Gallo & Ruiz
[2024] FedCFamC1F 893
•20 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gallo & Ruiz [2024] FedCFamC1F 893
File number: MLC 9689 of 2024 Judgment of: HARTNETT J Date of judgment: 20 December 2024 Catchwords: FAMILY LAW – PARENTING – Where the children were born pursuant to a commercial surrogacy arrangement – Where the biological and birth mother are different – Where the birth mother resides overseas and has no relationship with the children – Where the father is the biological father – Where the matter proceeded undefended – Where the father seeks final parenting orders and a declaration of parentage – The father have sole parental responsibility for the children – The children live with the father – The father be declared the father of the children pursuant to s 69VA of the Act – The father be at liberty to obtain an Australian Passport for the children – Application dismissed. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 60H, 60HB, 65C, 69VA,49
Federal Circuit and Family Court of Australia (Family Law) Amendment (2024 Measures No.1) Rules 2024
Cases cited: Bernieres v Dhopal (2017) 57 Fam LR 149
Masson v Parsons (2019) 266 CLR 554
Re G (Children) [2006] 1 WLR 2305
Division: Division 1 First Instance Number of paragraphs: 42 Date of hearing: 19 December 2024 Place: Melbourne Counsel for the Applicant: Mr Dean Solicitor for the Applicant: Freeman Family Law The Respondent: Did not participate ORDERS
MLC 9689 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GALLO
Applicant
AND: MS RUIZ
Respondent
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
19 DECEMBER 2024
THE COURT ORDERS THAT:
1.The father have leave to proceed with his Application for Final Orders on an undefended basis.
2.The father have sole parental responsibility for decision-making in relation to major long-term issues for the children X born 2022 and Y born 2022 (“the children”).
3.The children live with the father.
4.Pursuant to s 69VA of the Family Law Act 1975 (Cth) the father be declared the father of the children.
5.The father be at liberty to obtain an Australian Passport for the children and in order to obtain the said passport the father be at liberty to:
(a)lodge an application with the Australian Passport Office without the Respondent's involvement and/or consent; and
(b)supply a copy of these Orders to the Australian Passport Office.
6.The father be at liberty to provide a copy of these Orders to the children’s educational providers and medical practitioners.
7.Otherwise, all extant applications be dismissed and the matter removed from the list.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gallo & Ruiz has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
INTRODUCTION
This matter came before the Court on 19 December 2024 for the Court’s determination as to whether it should make final parenting orders in favour of the applicant father (“the father”) in respect of the children X born 2022 and Y born 2022 (“the children”). The children were twins, a boy and girl, aged two years.
The father’s Initiating Application was filed in the Federal Circuit and Family Court of Australia (Division 2) on 7 August 2024 and transferred, on 14 October 2024, to the Federal Circuit and Family Court of Australia (Division 1) pursuant to s 149 of the Family Law Act 1975 (Cth) (“the Act”).
The father sought final parenting orders in the terms as made by the Court this day together with a s 69VA of the Act declaration, also made. Such orders promote the best interests of the children.
The father desired to become a parent but was a single person in his early forties. Accordingly, he entered into a commercial surrogacy agreement with an intermediary, a Country B company known as C Pty Ltd. The surrogacy involved the participation of an egg donor residing in Country D, the respondent mother (“the mother”) as a surrogate who was then residing in Country E, and the father as the biological father. Both the father and the mother are listed as parents of the children on their birth certificates as issued in Country F where the children were born. The whereabouts of the egg donor is unknown and, in all probability, will remain unable to be known. This is not material to this proceeding.
The mother continued to reside in Country F and completed her obligations pursuant to the contractual surrogacy agreement she entered into with C Pty Ltd.
The mother did not oppose the father’s application. She made no application of her own to the Court, nor participated in the hearing. She has no relationship with the children. The mother has provided a statutory declaration to the father, for the purposes of his visa applications on behalf of the children for their entry into Australia, and ability to remain in Australia, and which is before the Court, in which she confirms the surrogacy arrangement; her relinquishing of all her parental rights; her wish to remain residing in Country F with no parental responsibilities; and her consent to the children residing in Australia with the father.
The children are currently residing in Australia with the father and the paternal grandparents. The children are on bridging visas whilst waiting for child visas in Australia. The father is a permanent resident of Australia. The paternal grandmother is a permanent resident of Australia. The paternal grandfather’s application for permanent residency is outstanding.
