Fisher-Oakley & Kittur

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.