likelihood of reoffending is deemed to be high, moderate or low, this cannot be “a definitive assessment for all time”. Therefore they considered it
important to underline to the family that whatever the result of a forensic assessment given the seriousness of the convictions the Department will always need a clear demonstration that Pipah cannot be sexually abused by [Mr Farnell] and that this is also necessary to protect [Mr Farnell] and the Department given the high level of ongoing scrutiny this case will continue to attract.

113Monitoring of Pipah by the safety network is therefore a key part of the Farnells being able to demonstrate to DCP that Pipah is safe with them. The current members of the safety network are:
•Mrs Farnell;
•Mrs Farnell Senior;
•Mr Farnell’s three adult children;
•Ms C and her husband;16 and
•Father D.17

114Although she is not a member of the network, the Farnells receive support from [Ms E], who met Mr Farnell through her work as a prison officer. Ms E is now also a friend of Mrs Farnell.
115The minutes of many meetings facilitated by Resolutions Consultancy with the Farnell family and the safety network from August 2014 to September 2015 demonstrate a high degree of cooperation with DCP, and an understanding on the part of the Farnells of why DCP insists on compliance with a strong safety plan. It appears that the Farnells have never missed a meeting with DCP, notwithstanding there has been a very large number of them. The discussions recorded in the minutes show attention to the smallest of details relating to compliance with the requirements that Mr Farnell not be left alone with Pipah and not be involved in her intimate care.
116The discussions at the meetings have dealt with how Mrs Farnell would schedule play dates for Pipah at their home when Mr Farnell is away working, or at the homes of other children where Mr Farnell will not be present. The discussions also identified protective measures that the Farnells claimed to have put in place even prior to DCP becoming involved; for example, how they explained to third parties why Mr Farnell did not change Pipah’s nappy and how he was never involved in her intimate care. I accept that this was their practice and I also accept that, since his release from prison, Mr Farnell has avoided ever being alone with children.
117The minutes of the meetings demonstrate that the Farnells and members of the safety network have, at times, questioned the need for some of the strict conditions that have been imposed. They felt that Mr Farnell’s efforts over many years to reform himself had not been acknowledged. For example, the Farnells challenged the necessity for Mr Farnell to leave home for six weeks when Mrs Farnell was still grieving the recent death of her mother (and in light of the fact that Mr Farnell’s office and workshop were at the home). The Farnells expressed particular concern about the indefinite requirement for Mr Farnell never to be alone with Pipah, even to walk her to the shop. In my view, there was nothing untoward in this robust exchange of views in the meetings, which appear to have been conducted in a respectful fashion.
118Counsel for Mrs Chanbua drew attention to the fact that members of the safety network do not accept that Mr Farnell will abuse Pipah, and suggested that they will therefore not be vigilant. However, I accept the advice of Resolutions Consultancy that “members of the network do not have to agree with the level of danger [DCP] might see but they must commit to taking the Department’s concerns seriously”. I accept that the safety network members take concerns about Pipah seriously.
119Jane Farnell, who seems to be her father’s most ardent supporter, is likely to be a key member of the network. She volunteered that “nobody can ever eliminate the possibility of a risk”, and said that she took her obligations under the safety plan very seriously. She was particularly convincing when she emphatically said:
I would never forgive myself if something ever happens to Pipah. If she ever came to me in 10 years’ time and said something, I would never forgive myself. So I am doing it for her. I am not doing it because DCP told me to.

120As I have mentioned, Mrs Farnell Senior is also a member of the safety network. Ms B gave this evidence about Mrs Farnell Senior at my request.
HIS HONOUR: ... [Mrs Farnell Senior] is not a witness in these proceedings. Can you just give me a brief, verbal picture of her?‑‑‑Yes. She’s very loving, very caring of Pipah. Most times that I have been involved in meetings or visits to the home, [Mrs Farnell Senior] has Pipah in her arms, usually if – asleep. When she has her afternoon sleep, [Mrs Farnell Senior] actually physically holds her for the whole time. And when we have had meetings and Pipah has become a bit restless and wanted to go out of the room, [Mrs Farnell Senior] will take her out to play. She’s very devoted to Pipah. Yes.
Do you have any concerns about her of any sort?‑‑‑No. I mean, I – I don’t know that she’s as willing to entertain the idea that [Mr Farnell] might be a risk but, you know, she’s his mum and we’re not relying on her in – in entirety…

121Ms C has been identified as a likely leader of the network. Although she did not give evidence, no adverse inference can be drawn from that. Ms B explained why Ms C was considered “a natural lead in this safety network”:
I think it’s because of her – well, her profession as a teacher, her awareness of protective behaviours for children, but she – just her personality and her nature. She’s a friend of Mum’s and very obviously, from the meetings that I’ve been involved, very invested in Pipah and, I believe, would act in Pipah’s interests over [Mr Farnell’s] in a heartbeat.

