Lamb & Anor and Shaw
[2017] FamCA 769
•21 September 2017
FAMILY COURT OF AUSTRALIA
| LAMB AND ANOR & SHAW | [2017] FamCA 769 |
| FAMILY LAW – CHILDREN – Surrogacy – Where applicants entered into an altruistic surrogacy arrangement with respondent birth mother – Where applicants were the genetic donors of the sperm and ovum and hence the genetic parents of child - Where birth mother is genetic mother’s third cousin – Where relationship between applicants and respondent broke down during pregnancy – Where applicants have had the care of child and respondent has had no time with child since birth – Where applicants sought equal shared parental responsibility and child live with them – Applicants sought child only spend time with birth mother as determined by them – Where respondent consents to applicants having equal shared parental responsibility and child live with them – Where respondent sought child spend time with her including occasional overnights – Whether birth mother should spend any time with child – Whether there is benefit of a meaningful relationship between child and birth mother – Where conflict between applicants and respondent is hostile – Where risk of harm to child by spending time with birth mother outweighs benefit of meaningful relationship - Where no orders made for time between child and birth mother except at applicant’s discretion. FAMILY LAW – CHILDREN – Parentage Order - Where applicants sought a declaration of parentage order under s 69VA of the Family Law Act1975 (Cth) - Where respondent conceded that court cannot make the declaration of parenthood sought by applicants – Where court is bound by the current law in relation to this – Where s 60HB of Family Law Act 1975 (Cth) covers the field in relation to parentage for surrogacy arrangements – Where s 60H has no application to children born under surrogacy arrangements – Where s 69VA is not a stand alone power to remedy any hiatus which may arise from s 60HB - Where parentage of children born under surrogacy arrangements is to be determined and regulated under the relevant State law and the Family Law Act1975 (Cth) is to recognise that – Where the relevant State Act provides that the genetic mother is presumed not to be the mother of the child – Where the birth mother is presumed to be the mother of the child – Where the State Act provides that the sperm donor is the father of the child but has no rights or liabilities in relation to the child – Findings that the relevant Queensland State legislation provides for the father to be a parent of the child and the Family Law Act1975 (Cth) will recognise that status - Where the court is unable to make a declaration of parentage under s 69VA in favour of the applicants. FAMILY LAW – CHILDREN – Change of child’s birth registration details – Where applicants sought change of child’s name and that they be recorded on child’s birth certificate as parents - Where court is satisfied that birth mother should be obliged to cause the change of child’s name to that selected by genetic parents – Where court is satisfied that genetic father should be recorded on birth certificate as father of child – Where court not satisfied that birth mother should be coerced into recording the genetic mother as a parent on the child’s birth certificate. FAMILY LAW – INJUNCTIONS – Prohibition on comment – Applicants and ICL sought injunction to restrain respondent from publishing information of proceedings on internet, social media or the media - Whether injunction is warranted when s 121 of Family Law Act1975 (Cth) operates to prohibit publishing - Where court will not grant such injunctions that merely restate the effect of s 121 unless there are special circumstances – Where respondent is not likely to make comment to media in future which offends s 121 – Where the proposed injunction would unnecessarily restrict respondent from speaking about her surrogacy – Where public has legitimate interest in surrogacy – Where no injunctive order made. |
| Australian Passports Act 2005 (Cth) s 11 Surrogacy Act 2010 (Qld) ss 17 Family Law Act 1975 (Cth) ss 4, 4A, 60B, 60CA, 60CC, 60H, 60HB, 61DA, 65DAA, 65DAC, 68B, 69VA, 106A, 114, 121 Status of Children Act 1978 (Qld) ss 23, 25, 30 |
