Heintze & Marinov

Case [2024] FedCFamC1F 548

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Heintze & Marinov [2024] FedCFamC1F 548

File number: MLC 6816 of 2023
Judgment of: HARTNETT J
Date of judgment: 16 August 2024
Catchwords: FAMILY LAW – PARENTING – Surrogacy arrangement – Undefended hearing – Where the applicant father seeks orders for parental responsibility for the children and passport orders – Where the respondent surrogate mother lives in Country B and has not sought any orders in the proceeding – Where there has been no objection by the respondent to any of the proposed orders of the applicant – Where the former joint applicant mother has passed away – The father have sole parental responsibility for the children – The children live with the father – The father be permitted to obtain passports for the children without the consent of the respondent.
Legislation:

Family Law Act 1975 (Cth) Part VII, ss 60B, 60CA, 60CC, 65C

Federal Circuit and Family Court of Australia (Family Law) Amendment (2024 Measures No.1) Rules 2024

Division: Division 1 First Instance
Number of paragraphs: 46
Date of hearing: 17 July 2024
Place: Melbourne
Counsel for the Applicant: Ms Bonney
Solicitor for the Applicant: Keypoint Law
The Respondent: No appearance

ORDERS

MLC 6816 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS HEINTZE

Applicant
AND:

MR MARINOV

Respondent

ORDER MADE BY:

HARTNETT J

DATE OF ORDER:

17 JULY 2024, AMENDED 16 AUGUST 2024

THE COURT ORDERS THAT:

1.The father have sole parental responsibility for the children X born in 2017 and Y also born in 2017 (“the children”).

2.The children live with the father.

3.The father MR MARINOV born in 1969 is hereby permitted to obtain and/or renew a passport for the children without the need to obtain the consent of the respondent, MS JUNCHI AND IT IS REQUESTED that the Department of Foreign Affairs and Trade give effect to this order.

4.The parties are permitted to provide a copy of these orders to the Department of Foreign Affairs and Trade.

5.The solicitors for the father serve a copy of these orders upon the respondent as soon as practicable and by means of the orders made in respect of substituted service on 23 August 2023.

6.All extant applications be dismissed and the proceedings be removed from the list of pending cases.

AND THE COURT NOTES THAT:

A.The children’s mother MS HEINTZE who was an joint applicant at the commencement of the proceedings when the proceedings they were first initiated on 21 June 2023 died in 2024.

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).

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AGLC
Heintze & Marinov [2024] FedCFamC1F 548
Case
[2024] FedCFamC1F 548
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of MLC 6816 of 2023 involved Mr Marinov, the father, seeking sole parental responsibility for his two children born in 2017, along with orders to obtain passports for the children without the consent of the respondent, Ms Junchi, the surrogate mother. The mother, Ms Heintze, who was initially a joint applicant, passed away in 2024. The central legal issues revolved around determining the best interests of the children concerning parental responsibility and the issuance of passports, given the unique circumstances of the surrogacy arrangement.

The court had to consider the best interests of the children, which were primarily influenced by the fact that the children had been in the sole care of their parents since birth. The surrogate mother had no contact with the children post-birth and had no intention of being involved in their lives. The children, now seven years old, had settled well in Australia, supported by their father and extended family. The court noted that the children’s best interests were served by granting sole parental responsibility to the father and allowing him to obtain passports for the children to maintain connections with their maternal family in Country B.

The court concluded that the children's welfare was best promoted by granting the father sole parental responsibility and enabling him to obtain passports for the children without the surrogate mother's consent. This decision was based on the father's demonstrated capability to care for the children and the children's close relationship with their extended family in Australia. The court's reasoning emphasised the importance of stability and continuity in the children's lives following their mother's death. The final orders granted sole parental responsibility to the father, permitted him to obtain passports for the children, and dismissed all other applications, removing the proceedings from the list of pending cases.

Orders

Orders of the court

MLC 6816 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS HEINTZE

Applicant

AND:

MR MARINOV

Respondent

ORDER MADE BY:

HARTNETT J

DATE OF ORDER:

17 JULY 2024, AMENDED 16 AUGUST 2024

THE COURT ORDERS THAT:

1. The father have sole parental responsibility for the children X born in 2017 and Y also born in 2017 (“the children”).

2. The children live with the father.

3. The father MR MARINOV born in 1969 is hereby permitted to obtain and/or renew a passport for the children without the need to obtain the consent of the respondent, MS JUNCHI AND IT IS REQUESTED that the Department of Foreign Affairs and Trade give effect to this order.

4. The parties are permitted to provide a copy of these orders to the Department of Foreign Affairs and Trade.

5. The solicitors for the father serve a copy of these orders upon the respondent as soon as practicable and by means of the orders made in respect of substituted service on 23 August 2023.

6. All extant applications be dismissed and the proceedings be removed from the list of pending cases.

AND THE COURT NOTES THAT:

A. The children’s mother MS HEINTZE who was an joint applicant at the commencement of the proceedings when the proceedings they were first initiated on 21 June 2023 died in 2024.

