HARAGLI & PASUT AND ANOR

[2018] FamCA 518

FAMILY COURT OF AUSTRALIA

HARAGLI & PASUT AND ANOR [2018] FamCA 518

FAMILY LAW – CHILDREN – Order for sole parental responsibility and residence – Child born of international commercial gestational surrogacy arrangement – Orders granted unopposed after two family reports.

APPLICANT: Mr Haragli

RESPONDENT: Ms Pasut

SECOND RESPONDENT: Mr Pasut

INDEPENDENT CHILDREN’S LAWYER: Ms M Ruzyla

FILE NUMBER: MLC 5687 of 2015

DATE DELIVERED: 19 June 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 19 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Webb

SOLICITOR FOR THE APPLICANT: Danielle Webb Lawyer

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Marchetti

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

IT IS ORDERED THAT:

1. The Father have sole parental responsibility for the child X, born … 2014.

2. The child live with the Father.

3. That solicitors for the Applicant father forthwith serve, by international express post, to the Respondents the following documents:-

   a.     copy of these Orders;
   b.     copy of the reasons provided this day;
   c.     copy of the Family Report by Ms B, dated 12 June 2018

4. All extant applications be otherwise dismissed.

5. The appointment of the Independent Children’s Lawyer be discharged.

6. Pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

IT IS DIRECTED:

1. That the proposed minute of orders as amended be marked Exhibit “A” and remain on the Court file.

2. My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Haragli & Pasut has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5687 of 2015

Mr Haragli

Applicant

And

Ms Pasut

Respondent

And

Mr Pasut

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me for final hearing having an application been initiated by the father and filed on 23 June 2015 in which he seeks parenting orders in relation to his son, X (the child), born in 2014.  The child was born in Asia pursuant to a surrogacy arrangement entered into by the father with the first named respondent, Ms Pasut.  The second named respondent is Ms Pasut’s husband.

2. There is no appearance by or on behalf of Ms Pasut at court and nor has there been during the currency of these proceedings.  I am satisfied that she has been served with various iterations of the proceedings and most relevantly, with the orders which Mr Haragli and the independent children's lawyer seek that I make today.  I refer to and accept the evidence of the father’s solicitor, Ms Webb, in the affidavit sworn on 5 June 2018.  I am satisfied therefore that the respondent to the proceedings and her husband have received a copy of my Order made 13 April 2018 which specified that this matter would be set down for determination by me today.  They have been called at the door of the court and, unsurprisingly, there is no response to the call. 

3. The first respondent, Ms Pasut, signed a relinquishment of parenting which is annexed to the father’s early affidavit material. 

4. The proceedings were not dealt with promptly upon issuing because the court was awaiting the decision of the Full Court in the matter of Brumale and Anor & Kami and Anor which was ultimately delivered on 1 September 2017[1].  By that stage there had already been a family report looking into the child’s circumstances with the father and that is a report which was released on 10 February 2016.  The report referred to the child as being well looked after by the father, his brother and his mother, the paternal grandmother, but that the child was in need of some socialisation skills.  A further report was ordered by me and has now been released.  It is dated 12 June 2018 and is evidence in this proceeding. 

   [1] [2017] FamCAFC 180

5. It is apparent from the family report that the child is doing very well and that the father is an attentive and skilled parent.  The health of the father’s mother, the paternal grandmother, has deteriorated somewhat and the father’s brother is now her full-time carer. The paternal uncle and paternal grandmother are still very much a part of the child’s life.  The father is the only parent the child has known. The mother/egg donor remains anonymous and the surrogate birth mother has not played any part in his life following his birth.

6. In the absence of any dispute about these orders, I won’t go into the background in detail.  The child was born as part of the surrogacy arrangement on 22 February 2014 and spent the first month of his life with the father looking after him from when he was two-days old.  Since then, the child has done very well. 

7. The child is now attending C Preschool where he is described by his teacher as:

   A happy boy.  Really social with good communication skills and strong positive relationship with the children and the educators. 

8. The Family Consultant, Ms B had this to say in her report published on 12 June 2018:-

   21.      [Ms D] [the child’s teacher] described the child as “a happy boy, really social, with good communication skills and strong and positive relationships with the children and the educators.” Regarding both his physical and emotional development, [the child] was described as “being on par with his peers. He is where he should be at this stage of his development and preparing to transition to primary school.”  She further described him as confident, emotionally secure, able to separate from his father without any difficulty, empathic and caring towards both his peers and his carers/educators, often asking if they are okay or offering comfort if he perceives someone has been hurt.

   22.      She described a “loving relationship” between [the child] and his father and advised that [Mr Haragli] was focussed on his child’s wellbeing, regularly requesting information regarding his activities and his progress.  [Mr Haragli] regularly spends time in the classroom when collecting the child at the end of the day, quietly observing his child at play.  [The child’s] attendance at kinder is regular and consistent. No concerns were identified in relation to the child’s behaviour or his development and despite his young age, the child has been assessed as being ready to commence school in 2019.

