King and Tamsin

[2008] FamCA 309

FAMILY COURT OF AUSTRALIA

KING & TAMSIN [2008] FamCA 309

FAMILY LAW – CHILDREN – Parental Responsibility –  child born through surrogacy

Family Law Act 1975 (Cth) ss 69VA, 60G(1), 62B, 65DA(2)

APPLICANTS: Mr and Mrs King

RESPONDENT: Ms Tamsin

FILE NUMBER: MLC 2795 of 2008

DATE DELIVERED: 28 April 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 28 April, 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: T.J. Mulvany & Co.,  DX 329 Melbourne

Orders

1. That Mr King and Mrs King (“the applicants”) have equal shared parental responsibility for all long term and day to day decisions concerning the care, welfare and development of … (“the child”) born … October, 2004.

1. That the child live with the applicants.

1. That pursuant to s.69VA of the Family Law Act 1975 Mr King is declared to be the parent of the child for the purposes of all laws of the Commonwealth.

1. That the applicants be permitted to sign all applications required for a passport to issue in respect of the child, and that all requirements for the consent of Ms Tamsin, otherwise required in relation to the issue of a passport for the child and/or travel documents for the child, be dispensed with, and for the purposes of giving effect to this order, the  applicants shall be entitled to provide to such representative of the Department of Foreign Affairs and Trade, Passports Operations, Passports Branch a sealed copy of this order. 

1. That pursuant to s.60G(1) of the Family Law Act 1975 Mrs King be granted leave for proceedings to be commenced for the adoption by Mrs King of the child, it being determined that such order is in the best interest of the child.

1. That all extant applications be otherwise dismissed.

1. That these proceedings be removed from the List of matters awaiting finalisation.

1. That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of 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 document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

1. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of a solicitor appearing as counsel.

IT IS NOTED that publication of this judgment under the pseudonym King & Tamsin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2795 of 2008

MR AND MRS KING

Applicants

And

MS TAMSIN

Respondent

REASONS FOR JUDGMENT

1. Before the court is an application brought by Mr and Mrs King in respect of the child …, who was born in October 2004.  The affidavit in support of the application, filed on 28 March, 2008 sets out the background of the parties, their marriage, the circumstances of their life together and the reasons they determined to have a child through an informal surrogacy procedure, the surrogate being a friend, Ms Tamsin.  She is named as the respondent.

1. The evidence satisfies me that Ms Tamsin is aware of the application and fully aware of the orders sought.  She has declined legal representation but understands the nature and effect of the orders.

1. The relevant history can be stated briefly.  The parties married on 6 May 2000.  They sought to have a child together.  They undertook a number of stressful and demanding medical procedures in the hope that a child would be conceived.  IVF treatment was unsuccessful.  It was then they turned to surrogacy.  After at least one prior attempt, a child was conceived, and borne by Ms. Tamsin.  Mr. King is the child’s biological father. 

1. The parties have attended counselling for professional assistance in best addressing the dynamics of raising a child born through a surrogacy arrangement.

1. The child’s birth certificate is before the court. His mother is named on it as Ms Tamsin and his father as Mr King. I declare, pursuant to s.69VA of the Family Law Act 1975, that Mr. King is the parent of the child for the purpose of all laws of the Commonwealth.

1. The child has lived with the applicants since his birth.  He has had contact with those involved in his genesis but has been treated as the child of the applicants.  They seek to formalise the arrangement, insofar as that can be done by order of this Court.  Ms. Tamsin consents to the orders sought.

1. In those circumstances I am satisfied that the child’s best interests will be served by making orders in the terms sought.

1. Ms. King also seeks leave to commence proceedings to adopt the child. Adoption is, of course, a matter for State authorities. An order of this Court, made pursuant to s.60G(1) of the Family Law Act 1975, can be of assistance in achieving that outcome. Adoption would put Ms. King in the position of a parent; as a matter of law, she would be the child’s mother, with all attendant responsibilities and rights. Orders made by this Court can only confer parental responsibility until the child is eighteen.

1. Some people may see this as a distinction without a difference, but it is not;  one need only consider laws relating to intestacy or superannuation to see the ramifications of adoption.  It would be in the child’s best interests to be adopted by his social mother, Ms. King, and thus be, legally the son of both applicants.  I wish them luck with that aspect. 

I certify that the preceding
9 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2008.

…………………………………………
Associate.