Fisher-Oakley & Kittur - [2014] FamCA 123

FAMILY COURT OF AUSTRALIA

FISHER-OAKLEY & KITTUR

[2014] FamCA 123

FAMILY LAW – CHILDREN – Surrogacy – undefended proceedings.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Ellison and Anor & Karnchanit (2012) 48 Fam LR 33
Mason & Mason and Anor [2013] FamCA 424
Re A and B (2000) 26 Fam LR 317

APPLICANT:

Mr X Fisher-Oakley and Mr Y Fisher-Oakley

RESPONDENT:

Mr Kittur and Ms Kittur

FILE NUMBER:

MLC

9092

2013

DATE DELIVERED:

4 February 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

4 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Theoharopolou

SOLICITOR FOR THE APPLICANT:

Lander & Rogers

THE RESPONDENT:

No appearance

Orders

That Mr X Fisher-Oakley and Mr Y Fisher-Oakley have equal shared parental responsibility for the child K born … August 2013.
That the child live with the applicants.
That service be arranged of this order upon S Agency, Mumbai.
That all outstanding applications be otherwise dismissed.
That the reasons this day be transcribed and be made available to the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fisher-Oakley & Kittur has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9092 of 2013

Mr X Fisher-Oakley and Mr Y Fisher-Oakley

Applicant

And

Mr Kittur and Ms Kittur

Respondent

REASONS FOR JUDGMENT

By an application filed on 21 October 2013, Mr X Fisher-Oakley and Mr Y Fisher-Oakley seek orders that they have equal shared parental responsibility for the child K (“the child”), who was born in August 2013, and that the child live with them. This is a case which is sometimes described as a parenting case arising out of a commercial surrogacy. In this case the respondents were the birth mother and indeed her husband who live in India. In relation to the process concerning them, I have an affidavit indicating that the various documents to which I will refer in a moment were served on a Dr A who seems to operate out of an organisation called S Agency in Mumbai.
It would seem that Dr A was keen for the documents to be delivered to him so that he could deliver them to the birth mother and her husband. But as a precaution, he handed the documents to them and then took a photograph at the time that occurred. It is probably trite to say that they have a look of complete lack of interest in what is going on. Needless to say, they have not participated in these proceedings in any way, and that is not unusual. I have had the opportunity to read a surrogacy contract and it is nothing unusual to see that the birth mother hands the child over to the other contracting party and then fades out of the child’s life.
I have had significant discussion with counsel for the applicants today, and there…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fisher-Oakley & Kittur

Details

AGLC: Fisher-Oakley & Kittur [2014] FamCA 123
Case: [2014] FamCA 123
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Mr X Fisher-Oakley and Mr Y Fisher-Oakley (the applicants) sought parenting orders for a child, K, born in August 2013. The respondents, Mr Kittur and Ms Kittur, were the birth mother and her husband residing in India. The proceedings concerned a commercial surrogacy arrangement, and the respondents did not appear.

The court was required to determine whether to grant the applicants equal shared parental responsibility for the child and an order for the child to live with them. Key legal issues included the court's jurisdiction and ability to make parenting orders in the context of international commercial surrogacy, the evidentiary challenges presented by the undefended nature of the proceedings and the location of the respondents, and the application of the Family Law Act 1975 (Cth) to determine the best interests of the child.

Justice Cronin acknowledged the court's disquiet regarding international commercial surrogacy, noting potential concerns about exploitation and the philosophical implications of such arrangements. However, the court applied Division 12A of the Family Law Act 1975, which relaxes evidentiary rules, allowing it to proceed on the unchallenged evidence presented. The court considered presumptions of parentage under sections 69P, 69R, and 69T of the Act, noting their limited applicability in this international context but accepting the evidence at face value due to the lack of challenge. Applying the paramount consideration of the child's best interests under section 60CA and the factors outlined in section 60CC, the court found that the applicants were responsible and dedicated parents and that the respondents had no interest in the child.

The court made orders granting the applicants equal shared parental responsibility for the child and that the child live with them. Further orders were made for service of the orders upon S Agency in Mumbai, and all other outstanding applications were dismissed. The court also directed that the reasons for judgment be transcribed and made available to the parties.

Orders