Kirby & Anor and Hewitt & Anor
[2016] FamCA 948
•11 November 2016
FAMILY COURT OF AUSTRALIA
| KIRBY AND ANOR & HEWITT AND ANOR | [2016] FamCA 948 |
FAMILY LAW – CHLDREN – SURROGACY – Altruistic family arrangement - Parental responsibility – With whom a child lives – Orders made in favour of non-biological parents
Family Law Act 1975 (Cth)
| 1st APPLICANT: | Mr Kirby |
| 2nd APPLICANT: | Ms Kirby |
| 1st RESPONDENT: | Mr Hewitt |
| 2nd RESPONDENT: | Ms Hewitt |
| FILE NUMBER: | LNC: | 15 | of | 2016 |
| DATE DELIVERED: | 11 November 2016 |
| PLACE DELIVERED: | Launceston |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 16 September 2016 |
REPRESENTATION
| COUNSEL FOR THE 1ST APPLICANT: | In person |
| SOLICITOR FOR THE 1ST APPLICANT: |
| COUNSEL FOR THE 2ND APPLICANT: | In person |
| SOLICTOR FOR THE 2ND APPLICANT: |
| COUNSEL FOR THE 1ST RESPONDENT: | In person |
| SOLICITOR FOR THE 1ST RESPONDENT:
| In person |
Orders
BY CONSENT Ms Kirby and Mr Kirby (‘the applicants’) have sole parental responsibility for the child B born … 2015 (‘the child’).
BY CONSENT the child live with the applicants.
BY CONSENT the applicants have permission to take the child out of the Commonwealth of Australia for the purpose of holidays at any time, without consent of the respondents.
Pursuant to s 65DA(2) and s 62B 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 and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED
The applicants will provide the child with age appropriate explanation as to his origins in a time reasonably decided by the applicants.
IT IS FURTHER ORDERED
All outstanding applications be dismissed.
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 Kirby and Anor & Hewitt 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).
FILE NUMBER: LNC 15 of 2016
| Mr Kirby And Ms Kirby |
Second applicant
And
| Mr Hewitt And Ms Hewitt |
| Second respondent |
REASONS FOR JUDGMENT
INTRODUCTION
B (‘the child’) is a child of Mr Hewitt and Ms Hewitt (‘the respondents’).
The child has lived in the primary care of Ms Kirby and Mr Kirby (‘the applicants’) since his birth in 2015.
Each of the parties seek consent orders that the child live with the applicants and that the applicants have sole parental responsibility for the child. Further, the parties seek no particular orders with regard to any time, communication or the like between the child and the respondent.
BACKGROUND
Ms Kirby (aged 27) and Mr Kirby (aged 26) were married in 2012 and have been unsuccessfully endeavouring to conceive children.
Ms Hewitt and Mr Hewitt are aged 36 and 33 respectively and they are the biological parents of the child.
The adult parties are related as Mr Hewitt and Ms Kirby are siblings.
From earlier relationships: Ms Hewitt has three children, C aged 15, D aged 14 and E aged 12; and Mr Hewitt has two children, F aged 11 and G aged 10.
Ms Hewitt and Mr Hewitt have one child of their relationship, namely H. As such Ms Hewitt and Mr Hewitt had responsibility for six children.
Mr Hewitt has some health difficulties which are set out in a family report and of the six children cared for by Ms Hewitt and Mr Hewitt, three of the children have high needs. As such when Ms Hewitt became pregnant with the child, Mr Hewitt and Ms Hewitt had stretched their capacity to parent their seventh child. They were aware that Ms Kirby and Mr Kirby were unable to conceive children and given all of the circumstances they asked the applicants if they would be willing to care for the child.
All four of the adults agreed to adopt this course and put in place arrangements from early in Ms Hewitt’s pregnancy. The adults worked with the staff at the local hospital to ensure that the transition of the child to the applicants went smoothly and the child’s name was registered with the surname ‘Kirby’.
The child has lived in the care of the applicants since his birth about one year ago.
These proceedings were commenced in the Federal Circuit Court on 12 January 2016 and were transferred to the Family Court on 6 June 2016.
Interim parenting orders were made on 11 July 2016.
The applicants relied upon:-
(a)their initiating application filed 12 January 2016;
(b)the affidavit of the Ms Kirby filed 12 January 2016;
(c)the affidavit of Mr Hewitt filed 12 January 2016;
(d)consenting response filed by the respondents filed 31 May 2016;
(e)the affidavit of the first respondent filed 31 May 2016;
(f)the affidavit of Ms Hewitt filed 31 May 2016; and
(g)the family report of Mr I dated 12 September 2016 (‘the Family Report’).
When the proceedings first came before me, all four of the parties requested that I make the orders upon which these reasons are based.
A Family Report was prepared and it describes each of the adults in some detail and I have had regard to all of the material contained in that report. The Family Consultant observed the interaction between the applicants and the child and formed the view that the child was ‘a happy little boy, secure in the relationship with the [applicants]’.
Ms Hewitt and Mr Hewitt had each said that they consented to the order without coercion and confirmed that circumstance with the Family Consultant. They explained the primary reason given for the mutual decision because of the high burden of care required by the six other children in their care and the diminished parenting capacity arising from their respective mental health and health conditions.
In addition there was their altruistic view that the applicants had not been able to hold a pregnancy full term and they were confident the child would be cared for and much loved by them.