| Mauldera & Orbel (2014) FLC 93-602 Wacando v The Commonwealth (1981) 148 CLR 1 S v Australian Crime Commission (2005) 144 FCR 431 Re Andrew (1996) FLC 92-692 Bernieres & Dhopal [2017] FamCAFC 180 Mason & Mason [2013] FamCA 424 Dudley and Anor & Chedi [2011] FamCA 502 Aldridge & Keaton (2009) 42 Fam LR 369 Re Evelyn (No 2) (1998) 23 Fam LR 73 Moose & Moose [2008] FLC 93-375 Slater & Light (2013) 48 Fam LR 573 Gorman & Huffman (2016) FamCAFC 174 Green-Wilson & Bishop [2014] FamCA 1031 Gibb and Gibb (1978) FLC 90-405 Re Schwartzkopff (1993) FLC 92-381 Sitwell & Sitwell [2014] FamCAFC 5 Re South Australian Telecasters Ltd (1998) 23 FamLR 692 Xuarez & Vitela [2012] FamCA 574 |
| FIRST APPLICANT: | Ms Lamb |
| SECOND APPLICANT: | Mr Sorensen |
| RESPONDENT: | Ms Shaw |
| INDEPENDENT CHILDREN’S LAWYER: | Susan Gray |
| FILE NUMBER: | CSC | 197 | of | 2016 |
| DATE DELIVERED: | 21 September 2017 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 6, 7 and 8 February 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANTS: | Mr Victoire |
| SOLICITORS FOR THE APPLICANT: | Marino Lawyers |
| SOLICITORS FOR THE RESPONDENT: | Anderson Fredericks Turner |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Ms Lawrence |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Susan Gray |
Orders
IT IS ORDERED BY CONSENT THAT:
All prior parenting orders are forthwith discharged.
Parental Responsibility
The Applicants, Ms Lamb and Mr Sorensen have equal shared parental responsibility for making decisions about major long-term issues regarding the child, registered on his birth certificate as B, and upon the making of these orders to be known as C, born … 2016 (“the child”).
The Applicants shall be solely responsible for the daily care, welfare and development of the child.
Living and spending time arrangements
The child shall live with the Applicants.
AND IT IS FURTHER ORDERED THAT:
The child shall spend no time with the Respondent save and except as may be determined by the Applicants at their sole discretion.
Change of Name
The child shall henceforth be known as C.
The parties do all acts and things, including singing any necessary documents, to cause the child’s birth registration details to be amended to ensure that:
(a)The child’s name is amended from B to C.
(b)Mr Sorensen is entered as the father of the child on the child’s birth certificate.
The Registrar of Birth Deaths and Marriages, Queensland is requested to exercise his or her discretion and accept these Orders and any document executed pursuant to these orders, either by the parties or by the Registrar of the Family Court of Australia, pursuant to Order 9, to amend the child’s birth registration to reflect Order 7(a) and (b) hereof.
Failing execution of any document within 7 days of a request to do so, that the Registrar of the E Town Registry of the Family Court of Australia be appointed, pursuant to Section 106A of the Family Law Act1975 (Cth), to sign any necessary document on behalf of the defaulting party.
Passport
The child is permitted to have an Australia passport or travel-related document provided the application for that document is made by the Applicants, Ms Lamb and Mr Sorensen, who may sign any declaration on the application in the form approved by the relevant Minister.
The Respondent, Ms Shaw, is restrained from making any application for an Australia passport or travel-related document for the child.
For the purposes of s 11 of the Australian Passports Act 2005 (Cth), it is noted the above orders allow:
(a) The child to travel internationally;
(b)The child to live with the Applicants when they are outside Australia.
Other Orders
The Applicants shall not denigrate the Respondent to or in the hearing of the child and the Applicants shall remove the child from the presence of any person denigrating the Respondent.
The Independent Children’s Lawyer is forthwith discharged upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.
Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.
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 Lamb and Anor & Shaw 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 CAIRNS |
FILE NUMBER: CSC197/2016
| Ms Lamb & Mr Sorensen |
Applicants
And
| Ms Shaw |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
It is something of a miracle that B, born in 2016 and hence presently approaching 18 months of age (“the child”) was born at all. For many years, Ms Lamb (“the genetic mother”) and Mr Sorensen (“the genetic father”) (collectively “the genetic parents”) had been unsuccessfully attempting to conceive a child, to the point where in 2010 they recognised that they would need to proceed with IVF treatment.