122I also consider that Mrs Farnell herself, after all of her counselling and instruction, will be an effective member of the network. It is my firm impression that Mrs Farnell has developed increasing confidence and assertiveness as she has faced the many tribulations that have come her way. I therefore noted with interest the Safety Planning Meeting Minutes of 29 June 2015, which recorded the consensus that:
Before David was more [the] boss. Now Wendy is more [the] boss – whatever Wendy says goes.

123Mrs Farnell is not isolated from her community by barriers of language or culture. She speaks English adequately, and does not require an interpreter to conduct her daily life. She has shown a capacity to make friends independently of Mr Farnell. While she is not prepared to accept openly that Mr Farnell would ever harm Pipah, she now knows she has to be vigilant, and that Pipah will require her assistance in learning protective behaviours. This is demonstrated in the following cross-examination:
THATCHER, MS: So what I’m asking you is: do you recognise there is a possibility that Mr Farnell may sexually abuse Pipah.
THE WITNESS: No.
THATCHER, MS: My next question is: do you accept that you need to recognise that possibility in order to protect Pipah.
THE WITNESS: Yes.
THATCHER, MS: Do you accept that to protect Pipah you need to be able to stand up to Mr Farnell.
THE WITNESS: Yes.
THATCHER, MS: But you can’t do that if you fully support him.
INTERPRETER: Feel it’s not contradicting each other, protecting her daughter and fully support [Mr Farnell]. That doesn’t contradict into each other.
...
THE WITNESS: I will teach Pipah no about how to – when she grow – understand more things, I teach her more how to protect herself.
THATCHER, MS: What sort of age do you think Pipah will be when you will be happy for her to be alone with Mr Farnell.
THE WITNESS: What sort of age – about six when she understand more.
THATCHER, MS: About six is about the age of Mr Farnell’s other victims. Do you know that.
THE WITNESS: Yes. I know that.
THATCHER, MS: And that’s the age that you would let them be alone. Is that correct.
THE WITNESS: But Pipah is his daughter.
THATCHER, MS: That’s your answer. Pipah ‑ ‑ ‑

