Keneally and Keough & Anor

[2019] FamCA 658

FAMILY COURT OF AUSTRALIA

KENEALLY & KEOUGH AND ANOR [2019] FamCA 658

FAMILY LAW – CHILDREN – Best interests – altruistic arrangement – where the respondents gave their biological child to the applicant at birth by agreement – where the applicant and the child are not related – where the applicant is seeking sole parental responsibility and that the child live with her – where the respondents support the applicant’s application – where the orders sought by the applicant are in the child’s best interests – order that the applicant have sole parental responsibility and the child live with the applicant.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 64B, 65C, 65G

Bernieres and Anor & Dhopaland Anor [2015] FamCA 736; (2015) 53 Fam LR 547
Mankiewicz and Anor & Swallow and Anor (2016) FLC 93-725; [2016] FamCAFC 153

APPLICANT: Ms Keneally

FIRST RESPONDENT: Ms Keough

SECOND RESPONDENT: Mr Surrey

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 13829 of 2018

DATE DELIVERED: 13 September 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 29 April 2019

REPRESENTATION

SOLICITOR APPEARING FOR THE

APPLICANT:

Ms Jefford

SOLICITOR APPEARING FOR THE

RESPONDENTS:

Ms Zetzer

SOLICITOR FOR THE RESPONDENTS: Family Law Life

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Marchetti

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

Orders

1. That the applicant, Ms Keneally have sole parental responsibility for the child X born … 2017.

2. That X live with the applicant.

3. That X spend time and communicate with the respondents, Ms Keough and Mr Surrey, including Y, as may be agreed between the applicant and the respondents.

4. That the applicant be at liberty to obtain a passport (or renew a passport as the case may be) for X and each of the respondents do all acts and things necessary to enable the applicant to obtain a passport in X’s name.

5. That the applicant together with the child X, born … 2017 be at liberty to travel outside the Commonwealth of Australia. 

6. That the appointment of the Independent Children’s Lawyer be discharged.

7. That all extant applications be otherwise dismissed.

8. That pursuant to ss 62B and 65DA(2) of the Family law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of 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.

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 Keneally & Keough and Anor 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 13829 of 2018

Ms Keneally

Applicant

And

Ms Keough

First Respondent

And

Mr Surrey

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In 2017, X was born in most unconventional circumstances.  

2. The child’s biological parents, Ms Keough and Mr Surrey, are the first and second respondents in these proceedings.  At the time of the child’s conception until approximately one month prior to her birth, they were also the applicant’s neighbours.  The respondents depose that in early 2017 they conceived the child with the intention of gifting him or her to the applicant, as she was unable to have children of her own.  All parties entered into a signed parenting plan to reflect this decision.  

3. At every opportunity during the hearing each party was quick to assert that there had been no financial gain by the respondents as a result of this arrangement, save for the applicant paying the respondents’ legal fees in this proceeding.  All maintain that the circumstances of the child’s birth was as a result of a purely altruistic arrangement and was borne out of good will.

4. The applicant filed an Initiating Application in the Family Court of Australia on 30 November 2018 seeking final orders, including that:-

   ·The applicant have sole parental responsibility for the child and that the child live with her;

   ·The child spend time and communicate with the respondents at times agreed between the parties;

   ·The applicant be at liberty to obtain a passport for the child and travel outside the Commonwealth of Australia with her.

5. The respondents support that application.  Whilst the Independent Children’s Lawyer expressed misgivings as to the circumstances of the child’s birth and the impact of the parties’ decisions on the child’s future relationships with her sibling and biological family, he did not oppose that application.

6. These are my Reasons for Judgment with respect to the applicant’s Application for parenting orders.

Background

1. The applicant is aged 47 years and is working as an educator. The applicant lives with her mother and the child in Suburb A, Victoria.

2. The first respondent, Ms Keough, is aged 32 and is a community worker. The second respondent, Mr Surrey, is aged 34 and is currently working in retail. The respondents were both born in Country C, and now reside together in Suburb B with their other biological child, Y, aged four. Y is not a subject of these proceedings.

