Gough & Anor & Kaur
[2012] FamCA 79
•1 March 2012
FAMILY COURT OF AUSTRALIA
| GOUGH AND ANOR & KAUR | [2012] FamCA 79 |
| FAMILY LAW - CHILDREN - Best interests - surrogacy agreement |
| Family Law Act 1975 (Cth) Assisted Reproductive Treatment Act 2008 (Vic) |
| APPLICANTS: | Mr Gough and Ms Gough |
| RESPONDENT: | Ms Kaur |
| FILE NUMBER: | MLC | 95 | of | 2012 |
| DATE DELIVERED: | 1 March 2012 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Macmillan J |
| HEARING DATE: | 28 February 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANTS: | In person |
| SOLICITOR FOR THE APPLICANT: | N/A |
| COUNSEL FOR THE RESPONDENT: | No appearance |
| SOLICITOR FOR THE RESPONDENT: | N/A |
IT IS ORDERED THAT
The applicants have equal shared responsibility for the child F born … October 2011.
The said child live with the applicants.
As soon as practicable the applicants serve a sealed copy of these orders and the reasons for judgment herein upon the respondent by pre-paid post addressed to the respondent at:
a. … , Bangkok, … , Thailand; and
b. C/- Organisation T, Hospital P, Bangkok, … , Thailand.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create, and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The application filed on 6 January 2012 be otherwise dismissed and otherwise removed from the list of cases awaiting hearing.
IT IS DIRECTED THAT
All subpoenaed and exhibited documents be returned on the usual basis to the person producing same.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gough and Anor & Kaur has been approved by the Chief Justice pursuant to s121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER:
| Mr Gough and Ms Gough |
Applicants
And
| Ms Kaur |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an Application filed by Mr Gough (“the first named applicant husband”) and Ms Gough (“the second named applicant wife”) on 6 January 2012. In their Application, Mr and Ms Gough seek orders that they have equal shared parental responsibility of the child F and that F live with them.
Background
The child F was born in Thailand in October 2011. She was born as a result of a surrogacy agreement with Ms Kaur, the surrogate mother and respondent in these proceedings. The surrogacy agreement was organised by Organisation T operating through Hospital P, a Private Hospital in Bangkok, Thailand. The agreement did not require any direct payment from the applicants to the gestational surrogate. In Victoria, where F now lives, it is an offence under s 44 of the Assisted Reproductive Treatment Act 2008 (Vic) for a surrogate mother to receive any material benefit or advantage as a result of a surrogacy arrangement. The penalty for doing so is 240 penalty units or 2 years imprisonment or both. In this case F was neither conceived nor born in Victoria, nor is her surrogate mother a resident of, or present in this State.
F was conceived using the egg of an anonymous donor and the sperm of the applicant husband. The applicant husband entered into an agreement with Ms N of Organisation I for the purposes of obtaining a donor egg conditional upon the donor of that egg remaining anonymous. It was a term of the agreement that the egg donor would have no parental rights with respect to the child born of that egg donation.
The applicants entered into an agreement with the respondent whereby she acted as the gestational surrogate for the applicants, surrendering custody, control and any parental or other rights she might have for F at birth. It was also acknowledged as part of that agreement that the respondent had no biological relationship with the child. The first named applicant is F’s genetic father. This was confirmed by the report dated 30 November 2011 from Organisation S which sets out the results of DNA Testing carried out under supervision between 28 and 29 November 2011 by Organisation S in New South Wales.
F, by parental descent, is both an Australian and Thai citizen. F’s birth was registered in Bangkok and the applicant husband and the respondent are named as F’s father and mother on her birth certificate. She became an Australian citizen in early December 2011. The respondent gave her consent to the removal of F from Thailand to a location of the applicant husband’s choosing and gave her consent that he act as sole signatory for the purposes of all future passport applications.
The respondent has signed a minute of consent orders dated 28 December 2011. The respondent confirms that the minute of orders has been read to her and she has fully understood the meaning and consequences of the orders. The respondent’s signature is witnessed by an interpreter. The intent of the surrogacy contract is clear and the respondent’s decision not to play any part in F’s life is confirmed by her consent to the orders which include the surrender of any parental rights and an acknowledgement that the applicants are seeking equal parental responsibility for F.
Parenting Orders
Notwithstanding that the first named applicant is the genetic father of F, it does not follow that he is necessarily a parent for the purposes of the Family Law Act 1975. There is no definition of a parent in the Act save and except that in s 4 (1) ‘parent’, when used in Part VII in relation to a child who has been adopted, is defined as “an adoptive parent of the child”. That is clearly not relevant to this case. To the contrary ss 60H(1)(a)–(c) provide that where
…a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a defacto partner of, another person (the other intended parent) [and certain other conditions are met, then]… whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act … the child is a child of the woman and the other intended parent
and s 60H(1)(d) provides that where
…a person other than the woman and the other intended parent provided genetic material— the child is not the child of that person.
The first named applicant in this case was not the husband or defacto partner of the respondent. Whilst he provided genetic material, the child is not his child for the purposes of the Act.
This does not however preclude the applicant husband and wife seeking parenting orders with respect to F. Pursuant to s 64C of the Act, parenting orders can be made in favour of a parent or some other person, and any person concerned with the care, welfare and development of the child can make an application for parenting orders (s 65C(c)).