25 Counsel for Mrs Chanbua also asked me to be suspicious about the provenance of one email, which he submitted was provided in a different format to others. However, inspection of all the emails confirms that some other emails, the provenance of which was not in doubt, were in a similarly different format.
26 Mr Farnell protested about the suggestion saying, “that’s my whole life on that – my business, my personal emails”. There was also some confusing evidence about the loss of emails when the Farnells changed computers. When Mr Farnell was challenged on the point he said, “I’m not very computer illiterate [sic]”.
27 It was not suggested at trial that what might have been discussed was putting not only Mr Farnell’s name but also Mrs Farnell’s name on Pipah’s birth certificate. This is what the Farnells had been led to believe by Antonio was going to happen, but this would not have been feasible if Mrs Chanbua intended to keep one of the twins. I consider that what was perhaps said was that if Mrs Farnell’s name was to be stated on one certificate, then her name would have to be put on the other.
28 This very odd expression appears in the official Department of Immigration form.
29 The accompanying notes to the form indicate that the surrogate mother’s “consent must be witnessed”, not that her “signature must be witnessed”.
30 Not all of the relevant provisions of the State Act have been included in Appendix 1, but the full Act can be accessed on the State Law Publisher website: Appendix 1 can be viewed, along with these reasons, on the Family Court of Western Australia website:
31 Further details relating to the FCWA and the legislative framework within which it operates can be found in my judgment in Vodicka v Vodicka (2005) 194 FLR 246 at [25] to [33].
32 It should also be noted that, save for some irrelevant exceptions, the Evidence Act 1995 (Cth) does not apply in proceedings in the FCWA. Instead, the Evidence Act 1906 (WA) applies.
33 It is unnecessary to consider the special position of the self-governing territories of the Commonwealth.
³⁴ Section 51 of the Constitution provides that the Commonwealth has power to make laws with respect to “marriage” and “divorce and matrimonial causes, and in relation thereto, parental rights, and the custody and guardianship of infants”. However, only the marriage power has relevance in this matter.
35 The states also retained the power to regulate the adoption of children. For a more detailed discussion, see Anthony Dickey, Family Law (Thomson Reuters Australia, 6^th ed, 2014) ch 2.
36 Chief Justice French, ‘Co-operative Federalism – A constitutional reality or a political slogan’ (2004) eLaw Journal: Federal Judicial Scholarship 21 < See ss 4AA and 60EA of the federal Act.
38 Counsel for the Farnells suggested that this omission “is probably a legislative oversight (because it is plainly discriminatory)”. I am not persuaded this is so, but it is of no significance in Western Australia given that the scope of the Artificial Conception Act is no wider than s 60H(1) in determining who is the father of a child.
39 Family Law Regulations 1984 (Cth), regs 12C and 12CA.
40 The Act also determines the status of a same-sex partner of the birth mother.
41 Sections 4–7; Re Birth, Deaths and Marriages Registration Act 1997 (2000) FLC 93-021. The only rebuttable presumptions are the presumptions of consent in ss 6(2) and 6A(2).
42 Artificial Conception Act, s 3(3).
43 Family Law Regulations 1984 (Cth), reg 12CAA.
44 The Act provides power to the court to dispense with some of the requirements, but these do not affect the prohibition against commercial surrogacy.
45 Apart from all the other factors disqualifying the Farnells, s 24 of the Surrogacy Act prohibits making a parentage order about a child who has a twin unless an order is also made transferring the parentage of the twin.
46 For a further example, see s 4 of the CCS Act.
47 “Mother” is defined as meaning “the woman who gave birth to the child or adoptee”. “Father” does not have its own definition.
48 It is unnecessary to consider the effect of the presumption in s 69S, which is the only one described as being “conclusive”, since it clearly would have no application to the present matter.
49 Re Michael (Surrogacy Arrangements) (2009) 41 Fam LR 694 at [71].
50 Bropho v Western Australia (1990) 171 CLR 1; Coco v R (1994) 179 CLR 427; Re Michael (Surrogacy Arrangements) (2009) 41 Fam LR 694 at [51].
51 Paragraph s 60A(c) of the federal Act states that Subdivision D contains the “provisions relevant to how this Act applies to certain children”.
52 Although the Human Rights Commission’s opening written submissions said it was “unclear” which Act applied, the Commission’s closing submissions made reference only to the State Act.
53 Subsections 4(1) and 60F(1) are not exhaustive by their terms, since the expression “child of a marriage” clearly includes a child of a husband and wife born during their marriage.
54 The use of the word “also” is potentially significant in dealing with the argument, discussed later, as to whether s 60H was intended to deal with children born as a result of a surrogacy arrangement.
55 I accept that a large proportion of the 2008 amendments did rely on the referral of powers by some states.
56 Cf. In the marriage of Cormick; Salmon (1984) 156 CLR 170.
57 Commonwealth, Parliamentary Debates, House of Representatives, 25 June 2008, 5825 (Robert McClelland).
58 Mrs Farnell is not the birth mother; her eggs were not used in the artificial conception procedure; and she is not deemed to be the mother by application of any law. To be a “child of a marriage”, Pipah must be “a child of the husband and of the wife in the marriage”: see s 60F(4A).
59 Counsel for the Farnells said s 60H(1)(c) would otherwise have been “potentially promising” in establishing that Pipah was a “child of a marriage”.
60 In the marriage ofCormick; Salmon (1984) 156 CLR 170 at 177, 183; R v Cook; Ex parte C (1985) 156 CLR 249 at 255, 258; Re F; Ex parte F (1986) 161 CLR 376 at 399–400. 402, 406.
61 Most other states enacted similar legislation at around the same time. See Crisford J’s discussion of this development in W and C [2009] FCWA 61, which I respectfully adopt, save for the second sentence of [30].
62 Dawson J took issue with this approach in V v V (1985) 156 CLR 228 at 237, when he said: “It is sometimes said that the protection and nurture of the children of a marriage is at the very heart of the relationship … If I may say so with respect, such a statement contains more rhetoric than meaning. The protection and nurture of children is basically a function of parenthood rather than marriage and, in any event, covers a much broader field than marriage. Whilst the marriage relationship and the regulation of that relationship may have an undeniable bearing upon the welfare of children of the marriage, the subject of children’s welfare is different from the subject of marriage”.
63 To like effect, see Wilson J’s judgment in V v V.
64 Dennis Pearce & Robert Geddes, Statutory Interpretation in Australia (Lexis Nexis Butterworths, 8^th ed, 2014) 169.
65 Goodwin v Phillips (1908) 7 CLR 1 at 14.
66 Translates roughly as “the express mention of one thing excludes all others”.
67 Dennis Pearce & Robert Geddes, Statutory Interpretation in Australia (Lexis Nexis Butterworths, 8^th ed, 2014) 179.
68 Translates roughly as “what is expressed makes what is implied silent”.
69 See also McTiernan J to like effect at 20.
70 Plaintiff M70/2011 (2011) 244 CLR 144 at 117.
71 This conclusion is in accordance with the submission of the Human Rights Commission that when the provision equivalent to s 60H was first introduced into the federal Act in 1983, it was not intended to cover children born through a surrogacy arrangement, and that Parliament’s intention has not changed in relation to the subsequent iterations of that provision, which ultimately became s 60H in 1995.
72 Commonwealth, Parliamentary Debates, Senate, 16 October 2008, 6257 (George Brandis).
73 Commonwealth, Parliamentary Debates, Senate, 16 October 2008, 6262 (Joseph Ludwig).
74 Commonwealth, Parliamentary Debates, Senate, 14 October 2008, 47 (Guy Barnett); Commonwealth, Parliamentary Debates, Senate, 16 October 2008, 6242 (Ronald Boswell), 6245–6247 (Louise Pratt), 6247 (Joseph Ludwig), 6259 (George Brandis), 6260–6261 (George Brandis), 6264 (Sarah Hanson-Young), 6264–5 (George Brandis).
75 Standing Committee on Legal and Constitutional Affairs, Senate, Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 [Provisions] (2008).
76 Commonwealth, Parliamentary Debates, Senate, 16 October 2008, 6247 (Joseph Ludwig).
77 Commonwealth, Parliamentary Debates, Senate, 16 October 2008, 6256 (Joseph Ludwig).
78 Commonwealth, Parliamentary Debates, Senate, 16 October 2008, 6256 (Joseph Ludwig).
79 This rule applies in all proceedings under the State Act in the FCWA.
80 Section 3 of the CCS Act defines “parental responsibility” as meaning “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
81 ‘Out-of-Home Care Reform Legislative Amendments’ (Consultation Paper, Department for Child Protection and Family Support, November 2015) 10.
82 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
83 Committee on the Rights of the Child, General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration, 62^nd sess, UN Doc CRC/C/GC/14 (29 May 2013) 6.
84 See Dudley and Chedi [2011] FamCA 502 at [37].
85 It might therefore be said that the expression “egg donor” is a misnomer.
86 I am unaware of whether a court has been asked to rule on a citizenship dispute in which the issue was whether a sperm donor in a surrogacy arrangement is a “parent”. If such an issue arose, the court would presumably be asked to consider the different legislative context and public policy considerations, including the significance of s 8 of the Citizenship Act, which seems to be clearly aimed at achieving consistency with the federal Act (and hence State laws) on artificial commercial procedures and surrogacy. Consideration might also be needed of whether a child born of an artificial conception procedure is “made” rather than “begotten” given that, prior to H v Minister for Immigration, it had been held in the context of migration law that “as a matter of ordinary English … a parent is, ‘a person who has begotten or born a child’”: Hunt v Minister for Immigration and Ethnic Affairs (1993) 41 FCR 380 at 386.
87 Re D and E (2000) 26 Fam LR 310 at [21].