3. The parties met in 2015 when the applicant and the respondents became neighbours.

4. During conversation with the first respondent, the applicant shared her desire to have a child, and her inability to conceive. The first respondent offered to gift the applicant a child.  Following discussion between the first and second respondent, the second respondent also agreed to assist the applicant.

5. Thus, the respondents conceived the child in early 2017. All of the parties agreed throughout the pregnancy that the baby was intended to be gifted to the applicant, who would be the child’s primary carer. The parties depose their decision was akin to an altruistic surrogacy arrangement.

6. The parties attended upon lawyers in October 2017. As a result a parenting plan was entered into prior to the child’s birth.  The agreement is signed by the parties but undated.[1]  The respondents depose that they had the benefit of independent legal advice prior to executing that document. The terms on page three of the parenting plan included that:-

   (b)[The applicant] will have sole parental responsibility for the baby, including making decisions for the long term care, welfare and development of the baby.

   (c)[The respondents] will not have any parental responsibility for the baby.

   (d)The baby will live with [the applicant].

   (e)[The applicant] will take custody of the baby from the time of birth.

   …

   (i)The baby will spend time with [the respondents] as agreed with [the applicant].

   [1] Applicant’s affidavit filed 30 November 2018, Annexure Ms Keneally1.

7. In addition to those provisions the recitals to the parenting plan included that:-

   ·The parties intend entering a new Parenting Plan or Consent Orders after the baby is born.

   ·      The parties understand that this agreement is not enforceable.

8. The respondents registered the child’s birth in late 2017, giving the child the applicant’s last name and listing themselves as the biological parents.[2] The hospital was notified of the parenting arrangement when the first respondent requested to leave the hospital without the child, and relinquish her care to the applicant. The hospital refused this request, requiring the first respondent to remain with the baby. Upon being discharged, the child went home with the applicant.

   [2] Applicant’s affidavit filed 30 November 2018, Annexure Ms Keneally2.

9. The applicant deposes that as a result of the hospital being notified of the proposed future parenting arrangements, a notification was made to the Department of Health and Human Services (DHHS).  DHHS workers attended the applicant’s home on 18 December 2017 to enquire after the welfare of the child.

10. By letter dated 9 January 2018 the applicant was informed that the DHHS had determined that it no longer needs to continue its involvement with the family.[3]

    [3] Applicant’s affidavit filed 30 November 2018, Annexure Ms Keneally3.

11. Prior to closure of its file DHHS workers interviewed the applicant and the respondents.  The DHHS Closure Summary dated 9 January 2018 (Exhibit ICL- 1) reports that that the second respondent indicated that “[the applicant] had wanted a girl, and that if the couple had produced a boy they likely would have kept this child”.  Fortunately for all parties, they were not faced with that dilemma.  However, the reported statement of the second respondent highlights some of the moral and ethical issues such informal arrangements present.

12. The applicant deposes that the parties entered into a second parenting plan in December 2018, following the commencement of these proceedings. An unsigned and undated copy of that agreement, which is in almost identical terms to the first parenting plan, is annexed to the applicant’s affidavit.[4]

    [4] Applicant’s affidavit filed 30 November 2018, Annexure Ms Keneally4.

13. The applicant deposes that since the child’s birth she has been in telephone communication with the respondents and has visited them at their home in Suburb B on three occasions. The first respondent deposed that she has not spent time with the child but has seen photos of her.

14. There are no current parenting orders in place, and neither of the respondents are seeking any Court ordered time with the child.

15. During her oral evidence the first respondent stated that her eldest sister is the only member of her family who is aware of the existence of the child. The second respondent stated that none of his family are aware of the birth of the child or their decision to “gift” her to the applicant.

16. At this stage, it would seem that none of the parties have considered when or how the siblings should be informed of the other’s existence.  Nor has there been any consideration as the child’s need to learn more of her Country C heritage or engage with members of her extended biological family in both Australia and Country C.

17. The matter was first listed before the Court on 9 January 2019.  That day orders were made for the preparation of a family report and for the appointment of an Independent Children’s Lawyer.  Directions were also made for the application to be served on the DHHS.