The matter proceeded on an undefended basis.
LEGAL PRINCIPLES
This case was heard after the enactment of the Federal Circuit and Family Court of Australia (Family Law) Amendment (2024 Measures No.1) Rules 2024. The legislative changes therefore apply to this case and the consideration of best interest factors below reflects the relevant legislation as at the date of final hearing.
The father’s Application is made pursuant to Part VII of the Act.
Section 60CA of the Act provides that when deciding whether to make a particular parenting order in relation to children, the best interests of the children must be the paramount consideration.
The objects of Part VII of the Act inform how I must exercise my discretion. Those objects include ensuring that the best interests of children are met, including by ensuring their safety (s 60B(a) of the Act). The legislation further provides that I must also give effect to the Convention on the Rights of the Child (s 60B(b) of the Act).
There are a range of considerations set out in s 60CC(2) and (2A) of the Act to be taken into account in determining what is in the child’s best interests.
Section 60CC(2) of the Act provides:
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
Section 60CC(2A) of the Act provides:
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
Matters concerning parenting arrangements and surrogacy agreements were dealt with by reference to s 60HB of the Act, and not s 60H of the Act.[1] I note no order has been made under a prescribed law of a State or Territory in respect of the children.
[1] Bernieres v Dhopal (2017) 57 Fam LR 149 at 62.
Declarations of parentage were however considered by the High Court in Masson v Parsons (2019) 266 CLR 554 (“Masson”). That case related to the circumstances of artificial insemination under s 60H of the Act. The approach adopted by the High Court in that case equally finds application to s 60HB.
In Masson, the plurality said:
54.… As has been explained, the ordinary, accepted English meaning of the word “parent” is a question of fact and degree to be determined according to the ordinary, contemporary understanding of the word “parent” and the relevant facts and circumstances of the case at hand. To characterise the biological father of a child as a “sperm donor” suggests that the man in question has relevantly done no more than provide his semen to facilitate an artificial conception procedure on the basis of an express or implied understanding that he is thereafter to have nothing to do with any child born as a result of the procedure. Those are not the facts of this case. Here, as has been found – and the finding is not disputed – the appellant provided his semen to facilitate the artificial conception of his daughter on the express or implied understanding that he would be the child’s parent; that he would be registered on her birth certificate as her parent, as he is; and that he would, as her parent, support and care for her, as since her birth he has done. Accordingly, to characterise the appellant as a “sperm donor” is in effect to ignore all but one of the facts and circumstances which, in this case, have been held to be determinative.
As to the “natural and ordinary” meaning of “parent”, the joint judgment in Masson refers, with approval, to the English decision of Re G (Children) [2006] 1 WLR 2305 in which Baroness Hale said at [33]-[37], of English contemporary conceptions of parenthood:
[t]here are at least three ways in which a person may be or become a natural parent of a child” depending on the circumstances of the particular case: genetically, gestationally and psychologically.
I am satisfied the applicant is the father of the children, as the named father on their respective birth certificates and as their biological father. In the “natural and ordinary” meaning of the word parent, he is a parent of the children. The father has standing to seek parenting orders in relation to the children pursuant to s 65C(a) of the Act. I am also satisfied, if it were necessary, that the father is a person concerned with the children’s care, welfare or development and as such has standing to seek parenting orders pursuant to s 65C(c) of the Act.
MATERIAL RELIED UPON
The father relied upon:
(1)his Amended Application for Final Orders filed 13 November 2024;
(2)his affidavit filed 7 August 2024, 7 October 2024 and 29 October 2024;
(3)affidavit of Ms G, process server, filed 2 October 2024;
(4)affidavit of Dr H, doctor at Immigration DNA Testing, filed 13 December 2024; and
(5)written submissions emailed to Chambers on 16 December 2024.
The mother did not file any material.
I am satisfied as to service upon the mother of all relevant material before the Court.
BACKGROUND
In 1980, the father was born in Country D. He was aged 44 years at the final hearing. He is a citizen of Country D and became a permanent resident of Australia in 2006. The father has resided in Australia since he was 18 years of age when he commenced his undergraduate course at J University. He is employed as a finance professional and resides in Suburb K, Victoria with his parents and the children.