88 The proceedings were completed prior to the amendments to the Family Law Rules 2004 (Cth) which came into effect on 1 January 2016, and which pick up many of the practice principles proposed by Ryan J.
89 The Family Law Council advises the Commonwealth Attorney General, but its recommendations have no formal status.
90 B v J (1996) FLC 92-716 at 83,614.
91 Counsel for Mrs Chanbua’s concurrence with this proposition did not sit well with his denial that Mr Chanbua was in a de facto relationship with Mr Chanbua at the time of the procedure.
92 Walmsley DCJ in AA v Registrar of Births, Deaths and Marriages and BB (2011) 13 DCLR (NSW) 51 made the same assumption at [36] in relation to equivalent legislation – i.e. “not the father” means “not a parent”.
93 The Full Court accepted that the class of people who could be regarded as parents had been extended by statute by creating a relationship of parent and child in the cases of adopted children and children born as a result of artificial conception procedures. As the Full Court observed at [39] this was achieved “not by use of the term ‘parent’ but by deeming the child to be ‘her child’, ‘his child’ or ‘their child’ for the purposes of the Act in certain circumstances”. The Full Court did not consider the possibility that the woman who had “borne” the child might not be the “biological mother”.
94 Counsel for the Human Rights Commission advised that the Commission did not seek to make submissions about the application of the law of Thailand to these proceedings, or how principles relating to conflicts of law should be applied if they are relevant.
95 See Mary Keyes & Richard Chisholm, ‘Commercial surrogacy – Some troubling family law issues’ (2013) 27 Australian Journal of Family Law 105.
96 I recognise that my interpretation would have implications for ex-nuptial children who are born in places where surrogacy arrangements are not illegal, but then come to live in Western Australia. However, I do not consider that this can lead to an interpretation of the State Act which confers the status of “parent” on a person who is not, in fact, a “parent” under the laws of Western Australia. Persons denied the status of “parent” can still apply for relief under the State Act if they are “concerned with the care, welfare or development of the child”. See also Carlton & Bissett (2013) 49 Fam LR 503.
97 FCWA’s unique status as a State Court permits it to deal with all adoption applications in Western Australia.
98 The Artificial Conception Act contains no similar provision for same-sex male partners.
99 Her Honour’s approach has been described as “strategic manipulation around legislation in order to achieve the obvious reality”: Philippa Trowse. ‘Surrogacy: competing interests or a tangled web?’ (2013) 33(3) The Queensland Lawyer 199.
100 The insertion of the commas and the rearrangement of the words remove room for any suggestion that anyone other than the same-sex partner of the birth mother is a “parent” for the purposes of the definition.

