Hian and Jang and Anor

[2020] FamCA 171

FAMILY COURT OF AUSTRALIA

HIAN & JANG AND ANOR [2020] FamCA 171

FAMILY LAW – CHILD RELATED PROCEEDINGS – Undefended – Where the child was born consequent to the parties entering into a surrogacy arrangement with a company in China – Where company has ceased trading – Where the parties have made a genuine attempt to locate the surrogate birth mother – Where the parties seek an order for parental responsibility – Where the child has previously been refused a permanent Australian visa on the basis that the parties did not have the surrogate birth mother’s consent or an order for parental responsibility – Where the Court finds that the parties have a meaningful relationship with the child and there is no risk to the child in their care – Orders made in accordance with the Minute of Order sought by the Applicants.

Family Law Act 1975 (Cth) s. 60CA, 65DAA, 60CC

FIRST APPLICANT: Mr Hian

SECOND APPLICANT: Ms Jang

RESPONDENT: Unknown

FILE NUMBER: MLC 7296 of 2018

DATE DELIVERED: 25 February 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: McClelland DCJ

HEARING DATE: 25 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Ms M E Agresta

SOLICITOR FOR THE APPLICANTS: Emera Smith

Orders

ON AN UNDEFENDED BASIS THE COURT ORDERS THAT:

1. Orders are made in accordance with the Minute of Order attached hereunder.

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 Hian & Jang 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 7296 of 2018

Mr Hian

First Applicant

And

Ms Jang

Second Applicant

And

Unknown

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter concerns an Application by Mr Hian and Ms Jang (collectively “the Applicants” or “the parents”) in respect to the child, X born in 2015.

2. For reasons which I have outlined below, the Application will be determined on an undefended basis.

3. The child was born as a result of the parties entering into a surrogacy arrangement with a company, namely B Pty Ltd (“the surrogacy clinic”), as outlined in paragraph 2 of the Affidavit of the former director, Mr C, dated 12 November 2018. 

4. The arrangements with that surrogacy clinic were that the identity of the surrogate birth mother were to remain confidential. Despite that agreement, however, the Court has required the parties to take all reasonably available steps to contact the surrogate birth mother. I am satisfied, having regard to the evidence, as explained in submissions of counsel for the Applicants, that the Applicants have complied with the Court’s directive, including by way of the Applicants taking steps to locate the former director of the surrogacy clinic, Mr C, subsequent to the surrogacy clinic ceasing to trade. 

5. In his Affidavit dated 10 January 2019, Mr C acknowledges receipt of relevant documents that were served upon the surrogacy clinic and the endeavours he made to attempt to locate the surrogate birth mother of the child. This includes, as outlined in paragraph 7, that:

   [He had] been liaising with the [K Law] Firm in China, being the lawyers retained by the Applicants since February 2018. [Mr C had] endeavoured to assist [the Applicant’s] with respect to identifying and locating the surrogate. Unfortunately, these records were not kept following the birth of the child. This was done in order to fulfil the confidentiality obligations arising from the surrogacy agreement. Furthermore, the company under which the surrogacy clinic operated has since been deregistered.

6. I am satisfied, having regard to the submissions of counsel for the Applicants and the Affidavits of Mr C, as outlined above, that, while genuine attempts have been made to locate the surrogate birth mother, it has not been possible. 

Background

1. The relevant background to this matter is set out at paragraphs 4 through to 19 in the Family Report of Ms F dated 5 January 2020, attached to the Affidavit of Ms F filed 24 January 2020, as follows:   

   4.  The parents commenced a relationship in China in 1985 and married in 1986. They had been introduced by their respective families and cohabitated after being married. They lived in [City J], the capital of [D province] in Central China, where they remained throughout their marriage. They spoke of a positive relationship with no significant disputes. They both worked, although after having their eldest daughter, [Ms Jang] initially took a leave of absence for maternity leave. When their daughter [Ms G] [born in 1986] was eligible to attend kindergarten, [Ms Jang] returned to work.

