Green-Wilson & Bishop
[2014] FamCA 1031
•6 November 2014
FAMILY COURT OF AUSTRALIA
| GREEN-WILSON & BISHOP | [2014] FamCA 1031 |
| FAMILY LAW – CHILDREN – Best interests – surrogacy agreement – where applicants seek parenting orders and declaration as to parentage. |
| Family Law Act 1975 (Cth) Status of Children Act 1974 (Vic) |
| B v J (1996) FLC 92-716 Brianna v Brianna (2010) FLC 93-437 Fisher-Oakley & Kittur [2014] FamCA 123 Mason & Mason and Anor [2013] FamCA 424 Re Mark: an application relating to parental responsibilities (2003) FLC 93-173 Re Patrick: an application concerning contact (2002) FLC 93-096. |
| APPLICANTS: | Mr Z Green-Wilson & Mr X Green-Wilson |
| RESPONDENTS: | Ms Bishop & |
| FILE NUMBER: | MLC | 10359 | of | 2013 |
| DATE DELIVERED: | 6 November 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Johns J |
| HEARING DATE: | 24 July 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: |
| SOLICITOR FOR THE APPLICANT: | Boers Associates |
| RESPONDENTS: | No appearance |
Orders
1.That pursuant to s 69VA of the Family Law Act 1975 (Cth) it is declared that Mr X Green-Wilson is a parent, namely the father of the child Y Green-Wilson born … August 2013.
2.That Mr Z Green-Wilson and Mr X Green-Wilson have equal shared parental responsibility for the care, welfare and development of the child.
3.That the child live with Mr Z Green-Wilson and Mr X Green-Wilson.
4.That within 30 days the first and second-named applicants cause a copy of these orders to be translated into Hindi and that a copy of these orders together with the translation be personally served upon the first respondent and the second respondent.
5.That the first respondent and the second respondent have leave to make any application with respect to paragraph 1 of these orders within 60 days of personal service of these orders and the Hindi translation of the same.
6.That 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
7.That all extant applications be otherwise dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Green-Wilson & Bishop 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: MLC 10359 of 2013
| Mr Z Green-Wilson and Mr X Green-Wilson |
Applicants
And
| Ms Bishop & Mr Bishop |
Respondents
REASONS FOR JUDGMENT
Introduction
Late in August 2013 the baby Y Green-Wilson (“the child”) arrived in Australia from New Dehli, India. This is an application filed on 27 November 2013 by Mr Z Green-Wilson, the first named applicant and his de facto partner Mr X Green-Wilson, the second named applicant in relation to the child. The applicants seek orders that they have equal shared parental responsibility for the child and that she live with them. In addition the applicants seek that the second applicant, Mr X Green-Wilson, who is the child’s biological father, be declared a parent of the child.
The child Y was born in early August 2013 in New Delhi, India as a result of an international commercial surrogacy arrangement between the applicants and Ms Bishop, the first named respondent and surrogate, and her husband Mr Bishop, the second named respondent. The child is now aged one and lives with the applicants.
Background
The first applicant, Mr Z Green-Wilson, is aged 32 years and is employed as a manager. Currently, Mr Z Green-Wilson is not working as he has taken paternity leave.
The second applicant, Mr X Green-Wilson, is aged 36 years. He is employed as an executive.
In 2001 the applicants began living together in New South Wales. It was their shared desire to start a family together which prompted the couple to relocate to Victoria. As a result of research conducted by them with respect to surrogacy options they came to the understanding that “it is not illegal for Victorian residents to enter into overseas commercial surrogacy arrangements,” and in February 2012 they relocated to Victoria where they continue to reside with the child.
After relocating to Victoria, the applicants engaged a commercial surrogacy agency operating out of New Delhi, India, Q Business.
In September 2012, the applicants, assisted by Dr G, principal at Q Business, and a fertility specialist and gynaecologist, obtained a donor egg using an anonymous egg donor via an organisation known as N Business in the Ukraine.
On 16 November 2012 Mr X Green-Wilson entered into a gestational surrogacy agreement with the respondents whereby the first respondent was to act as the applicants’ “surrogate mother”. The surrogacy agreement confirms that the surrogate mother “will never claim any right nor make any claim over and in respect of the Child” and further that she “will never take recourse to any legal proceeding claiming custody of the Child.”
There are many concerning aspects of the agreement, including limitations upon the first respondent to make decisions regarding her health and well-being. The agreement is written in English. Whilst signed by the first and second respondent, there is no evidence that the agreement was translated into Hindi prior to the execution of the same.