However, in September 2012, during a preliminary health check prior to the anticipated commencement of IVF, the genetic mother was diagnosed with breast cancer. Prior to her commencing treatment for that cancer, the medical team managed to harvest four eggs and fertilised them with the genetic father’s sperm; however only one viable embryo was produced, and it was then frozen. At the conclusion of her cancer treatment, the genetic mother was unable to carry a child, and the genetic parents began thinking about surrogacy.
Ultimately the genetic mother’s third cousin, Ms Shaw (“the birth mother”) agreed to act as the altruistic surrogate, and was implanted with the embryo. Because it was frozen, there was something in the order of only a 25 per cent chance that the implantation would be successful, and yet nonetheless it was. However as I shall shortly detail, sadly the relationship between the genetic parents and the birth mother rapidly became strained, in consequence of which the birth mother contemplated an abortion, however by then the pregnancy was too advanced. Ultimately the healthy child was born by caesarean section.
Unfortunately, by then the parties had engaged lawyers and were threatening litigation. Indeed the genetic parents commenced these proceedings only two days after the child’s birth, naming the birth mother as respondent. Given the urgency of the matter, it was brought on for hearing before me on 14 April, on which occasion the parties agreed to attend mediation, which occurred that night. On 15 April 2016, consequent upon the success of the mediation, interim consent orders were made granting the genetic parents sole parental responsibility for the child, who would live with them after he left hospital that day. Notations to the consent orders recorded that the genetic parents intended to make an application to the Children’s Court for a Parentage Order in relation to the child (which would see them become his legal parents) to which application the birth mother would consent.
However that did not transpire. Instead, the parties continued to litigate in this court, and the matter came on for trial before me on 6 February 2017. As ultimately formulated, the genetic parents sought orders declaring that they are both parents of the child, that they should have equal shared parental responsibility for decision making about him, and that he should live with them and only spend such time with the birth mother as may be determined by them in their sole discretion. They also seek orders that the child’s name be changed to C, which is apparently the name by which he is presently known. Some additional ancillary relief was also sought by them.
For her part, the birth mother says that the court cannot make the declaration of parenthood sought by the genetic parents, but does not oppose them having sole parental responsibility for the child, and for him to live with them. However she seeks orders that the child spend time with her on a progressively increasing basis, ultimately culminating with him spending unsupervised time with her once per month between 9:00am and 5:00pm, save that for one month in every three month period, it would extend overnight to 5:00pm on the following day. She also sought some ancillary orders.
Although generally supporting the position of the genetic parents, the Independent Children's Lawyer specifically sought an order that the child spend no time with the birth mother.
On 8 February 2017 I reserved my decision consequent upon the conclusion of the trial. This is that decision and the reasons for it.
THE FACTS
The genetic parents
The genetic mother was born in 1972 and hence is presently 44 years of age. . She is a professional, having qualified in 1997.
The genetic father was born in 1977 and hence is presently 40 years of age. He is contractor by occupation.
The genetic parents met in 1996 when they were then aged 23 and 18 years respectively, and married in 2002. Initially they focused on their careers, but in 2007 tried unsuccessfully to conceive a child for about 12 months. They then began to contemplate other alternatives, including IVF.
As I have already indicated, in September 2012, during a preliminary health check in anticipation of commencing IVF, the genetic mother was identified as having a tumour in her breast, but in advance of the treatment for the cancer, her eggs were harvested, and four embryos created, although only one proved viable. That embryo therefore represented the only opportunity, at least on current technology and science, for the genetic parents to have a child which is genetically theirs. The embryo was frozen whilst the genetic mother underwent treatment for cancer, which, in broad terms, was successful but left her unable to carry a child.