101 See also the approach taken by Crispin J in Re Births, Deaths and Marriages Registration Act 1997 (2000) FLC 93-021.
102 For another example of strongly contested evidence concerning the intentions of same-sex partners, see Wilson & Roberts (No 2) [2010] FamCA 734.
103 Western Australia, Parliamentary Debates, Legislative Assembly, 2 December 2008, 737 (Kim Hames).
104 Section 84(2) contains a list of matters that are described as “parenting orders”.
105 Maldera & Orbel (2014) FLC 93-602 at [74].
106 I accept that s 66C(3A) requires me to give greater weight to the “primary consideration” dealing with child safety than the other “primary consideration”.
107 Committee on the Rights of the Child, General Comment No. 7 (2005) Implementing child rights in early childhood, 40^th sess, UN Doc CRC/C/GC/7 (20 September 2006).
108 Although Mrs Farnell’s Financial Statement indicates that she has some $100,000 equity in a home she acquired with her own funds and with the help of her family, the Farnells owe Mr Farnell’s mother in excess of $300,000 for legal costs. This is on top of the $100,000 that Mr Farnell estimated the surrogacy arrangement itself had cost.
109 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, concluded 19 October 1996, 2204 UNTS 95 (entered into force 1 January 2002).
110 Apart from any other considerations, the Chanbuas’ concerns about Mr Farnell’s history of sexual offending would make them very wary of letting him spend time with Pipah.
111 Given the unreliability of media reporting, and the fact it was not put to Mrs Chanbua, I disregard the fact that she was reported in May 2015 as saying she “doesn’t want Gammy to ever see her [sic] biological father”.
112 Mrs Chanbua’s previous home lacked the space and amenities that would be commonly found in a home in Australia, but the standard of accommodation was no different to others in the area.
113 Peter Baines was reported as having told ABC News in May 2015 that the “remaining funds would cover Gammy’s expenses for another five or six years”.
114 In her closing written submissions, counsel for the Commission stated that one of the articles relied upon “deals with a longitudinal study of twins separated at birth” and noted that “the study reports on the issue of nature, shared DNA, versus nurture, shared experience”. Counsel did not say what might be drawn from the study and the Single Expert was not asked for his opinion on it.
115 In their illuminating article, Keyes and Chisholm recognised that the conduct of the commissioning parents could be relevant in determining their capacity to meet the child’s needs: Mary Keyes & Richard Chisholm, ‘Commercial surrogacy – Some troubling family law issues’ (2013) 27 Australian Journal of Family Law 105. The authors demonstrated prescience by citing, as an example of culpable conduct, commissioning parents who “left one or more unwanted siblings behind in India or Thailand with no arrangements being made for their welfare”. Their article was published while Mrs Chanbua was still pregnant with Pipah and Gammy.
116 According to the article, Mrs Chanbua said that the boy’s nickname has been “mistakenly reported” and that she had called him “Grammy ... after the Gramophone record company for all the noise the baby made”.
117 I did not have any satisfactory evidence of the age at which a woman in Thailand could become a surrogate.
118 The first tranche of charges resulted in guilty pleas on 18 counts and the second tranche resulted in guilty verdicts on four counts.
119 Some “evidence” about a previously unknown victim emerged in closing addresses after I made a request for a less redacted version of one of the DCP exhibits. Even assuming the information had been provided in a form that could carry any weight, and overlooking that the “evidence” was not put to Mr Farnell, it related to something that had occurred prior to Mr Farnell being imprisoned. I have elected not to discuss this “evidence”, as I accept that there was good reason for the information to have been redacted in the first place, given the basis upon which the notifier approached DCP and given that this judgment is to be published. I also do not accept that the “evidence” establishes that the notifier has a blood relationship to Mr Farnell as was implied in the submissions of counsel for Mrs Chanbua.
120 The Single Expert also commented on Mrs Farnell’s “ability to show compassion for Mr Farnell’s victims, as she visibly did” when the Single Expert spoke to Mr Farnell about the victims.
121 Ms G said it would cost about $1,000 if she administered the test and wrote the report, but it could also be done by a DCP case worker under the supervision of someone suitably qualified.
122 Counsel for DCP alluded in her closing address to the possibility that an order could be made in favour of just one of the Farnells. That is true, but the option was never advocated by anyone, and the logistical consequences of it were not explored in cross-examination.
123 Deiter & Deiter [2011] FamCAFC 82 at [61].
124 ‘Report on Parentage and the Family Law Act’ (Family Law Council, December 2013) xxviii.
125 Flanagan & Handcock (2001) FLC 93-074 at [42].
126 The converse would also be true. The Full Court of the Federal Court in H v Minister for Immigrationand Citizenship (2010) 188 FCR 393 said at [66]: “We accept that, where a child is said to be a child of a person, then that person is ordinarily described as a parent of the child. Where Parliament states in an Act that a child is a child of a person, then, absent any contrary indication, it is reasonable to assume that Parliament intended that that person has the status of parent of the child, if that status is relevant for the operation of the Act.”
127 The fact that a person in Mr Farnell’s position is defined by the Human Reproductive Technology Act as Pipah’s “biological parent” does not assist his argument, since the definition of “biological parent” is provided only for the purposes of that Act and has no wider application.
128 Tobin v Tobin (1999) FLC 92-848 at [44].

