Heintze & Marinov
[2024] FedCFamC1F 548
•16 August 2024
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 a
njoint applicant at the commencement of the proceedings when the proceedingstheywere 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Heintze & Marinov has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
INTRODUCTION
This matter came before the Court on 17 July 2024 to determine whether the Court should make parenting orders in favour of the applicant father (“the father”) in respect of the children X born in 2017 and Y also born in 2017 (“the children”). The children were born pursuant to a commercial surrogacy arrangement in Country B.
The application commenced in the Federal Circuit and Family Court of Australia (Division 2) on 21 June 2023 and was transferred on 4 October 2023 to the Federal Circuit and Family Court of Australia (Division 1).
At the commencement of the proceeding both the father and his deceased wife (“the mother”) were joint applicants. The applicants sought parenting orders for equal shared parental responsibility; live with arrangements; permission to obtain and renew a passport for the children without the consent of the respondent; and permission to provide a copy of such orders to the Department of Foreign Affairs and Trade. The mother, however, sadly passed away from a serious medical condition in 2024.
The respondent is the children’s surrogate mother. She is not the children’s biological mother. She resides in Country B and has been in communication with the applicant and applicants (prior to the mother’s death) via a mobile messaging service in respect of this application. She does not oppose the application and made no application of her own to the Court. She did not participate in the final hearing.
On 17 July 2024, the matter proceeded on an undefended basis.
LEGAL PRINCIPLES
This case was heard after the enactment of the Federal Circuit and Family Court of Australia (Family Law) Amendment (2024 Measures No.1) Rules 2024. The legislative changes therefore apply to this case and the consideration of best interest factors below reflects the relevant legislation as at the date of final hearing.
The applicant’s Application is made pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) provides that when deciding whether to make a particular parenting order in relation to children, the best interests of the children must be the paramount consideration.
The objects of Part VII of the Act inform how I must exercise my discretion. Those objects include ensuring that the best interests of children are met, including by ensuring their safety (s 60B(a) of the Act). The legislation further provides that I must also give effect to the Convention on the Rights of the Child (s 60B(b) of the Act).
There are a range of considerations set out in s 60CC(2) and (2A) of the Act to be taken into account in determining what is in the child’s best interests.
Section 60CC(2) of the Act provides:
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
Section 60CC(2A) of the Act provides:
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
I am satisfied the applicant is the father of the children, as the named father on their respective birth certificates, as their biological father, and has standing to seek parenting orders within s 65C(a) of the Act. I am also satisfied that the applicant is a person concerned with the children’s care, welfare and development he having attended to all of the children’s physical, intellectual and emotional needs since their birth.
MATERIAL RELIED UPON
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.
In mid-2023, the respondent advised the mother via a mobile messaging service she had no intention of participating in the current proceedings and had no objections to the orders as proposed by the mother and the father.
On 24 August 2023, the mother served the respondent with certified translated copies of all documents filed to date in these proceedings.
On 8 September 2023, the respondent acknowledged receipt of the documents and responded she had no objection to any of the proposed orders and would not attend the hearing.
On 19 September 2023, the mother served upon the respondent a certified translated copy of both applicants’ affidavits filed 13 September 2023. The respondent confirmed receipt.
In late 2023, the children’s passports expired.
In early 2024, further health issues were found during a routine examination undertaken by the mother who was diagnosed with a serious medical condition. The mother underwent surgery.
In mid-2024, the mother was admitted to hospital.
On 4 June 2024, the mother sent a copy of the trial directions made by the Court on 4 June 2024 to the respondent. No response was received from the respondent.
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.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 16 August 2024
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