The Family Consultant recommended that final orders be made.
The Court clearly has jurisdiction to make parenting orders and in doing so must have regard to s 60B of the Family Law Act 1975 (Cth) (‘the Act’) which in turn sets out the objectives that need to be met in terms of determining whether the proposed orders are in the best interests of the child.
These principals include the child having the right to know and be cared for by both parents including spending time and communicating with their parents on a regular basis.
Given the facts of this case I am satisfied that there is a need for orders to be made. I am satisfied that the applicants have the capacity to care for the child and particularly in the circumstances of the respondents having significant other burdens which would make their care of this child much more problematic and of course their kindness in arranging for the child to live with other members of their family.
In terms of considering the best interests of the child I have considered the evidence having regard to the relevant considerations under s 60CC of the Act.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents;
In this case the child is not going to have a meaningful relationship with his biological parents. However, given the altruistic reasons of the parents and their own health and other challenges, they have decided that the best place for this child to live is with the applicants.
The Family Consultant observes that the applicants and respondents mutually decided that the child would know who his birth parents were when he was old enough to understand.
This decision was made by the parties after careful self-reflection and consideration, by all of the relevant adults.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
That is not an issue in this case.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The child is at an age where he has not expressed views.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The child has been in the care of the applicants since the day of his birth. They have demonstrated the capacity to well meet all of the child’s needs.
Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
The decision making for this child was initially by the respondents alone, then the applicants and respondents together, and now by the applicants alone.
Section 60CC(3)(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
This is not a relevant consideration.
Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
This is not a relevant consideration.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
This is not a relevant consideration.
Section 60CC(3)(f) the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The applicants have the capacity and determination to care for and bring up this child. The respondents doubt they have the capacity to meet all of the child’s needs, having regard to the matters set out in the Family Report.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
This is not a relevant consideration.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
This is not a relevant consideration.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;
This is not a relevant consideration.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
This is not a relevant consideration.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
This is not a relevant consideration.
Section 60CC(3)(m) Any other fact or circumstance that the court thinks is relevant;
This is not a relevant consideration
Conclusion
The law in Australia in relation to surrogacy is complex and has been subject to recent consideration by the Family Law Council. There is no uniform legislation between the States and Territories governing surrogacy. However, there is some indication of policy development.
Section 65D of the Act enables a court, subject to s 61DA and Part VII of the Act, to make such parenting orders as it thinks proper and s 61B of the Act defines parental responsibility to be:-
all the duties powers, responsibilities and authority which, by law, parents have in relation to children.
Ms Kirby and Mr Kirby are not making their application for parenting orders on the basis of either of them being a parent of the child. Rather they make their application on the grounds that they have an interest in his welfare. It was on that basis that I approached the making of the orders sought by them.
Orders made by this Court may confer parental responsibility for children who have not yet attained 18 years of age. Section 64B(2) of the Act sets out the matters which can be dealt with by a parenting order. They include the persons with whom the child is to live, the time a child is to spend with another person or other persons and the allocation of parental responsibility for a child. Section 64B of the Act provides that a court can make a parenting order which provides for any aspect of care, welfare and development of a child or any aspect of parental responsibility of the child.
Although they may not be the biological parents of the child, the applicants will have all of the rights and responsibilities that the Act could confer upon them, as the child’s parents.
Section 64 provides that a parenting order can be made in favour of a person who is not the parent of a child. Section 65D says that an order may be applied for by “any other person concerned with the care, welfare and development of the child”. I am satisfied that this Court has jurisdiction to make an order relating to the child under the Act.
Having established that there is jurisdiction for the Court to make the orders, the Court must then turn to section 60B of the Act, which sets out the objectives which must be met in determining whether the proposed orders are in the best interests of a child. These principles include a child having the right to know and be cared for by both parents, including spending time with and communicating with their parents on a regular basis.
I am satisfied in the light of the facts in this case that there needs to be orders which give effect to the current parenting arrangements for the child.
The Act imposes on a court an obligation to ensure that the parents fulfil their duties and responsibilities concerning the care, welfare and development of their children. This provision must be read in the context of the circumstances in which a child finds himself, as is the case here, and includes the willingness of a parent or parents to involve themselves in the care that child. Australian courts have been reluctant, for obvious reasons, to force parents to be involved in the care, welfare and development of a child in the face of avoidance and/or refusal by that parent to become involved.
Although the applicants are not “parents” for the purposes of the Act, they have for all intents and purposes fulfilled the role of parents in the child’s life since his birth. He knows them as his parents, and they are the people who have taken on his care welfare and development.
A further objective which the Act says the Court needs to take into consideration is the future parenting of their children. I have had regard to that consideration when assessing the facts presently before me, and I am satisfied that the present and proposed future arrangements meet the child’s needs.
Section 60CA of the Act provides that, in deciding to make a particular parenting order in relation to a child, the Court must have regard to the best interests of the child as the paramount consideration.
I have considered the application of the facts to the relevant factors set out in s 60CC of the Act in making these orders. There are reasoned and reasonable plans in place to ensure that the child is aware of his true family circumstances, when he is old enough to understand.
Having regard to all of the facts and circumstances of this case I am satisfied that an order ought to be made that the child live with the applicants and that they have sole parental responsibility, and I will so order.
I certify that the preceding fifty four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 11 November 2016.
Associate:
Date: 11 November 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Remedies
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