The birth mother
The birth mother was born in 1984 and hence is presently 32 years of age. In 2008, aged 24, she commenced a relationship with a Mr D, although they separated in 2014. By then they had a young son, G, born in 2013, and hence presently 4 years of age. At the time of separation she and Mr D were living in E Town. In December 2014 she commenced a relationship with her present partner, Mr F. They had known each other and been friendly at high school.
In January 2015 the birth mother moved to live near H Town.
The surrogacy and pregnancy
The genetic parents invited the birth mother over for dinner one evening, during which they explained their predicament in relation to having a child, and raised the possibility of the birth mother becoming a surrogate. She agreed. The parties then attended to the steps necessary under the Surrogacy Act2010 (Qld) including undergoing counselling and obtaining legal advice. On 25 March 2015 they executed a surrogacy agreement. Recital K to that agreement noted “the birth mother intends to carry the embryo to term and following the birth of the child to hand the child to the intended parents so that they may bring up the child as their own child.” Recital L then continued “the intended parents intend, following the birth of the child, to make an application for a Parentage Order as provided by the Surrogacy Act2010.”
The operative parts of the surrogacy agreement are generally unremarkable, and obliged the birth mother to hand over the child to the genetic parents, and in due course to consent to a parentage order in the Children’s Court (clause 4). It also provided for the genetic parents to meet the birth mother’s costs. However it expressly contemplated that the birth mother may not in fact relinquish custody, in which case the obligation to reimburse the costs of the birth mother was not enforceable. Additionally, and equally unremarkably, it provided that “whilst the birth mother will take into account the views of the intended parents, the birth mother has the right to manage her pregnancy and the birth” (clause 3).
Things initially, albeit only briefly, proceeded smoothly after the execution of the agreement, and particularly the birth mother’s compatibility to bear the child was established, and the parties concluded their counselling. The embryo transfer procedure was successful and the birth mother became pregnant with the fertilised embryo. However thereafter things rapidly became increasingly strained. Whilst it is unnecessary to traverse every minute detail of the disagreement that ensued, or to apportion blame or culpability for that, it is pertinent to observe that with the benefit of hindsight, it is unlikely that the personalities and expectations of the genetic mother and the birth mother were in fact compatible. In large part that likely lies in three things.
The first was the genetic mother’s personality; even she described herself in evidence as “a control freak.” I do not intend any criticism of her by such a description; however the reality is that, as she conceded, in order to feel comfortable, she needs to have a degree of control, and if she cannot achieve that, tends to disengage from a situation.
The second, and perhaps related to the first, is that given her past history of failed attempts to conceive, and then no doubt the horror of a diagnosis of breast cancer and the fact that only one fertilised egg was viable, which only had a 25 per cent chance of success, understandably the genetic mother was reluctant to contemplate the prospect that a child may indeed be born as a result of the surrogacy. In her cross-examination she conceded that she “dared not hope” for a successful outcome. A good illustration of that was the genetic mother’s muted response to the first ultrasound scan of the child.
The third contributing problem, at least on my assessment, was the birth mother’s lack of insight into the sensitivities of the genetic parents based upon their past experiences, and the genetic mother’s personality. Particularly the birth mother, who had already successfully borne her own child, without the background of difficulty which the genetic mother had experienced, did not appreciate the significance of that background to the way that the genetic mother was approaching the situation. A good illustration of this is that when the genetic mother sought to considerably disengage and step back from a close involvement with the birth mother’s pregnancy, because she was unable to control things and apprehensive of failure, the birth mother construed that as disinterest and lack of support.
Finally I should note that there seem to have been divergent expectations as to the appropriate extent of the genetic parents’ financial generosity towards the birth mother during her pregnancy. Indeed this seems to have been manifest from a very early stage. For instance, although she had only been successfully implanted with the embryo on 3 August 2015, as early as 12 August, the birth mother was complaining to her psychologist that the genetic parents were “not treating her like other intended parents. Other surrogates are showered with gifts.”[1]
[1]Tender bundle p 4.