Cronin J discussed many of the troubling features with respect to commercial surrogacy arrangements in the decision of Fisher-Oakley & Kittur [2014] FamCA 123. I echo the concerns expressed by him in that decision. Factors such as those identified at paragraph 9 above as well as the concerns noted by Cronin J in Fisher-Oakley & Kittur highlight the need for regulation and scrutiny of these practices in other jurisdictions to ensure that the rights of all parties (and any children born as a result of such arrangements) are protected.
Upon the signing of the above mentioned surrogacy agreement, an embryo was created using sperm from Mr X Green-Wilson and the anonymous donor sourced egg from N Company. On 19 November 2012 this embryo was successfully transferred to Ms Bishop.
In early August 2013 Ms Bishop gave birth to the child Y in New Delhi. Testing undertaken by a DNA testing facility confirmed that Mr X Green-Wilson is the child’s biological father.
Shortly after her birth, the child was issued an Indian birth certificate naming Mr X Green-Wilson as her father and her mother as “nil”. On 12 August 2013 Mr X Green-Wilson applied for Australian citizenship by descent for the child, and approval for citizenship was granted on 15 August 2013. An emergency passport was issued for the child on 16 August and several days later the applicants and the child arrived in Melbourne from New Delhi.
Ms Bishop deposes that she understood that upon giving birth to the child and in handing her to the applicants that she “accepted that I would be permanently extinguishing any and all parental responsibility and legal and physical custody” in relation to the child and that she has “no intention, interest or desire to have any form of parental responsibility and legal and physical custody” of the child. Ms Bishop deposes in her affidavit filed 9 April 2014 that she consents to the applicants having parental responsibility in relation to the child.
In his affidavit filed 9 April 2014 Mr Bishop deposes to having no objection to a court order being made conferring parental responsibility on the applicants.
The respondents have additionally signed a minute of consent orders dated 20 December 2013 providing for the applicants to have parental responsibility for the child and that she live with them.
At the hearing of their application on 24 July 2014 the applicants sought orders in the terms of a Minute of Order filed 23 July 2014. Those orders were different to the orders sought in their Initiating Application insofar as in addition to orders for equal shared parental responsibility and orders that the child live with them, the applicants also sought that Mr X Green-Wilson be declared a parent of the child.
At the commencement of the hearing I raised with the applicants’ solicitor the question of whether the amended proposal had been served upon the respondents. During discussions it became clear that the respondents had not been given notice of the declaration sought by the applicants.
The applicants’ solicitor sought that the matter proceed on the basis that any orders made by me be translated into Hindi and served upon the respondents and that the respondents be given leave to make application to the Court in the event of any objection by them to any order or declaration if so made. Given the respondents’ attitude to the original Initiating Application served upon them and their stated consent to the orders sought in that application, I acceded to the application that the matter proceed on that basis.
DOCUMENTS RELIED UPON
The applicants relied upon the following documents:
1.Initiating Application filed 27 November 2013;
2.Affidavit of Mr Z Green-Wilson filed 27 November 2013;
3.Affidavit of Mr X Green-Wilson filed 27 November 2013;
4.Affidavit of translation of KS filed 7 April 2014;
5.Affidavit of Service of KJ filed 7 April 2014;
6.Affidavit of Ms Bishop filed 9 April 2014;
7.Affidavit of Mr Bishop filed 9 April 2014;
8.Minute of Orders Sought by the applicants dated 24 July 2014; and
9.Case outline document dated 22 July 2014.
DECLARATION AS TO PARENTAGE
Although Mr X Green-Wilson provided his genetic material and is the biological father of the child, that fact alone does not mean that he is a parent pursuant to the provisions of the Family Law Act1975 (“the Act”). The Act provides no definition of “parent”, save with respect to adopted children. Clearly, that definition is not applicable in this case.
The status of persons in the position of the applicants (as well as other non-traditional families) has long vexed this Court. As far back as 1996 Fogarty J in B v J (1996) FLC 92-716 considered the status of a known sperm donor to lesbian parents in the context of an application pursuant to the Child Support(Assessment)Act 1989. In considering that question his Honour there observed that:-
It is a reality of life that children are born as a result of a variety of artificial conception procedures, and of non-traditional circumstances, and into non-traditional families. Legislation which deals with the personal and financial responsibility for such children should be clear and exhaustive and should recognise the reality of these situations[1].
[1] B v J (1996) FLC 92-716 at 83,621.