129 See the definition in s 5 of the State Act, but note that an individual is not even entitled to the description of “step-parent” unless they are married to or the de facto partner of a parent of the child.
130 As to which see Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365.
131 The decisions under the federal Act provide stark evidence of the amount of time that is taken up in dealing with surrogacy cases. As a head of jurisdiction, I trust that policy makers will consider this impost on judicial resources when deciding whether the floodgates of commercial surrogacy should be thrown open in Australia.
132 PJ v Director General, Department of Community Services [1999] NSWSC 340 at [13]. There was no evidence about the law in Thailand relating to the legal status of Mr Farnell. Nor was it suggested that I adopt findings (which the Act permits) in other cases where it has been established that under Thai law, the donors of the gametes are not regarded as parents.
133 One submission of the Commission which does cause me concern is the proposition that Mr Farnell would not be treated by the child support legislation as being liable for child support, absent a declaration of him being a parent. While I have not considered the issue carefully, my preliminary view is that the Commission’s submission is well founded. If so, this may be an area requiring legislative reform, since Mr Farnell would also not fall within the “step-parent” provisions relating to child maintenance. However, see W v G (1996) 20 Fam LR 49 for a possible alternative, albeit somewhat convoluted, remedy.
134 Mrs Chanbua also repeatedly said in her evidence that she was about seven months pregnant when the abortion was being discussed. However, she must have been confused, since she also said she was seven months pregnant in October 2013, when in fact she was only seven months pregnant when she gave birth in December.
135 Mr Farnell could not remember saying this when he gave evidence. His recollection was that he may have asked Thailand Surrogacy to assist by paying some of the medical bills they were incurring.
136 This would not be surprising if they had learned there was some doubt whether they would be allowed to take both children. Mr Farnell also told 60 Minutes that Down syndrome children have varying degrees of disability. The context in which he volunteered this observation led me to infer that it was at least possible that the Farnells felt that their position on agreeing to allow Mrs Chanbua to keep Gammy could differ depending upon his condition (and, of course, on whether he survived at all, which was in doubt).
137 I accept that duplicates of many necessary baby items were acquired, but there was no documentary evidence to indicate that any of the duplicates were purchased after the test results became known. However, Jane Farnell’s evidence was clear that duplicate items were purchased after it was known one of the children had Down syndrome.
138 The fact that Mrs Farnell held Pipah’s hand and not Gammy’s is consistent with the fact that Pipah was in much better health than Gammy, who still required help with his breathing.
139 Josh and Ben are Mr Farnell’s sons and Meagan is his daughter in law. Ross and Yuzhi are Mr Farnell’s brother and sister-in-law.
140 In arriving at my decision, I have not overlooked the fact that the Farnells did nothing after returning to Australia to secure the reunification of the twins. Although counsel for Mrs Chanbua sought to place weight on this fact, the reality is that the Farnells felt grateful that they at least had Pipah, and they had no reason to believe that Mrs Chanbua would have changed her mind about keeping Gammy.
141 I was originally given a redacted copy of the email. Counsel for Mrs Chanbua advised me that his instructing solicitor wanted the email redacted because she recognised her language had been a “tad emotional”.

