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 | of | 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 is no reason that I can think of why this case cannot proceed to a final hearing immediately. I am conscious of the fact that the Court in other cases has made an order for a family report (see Ellison and Anor & Karnchanit (2012) 48 Fam LR 33). In this case all of the evidence points to the fact that the child is in very good hands. I do not think that a family report is going to assist me at all, bearing in mind the discussion I have had with counsel about the evidentiary matters and the philosophical problems that this Court faces.
Other courts have also ordered the appointment of an Independent Children's Lawyer (see Ellison (supra); Mason & Mason and Anor [2013] FamCA 424). An Independent Children's Lawyer’s focus is on the best interests of the child within the proceedings. Having regard to the position adopted by the birth mother, her apparent husband and the S agency organisation, it would seem unlikely that an Independent Children's Lawyer would advocate that the orders should be made in favour of the applicants. Courts have also invited intervention by the Human Rights Commission and the Department of Human Services. Those organisations, when they have participated in the proceedings, have generally assisted the Court in terms of what the law is about and how it needs to be clarified, if not fixed. I am very much aware of the judgment of Ryan J in Mason (supra) in which she had considerable assistance. It seems to me that I would benefit very little from revisiting all of those things. In the circumstances, it seems appropriate that the matter does proceed to a final hearing today on the basis that there is very little more information, let alone evidence, that the Court is going to receive.
The starting point, however, is to make clear from the Court’s perspective that this is an area where the Court has some disquiet. It is well known in the community that there are babies brought to various places around the world in international baby selling and trafficking. It is also said – and I think I can take judicial notice of this from some of the literature that I have read – those sorts of criminal elements involve the trafficker declaring themselves as the biological parent of a child and having the birth mother refuting or rejecting any involvement in the child’s life. It may not be prevalent in Australia, but it is known in other parts of the world.
A second reason why this Court needs to be cautious and scrutinise these arrangements carefully is the philosophical argument that children who are born to women under these circumstances can be seen to be either abandoned by their birth mothers or indeed crassly sold by their birth mothers. The Court is rarely given any information about the circumstances under which the child might otherwise live if it did not move from the birth mother to people such as the present applicants.
I know nothing about the financial circumstances that the mother in this particular case may have had arising out of this contractual arrangement. I do not know whether S Agency is an organisation profiting from the poverty and the problems that women in countries such as India and Thailand might face. That is not in any way to suggest that the applicants are anything other than responsible and very dedicated parents for the child. I stress again that the Court is raising these issues because it is concerned that it needs to be satisfied that this child is not caught in that web of horror and intrigue.
In this particular case the evidence is vague but I take into account that Division 12A of the Family Law Act 1975 (Cth) (“the Act”) reduces the significance of the evidentiary rules that many courts would operate under. I take into account also that as part of that relaxation of the rules, the Court can take at face value some of the things that the particular applicants say. I draw little comfort in this particular case from the fact that the respondents have not participated. They clearly entered into a contractual arrangement and, reading the contractual arrangement, it is quite clear that they were to walk away and have nothing further to do with either the applicants or the child.
Whatever things people say about the future and their intentions, one has to be somewhat cynical about just how those things will unfold for a child born into this commercial arrangement. This is a new area for the law in an environment where science is far ahead of what lawmakers seem to be contemplating. I have no idea what this child will face in 15 years time if cultural issues arise or his issues about identity become a crisis. I have no idea what would happen in the event that the birth mother suddenly changed her mind and wanted to have some involvement in the child’s future.
All of those questions remain unanswered. The Australian Government has not been concerned about the child’s travel movements because it presumably accepted the documents of the child’s birth and parentage at face value. Ultimately I have to determine this case on the unchallenged evidence (or the absence of any unlikely alternate evidence) and within a legislative framework where the focus is on the best interests of the child whose rights are encapsulated in s 60B of the Act.
The circumstances under which this application came before the Court are hardly controversial.
I am told, and I have no reason to doubt, that on the date that the application was filed, the child was in Australia. The applicants are in a relationship as a de facto couple.
The first of the two applicants has given evidence that he has provided the necessary genetic material for the purposes of the creation of the child but there is no evidence before the Court of any DNA testing under which I could conclude that the assertion by the first applicant is correct. But again I have no reason to doubt what he says for three reasons: first, there is no response from the respondents; secondly, when the doctor at the surrogacy clinic took the necessary material to do the tests, I have no reason to doubt that they were taken with parental authority; and thirdly, as has been pointed out by counsel, when the doctor at the surrogacy clinic took the necessary material to do the tests he then handed the child to the applicants. One might be cynical about that as to why that occurred, but there is no reason for me to doubt that the doctor was satisfied that the applicants were parties to the contractual arrangements and had provided the necessary genetic material.
The applicants have both been involved from an employment perspective with the finance industry, and they live currently overseas. One of the applicants has now ceased working in his chosen profession to care for the child on a full-time basis, indicating that he will return to the workforce when the child commences school.