Another difficulty arose in relation to the birth mother’s concern about the level of hormone supplements that were being prescribed to her by the fertility clinic. She raised this with the clinic as early as 18 August 2015, and a recording of that conversation was in evidence before me. It is plain that the birth mother was quite agitated about what it appears she thought was the negligent over administration of hormones. She began to then consult another fertility clinic, although continued to remain engaged with the first one. She told the genetic parents of her concerns, but they became worried that on lower hormone doses, the pregnancy may fail.
On 2 September 2015 the birth mother told her counsellor that she was feeling unsupported by the genetic mother and wanted more “tangible signs of gratitude” from the genetic parents. More troublingly, on 22 October 2015, she told her counsellor that she was regretting having gone ahead with the pregnancy and was thinking of undertaking an abortion. She told the psychologist that she “has been thinking of using a coat hanger to induce abortion.” Unfortunately, the genetic parents became aware of the birth mother’s thoughts. The birth mother further told her counsellor that if the genetic parents didn’t start treating her well “then they are in for a shock.”
More complaints were made by the birth mother to the psychologist in a session on 12 November 2015. The psychologist noted that the birth mother said “if [the genetic mother] doesn’t pull her head in and treat me well then she is not going to be a part of this.”
By then the genetic mother was beginning to have real concerns in relation to the birth mother. In a consultation on 19 November 2015 her psychologist recorded that the genetic mother was “concerned that [the birth mother] may intentionally harm the baby, even after the baby is born… I suggested she be more vocal in her appreciation, perhaps send a gift here and there. [The genetic mother] feels she has tried this but that [the birth mother] keeps moving the goal posts, that she will never be satisfied and feels she is using the baby to extort money.”
To like effect on 3 December 2015 the psychologist’s notes recorded that the genetic mother told her that the genetic father “feels [the birth mother] is holding their baby hostage.” Those concerns continued to be communicated by the genetic mother to her psychologist throughout January 2016.
On 10 February 2016 the birth mother told her psychologist that she no longer wanted any contact with the genetic mother, at least until the birth. The notes then record:
I suggested perhaps [the genetic mother] feels that [the birth mother] will not hand the baby over to which [the birth mother] replied “I don’t want this fucking baby! Why would I want to keep their baby when I can have one of my own? I can’t wait to get it out of me! If there is something wrong with it when its born then it serves them right.”
The parties then went down a path of mediation which incurred legal expenses, for which the genetic parents were liable.
Sometime prior to 1 April 2016 the birth mother changed solicitors. On 1 April 2016 her new solicitor wrote to the genetic parents’ solicitor a very detailed letter which extended into a fifth page. Annexed to it was the 13 page curriculum vitae of the birth mother’s new lawyer. Amongst other things the letter:
·Indicated that the birth mother had been “considerably stressed” during the pregnancy, which could lead to irreversible adverse outcomes for the baby;
·Noted that the costs incurred by the genetic parents to date were about $20,000.00, but that the solicitor normally advised his clients to budget for a sum of $60,000.00;
·Emphasised the need for the genetic parents to make timely payments to the birth mother;
·Suggested that “it will also be helpful if [the genetic mother] could, with full humility, speak kindly to our client – the sooner the better;”
·Implicitly threatened on behalf of the birth mother that she would neither hand over the child to the genetic parents after it was born, nor consent to a parenting order being made in their favour;
·Proceeded to give some illustrations of adverse outcomes in surrogacy matters where disputation had set in between the parties;
·Implicitly threatened that if the birth mother were to retain the child, any proceedings to recover monies paid to her (as permitted under the Surrogacy Act) would attract media attention, and specifically said:
A media outlet such as the [J Town] Post would consider such proceedings to be scandal fodder, likely spread over the front page, to the eternal embarrassment and shame of all our respective clients. They would be the subject of gossip for many years to come …
Needless to say this letter caused considerable alarm in the genetic parents, whose genetic child was due to be born in less than a fortnight.