   5.  They had a domestic helper in the home, and as is reportedly customary in China, they hired a nanny to assist with the care of their children. They also hired a special care Nanny during the first year of their youngest son’s life, who was educated in infant development and health.

   6.  Both parents had previously worked full-time but have since retired. [Ms Jang] worked for a company [in the retail sector] and had been with the same company for 30 years. [Mr Hian] worked in the [health industry] before retiring in around 2013. Since then he has focused on private investments.

   7. They have two children, daughter [Ms G] (32), and 4-year-old son [X]. Daughter [Ms G] was born naturally in 1986, and the couple had initially only been able to have one child, until national changes were made to China’s one child policy in 2016. They then sought to have a second child by surrogacy, due to their long-standing desire to have more children.  Initially [Ms Jang] wanted to conceive naturally, however they both said that [Mr Hian] had insisted they utilise a service of the surrogate in China, given the heightened pregnancy risk associated with [Ms Jang’s] age.

   8.  Their eldest daughter came to Australia around 10 years ago, for the purpose of study and to hopefully migrate to a country they felt could offer their daughter a brighter future. Initially after completing high school, [Ms G] had studied in Country L for 12 months, however the parties suggested their friends had been highly complementary about Australia being a better migration prospect.  [Ms G] researched the migration policies and criteria and chose an area of study that would allow her to both study in Australia and later immigrate. She has since completed a master’s degree.

   9.  The parties had not previously been to Australia, but visited regularly whilst their daughter studied, and they decided to also migrate to Australia to be closer to their then only child. They considered themselves to be a closely connected and supportive family and wanted to ultimately live together with their daughter, whom they had missed in her absence. Under Chinese culture they said it is customary for parents to be cared for in their old age by their children, and thus they wanted to make plans to move closer to their daughter, whatever country she chose to establish roots.

   10.  Their daughter married in 2014, to a Chinese born man whom she met whilst at University in Australia. That same year [Ms Jang] and [Mr Hian] were granted a 5-year permanent VISA to Australia, and between 2014 and August 2015, they travelled to and from China for several months at a time.

   11. Their youngest child [X] was born in 2015 by an unknown surrogate, through the use of a surrogate agency in China, and immediately entered the party’s primary care after birth. This service cost the family around $160,000[AUD].

   12.  [X’s] Birth Certificate was issued in China as organised by the surrogacy agency. The Birth Certificate lists the applicant parents as the child [X’s] parents. The surrogates and/or egg donor do not feature on the birth certificate and their details are not known due to privacy restrictions in China. Since 2015 [X] has been in the sole primary care of the applicant mother and father, with legal custody in China to them.

   13. After his birth, the parties applied for a permanent residency VISA for [X] to live with them in Australia. However, they were informed by the Department of Immigration and Border Protection that they were unsuccessful in their application on the basis that they required parental consent from the biological mother (surrogate). They were advised that unless the consent of the biological mother was obtained the applicant parents do not have permission to remove [X] from China to Australia.

   14. The parents have since engaged a Lawyer in China to locate the details of the surrogate mother’s identity but were unsuccessful due to the surrogacy agency reportedly no longer being operational. They managed to locate the contact person and former director of the agency.  He too has been unable to assist, and the identity and location of the surrogate mother remains unknown.

   15.  The child [X] has lived in the primary care of the applicant parents since birth. They travelled to Australia when [X] was 12 months old on a one month tourist VISA, but he has predominantly lived in China. In November/December 2019, the parties and [X] travelled to Australia on a 12-month VISA, after being successful in obtaining an additional tourist VISA for [X]. Upon arrival in Australia, [X] has commenced childcare in [Suburb M], where he has begun to learn English, and integrate with same aged peers.

   16. The Applicant parents currently only speak Chinese, with hopes of enrolling into an English class as soon as possible. Currently their daughter is assisting them with English translation and any communication needs.