There are a number of presumptions that arise out of this particular area of the law. They are made more difficult in some respects by some uncertainties as to their international reach. They are also made so much more difficult because the Commonwealth, prior to the child arriving in Australia, granted citizenship by descent. The basis of that grant remains a mystery, although I am aware of the department’s policy in relation to those things.
One of the things that is before the Court in evidence is a birth certificate issued in India. It is a most curious document, although it has been translated. It was issued five days after the child was born. It is curious and unusual because in the certificate it describes the name of the mother as “Mrs Not Known”. It describes the father as the first applicant.
I am satisfied on the basis of the intent behind s 69P of the Act that a child born to a married couple is presumed to be a child of their marriage. This child would normally be the child of the two respondents if that presumption had the reach into India. Those respondents have both been served in these proceedings. Section 69R of the Act says that there is a presumption that where a person has their name entered on the birth records, including of a proscribed overseas jurisdiction, that person is presumed to be the parent of the child.
Doing the best I can, and counsel did not argue to the contrary, Australia has never, by regulation anyway, prescribed any overseas country for the purposes of s 69R. The certificate, therefore, has some limited value, but I will accept it at face value. Therefore, at least the first applicant satisfied the Indian authorities that this child was somehow or other his child. There is also a presumption in s 69T that if a man signs a relevant acknowledgement in an overseas jurisdiction, that too can give rise to the man being declared a father. Again, however, Australia has not, by regulation at least, prescribed any such overseas jurisdiction.
It is quite clear in s 69U that the Court should apply the balance of probabilities as the test where there is the presumption that is in conflict with the evidence. Whilst in some cases, s 140(2) of the Evidence Act 1995 (Cth) might indicate that the bar should be very high because of the consequence of the orders. Here the finding on the balance of probabilities should be made because there is no challenge to any of this evidence.
There is also no declaration sought under s 69VA of the Act in relation to parentage. The court has power to make such a declaration if it has some evidence that might assist in determining the parentage of the child. Here again, even if I was to conclude that the absence of that evidence was a flaw in the applicant’s application or indeed ultimately, if the DNA testing evidence proved contrary to what is asserted by the applicants the Court is still left with a situation that it has a child of very vulnerable status who is living with the applicants in circumstances where they had also intended to care for him and have literally done so from birth. They were in India when the child was born by caesarean section.
I earlier mentioned about the policy questions that created some disquiet. I am conscious that other judges have said that the consideration of the welfare and interests of a child should outweigh the question of policy questions because the government ultimately determines how the Courts operate (see Re A and B (2000) 26 Fam LR 317). In this particular case, I intend to simply express my concern that the policy issue remains controversial. Apart from any of the matters that I have already referred to, it is also well-known that some states of Australia have passed laws making it a criminal offence to enter into a commercial surrogacy arrangement.
The question of the extra territoriality of those laws was not argued before me nor do I think that it really would assist me because on any view of the facts, that contract was entered into in India. Whether that would create an offence under whichever state might govern the arrangements between these parties, I am not sure because in any event, they seem to live overseas.
Ultimately, therefore, what I am being asked to do is to make parenting orders arising out of the jurisdiction given to the Court by Part VII of the Act. It is said, and I have no reason to doubt, that the first applicant is a parent of the child. I will accept that is the case based on the evidence that I have read. The second applicant on any view is a person who has an interest in the welfare and development of the child. On that basis, they being in a de facto relationship. It seems to me that I can find that they will share the parenting of this child and for that reason, there is no logical order other than one of equal shared parental responsibility.
I do not intend to deal with the provisions of the presumption of equal shared parental responsibility in s 61DA of the Act because at least one of the applicants is not the biological parent. Therefore, the presumption in s 61DA does not apply.
I am asked here to also make a residence order. In this case, all of the evidence before me points to the fact, as I said earlier, that the child will be well cared for and is currently in good hands. Section 60CA of the Act says that a court must not make a parenting order unless it is satisfied that it is in the best interests of the child. The best interest of the child is the paramount consideration.
In this case, s 60CC is what guides the Court’s hand in relation to what is in the child’s best interests. All of the evidence supports the conclusion that the various s 60CC factors favour a finding that the applicants are responsible, dedicated and willing parents not affected by family violence. The evidence shows that the mother and her husband have no interest in the child and would resist being encouraged to be involved. All of that points to a finding that it is in the best interests of the child for the orders sought to be made. In addition, s 60B sets out the fundamental objects and principles of Part VII which also clearly guide the Court’s hand. Taking all of those matters into account and looking at the evidence filed in the affidavits of 21 October 2013 by both of the applicants, I am satisfied that it is in the best interests of the child that a parenting order placing the child in their care should be made.
I intend to have these reasons published because again, I expressed disquiet about the fact that this pathway from a legal perspective is difficult.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 4 February 2014.
Associate:
Date: 12 March 2014
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