Even prior to the receipt of this letter the genetic mother had been experiencing heightened anxiety, including panic attacks, and the letter only made it worse.
The birth mother’s threats were far from idle. Towards the end of the pregnancy she was in advanced negotiations with an adoption agency, whose representative travelled to be at the hospital around the time of the birth, to take delivery of the child if he was relinquished by the birth mother.
The child was born in early 2016.
Events after the child’s birth
An hour after the child was born, the hospital notes record that the birth mother “insisted that the midwife take the baby to the [genetic] parents.” The child then stayed overnight with the genetic parents in the room at the hospital that had been taken by them. However the next morning the birth mother met with the representative of the adoption agency in her hospital room. The hospital CEO also attended that meeting and the hospital’s notes record that the “adoption agency indicated that they were here to meet with [the birth mother] to ascertain her intended plan.”
It seems as though the baby stayed with the genetic parents until 5:00pm on the day after the birth, when the birth mother requested that he be returned to her. Negotiations were then brokered as to whether the birth mother intended to pass the child back to the genetic parents.
In early 2016 the birth mother gave an interview to the media. That broadcaster also sought to interview the genetic parents, who declined. Also on that day these proceedings were filed and were attempted to be served upon the birth mother at hospital. The hospital CEO declined to allow access to the birth mother’s room to enable service, and subsequently the birth mother’s solicitors accepted service.
On 14 April 2016 the Interim Application came before me, and as I have indicated, mediation that evening achieved interim orders which were pronounced the following day. Pursuant to those orders, after the birth mother was discharged from hospital at 10:00am on 15 April after spending a few minutes with the child, the child was thereafter discharged into the care of the genetic parents at 4:00pm. He has remained in their care ever since.
In the ensuing months the story was reported in the media, and thereafter the story assumed some prominence including in social media.
For whatever reasons, the matter thereafter did not proceed smoothly, even though it had been contemplated that it would do so at the time of the 15 April consent orders. This led to the genetic mother continuing to suffer stress and anxiety, to the point where on 30 July 2016 she told a mental health service worker that she had thought even about killing the birth mother, although “she would never act on these thoughts, just wanting to vent her frustrations and would like the legal issues to be over.”
The parties continued to argue in relation to issues which substantially related to money. For instance the birth mother was stipulating that she needed money for counselling sessions. She also told her psychologist on 4 August 2016 that she “wants baby to be with certified carers eg adopted.”
On 22 August 2016 the birth mother’s solicitors sought payment of a further $21,351.59 “to move the matter to a parentage order.” It appears as though at about that time the birth mother was reminding the genetic parents that she was still legally the baby’s mother, and was wanting to know details of his progress.
In August 2016 interviews were undertaken by Ms K for the purposes of a surrogacy guidance report. I will detail her recommendations in due course, but her report records the then extremely poor relations between the relevant parties, and their very adverse views of each other. The birth mother told Ms K that “even now I want to have [the child] back and put him up for adoption. [The genetic parents’] behaviour has been really disgusting.” She also claimed that she was being blackmailed into signing a parentage order by threats to re-list the Family Court proceedings. Further, she indicated that it remained her preferred option to sign the parentage order if the genetic parents paid her outstanding monetary claims and stopped all court action.
In a text message which the birth mother sent to Ms K after the interview, she advised that she was now “seeking shared custody of my legal son.” Indeed that remained her position as late as 29 November 2016, when I made trial directions.
On 12 January 2017 the Independent Children's Lawyer was appointed in these proceedings. Also on that day the mother’s current solicitors (who are acting for the birth mother on a pro bono basis) communicated with the genetic parents’ solicitors, advising that they had “a delicate matter” to raise with the Independent Children's Lawyer. Subsequently on 17 January it became apparent that the “delicate matter” was in fact the biological parentage of the child, as the birth mother asserted that at about the time of the child’s conception, she was engaging in unprotected sexual intercourse with her partner. This led to DNA tests being undertaken of the child and the genetic parents, which confirmed that the child is indeed genetically theirs.