142 I am unaware of the extent to which the story was broadcast on television and radio. There was reference in an affidavit of Mr Farnell to the ICL proposing “to provide to the Court a copy of a news story from Channel 9 … which refers to me allegedly trying to ‘get hold of’ money … raised for Gammy’s care”.
143 The affidavit in which Mr Farnell was deposing to these events was sworn on 3 November 2015.

144 Re Births, Deaths and Marriages Registration Act 1997 (2000) FLC 93-021.

145 Section 4 of the Births, Deaths and Marriages Act defines “corresponding law” as “a law of another State that provides for the registration of births, deaths and marriages”.
146 Appendices 2 and 3 can be viewed, along with these these reasons, on the Family Court of Western Australia website:
147 By operation of s 69(1) of the State Act.
148 For example, PVS v Chief Executive Officer, Department for Child Protection (No 2) [2011] WASC 318 at [190] and AB v Chief Executive Officer, Department of Child Protection [2014] WASC 87 at [62]. However, Magistrate Hogan in the Children’s Court recently declined to apply s 9 on the basis that “the trial process is not part of the administration of the Act”: Chief Executive Officer of the Department for Child Protection and Family Support v AP [2016] WACC 1.
149 There is no need to provide additional evidence of the child’s “need” for protection once any of the specified circumstances is found to exist: Watson v Thomas (1985) 22 A Crim R 56. It is a status created by the statute.
150 “Harm” is defined in s 28(1) as meaning “any detrimental effect of a significant nature on the child’s wellbeing, whether caused by … a single act, omission or circumstance; or … a series or combination of acts, omissions or circumstances”.
151 “Protection application” is defined in s 3 to mean “an application to the Court for a protection order”.
152 In reO (Minors) (Care: Preliminary Hearing) [2004] 1 AC 523 at [23]–[25].
153 The present case is the first significant matter to proceed to trial in the FCWA, hence the reason for me dealing at greater length with some topics than will be necessary when these cases become routine in the court.
154 Avoiding litigation in two courts in the present matter has, in my estimate, saved the taxpayer and the parties collectively many hundreds of thousands of dollars. By contrast, see the wasteful duplication of proceedings in two Victorian courts which occurred in Prantage & Prantage [2015] FamCAFC 145. Writing as a member of the Full Court of the Family Court of Australia in Prantage, I suggested at [99] that the case provided “an excellent example of the irrationality of the present system [in the Eastern states]”.
155 This proviso was considered by the Full Court of the Family Court of Australia in an appeal heard on 16 July 2008 in the matter of Pacy & Chief Executive Officer, Department for Child Protection (WA 19 of 2008). The Independent Children’s Lawyer appealed against a refusal of a judge to make an order under the CCS Act, but abandoned the appeal when my colleagues and I expressed a view from the bench that a formal application by DCP was required to be filed in the FCWA before the FCWA could make an order under the CCS Act. No such application had been filed. I am unaware of the matter otherwise being the subject of judicial consideration.
156 Mallett v McMonagle [1970] AC 166 at 176; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638.
157 My citation is from the headnote in the Family Law Reports (the authorised report is [2009] 1 AC 11).
158 See also G v H (1994) 181 CLR 387 at 399.
159 Although the Evidence Act 1995 (Cth) does not apply in the FCWA, it is noteworthy that s 140(2) of that Act, which is accepted as stating the common law on the civil standard of proof, requires a court to take account of the “gravity of the matters alleged”, but does not refer to “the gravity of the consequences of the court’s finding”. I accept, however, that the list of matters the court is required to take into account by s 140(2) is not exhaustive. Thus, for example, a court can take into account the inherent unlikelihood or otherwise of the occurrence of the fact alleged: Qantas Airways Limited v Gama (2008) 167 FCR 537 at [138] per Branson J.
160 This point was made in Z v Dental Complaints Assessment Committee [2009] 1 NZLR 1, where Anderson J held that “the seriousness of consequences is not a persuasive argument” in the context of professional disciplinary proceedings, since such proceedings are concerned not only with the risk of an erroneous finding being made against a practitioner but also with the risk to the public of an erroneous finding made in favour of a practitioner.
161 The passage deals not only with the meaning of “likely”, but also with the standard of proof.
162 Baroness Hale, ‘What are Care Proceedings for?’ (Munkman Lecture delivered at the BPP Law School, Leeds, 5 September 2013).

