GORNIK and THORBURN

[2022] FCWA 77

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: GORNIK and THORBURN [2022] FCWA 77

CORAM: DUNCANSON J

HEARD: 29 MARCH 2022

DELIVERED : 6 APRIL 2022

FILE NO/S: [Redacted]

BETWEEN: MR GORNIK

Applicant

AND

MR THORBURN

Respondent

Catchwords:

CHILDREN - Surrogacy - where the applicant and the respondent have engaged in an international surrogacy arrangement - where the surrogacy arrangement is altruistic - where a child was born in [Country A] - where the parties have separated and seek parenting orders - where the orders sought are in the best interests of the child

Legislation:

Family Court Act 1997 (WA) s 66C, s 88, s 185

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr B King
Respondent	:	Self-Represented Litigant

Solicitors:

Applicant	:	KDK Family Law
Respondent	:	Self-Represented Litigant

Case(s) referred to in decision(s):

Ellison and Another v Karnchanit (2012) 48 Fam LR 33

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gornik and Thorburn has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

1[Child A] was born [in] 2017 in [Country A]. She was born as a result of an international surrogacy agreement between the applicant [Mr Gornik], the respondent [Mr Thorburn], who is the former partner of the applicant, the birth mother [Mrs Remis], and her husband, [Mr Remis].

2Child A entered Australia a short time after her birth. She is four years of age. She lives with the applicant.

3The orders sought by the applicant and the respondent are contained in an amended minute of final consent orders sought in an application for consent orders filed 1 December 2021.

4The parties seek an order that the applicant has sole parental responsibility for Child A, that she lives with him and spends time with the respondent as agreed in writing. The parties also seek orders in relation to communication, the provision of information, restraints as to the parties' conduct, international travel, and Child A's passports.

BACKGROUND

5The applicant is 41 years of age. He is a [health professional]. The respondent is 30 years of age. He is a [consultant].

6The applicant and the respondent began living together in or about 2014 in [Country B]. They relocated to Australia in or about 2016. They separated finally in May 2021.

7The applicant deposed that prior to forming a relationship with the respondent, it had been his desire to have a child.

8The parties engaged with a surrogacy agency in Country A. [In] August 2016 they entered into a surrogacy agreement with Mrs Remis and Mr Remis. Child A was conceived with ova retrieved from an anonymous donor and sperm supplied by the applicant.

9The applicant and the respondent travelled to Country A. They were present at the birth of Child A.

10The surrogacy agreement was executed on 17 August 2016 and lodged at the Judicial Centre of [City A]. [In] 2017 a surrogacy order was made in [Court A], [Province A], City A.

11A birth certificate for Child A issued [in] 2017. A visa was granted for her to travel to Australia. The parties and Child A returned to [Western Australia] [that month].

12DNA parentage testing was carried out between [late] February 2022 and [early] March 2022. In terms of the parentage testing procedure report, the probability that the applicant is the genetic father of Child A exceeds 99.99%.

13Mrs Remis was served with the parties' application. She provided an affidavit dated 24 February 2022. She does not object to the proposed orders. Mrs Remis has had very limited contact with Child A since Child A left Country A.

14Since the applicant and the respondent separated Child A has had limited contact with the respondent, spends time with him as agreed and has liberal telephone communication with him.

THE SURROGACY

15Mrs Remis was born in [Australia] and is 33 years of age. She migrated to Country A in 2001 and became a citizen [of that country] in 2006. In 2016 she approached a fertility clinic, [Service A], with a view to engaging in an altruistic surrogacy arrangement. Mrs Remis deposed that in Country A it is not possible to enter into a surrogacy arrangement on a commercial basis.

The Surrogacy Agreement

16The applicant and the respondent entered into a surrogacy agreement with Mrs Remis and Mr Remis [in] August 2016.