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

The applicant relied upon:(1)Amended Application for Final Orders filed 26 June 2024;(2)his affidavits filed 13 September 2023 and 26 June 2024;(3)affidavits of the mother filed 21 June 2023, 13 September 2023 and 20 September 2023;(4)affidavit of Ms C, certified translator, filed 7 September 2023; and (5)affidavit of the respondent filed 23 June 2023.BACKGROUND In 1969, the father was born. He was aged 54 years at the time of the hearing and is in good health. In 1970, the mother was born. The mother was diagnosed with a medical condition in late 2020 and underwent surgery. The mother was continuously monitored every three to six months. The mother passed away in 2024 at the age of 54 years. The applicants met in City D, Country B, in 1992 and were married in 1995 in Country B. The applicants then migrated to Australia in 1997 before migrating back to City D in 2003 where they resided until late 2022. In or about 2004, the mother attended upon a gynaecologist in City D. She was advised she was unable to conceive a child naturally. The mother underwent IVF in an attempt to conceive a child from 2010 to 2015 but was unsuccessful. In or around 2015, the mother’s gynaecologist recommended the mother and the father consider a surrogate. In or around 2016, the mother and the father engaged a surrogacy agency known as E Company where they engaged the services of the respondent as a surrogate. In early 2016, the respondent, and the mother and father, entered into a Surrogacy Agreement. In accordance with that Agreement, and in fact, the respondent has no genetic relationship with the children, the children’s embryos being formed using a donor’s eggs and the father’s sperm. In early 2017, the respondent gave birth to the children in City D, Country B. Pursuant to the law of Country B at the time, the respondent was listed as the children’s mother and the father was listed as the children’s father on both their respective birth certificates. In late 2017, the mother and the father contacted the respondent via a mobile messaging service for her to sign her affidavit as filed in this Court on 23 June 2023. The respondent signed the affidavit. In late 2018, the mother and the father contacted the respondent via a mobile messaging service to obtain a passport for the children. The respondent, at the cost of the mother and the father, travelled to City D to sign the passport applications for the children. In mid-2022, the mother and the father learnt that their applications for the children to attend F School in Australia were accepted. They resigned from their jobs in Country B and commenced their preparations to return to Australia. In late 2022, together with the children, the mother and the father returned to Australia to reside permanently. In 2023, the children commenced preparatory class at F School. In early 2023, the mother contacted the respondent via a mobile messaging service to advise her of the intention of the mother and the father to make an application to the Court, and to provide to the respondent a copy of the orders the parties proposed. Such conversation as was had at that time, is contained in the affidavit of Ms C filed 7 September 2023 confirming the translation of such documents.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In 2024, the mother passed away.CONSIDERATION It is established on the facts as set out above as applied to the law that the children’s best interests are promoted by making the orders as sought by the father. I add the following in the context of this case. Since their birth, the children have always been in the care of the mother and/or the father. The respondent has had no contact with the children since their birth. Pursuant to the Surrogacy Agreement, the respondent did not care for the children in hospital at the time of their birth and nor was she required to breastfeed the children. The children are both seven years of age, in good health, and have settled happily into their life in Australia, though that life has been impacted by the relatively sudden death of their mother. They are well supported in their ability to cope with that tragedy by their father, and by extended maternal and paternal family members. The father is acutely aware of the need for stability for the children following his wife’s death, and to that end it is his intention to remain residing in the family home in Suburb G, which is close to the children’s school, and for the children to continue at their school and with their extra-curricular activities. The children are progressing well in their first year at school. As reflected in the children’s respective school reports, both children are above the Australian Curriculum Standard in two subjects. They engage in several extracurricular activities. Both children have learnt to play an instrument from a young age. The paternal grandmother, the paternal aunt and her respective family all reside in City H. The children have a close and loving relationship with the paternal side of the family. The paternal aunt lives a short drive from the father’s home and is listed as the children’s school emergency contact. The maternal grandfather resides in City D, Country B and the children have a close relationship with him, including video calling him weekly. It is in the children’s best interests that Australian passports issue for the children, as sought by the father, to enable the children to continue their connection with the mother’s family in Country B and to better understand their own heritage and culture. The respondent resides in Country B and is married with two children. The respondent was engaged by the mother and the father and received an agreed sum in payment for her surrogacy services. The respondent considered this a transactional matter. The respondent indicated to the mother and the father that she was content to do all things necessary to ensure their recognition as the legal parents of the children. I accept that the respondent has no intention of forming a meaningful part of the children’s lives, as was agreed, and observe that the respondent has complied with all that has been requested of her by the parties to her credit. It is clear the children are immensely well loved and well cared for by the father, as they were also by the mother, before her passing. Despite this great grief, the children will feel in their father’s care those things that he desires for them – feelings of being “loved and supported” by a “present parent”.[1][1] Father’s affidavit filed 26 June 2024, paragraph 55.