Six years later, Guest J was called upon to consider the status of a known sperm donor seeking orders that he spend time with the child conceived with his sperm in the decision of Re Patrick: an application concerning contact (2002) FLC 93-096. There his Honour noted:-
311.The definition of “parent” in s 60H requires clarification. The current provision was designed to maintain consistency between the federal law and the status of children legislation of the States within the Commonwealth. It was also designed to ensure that the opposite sex partner of a woman undergoing artificial insemination treatment is considered a parent of any child conceived through such a procedure and to protect donors from parenting responsibilities and financial burdens they did not agree to when making available their genetic material.
312.However as these proceedings illustrate, not all families using artificial insemination procedures fall into the traditional heterosexual model that the legislation intended to protect. Accordingly consideration should be given to review the definition of “parent” in s 60H of the Act to take into account that there are varying arrangement between donors and prospective mothers, and that donors such as the father in these proceedings may not only consider themselves as a “parent” but may also be considered by the recipient of the genetic material to be a parent.
Brown J also considered the operation of s 60H of the Act in Re Mark: an application relating to parental responsibilities (2003) FLC 93-173. That was an application for parenting orders by a same-sex couple in respect of a child born in the United States of America as a result of a commercial surrogacy arrangement. At paragraph 40, her Honour concluded that she was not satisfied that the definition of “parent” contained in s60H was exhaustive. At paragraph 81 her Honour concluded that the applicant may well be the child’s parent for the purposes of the Act, but in circumstances where there was no contradictor and it was an area of both legal and social complexity, she declined to make a positive finding. In doing so, she echoed the sentiments of Guest J in Re Patrick (supra) with respect to the need for legislative reforms in this area.
Whilst the provisions of s 60H of the Act have been amended since the observations made by Guest J in Re: Patrick (supra) and Brown J in Re Mark (supra) so as to clarify the status of parties undergoing artificial conception procedures, including same sex couples undergoing such procedures, they do not clarify the position of people such as the applicants who have undertaken artificial conception procedures in the context of a commercial surrogacy arrangement in another jurisdiction, in this case, India.
Section 60H(1) of the Act provides 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 de facto partner of, another person (the other intended parent)…whether or not the child is biologically the child of the woman and of the other intended parent, for the purposes of the Act the child is the child of the woman and of the other intended parent and if a person other than the woman and the other intended parent provided genetic material – the child is not the child of that person.
Hence, while Mr X Green-Wilson provided his genetic material to enable the artificial conception procedure to occur, with the express intent that he and his partner, Mr Z Green-Wilson, parent any child born of that procedure, pursuant to the provisions of s 60H(1)(d), the child the product of that procedure is not deemed to be a child of Mr X Green-Wilson.
It is submitted on behalf of the applicants that the provisions of s 60H do not extend extraterritorially, that is that the presumptions contained within s 60H of the Act do not apply to the respondent or her husband, who were resident in India and undertook the artificial conception procedures in India. In support of that submission, the applicants rely upon s 69ZE of the Act, which deals with the extension of the operation of Part VII of the Act to the States and Territories of Australia. Relying on that provision, it is submitted by the applicants that the language used in s69ZE confines the operation of Part VII to the States and Territories of Australia. Therefore, the applicants submit that the provisions of s 60H do not extend to an artificial conception procedure undertaken in India.
If one were to adopt that position, all orders made under Part VII could only be made with respect to children present in the states or territories of Australia referred to in s 69ZE. That approach is clearly inconsistent with the provisions of s 69E of the Act which enlivens the jurisdiction of the Act with respect to a child who is an Australian citizen or is ordinarily resident in Australia on the day proceedings are commenced. It is not necessary for a child who is an Australian citizen or ordinarily resident in Australia to be present in Australia on the day Part VII proceedings are commenced.
Section 69ZE confirms the extension of the operation of Part VII to States and Territories. It is not a provision which places limitations on the operation of Part VII.
In addition to the submission with respect to s 69ZE, the applicants point to the fact that Mr X Green-Wilson is named as the father on the child’s birth certificate but that such registration is not recognised under the Act.
Section 69R of the Act provides that if a person’s name is entered as a parent of a child in a Register of parentage information kept under a law of the Commonwealth or of the State, Territory or prescribed overseas jurisdiction, the person so named is presumed to be a parent of the child. However, Regulation 14 of the Family Law Regulations1984 does not declare any country or part of a country to be a prescribed overseas jurisdiction for the purposes of s 69R. Accordingly, the fact that Mr X Green-Wilson is named as the child’s father on her Indian birth certificate does not give rise to a presumption of parentage.
Section 60HB of the Act considers the position of children born under surrogacy arrangements. It states at sub-paragraph 1 that if a court has made an order under a prescribed law of a state or territory to the effect that:-
(a)A child is the child of one or more persons; or
(b)Each of one or more persons is a parent of a child;
then for the purposes of this Act the child is the child of each of those persons.