17The surrogacy agreement is between the applicant (the Genetic Father), the respondent (the Intended Father), Mrs Remis (the Gestational Carrier), and Mr Remis (the Husband). The agreement records that the applicant and the respondent, therein referred to as the Intended Parents, are a same-sex couple in a common-law relationship who wish to start a family together. The agreement further records that the Intended Parents intend to conceive a child with ova from an anonymous donor to be fertilised by sperm supplied by the Genetic Father to the Gestational Carrier. The Gestational Carrier offered to carry the child on an altruistic basis, and only out-of-pocket expenses related to the surrogacy were to be reimbursed to her.

18The agreement records that the Gestational Carrier and the Husband believe it would be in the best interests of the child for the child to be in the custody of the Intended Parents immediately upon birth, and they expressed their intention to waive all parental rights which they may have to any child.

19The agreement records the Intended Parents will be the legal, custodial and social parents of the child.

20The agreement records as follows:-

1.12It is expressly understood that this Agreement is not intended in any way to represent a contract regarding payment in exchange for a child, or for the relinquishment of a child, and that the Parties acknowledge that no consideration has been offered to or accepted by the Gestational Carrier which would induce her to act as a surrogate.

21The agreement is a comprehensive one. I have read and considered its terms carefully. It includes provisions for psychological assessments, acknowledgements and undertakings, medical examinations, counselling, prenatal obligations, events with respect to the pregnancy, custody of the child and parental rights, and Mrs Remis and Mr Remis' relationship with the child. It covers various events including the death of Intended Parents or separation or divorce of them prior to the child's birth. It makes provision for life insurance, health insurance, succession, early termination expenses and other important matters.

The Surrogacy Order

22The surrogacy order was pronounced [in] 2017 at Court A, Province A, City A. The order notes the birth of the child and that Mrs Remis consented to the application to the [Country A Court]. The order notes the Country A Court was satisfied that the applicants (the applicant and the respondent in these proceedings) had established, on the balance of probabilities, the genetic and biological relationship between the applicant and the child. The Country A Court was satisfied that the best interests of the child dictated that the other Intended Parent, the respondent, should be recognised as the other parent for the purposes of the law in Province A.

23It was ordered that pursuant to [Country A Law], Mrs Remis is not a parent of the child. It was further ordered that the applicant is a parent of the child for the purpose of law in Province A, and that the respondent is the other parent of her for the purposes of that law.

THE LEGAL PRINCIPLES

24I am not asked to consider the orders of the Country A Court which provide that the parties are the parents of Child A. The orders sought by the applicant and the respondent are parenting orders.

25Section 88 of the Family Court Act 1997 (WA) ("the Act") sets out who may apply for a parenting order in relation to a child. Section 185 of the Act sets out who may institute proceedings in relation to children.

26The applicant and the respondent have standing to bring these proceedings for a parenting order in relation to Child A as they are persons concerned with her care, welfare, or development.

27I am mindful of the best practice principles to be followed in all surrogacy cases as determined by Ryan J in Ellison and AnothervKarnchanit (2012) 48 Fam LR 33.

28I am satisfied that the applicant has given truthful evidence regarding the circumstances of Child A's birth. I am satisfied upon the evidence of the applicant that he is a devoted carer to Child A. Having so satisfied myself, I do not consider it necessary to request the appointment of an Independent Children’s Lawyer to represent Child A's interests.

29In my assessment the applicant was sincere in his absolute devotion to Child A. He described their love for each other and said he did not want to be separated from her. I am satisfied as to his commitment to Child A's care, welfare, and development.

30I also had an opportunity to assess the respondent. He said, like the applicant, he and Child A were very close. He never considered her to be anything but his child. The respondent explained after the parties separated, he and the applicant had an agreement that Child A would spend time with him, but communication between the parties was difficult. The respondent explained that co-parenting with the applicant caused conflict. He made a decision, one not taken lightly, that he would step back from co-parenting to remove that conflict from Child A's life. The respondent said, the day Child A needs him, he will always be there for her.