163 Especially as “emotional abuse” is defined in the Act to include being exposed to an act of family and domestic violence. The Council of Australian Governments has estimated that over $2 billion is spent annually on child protection services: ‘Protecting Children is Everyone’s Business: National Framework for Protecting Australia’s Children 2009–2020’ (Council of Australian Governments, June 2009) 9.

164 Interestingly, this was also the formulation suggested by the Australian Law Reform Commission for its proposed test of an invasion of privacy that is “likely to have a serious effect on a person of ordinary sensibilities”: ‘Serious Invasions of Privacy in the Digital Era’ (Discussion Paper No DP 80, Australian Law Reform Commission, 31 March 2014).
165 A cursory search suggests that Lord Nicholls’ test also finds favour in Victoria and New South Wales. For example, in the Children’s Court of New South Wales, Truscott CM said, “I am gratified that Lord Nicholls’ expression is so easily applicable, sensible and logical, that to not adopt his reasoning would be nothing but contrary. I also note that no Australian authorities setting out a different position have been placed before me”: In the matter of Adam and Michael [2004] CLN 3 at [44].

166 The alternative sets of orders/conditions proposed by the Farnells are attached as Appendix 4 and available for viewing along with this entire judgment at

167 The position would be different if a more draconian protection order was sought.
168 Some of the reports that came to my attention incorrectly suggested that the interim orders were final orders.
169 See my judgment in West Australian Newspapers Ltd & Channel 7 Perth Pty Ltd and Cuzens [2016] FCWA 6, which is available on the FCWA website. I was advised that the Attorney would make his decision after considering my judgment. For a discussion of the policy considerations and the different approaches adopted to referring papers to prosecuting authorities see Mary Keyes & Richard Chisholm, ‘Commercial surrogacy – Some troubling family law issues” (2013) 27 Australian Journal of Family Law 105, 127.
171 Many clinics insist on their surrogates having demonstrated their ability to carry a child, and s 17(a)(ii) of the Surrogacy Act also requires the surrogate to have previously given birth to a child.
172 Tobin and Luke in their submission to the Family Law Council suggested that surrogacy arrangements may involve the sale of a child in contravention of Article 35 of the Convention on the Rights of the Child: ‘Report on Parentage and the Family Law Act’ (Family Law Council, December 2013) 88.

Details

AGLC: Farnell & Anor and Chanbua [2016] FCWA 17
Case: [2016] FCWA 17
Decision Date: 14 APRIL 2016

CaseChat Overview and Summary

The applicants, Farnell and Chanbua, entered into a surrogacy arrangement with the respondent, the birth mother. As a result of this arrangement, twins were born in Thailand. The applicants brought the girl to Western Australia to live with them, while the boy remained in Thailand with the birth mother. The applicants sought an order for the girl to continue living with them, while the birth mother sought an order for the girl to live with her in Thailand. The male applicant is a convicted sex offender, but expert evidence indicated that there was a low risk of him abusing the girl. This risk had to be weighed against the high risk of harm to the girl if she was removed from her current home.

The court had to determine the legal issues concerning the best interests of the child, parental responsibility, and the powers of the Family Court of Western Australia. The court had to consider the risk of harm to the girl if she was removed from her current home, as well as the risk of harm if she remained with the applicants. The court also had to consider the risk of harm to the girl if the birth mother was allowed to spend time with or communicate with her. The court had to determine whether the applicants abandoned the boy and whether they tried to access his trust fund.

The court found that the girl's best interests were served by continuing to live with the applicants. The court also found that the risk of harm to the girl if she was removed from her current home was too high. The court found that the risk of harm to the girl if the birth mother was allowed to spend time with or communicate with her was also too high. The court found that the applicants did not abandon the boy and did not try to access his trust fund. The court ordered that the girl continue to live with the applicants and that they have parental responsibility. The court also ordered that the applicants send some of the girl's schoolwork to the birth mother. No orders were made requiring the applicants to allow the birth mother to spend time with or communicate with the girl.

Orders