Regulation 12CAA of the Family Law Regulations sets out the prescribed laws referred to in s 60HB(1) of the Act. In Victoria, the relevant legislation is s 22 of the Status of ChildrenAct 1974 (Vic). Part IV of the Status of ChildrenAct 1974 relates to the status of children born of surrogacy arrangements. Section 22 of that Act provides that a court may make a substitute parentage order in favour of commissioning parents if it is satisfied:
(a)That the making of the order is in the best interests of the child; and
(b)If the surrogacy arrangement was commissioned with the assistance of a registered ART provider, that the Patient Review Panel approved the surrogacy arrangement before the arrangement was entered into; and
(c)That the child was living with the commissioning parents at the time the application was made; and
(d)That the surrogate mother and, if her partner is a party to the arrangement, her partner have not received any material benefit or advantage from the surrogacy arrangement; and
(e)That the surrogate mother freely consents to the making of the order
Further, s 20 of the Status of Children Act 1974 provides that in order for the commissioning parents to have standing to make application for a substitute parentage order, the child must have been conceived as a result of a procedure carried out in Victoria.
Hence, an international commercial surrogacy arrangement such as has been entered into by the parties to these proceedings is not a surrogacy arrangement which would invoke the provisions of s 22 of the Status of Children Act 1974. Accordingly, the provisions of s 60HB of the Act do not apply to this case.
Given that s 60HB of the Act does not apply to the parties in this case, the question raised by the applicants is, in circumstances where neither state nor Commonwealth legislation makes provision for the determination of parentage in commercial surrogacy arrangements, and where the registration of Mr X Green-Wilson on the child’s Indian birth certificate is not determinative of that issue, who are the child’s parents? It is in those circumstances that the applicants seek a declaration pursuant to s 69VA of the Act. Section 69VA provides:-
As well as deciding, after receiving evidence, the issue of the parentage of a child for the purposes of proceedings, the court may also issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.
Ryan J considered such an application in the decision of Mason & Mason and Anor [2013] FamCA 424. That case also involved an overseas surrogacy arrangement where twins were conceived and born in India. The applicant, being the children’s biological father, sought a declaration as to parentage. Whilst Ryan J was satisfied that the making of such a declaration would be in the children’s best interests she declined to make that declaration. Her Honour helpfully reviewed the various provisions in Part VII of the Act dealing with parentage, presumptions and declarations of parentage. Her Honour also undertook a detailed analysis of ss 60H and 60HB of the Act. In particular, her Honour considered the question as to why Parliament would introduce specific provisions dealing with surrogacy arrangements (s 60HB), yet provide no definition as to the words “surrogacy arrangements”, particularly in circumstances where it would appear that a surrogacy arrangement falls under the umbrella of artificial conception procedure within s 60H of the Act.
Ryan J answered that question, determining that it would appear that Parliament intended that the parentage of children born of such arrangements be determined by reference to the provisions of ss 60H and 60HB rather than the general parentage provisions under Part VII of the Act. The effect of that approach means that the parentage of children born of surrogacy arrangements would be determined by reference to the laws of the relevant state or territory.
Her Honour was there dealing with a surrogacy arrangement in New South Wales where there is specific legislation dealing with those aspects, being the Surrogacy Act 2010 (NSW) and the Status ofChildren Act (NSW). The New South Wales legislation effectively “covers the field” with respect to children born of surrogacy arrangements. In New South Wales commercial surrogacy arrangements are prohibited and its legislation otherwise makes specific provision for altruistic surrogacy arrangements.
The landscape is markedly different in Victoria, as commercial surrogacy is not prohibited here. Therefore, there is a lacuna between state and Commonwealth laws in respect of children living in the State of Victoria born as a result of international commercial surrogacy procedures.
At paragraph 33 of Mason (Supra), Ryan J noted as follows:-
It is my preliminary view that for the purposes of the Act, the 2008 amendments evince an intention by Parliament that the parentage of children born as a result of artificial conception procedures or under surrogacy arrangements will be determined by reference to those provisions and not the general parentage provisions. This interpretation achieves, on a state by state (and territory) basis, a uniform system for the determination of parentage.
That may be so in states or territories where there is legislation specific to the issue of the determination of parentage in respect of such surrogacy arrangements. However it does not resolve the issue of what is to occur for children born in states that do not have the benefit of such provisions.