18. The matter came before me in a Judicial Duty List on 29 April 2019. All parties were in attendance and sought orders in the terms of the applicant’s Initiating Application.

Documents Relied Upon

1. The applicant relied upon the following documents:-

   ·Initiating Application filed 30 November 2018;

   ·Affidavit of the applicant filed 30 November 2018;

   ·Affidavit of the first respondent filed 30 November 2018;

   ·Affidavit of the second respondent filed 30 November 2018; and

   ·Family Report by Ms D dated 18 March 2019.

2. At the commencement of the hearing the parties tendered a signed minute of proposed consent orders (Exhibit ICL-2), the substance of which provided:-

   ·That the Applicant have sole parental responsibility for the child.

   ·The child live with the Applicant.

   ·The child spend time and communicate with the respondents and Y as agreed between the applicant and the respondents.

   ·That the applicant be at liberty to obtain a passport (or renew a passport as the case may be) for the child and each of the respondents do all acts and things necessary to enable the applicant to obtain a passport in the child’s name.

   ·That the applicant together with the child be at liberty to travel outside the Commonwealth of Australia.

3. The Independent Children’s Lawyer did not oppose the proposed orders, albeit acknowledging some concerns surrounding the unconventional arrangement.

Legal Principles

1. The applicant is seeking parenting orders pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).  A parenting order may deal with any aspect of the care, welfare or development of the children or any other aspect of parental responsibility for a child (s 64B). Pursuant to s 64B of the Act, the applicant is seeking orders with respect to:

   ·With whom the child is to live; and

   ·The allocation of parental responsibility for the child.

2. Parental responsibility is defined under s 61B of the Act and means “all the duties, powers, responsibilities and authority which by law, parents have in relation to children”.

3. 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

   (b)the child; or

   (ba) a grandparent of the child; or

   (c)any other person concerned with the care, welfare or development of the child.

4. The Full Court considered the issue of standing to bring an application for a parenting order pursuant to s 65C of the Act in the decision of Mankiewicz and Anor & Swallow and Anor (2016) FLC 93-725; [2016] FamCAFC 153. At paragraph 10, Ryan and Austin JJ stated:-

   …Applicants who only fall within s 65C(c) have the right to do no more than bring an application to attempt to establish facts which would permit them to apply for a parenting order and have no right to seek substantive relief until they do so.  The point being that they can only apply for a parenting order where a court determines they are such a person and thereby grants permission.  Whether or not permission should be given is a question of fact and to be determined on the basis that an applicant can demonstrate he or she is concerned with the care, welfare or development of the child.  It will be a matter for the judge to decide in the individual case whether this issue is addressed as a discrete issue early in the case or at some other stage.

5. Although not biologically connected to the child, I am satisfied that the applicant has standing to bring her application as a person connected with the care, welfare and development of the child.  She has been the child’s primary caregiver since her discharge from hospital following her birth and has been responsible for all aspects of the child’s physical, intellectual and emotional development since that time.

6. Further, of relevance to these proceedings is s 65G of the Act, which states the following:-

   (1)This section applies if:

   (a)a court proposes to make a parenting order that deals with whom a child is to live with; and

   (b)under the order, the child would not live with a parent, grandparent or other relative of the child; and

   (c)the court proposes to make that order with the consent of all the parties to the proceedings.

   (1A)This section also applies if:

   (a)a court proposes to make a parenting order that deals with the allocation of parental responsibility for a child; and

   (b)under the order, no parent, grandparent or other relative of the child would be allocated parental responsibility for the child; and

   (c)the court proposes to make that order with the consent of all the parties to the proceedings.

   (2)The court must not make the proposed order unless:

   (a)the parties to the proceedings have attended a conference with a family consultant to discuss the matter to be determined by the proposed order; or

   (b)the court is satisfied that there are circumstances that make it appropriate to make the proposed order even though the conditions in paragraph (a) are not satisfied.