   History of the dispute

   17.  Litigation commenced in the Family Court of Australia in the Melbourne Registry [o]n 28^th June 2018, when the parents or an Order of Parental Responsibility for their son [X]. Currently the applicant parents are both recognised as [X’s] legal parents/guardians under Chinese law but not in Australia. The applicant father has been confirmed as [X’s] biological father through DNA testing, but due to [X’s] birth mother being unknown, and having been unable to seek her legal surrender of the child, the Applicant mother is not currently recognised in Australia as holding any formal parental responsibility. The parties are seeking to rectify this, so that both [Ms Jang] and [Mr Hian] are equally recognised as [X’s] parents in both jurisdictions/Countries, and so that they are ultimately able to migrate to Australia on a permanent basis with their youngest child.

   18.  Due to VISA restrictions inhibiting [X] from entering Australia, the parties have largely resided in China since the child’s birth, with [Mr Hian] travelling to Australia intermittently to visit their eldest daughter, and with their daughter and her family also travelling to China to spend time with the family. This has reportedly impacted the status of the parties own VISA’s given they were previously on a 5-year permanent residency VISA, that required them to remain in Australia for a minimum of 2 years within that time frame. They are currently on a 12 month VISA in Australia, although it is their ultimate goal to achieve permanent VISA status. If their child [X] is unable to obtain a permanent VISA then they will be required to return to live in China, separating them from their eldest daughter and grandson, who resided in Australia.

   19.  The parties have voluntarily sought a Family Report to assist in the evaluation of the child’s needs, particularly in regard to the division of Parental Responsibility.  In line with the information provided by the parents, their migration agent, [Mr L], confirmed at interview that the parties legal representatives in China have been unable to locate the surrogate mother. It is also assumed that the child was born from a third party egg donor. Thus, there is no known biological mother to be joined as a party to the proceedings.

The law – concepts and principles

1. The relevant statutory provisions applicable to proceedings in relation to children are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. This is also confirmed in s 65DAA of the Act.

2. Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the child’s best interests. Whilst the Act requires the Court to consider all of the s 60CC factors, the central issue in these proceedings is balancing the primary considerations set out in s 60CC(2) against one another. Those primary considerations are:

   (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: ss 60CC(2)(b) of the Act.

Consideration

1. A relevant consideration in this matter is the detriment that would be suffered by the child in the event that orders are not made. That detriment is essentially one that applies in respect to the ability of the child to travel with the parents in circumstances where they are seeking permanent residency in Australia and immigration requirements require the consent of the child’s surrogate birth mother. 

2. While I am required to have regard to all the matters set out in s 60CC of the Act, I am satisfied, having regard to the Affidavit of Mr Hian filed 21 June 2018 and the Affidavit of Ms Jang filed 21 June 2018, as well as to the Family Report of Ms F, that the child has a meaningful relationship with both of the parents. I am further satisfied that, in the circumstances of the child’s birth and the background to which I have referred, the child does not have a meaningful relationship with the child’s surrogate birth mother.

3. I am further satisfied that, having regard to the Family Report of Ms F, the child is not at risk of either psychological or physical harm in the care of the Applicants and indeed, contrary to that, I am satisfied that the child is well loved and cared for in their care. In that respect, I have had regard to the conclusions set out in the Family Report, at paragraph 63 through to 67 inclusive, as follows:

   63. This assessment relates to the parenting arrangements for [X], aged 4 years 1 month at the time of the assessment. There is currently no major conflict or dispute before the Court, given the parents remain in a loving marital relationship. They are seeking an Order for parental responsibility of the child [X], who was born to a surrogate mother in China. Currently the parents are recognised under Chinese law as the legal parents of [X], and they are seeking the same recognition in Australia, particularly for the mother, [Ms Jang], who is not biologically related to the child, but for all intents and purposes is the child’s only known mother.

   64.  With regard to the division of parental responsibility, [X] knows no other parents other than [Ms Jang] and [Mr Hian]. The Applicant mother has been the child’s primary caregiver and his primary attachment figure developmentally since birth. Whilst there are no other relevant parties due to the identity of the surrogate mother and/or egg donor remaining unknown, it would appear most appropriate for [Ms Jang] and [Mr Hian] to have joint parental responsibility, and for [Ms Jang] to be recognised under Australian law as [X’s] mother. This matter appears particularly distressing for [Ms Jang], as there appears an element of pride at the epicentre of the issue, particularly given the link to her value and identity as a mother. Providing an Order in recognition of [Ms Jang’s] role as [X’s] mother will assist with this.