In circumstances where the state legislation is silent with respect to the determination of parentage of children born of commercial surrogacy procedures (which are not prohibited in Victoria), I am satisfied that it is appropriate to make a declaration with respect to a child born of such procedures who is now living in Victoria. To do otherwise would be to elevate public policy considerations (as to the efficacy or otherwise of commercial surrogacy arrangements) above a consideration of the welfare of children born of such arrangements. In my view, the interests of the child must outweigh such public policy considerations.
In making that decision I am mindful that there is debate as to whether such declaration is a parenting order to be determined in accordance with Subdivision BA of Part VII. The Full Court in the decision of Brianna v Brianna (2010) FLC 93-437 was called upon to consider orders for parentage testing pursuant to the provisions of s69W of the Act. Whilst Finn and Thackray JJ did not conclude whether such orders pursuant to Subdivision E of Division 12 of Part VII of the Act are parenting orders, they did state at paragraph 159 that:-
We are … prepared to accept that whether or not a parentage testing order is a parenting order, it would seem self evident that when exercising the discretion under s 69W to make a parentage testing order (the exercise of which discretion is undefined) one of the matters to which the Court must have regard in exercising that discretion is the interests of the child in question.
In light of those comments, I confirm that I have taken into account the child’s best interests and her welfare in determining whether or not to make a declaration pursuant to s 69VA of the Act.
As noted earlier in this judgment, evidence has been provided confirming that Mr X Green-Wilson is the genetic father of the child, it being noted that his relative chance of paternity is 99.99 per cent. The reality of the child’s circumstances is that the only parents she has ever known are the applicants in these proceedings. A declaration confirming the second applicant’s status as parent will reflect the reality of the child’s life. Accordingly, I am satisfied that it is appropriate and in the child’s best interests that I make a declaration pursuant to the provisions of s 69VA of the Act confirming that the second applicant is a parent of the child.
PARENTING ORDERS
In addition to the declaration I am asked to make parenting orders in respect of both applicants.
Section 65C of the Act provides that a parenting order in relation to a child may be applied for by:-
(a)either or both of the child’s parents; or
…
(c)any other person concerned with the care, welfare or development of the child.
In circumstances where one of the applicants is the child’s biological father and the child has resided with both applicants since her birth, there can be no question that each of the applicants is a person concerned with the child’s care, welfare and development in accordance with the provisions of s 65C of the Act. Further, in light of the declaration I will make with respect to Mr X Green-Wilson, he is the child’s parent. Accordingly, both applicants have standing to seek parenting orders.
Section 60B(1) of the Family Law Act sets out the objects of Part VII of the Act to ensure the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):-
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The applicants in this matter seek parenting orders as defined pursuant to s 64B of the Act. That is that they seek orders with respect to:-
(a)with whom the child is to live; and
(b)the allocation of parental responsibility for the child.
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA). In determining what is in the child’s best interests I am required to have regard to s 60CC(2) and (3) of the Act, those sections identifying the primary and additional considerations for the Court in determining what is in a child’s best interests.
There is a presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility (s 61DA). In circumstances where one of the applicants is not the child’s parent I do not need to consider those provisions. In the circumstances, I am satisfied that the presumption set out in s 61DA does not apply.
All of the evidence indicates that the child is a much-wanted and loved child. The applicants have gone to extraordinary lengths to become parents and the child is the product of their efforts. The evidence indicates that the child is well cared for and that the applicants have the capacity to meet all of her physical, emotional and intellectual needs.
The affidavits of the first and second-named respondents confirm that neither intends to have any on-going relationship with the child. Further, those affidavits confirm the respondents’ support for orders that the child live with the applicants and that the applicants have responsibility for her long-term care, welfare and development.
All of those circumstances support a finding that it is in the child’s best interests for orders to be made in the terms of the applicants’ application. Accordingly, I am satisfied that it is in the child’s best interests for orders to be made in the following terms:-
1.That pursuant to s 69VA of the Family Law Act 1975 (Cth) it is declared that Mr X Green-Wilson is a parent, namely the father of the child Y Green-Wilson born … August 2013.
2.That Mr Z Green-Wilson and Mr X Green-Wilson have equal shared parental responsibility for the care, welfare and development of the child.
3.That the child live with Mr Z Green-Wilson and Mr Z Green-Wilson.
4.That within 30 days the first and second-named applicants cause a copy of these orders to be translated into Hindi and that a copy of these orders together with the translation be personally served upon the first respondent and the second respondent.
5.That the first respondent and the second respondent have leave to make any application with respect to paragraph 1 of these orders within 60 days of personal service of these orders and the Hindi translation of the same.
6.That 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
7.That all extant applications be otherwise dismissed.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 6 November 2014.
Associate:
Date: 6 November 2014
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