THE ISSUES
At the hearing before me on 29 November 2016, the following were agreed as the issues in these proceedings, in the sense that their resolution was likely to substantially impact upon the ultimate orders which were made:
1.What is the nature of the relationship between each of the parties and the child.
2.Would the child benefit from a meaningful relationship with each of the parties, and if so, how might it best be facilitated.
3.What, if any, risk of harm does each of the parties pose to the child, and what means are there to mitigate it.
4.Do each of the parties have the capacity to parent the child.
5.What would be the likely effect on the child of not having any relationship with each of the parties.
Once I have considered the relevant statutory provisions and legal principles, but before I traverse any residually relevant s 60CC considerations, I will discuss those issues and then determine the appropriate parenting orders in this case.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that 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.
(2) The principles underlying these objects 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).
(emphasis added)
Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Those include s 60CC(2)(a), namely “the benefit to the child of having a meaningful relationship with BOTH of the child’s parents” (emphasis added).
In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
No contact orders
Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent. Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable. Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child. The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.
Plainly however, a Court would only cut the relationship between the child and parent on such a ground with considerable hesitation.
Parentage of a surrogate child
It may fairly be said that the law has struggled to adequately grapple with the considerable array of circumstances and relationships which can be associated with surrogacy. Particularly, the intersection between surrogacy and parenting disputes under the Family Law Act has been problematic. In large part, that was because, until very recently, it was by no means clear who, as a matter of law for the purposes of the Family Law Act, can be, and is, a parent of a surrogate child. Perhaps the primary difficulty lies in the absence of any comprehensive definition of “parent” and “child” in the Act itself. Nonetheless, as has been seen from my discussion of the statutory regime generally, both concepts are fundamental to the resolution of parenting disputes in relation to a child.
A further difficulty arose from the introduction in 2008 of s 60HB into the Family Law Act, which provides:
60HB Children born under Surrogacy Arrangements
(1)If a Court has made an order under a prescribed law of a State or Territory to the effect that:
(a)a child is the child of one or more persons; or
(b)each of one or more persons is a parent of a child;
then, for the purposes of this Act, the child is the child of each of those persons.
(2)In this section:
this Act includes:
(a)the standard Rules of Court;
(b)the related Federal Circuit Court Rules.
Many single Judge decisions have grappled with what that section meant, in the overall context of the Act.
However, since the trial of this matter concluded in February of this year, the law has been significantly clarified by the recent Full Court decision of Bernieres & Dhopal [2017] FamCAFC 180. That case involved an international commercial gestational surrogacy, where the male appellant’s sperm was used to fertilise an anonymous donor’s egg, which was then implanted into the respondent surrogate’s womb. Thus, like this case, the sperm donor was a joint applicant for a declaration of parentage and parenting orders; however unlike this case, his wife, the other joint applicant for such orders, had no genetic connection with the child. A further distinction is that case involved a commercial surrogacy, which was prohibited by the relevant state legislation; however that meant that, as in this case, no parentage order had been made in favour of the applicants.
Notwithstanding that the male appellant was the biological father of the child, the Full Court concluded at [65]:
There is no question that the father is the child’s biological father, but that does not translate into him being a parent for the purposes of the Act…
That conclusion was based upon their Honours’ express adoption of a preliminary view that had been earlier expressed by Ryan J in Mason & Mason [2013] FamCA 424 in relation to the role of s 60HB of the Family Law Act in surrogacy cases. In that case, the applicant sperm donor of surrogate twins was seeking a declaration of parentage, which was not made (although further submissions were invited). At [33]-[34] her Honour said as follows:
[33]. The application of these principles to s 60H and s 60HB was not discussed in this hearing. It follows, that without the benefit of argument, a cautious approach to the issue is necessary. However, it is my preliminary view that for the purposes of the Act, the 2008 amendments evince an intention by Parliament that the parentage of children born as a result of artificial conception procedures or under surrogacy arrangements will be determined by reference to those provisions and not the general parentage provisions. This interpretation achieves, on a state by state (and territory) basis, a uniform system for the determination of parentage.