In or around early 2019, the father engaged C Pty Ltd to facilitate the process of a surrogacy arrangement. The father entered into a contract with C Pty Ltd.
In or around mid-2019, the father attended L Centre (an IVF Centre) to provide a sample of his sperm. Pursuant to a separate contractual arrangement with C Pty Ltd, a woman known as Ms M attended upon the centre to donate her eggs for the purpose of producing embryos which had the biological material of she and the father. The father has had no communication or contact with Ms M since.
In 2022, C Pty Ltd facilitated the successful transfer of embryos to a surrogate woman, being the mother.
In 2022, the children were born in City N, Country F. The father was not present at the children’s birth due to their pre-term delivery. The father underwent a DNA test in Country F to prove his biological progeny before his name was added to the children’s birth certificates.
The children remained in the hospital for approximately two weeks following their birth and were then discharged into the father’s care. The mother ceased to have any further involvement with the children from this time. The father and the paternal grandparents stayed in accommodation in City N close to the hospital, remaining residing in City N for approximately six months from 2022 to 2023. The father applied for and was granted visas for the children to return to City O, Country D to temporarily live with the paternal grandparents while the father was applying for a family reunification visa for each of the children in Australia.
From 2023 to mid-2024, the children resided in City O, Country D with the paternal grandparents. The paternal grandparents and the father ensured the children had everything they required including bassinets, cots, bottles, appropriate nutrition, clothing, toys and age-appropriate stimulation. They solely cared for the children and provided for all the children’s various needs.
In mid-2023, the paternal grandmother was granted a permanent resident visa for Australia. The father had supported her in applying for this visa seven years prior.
In late 2023, the mother provided her written consent for the father to apply for visas for the children to travel to and remain in Australia.
In pursuit of completing the documents necessary for the children’s visas for entry to Australia the mother provided to the father an application form completed by her together with:
(1)a copy of her medical reports from P Hospital accompanied by her Country F national identification card;
(2)two medical reports relating to her pregnancy and treatment at P Hospital;
(3)her bank statements with Q Bank in Country F which confirmed that she had received payments related to the surrogacy arrangements; and
(4)an original copy of her statutory declaration, which was witnessed at the Australian Embassy in City N, Country F.
In April 2024, Dr H prepared a parentage test report on the children. The report indicated the father is the genetic father of both children based on a parentage testing procedure carried out on the bodily samples of both children and the father.
In mid-2024, the paternal grandparents and the children travelled from Country D to Australia. The children travelled on tourist visas. The children and the paternal grandparents took up residence in the father’s home in Suburb K.
In mid-2024, the children were granted bridging visas. The father has applied for child visas for the children to stay in Australia permanently. Once this occurs, the father intends on applying for citizenship for both children.
In September 2024, the father’s solicitors served the mother via email, attempted personal service having been unable to be effected. The mother had earlier provided the father with two email addresses as provided to him from the mother via a messaging app.
On 10 October 2024, orders were made for a sealed copy of the orders made in Court on that day to be served on the mother via her two email addresses.
On 14 October 2024, the father’s solicitors served the mother via her two email addresses.
CONSIDERATION
The father is a permanent resident in Australia, however, has been unable to apply for citizenship due to Country D not being a country that facilitates dual citizenship. It has always been the father’s intention to remain in Australia permanently and offer his children the benefit of living in Australia.
The father resides in a home in Suburb K. This was a house and land package concluded in 2015. He is the sole registered proprietor of the property and has remained living at the property since 2015. The home has four bedrooms, two bathrooms and all modern facilities. The home is close to reputable daycare providers, schools, transport and shops.
The father is the main income earner in his household. The paternal grandparents both receive retirement pensions and income from their property in Country D. It is the intention of the paternal grandparents to continue to live with the father to assist him in the day to day care of the children for the foreseeable future noting the father is the only parent caring for the children, and the only parent they will know. There are no issues of safety when the children are in the care of their father or paternal grandparents. All the children’s needs are met with great care and attention. The children are much wanted and loved and their arriving at this age has been a long and ultimately happy journey for the father and his very supportive parents. That he is a parent with insight and capacity to promote the best interests of the children, who loves the children and is loved by them, together with the other matters stated herein is a complete answer to the s 60CC(2) of the Act matters consideration.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 20 December 2024
Gallo & Ruiz [2024] FedCFamC1F 893
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