Gallo & Ruiz

Case [2024] FedCFamC1F 893

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…

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Details
AGLC
Gallo & Ruiz [2024] FedCFamC1F 893
Case
[2024] FedCFamC1F 893
Decision Date

CaseChat Overview and Summary

The case of Gallo & Ruiz involved a legal dispute regarding parenting orders for two children born through a commercial surrogacy arrangement. The biological father, Mr Gallo, sought sole parental responsibility and a declaration of parentage for the children, while the birth mother, Ms Ruiz, did not contest the application. The father and the children currently reside in Suburb K, Victoria, with the father’s supportive parents. The court was tasked with determining whether Mr Gallo should be granted sole parental responsibility for the children and whether he should be declared their legal father. The application proceeded undefended as Ms Ruiz did not contest the father's application.

The key legal issue before the court was whether Mr Gallo should be granted sole parental responsibility for the children, given that the children were born through a commercial surrogacy arrangement and the birth mother had no relationship with them. The court had to consider whether Mr Gallo, as the biological father, was the most suitable person to have sole responsibility for the children’s upbringing. Additionally, the court had to determine if Mr Gallo should be declared the legal father of the children under section 69VA of the Family Law Act 1975 (Cth), and if he should be entitled to obtain Australian passports for the children.

The court found that Mr Gallo was the biological father of the children and had been their primary caregiver since their birth. The father had proven his capacity to provide a stable and loving environment for the children, supported by his parents. Given the absence of any contested claims by the birth mother, the court was satisfied that granting sole parental responsibility to Mr Gallo was in the best interests of the children. The court also declared Mr Gallo the legal father of the children and allowed him to obtain Australian passports for them. The court dismissed all other pending applications and removed the matter from the list.

The final orders of the court granted Mr Gallo sole parental responsibility for the children, declared him their legal father, and permitted him to obtain Australian passports for them. The matter was dismissed and removed from the list. This decision ensures that Mr Gallo has the legal authority to make major decisions regarding the children’s upbringing and provides clarity for future matters such as education and travel.

Orders

Orders of the court

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.