The parties in this case, like all other parties, are required to comply with the dispute resolution provisions of the Act before issuing proceedings. In so far as they have not done so, I am required to consider making an order requiring them to attend family dispute resolution with a family dispute resolution practitioner. In this case I am satisfied that in circumstances where it is clear that there is no dispute between the parties, and that the respondent has clearly indicated her intention to relinquish any parental rights and would be unlikely or unable to participate in such family dispute resolution, no purpose would be served by the parties attending family dispute resolution and I do not propose to make an order requiring them to do so.
The Court may, subject to the presumption of equal shared parental responsibility, make such parenting orders as it thinks fit and proper in the circumstances (s 65D of the Act). A parenting order may, as is sought by the applicants in this case, deal with the allocation of parental responsibility, which includes the allocation of responsibility for making long-term decisions, and for determining with whom a child should live (ss 64B(2) and (3)).
As is the case in all applications for parenting orders, the Court must have regard to the objects underlying the provisions of Part VII of the Family Law Act 1975 which are intended to advance the best interests of the child. They include ensuring that children have the benefit of the meaningful involvement of both of their parents in their lives, protecting the children from harm, ensuring that they receive adequate and proper parenting necessary for them to achieve their potential, and ensuring that their parents fulfil their duties and meet their responsibilities concerning the children’s care, welfare and development (s 60B). The Court must also have regard to the principles underlying those objectives, which are set out in s 60B(2) of the Act.
The Best Interests of the Child
The paramount consideration when making a parenting order is the best interests of the child or children the subject of that order (s 60CA). In determining what is in that child or children’s best interests, the Court must consider both the primary and additional considerations set out in s 60CC(2) and (3) of the Act. The analysis of those statutory considerations of what is in the best interests of the particular child in the particular circumstances of the case must be made in a way that is consistent with the objectives and the principles underlying those objectives. The primary considerations directly take up the first two of those objectives.
Clearly in this case it will not be possible for the respondent, and nor does she intend, to have any meaningful involvement in F’s life. To the contrary, she has entered into a contract by which she relinquishes any parental rights she may have had and consents to the orders sought by the applicants.
Whilst F may not have the benefit of the meaningful involvement of the respondent who gave birth to her, she will have the ongoing and meaningful involvement of two loving and caring parents, one of whom is her genetic parent, and the other his wife, who, it is clear to me, are totally committed to ensuring her best interests. From my observations of them in Court, the very depth of their emotions clearly demonstrates the strength of their love and commitment to this little girl.
Whilst the applicants were concerned that my request for information about F and their capacity to provide for her care indicated that I was treating them differently from other parents because of the surrogacy, I can only repeat what I said to them during the hearing, that I am required to consider F’s best interests as paramount and that I could not do so in the absence of evidence. I am however comforted by the affidavits that they filed, prepared by them with the assistance of the Duty Solicitor.
The applicant husband is 38 years of age. The applicant wife is 37 years of age. They were married in May 2010 and for medical reasons have no other children. The applicant husband is in good health. The applicant wife has osteoarthritis and may need to have both knees reconstructed.
The applicant husband works full time as a public servant and earns approximately $70,000 per annum. The applicant wife works on a casual basis from home in a design field and has done so for seven years. She is presently caring for F on a full time basis with the assistance of the applicant husband and his mother if necessary. They presently rent accommodation in Melbourne.
The applicant husband has extended family in Melbourne with whom they have regular contact, including his parents and two brothers, one of whom is married with a child. They currently do not have contact with the applicant wife’s family in New South Wales as they have religious objections to surrogacy. The applicant wife remains open to the possibility of re-establishing the relationship with her family.
The applicant husband is of Burmese descent, which is one of the reasons the applicants chose Thailand as the place where F would be born, and they intend to raise her with an awareness and appreciation of her Burmese heritage.
The applicant husband and wife have demonstrated a thoughtful and caring attitude toward their responsibilities as parents and have clearly demonstrated a capacity to meet F’s needs on an ongoing basis.
They have already given consideration to the options available for her education, they have put in place arrangements for her care if anything were to happen to them, and I was impressed by their sensitivity to the issue of how in due course they will explain to F the circumstance of her birth. Whilst F is young, I have little doubt that she will have the benefit of a meaningful relationship with both the applicant husband and wife in a secure and loving environment.
When making a parenting order I am required under s 61DA(1) to apply the presumption that it is in the child’s best interests that her parents have equal shared parental responsibility. It would appear that whilst the respondent may technically be F’s parent, she has relinquished any parental rights and consents to orders that the applicant husband and wife have equal shared parental responsibility for F. In those circumstances I am satisfied that the presumption is rebutted as it would not be in F’s best interests in these circumstances to require the applicants to share parental responsibility with the respondent.
Whilst I appreciate that the applicants were somewhat frustrated by the process of obtaining the orders they seek with respect to F, I must be satisfied that those orders are in F’s best interests. In all of the circumstances of this case I am satisfied that it is in F’s best interests to make orders that the applicants have equal shared parental responsibility for F and that she live with them.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 1 March 2012.
Associate:
Date: 1 March 2012
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