   And then the family consultant writes using the headings used by her:-

The views of the birth mother, in particular her consent to the proposed parenting orders and other matters with respect to the birth mother.

25.      [Mr Haragli] entered into a formal Surrogacy Contract with a clinic; [the child] was born in [Asia] and has been living in Australia with his father since he was four weeks old.  As part of the Surrogacy Contract, the surrogate birth mother, [Ms Pasut], provided a Declaration of Intent to relinquish her parental authority to the biological father, [Mr Haragli]. A Minute of Consent Order dated 30/10/2015, recorded that both [Ms Pasut] and her husband [Mr Pasut] relinquish all custody and parental responsibilities for [the child].

The effect on the child of changing his circumstances

26.      Any change to his current parenting arrangement is likely to be extremely traumatic for [the child], disrupting the significant relationships he has formed since he was born.  Such disruption may result in adverse consequences for his emotional and psychological wellbeing, both short term and in the future.  

An assessment of the persons seeking the parenting orders capacity and commitment to the long term welfare of the child.

27.      [Mr Haragli] has to date demonstrated an unwavering commitment to ensuring his son’s welfare. He did not work until [the child] was over six months old and only returned to work part time, two days per week increasing to three days per week when [the child] was fifteen months old, and then increasing to his current commitment of four days a week.

28.      [Mr Haragli’s] capacity to provide optimum care for the child has also been demonstrated.  For example, the child has attended all required visits with the maternal and child health nurse and attends his General Practitioner, [Dr E for] routine check-ups, as well as also attending for routine dental assessments. [Mr Haragli] produced a letter dated 16/05/2018 from Dr E confirming that [the child] attends regularly and that she has no concerns about his care or his progress and development. [Dr E] consults with all members of the family. [Mr Haragli] had raised concern about [the child] not walking independently at sixteen months  and he was referred for an ultra sound of his hips (normal findings) [Mr Haragli] also raised concerns about [the child’s] speech development when he was two years old and he was referred for an audiology assessment (normal findings). 

29.      In the subpoenaed documents from the Maternal and Child Health nurse, it is evident that [Mr Haragli] has been open to direction and suggestions from professional and has been proactive in implementing these.   Since he was two and a half years old, [the child] has attended child care to ensure that he had opportunities for optimum social development. [The child] has also attended three year old Kinder and is currently attending four year old kinder. He has been attending swimming lessons for almost twelve months and despite [the child] not initially enjoying this, [Mr Haragli] persevered believing it to be essential for [the child] to know how to swim. [The child] reportedly is making good progress. 

The person seeking the parenting orders capacity to promote the child’s connection to their cultural origins.

30.      [Mr Haragli] has expressed his commitment to exposing [the child] to his cultural heritage and has already participated with him in [religious celebrations] last year where the child experienced …music, dancing and food.  He indicated that he intends to seek more information regarding cultural events and to participate with the child where possible. There are a number of associations that might be able to assist [Mr Haragli] in this regard….  When the child is older, they may visit his [surrogate birth mother’s country] together as he perceives this to be important for the child in understanding his cultural heritage.

1. The family report is well reasoned and I accept that evidence.

2. The father no longer persists with his application for a declaration of parentage and is content with sole parent responsibility and an order that the child live with him.  In the circumstances those are entirely appropriate orders.  In the words of the family consultant, with which I agree, the child and his father are doing well:

   32.      Whilst the circumstances surrounding the child’s conception and birth differ from tradition, this does not mean that the child is any less loved by his father who in effect is a single parent. In addition, the child is part of a loving and caring family, all of whom  are focussed on ensuring that the child’ s physical and emotional needs are met and that he is supported to reach his own unique potential.   the child has been provided with the stability that is optimum for healthy development and reports from his kindergarten confirm that his development, including emotional and social development, are well within expected parameters given the child’s age, and no concerns have been raised.

   33.      [Mr Haragli] has clearly demonstrated his willingness and capacity to seek opportunities to increase and enhance his parenting skills. He has also been willing to act on advice provided to him from a range of professionals in relation to the child’s needs, including his needs for social interaction.  When the child commences formal schooling in 2019, opportunities for social interaction and social relationships are likely to increase, commensurate with his successive developmental stages. [Mr Haragli] is encouraged to facilitate and support the child in a range of activities that provide opportunities to enhance his social connections.

3. Section 61DA of the Family Law Act 1975 is engaged because I am making a parenting order. I am, however, satisfied that it is in the best interests of the child for the father to have sole parental responsibility. The presumption in favour of shared parental responsibility is displaced and rebutted within the meaning of s61DA(4). The respondent has relinquished any role in the child’s life. She does not oppose the orders sought. It would be contrary to the child’s interests to hinder the father’s assumption of sole parental responsibility.

4. The independent children’s lawyer supports the father’s application.

5. I am satisfied that the orders which I make today are in the child’s best interests.

6. I wish the child and his father all the best in the future. I make the orders sought by the father and otherwise dismiss the proceedings. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 19 June 2018.

Associate:

Date:  17 July 2018