7. The applicant is not related to the child and the proposed orders provide for the child to live with the applicant and for her to be allocated parental responsibility.   In accordance with the orders of 9 January 2019 the parties attended upon a family consultant for the preparation of a family report.  Having regard to the matters contained in the family report dated 18 March 2019, I am satisfied that the requirements of s 65G(2) of the Act have been met.

8. Section 60B(1) of the 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.

9. Section 60B(2) of the Act 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).

10. In making parenting orders, the child’s best interests are the paramount consideration (s 60CA).  Section 60CC(2) and (3) of the Act set out the primary and additional considerations the Court must consider in determining what is in the child’s best interests. 

11. As the applicant is not a parent of the child within the meaning of the Act the presumptions contained at s 61DA of the Act regarding the allocation of parental responsibility do not apply.

The primary considerations (s 60CC(2))

1. The primary considerations pursuant to s 60CC(2) of the Act 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.

2. In applying those primary considerations, greater weight must be given to the need to protect children from physical or psychological harm or from being subjected to or exposed to, abuse, neglect or family violence (s 60CC(2A)). 

3. It is common ground between the applicant and the respondents that there are no allegations that the child has been or will be exposed to physical or psychological harm in the applicant’s care or that there is a need to protect her from such harm.  It is also common ground between the parties that the DHHS has investigated the parenting arrangements for the child and has raised no concerns as to the child’s welfare in the applicant’s care.[5]

   [5] Exhibit ICL-2.

4. Given the unique circumstances of this matter and the clear intentions of the applicant and the respondents for the applicant to fulfil the role of parent to the child in her role as primary caregiver, with no specific orders sought for the respondents to spend time with her, I am satisfied that the consideration of the benefits to the child of having a meaningful relationship with the respondents is not relevant to this matter.  Clearly it will benefit the child to continue to have a meaningful relationship with the applicant.

The additional considerations (s 60CC(3))

1. Given the child’s age, she was too young to be interviewed or express any views to the family consultant, Ms D.

2. Ms D undertook observation of the child with both the applicant and the respondents.  She reports at paragraph 60 of the family report that the child evidenced a strong positive bond with the applicant.  Further, Ms D reports that the child did not appear to be particularly familiar with the respondents.  Ms D also reported at paragraph 61 of the family report that the child had a positive bond with the applicant’s mother. 

3. During observation with the parties, Ms D notes at paragraph 65 of the family report that the child did not seek out the respondents and did not demonstrate a familial bond with them.

4. As to the applicant’s interaction with the child, Ms D reports at paragraph 69 of the family report that the applicant attended to the child in a caring manner, picking her up and giving her a hug and soothing her as required.  The applicant was able to settle the child relatively quickly and was alert to the child’s specific cues, noting that she was hungry. 

5. Ms D raised no concerns from her observation of the applicant with the child.  Indeed, at paragraph 72 of the family report she notes that the bond evidenced between the applicant and the child was indicative that the applicant had been the child’s primary carer since birth.  Ms D observed that whilst the arrangement was unconventional the child’s primary connection is undoubtedly with the applicant.  She also noted that if the child was removed from the applicant’s care, it was highly likely the child would struggle to manage. As such, Ms D reported that a change in current care arrangements would not be in the best interests of the child at present.

6. The family report is thorough and detailed.  Ms D has observed the child with the applicant and the respondents.  There is no challenge to her observations, assessment or recommendations and I accept her evidence.

7. All of the evidence of the applicant and the respondents supports a finding that the applicant has met all of the child’s physical, emotional and psychological needs since her birth.  The applicant has been solely responsible for the child’s financial support since that time. 

8. Further, I am satisfied given the observations of the family consultant that the applicant has a strong commitment to her responsibilities as a parent to the child.  The child presents as well-cared for and the applicant attended the interview well prepared with food and toys for the child.  Further, she was observed to anticipate the child’s needs during observation and to readily attend to them, providing toys, comfort items and food as required. 

9. Further, the applicant has expressed a commitment to ensuring that the child is informed as to the circumstances of her birth and as to her Country C heritage.  The applicant expressed to the family consultant an openness to facilitating ongoing relationships between the child and the respondents.  Significantly, the respondents are supportive of the applicant to continue in her role as primary care-giver to the child.  They raise no issue with orders being made as sought by the applicant.

