Koutafides & Anor & Sausurre

[2018] FamCA 90

FAMILY COURT OF AUSTRALIA

KOUTAFIDES AND ANOR & SAUSURRE [2018] FamCA 90

FAMILY LAW – CHILDREN – PARENTING – Commercial surrogacy – Hearing in the absence of the respondent – Best interests of the child – Where the child of the relationship was born as a result of an international surrogacy agreement – Where the child is an Australian citizen by descent – Where the applicants seek orders that the child live with them – Where the applicants seeks to have equal shared parental responsibility for the child – Orders made that the parties have equal shared parental responsibility for the child – Orders made that the child live with the parents

Family Law Act 1975 (Cth) ss 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 65DA(2)

Bernieres & Dhopal (2017) FLC 93-793

APPLICANT: Ms Koutafides and Mr Theophanous

RESPONDENT: Ms Sausurre

FILE NUMBER: ADC 888 of 2016

DATE DELIVERED: 14 February 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 14 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dickson

SOLICITOR FOR THE APPLICANT: Tolis & Co

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

UPON NOTING that the requirement for service of the Application filed 22 March 2016 is dispensed with:-

IT IS ORDERED:

1. That the first and second applicants do have equal shared parental responsibility for the care, welfare and development of the child B, born … 2015.

2. That the child do live with the applicants.

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  Koutafides and Anor & Sausurre 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 ADELAIDE

FILE NUMBER: ADC 888 of 2016

Ms Koutafides and Mr Theophanous

Applicant

And

Ms Sausurre

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By Initiating Application, Ms Koutafides and Mr Theophanous (“the applicants”) seek parenting orders in respect of the child B, born in 2015 (“the child”). Noting the application was filed on 22 March 2016, it is apparent from the Court file that there is no response from Ms Sausurre (“the respondent”). A Notice of Risk was filed together with the application and there is nothing that would alert the Court to the child being at any risk. The matter goes forward on that basis.

2. The orders sought in the application are straightforward. The applicants seek equal shared parental responsibility for the child, and that she live with them. There are no other orders sought other than the standard orders relating to the particulars to be provided pursuant to section 65DA(2) of the Family Law Act 1975 (Cth) (“the Act”).

3. Mr Theophanous is the biological father of the child. Ms Koutafides is not the biological mother. The child was conceived by way of IVF procedure in Country C, using the father’s sperm with donated material from an unknown Country C donor. The case falls into the category of an international surrogacy arrangement. The Affidavit in support of the application filed 22 March 2016, sets out the circumstances by which the applicants, via a company that arranges international surrogacy, entered into a contract with the respondent birth mother for the artificial conception process to take place and the placing of the child in the care of the applicants with the intention that, without complaint or opposition, the child would be brought back to the Commonwealth of Australia.

4. Annexure “MK4” in the affidavit sets out the surrogacy agreement. Whilst I do not consider that the surrogacy agreement assists in terms of the orders that are being sought, it is relevant to explain the circumstances by which the child came to be in the applicant’s care. She was granted Australian citizenship by descent, and by reference to that document I am able to find that the child is an Australian citizen. That arises in respect of the DNA parentage testing that indicates to a high probability that Mr Theophanous has a biological connection to the child. The issue for the Court is whether a parenting order should be made. The proceedings have been adjourned for a significant period of time to await the outcome of an appeal to the Full Court in a case involving similar circumstances. That decision was ultimately delivered by the Full Court on 1 September 2017 and is reported as Bernieres & Dhopal (2017) FLC 93-793.

5. The focus of both the original judgment at first instance and the appeal was as to whether, without a change to State legislation, parties such as the applicants in these proceedings are able to seek a declaration that they are the parents of the child. Once that issue had been determined in the negative by the Full Court, there was no impediment to the matter proceeding to finality.

6. There was a concern that more needed to be done to bring the proceedings to the attention of the respondent. An Application in a Case was filed on 9 February 2018 seeking orders that the requirement for the respondent to be served with the initiating application be dispensed with. The application is supported by a comprehensive affidavit which sets out the circumstances of attempted service. I find that all reasonable efforts have been made to bring the proceedings and in particular the initiating application, to the attention of the respondent. It is difficult to consider that more could or should have been done.

7. I am also satisfied from the matters raised in the affidavit material that documents have been forwarded to Country C, that there is at least some possibility or likelihood that they may have come to the attention of the respondent. But in any event, I consider nothing more could or should be required of the applicants in terms of bringing the matter to the attention of the respondent.

8. The agreement signed between the applicants and the respondent suggests that she is not intending to participate in the proceedings. The application should go forward.

9. The circumstances are straightforward. The Affidavit filed on 22 March 2016 sets out the background circumstances to the parties in paragraphs 19 through to 32 and then also in terms of the living arrangements for the child in paragraphs 43 to 47. The principles in relation to parenting orders require a consideration pursuant to s 60CA of the Act, and that is that I have the best interest of the child as the paramount consideration. I do not consider that the orders sought by the applicants should be considered by consent or, in particular as an order by default. I have to apply the appropriate level of rigour to this matter as are required by consideration of the objects of s 60B(1) of the Act.

10. In doing so, the primary and the additional considerations need to be considered. I am not obliged, nor do I think it necessary to consider any matters pursuant to s 60CC(2A) of the Act in circumstances where there is no evidence. I am entirely satisfied that the child is looked after at the highest possible level by the applicants.

11. I propose to adopt the following approach namely, that I give consideration to the proposals put forward by the applicants jointly, that I have regard to the objects in the Act as set out in s 60B(1) and the underlying principles in s 60B(2), that I bring to account the primary and the additional considerations under s 60CC(2) and s 60CC(3). Having regard to those matters, I find that appropriate arrangements have been made for this child and that they are likely to continue.

12. The applicants indicate that they have a strong relationship, the environment they have created both for themselves and the child as a family is without question, and perhaps as importantly, they have strong support from family, both close and extended. It is likely that that which is said in paragraph 45 of the affidavit in support, namely that the child will enjoy the benefit of a close and loving relationship and extended family circle, is an accurate summary of the circumstances in which this child finds herself in. 

13. There are plans that the family will travel out of the Commonwealth of Australia and that is for the benefit of the child. In all the circumstances of this case, it seems to me that whatever might be said of the manner in which the child comes into Australia and is seen to form a part of the applicant’s family, she is now well cared for. And that is a state of affairs that is both likely to continue, but more relevantly, will be entirely in her best interests.

14. For those reasons, then, I propose to make orders in terms of the initiating

    application.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 14 February 2018.

Associate: 

Date:  22 February 2018