31I was impressed with the sincerity of both the applicant and the respondent and the love and devotion they bear towards Child A. In the circumstances, I do not consider it necessary to require the preparation of a family report.

32In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. Section 66C sets out how a court determines what is in a child’s best interests. I must consider the primary and additional considerations.

33These considerations distinguish between parents and non‑parents. I intend to refer to the considerations as if they apply to the parties to the extent that they are relevant.

THE BEST INTERESTS OF CHILD A

34Both parties cared for Child A after her birth. When the parties separated, the respondent left the family home in [Suburb A]. Child A spent time with him. She will spend time with the respondent in the future as the parties may agree. The applicant is Child A's primary carer.

35Child A has a meaningful relationship with the applicant. It is to her benefit that it continues. Child A is not at risk of harm in the care of the applicant.

36Child A has a close and loving relationship with the applicant. She enjoys the company of the applicant's friends and their children. The applicant's relatives live in [Country C] and he and Child A recently returned from Europe. Child A does not have a relationship with Mrs Remis or her husband.

37Child A attends [School A]. She is cared for by a nanny when the applicant is working. There are no problems with Child A's schooling. She is active and enjoys [her hobbies].

38The applicant meets Child A's expenses, including private health insurance premiums and school fees.

39The applicant has discussed with a psychologist what he might talk to Child A about in the future. He said he will be honest with her so that she knows her family situation and understands that every family is different.

40I am satisfied that the applicant is a responsible parent with the capacity to provide for Child A's needs on all levels. She has been in the care of the applicant since her birth. The parties make sound and reliable provision for her in the future.

CONCLUSION

41I am satisfied that the circumstances of this altruistic surrogacy arrangement are transparent and honest. It has produced a desired child who is much loved by both parties.

42I am satisfied that orders sought by the applicant and the respondent are in the best interests of Child A.

THE ORDERS

43I make the following orders in terms of the amended minute of final consent orders:

1The Applicant, [MR GORNIK] have sole parental responsibility of the child, [CHILD A], born [in] 2017 ("[Child A]").

2[Child A] live with the Applicant.

3[Child A] spend time with the Respondent, [MR THORBURN] as agreed in writing.

Communication between Parties

4The parties will communicate via the Family Wizard App or email or text message in relation to non-urgent matters regarding [Child A].

5The parties will communicate via telephoning the other party and if the other party does not answer, sending a text message, within an hour of any emergency, serious injury or serious illness regarding [Child A].

6The parties keep each other informed as to:

(a)their residential address, email address, landline and mobile telephone numbers; and

(b)the name, age and relationship to all other adults who live with each party in their homes;

and forthwith advise the other party as to any changes with respect to same.

Restraints

7Both parties be restrained from:

(a)denigrating the other party or any member of the other party's family to [Child A], within her hearing or in her presence;

(b)swearing in the presence or hearing of [Child A];

(c)displaying any form of violence in [Child A's] presence;

(e)discussing these proceedings in [Child A's] presence or within her hearing; and

(e)allowing any other person to share a bed with [Child A].

International Travel

8In the event the Applicant wishes to take [Child A] outside the Commonwealth of Australia for any period, then:

(a)the Applicant to notify the Respondent beforehand in respect of any proposed period of travel;

(b)the Applicant to provide details to the Respondent of:

(i)the period of proposed absence from Australia;

(ii)a copy of any proposed itinerary including care arrangements for [Child A]; and

(iii)the address(es) where [Child A] will be staying during any such period and a contact telephone number.

[Child A's] Passport

9The parties do all acts and sign all documents necessary to enable the Applicant to obtain Australian and European Union passports for [Child A], including providing verbal consent to the Department of Foreign Affairs and Trade and the equivalent agency or Department in [Country C] or the European Union when contacted by them for the issue of the Australian passports for [Child A].

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

RM

Associate

6 APRIL 2022