   65.  Although he is a much loved and wanted child and is developing appropriately under the care of his parents; to assist [X’s] sense of identity as he gets older, it will be important that he is told of his biology when developmentally ready. The story of his surrogacy birth will be important to be included in [X’s] life narrative. Shielding him from this may only cause psychological damage and hurt in future. However, the details of [X’s] maternal family of origin will likely continue to remain unknown, given the differing surrogacy laws across China and Australia and seeing as the records of [X’s] birth appear to have been destroyed.

   66.  There are no current risk factors that would likely impact upon the safety of the child [X] in [Ms Jang’s] or [Mr Hian’s] primary care. Their age does not appear to present an impediment to their parental capacity, and there are adequate alternative arrangements in place both financially and physically, should either parent be unable to care for [X]. The only foreseeable risk currently is the party’s ability to remain an intact family living in Australia.  Should they be unsuccessful in receiving permanent VISAs, this will likely impact upon the parents emotionally and upon their relationship with their eldest daughter, should she choose to remain in Australia. [X] will likely feel the loss of his sister and nephew, who has the potential to grow up more as a sibling relationship, if living in close proximity or together.  Despite this, [X’s] parents appear motivated to providing the best available resources to their son, whether that be in China or Australia.

   67.  Should the parties continue in their bid to immigrate on a more permanent basis to Australia, [X] will benefit from his parents learning a basic level of English. Whilst they have their daughter and her husband to translate, and they appear to seek out Chinese resources and community where possible, [X] will continue to develop both bilingually and bi-culturally. Thus, it will be necessary for the parties to begin to learn a basic level of English, in addition to any other important Australian laws, rules, and customs. This will ensure they are able to communicate with [X] in both languages and to liaise with relevant child care, school, or other services relevant to [X] and his development, without being solely dependent on their daughter and son-in-law, which is the case currently.

4. Contrary to the findings that the child has a meaningful relationship with the parents and that the child is not at risk in either of their care, it is the view of the Court that the Orders sought by the Applicants are appropriate in the circumstances, as the current impediment to the child obtaining a visa to freely enter into Australia with the parents creates a risk to the child.

5. In making my decision, I have had regard to the balance of criteria set out in s 60CC(3) of the Act. In addressing those other considerations, I note the following.

6. There are no issues of family violence involved.

7. There is no issue of change involved for the child because the orders sought would be a continuation of the status quo that she has experienced for all of her life. 

8. I am satisfied, having regard to the Family Report of Ms F, that the child has a close relationship with the Applicants and indeed with his elder sister, the Applicants’ daughter.

9. I am further satisfied that the Applicants, in terms of making decisions regarding the long term interests of the child and in terms of their capacity to care for the child, have made decisions that are in accordance with the child’s best interests and consistent with the clear parenting capacity that they both have, as referred to in the Family Report. 

Conclusion

1. In summary, having regard to the fact that the child has a meaningful relationship with both of the parents and that there are no issues of risk in terms of the orders being made and rather, to the contrary, the child would be at some risk if the orders were not made, I am satisfied that it is appropriate to make the orders sought in the Minute of Order proposed by the Applicants. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 25 February 2020.

Associate:

Date: 20 March 2020

“Minute of Order”

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT MELBOURNE

No. MLC7296 of 2018

IN THE MATTER OF

MS JANG AND MR HIAN
(Applicants)

FINAL PARENTING ORDERS

IT IS ORDERED BY THE COURT:

1. That the applicants, Mr Hian and Ms Jang, have equal shared parental responsibility for the child X born … 2015.

2. That X live with the applicants.

3. Within 7 days the lawyer for the applicants lodge a clean copy of the orders made this day together with a certification by the lawyer that the orders are a true copy of the original orders.

4. Pursuant to ss. 62B and 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars and the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

5. All extant applications be dismissed, and the matter removed from the list of cases requiring determination.