10. It is the intention of the applicant and the respondents to maintain their friendship and in that setting for the child to have the opportunity to know more of her biological heritage.  It was the view of Ms D that the child may benefit from the continuation of such a relationship so as to maintain a connection with her biological parents. 

11. Of concern for the child is the apparent lack of consideration given by all parties to the facilitation of a relationship between her and her sibling, Y.  Ms D observed at paragraph 79 of the family report that whilst that consideration may not be a current prominent issue, it is a matter likely to present ongoing concerns for the children over time as they age. 

12. Ultimately, Ms D made recommendations at page 18 of the family report that the child live with the applicant, that the applicant have sole parental responsibility for the child and that the respondents time with her be as agreed.  It was also recommended that the applicant facilitate time with the respondents if the child requests it and that the applicant ensure that the child is aware of her Country C heritage.

13. The evidence of the family consultant and the parties is unchallenged. 

14. Each of the applicant, the first respondent and second respondent gave some brief oral evidence regarding the application. Each confirmed during their oral evidence that there was no financial transaction, gift or other financial incentive paid to the respondents in exchange for the child.

Conclusion

1. During the course of submissions, the Independent Children’s Lawyer expressed misgivings as to the process by which the parties arranged for the child to be given to the applicant and as to the manner in which the parties embarked upon the process without giving thought or consideration for the child’s future, including her future relationships with her sibling and other members of the respondents’ extended families.  Notwithstanding those misgivings, the Independent Children’s Lawyer noted that the child is well settled and thriving in the applicant’s care. 

2. Similar concerns were expressed by Berman J in the decision of Bernieres and Anor & Dhopaland Anor [2015] FamCA 736; (2015) 53 Fam LR 547 regarding an international commercial surrogacy arrangement, where his Honour said as follows:-

   [140]Notwithstanding that I have significant misgivings in respect of the surrogacy process and in particular the purported contracted relationship as between the applicants and the respondents as evidenced by the surrogacy agreement the terms of which are disturbing, I have no doubt that the applicants have overarching love for Q and have the ability, capacity and intention to meet the child’s needs.

3. There is no question and I am satisfied that the applicant is devoted to the child and has the capacity and commitment to meet all of the child’s needs.

4. However, I too have misgivings as to the agreement between the applicant and the respondents which has given rise to the child being cared for by the applicant.  Those concerns include:-

   ·The lack of scrutiny of the arrangements between the parties;

   ·The absence of any formal counselling to support the applicant and the respondents, both prior to conception and since;

   ·The lack of forethought as to how and when the child is to be informed as to the circumstances of her birth;

   ·The lack of forethought as to if, when and how the child and her sibling are each to be informed of the other’s existence and whether a relationship between the siblings will be supported;

   ·Whether the child will have the opportunity to know and experience her cultural and biological identity.

5. Notwithstanding those concerns, the issue for determination is the question of what is in the best interests of the child the subject of these proceedings. 

6. Having regard to the evidence of the parties and the family consultant, I am satisfied that it is in the child’s best interests that the applicant have sole parental responsibility for making decisions regarding her care, welfare and development.  The applicant has performed that role since the child’s birth and an order in those terms will ensure that there is no disruption to that care.

7. Further, I am satisfied that it is in the child’s best interests that there be an order that the child live with the applicant.  Again, this order will reflect the reality of the child’s life. 

8. All of the evidence before the Court supports a finding that the applicant is committed to the ongoing care, welfare and development of the child.  The presentation of the child at observation for the purposes of the preparation of the family report indicates that the child is thriving in the applicant’s care and meeting normal developmental milestones

9. The applicant also seeks orders that she be permitted to obtain a passport for the child and to travel outside the Commonwealth of Australia.  That application is supported by the respondents.  Having determined that it is in the child’s best interests that the applicant have sole parental responsibility for the child, I am satisfied that such orders are appropriate and in the child’s best interests. 

10. Accordingly I make orders as appear at the commencement of these reasons.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 13 September 2019

Associate: 

Date:  13 September 2019