[34]. The effect of this is that unless an order is made in favour of the applicant pursuant to the Surrogacy Act, the provisions of the Act do not permit this Court to make a declaration of parentage in his favour. Thus, on reflection, I am inclined to respectfully agree with Watts J in Dudley and Anor & Chedi [2011] FamCA 502, where at [29] his Honour determined that ultimately state law will govern the determination of parentage [of children born under surrogacy arrangements] and that state law will be recognised by federal law. (emphasis added)
At [62]-[63] of Bernieres & Dhopal the Full Court concluded that “.. the plain intention of s 60HB is to leave it to each of the States and Territories to regulate the status of children born under surrogacy arrangements, and for that to be recognised for the purposes of the [Family Law] Act.”
I am clearly bound by Bernieres & Dhopal, notwithstanding, with respect, my difficulty in sharing such a construction of s 60HB, which on its face, appears to only have application if, and only if, a parentage order has been made.
Further, Bernieres & Dhopal is binding authority for the proposition that s 60H, which deals with children born as a result of artificial conception procedures, has no application to children born under surrogacy arrangements, even if artificial conception procedures are used as part of that process. Their Honour’s held at [58] that s 60H “.. is clearly designed to cover conventional artificial conception arrangements where the birth mother and her partner are to be the parents of the child” and at [62] “that .. it is plain that s 60HB now specifically addresses the position of children born under surrogacy arrangements, leaving s 60H to address the status of children born by means of conventional artificial conception procedures.”
I then turn to the relevant State legislation governing this surrogacy arrangement, which is the Surrogacy Act 2010 (Qld). Whilst it provides for parentage orders to be made, by s 17 of that Act, “to remove any doubt, it is declared that, unless and until a parentage order is made under Chapter 3 transferring the parentage of a child born as a result of a surrogacy arrangement, the parentage presumptions under the Status of Children Act 1978 apply to the child.”
Section 23(4) of the Status of Children Act 1978 (Qld) provides that the semen donor “has no rights or liabilities in relation to any child born as a result of” a pregnancy from, inter alia, the implanting of a fertilised ovum into a woman, unless and until he marries her.
There are three noteworthy points in relation to this. The first is that s 23(4) does not utilise the device of an irrebuttable presumption that the sperm donor is not the father of the child, as that Act does in relation to the woman who produced the ovum (see ss 23(2)(b) and (3)). No explanation for the different terminology is apparent in the Act, nor does the explanatory memorandum relating to the bill enlighten this issue. Because s 17 of the Surrogacy Act only refers to the presumptions established by the Status of Children Act, it is arguable that s 23(4) is not encompassed within s 17, however it seems that the intention of s 17 was not to affect the continued operation and effect of the Status of Children Act, and hence I do not accept that only presumptions per se continue to operate.
The second is that s 23 of the Status of Children Act was enacted prior to surrogacy being statutorily recognised and regulated in Queensland, and hence, unsurprisingly, seems to work from the assumption that the child resulting from the pregnancy was intended to be retained by the birth mother.
The third is that s 30 of the Status of Children Act, which deals with the resolution of conflicting presumptions, would not, at least on a plain reading of its wording, operate to ameliorate the lack of rights and liabilities on the part of the sperm donor, because s 30 only deals with presumptions, and as I have observed, s 23(4) is not cast in that fashion. Hence, arguably, even if, for instance, the sperm donor were registered on the child’s birth certificate as a parent (and hence under s 25 presumed to be the child’s parent) on one view, s 23(4) would nonetheless operate to deprive the donor/parent/father of any rights, notwithstanding parenthood.
Upon balance I construe s 23(4) as implicitly recognising that the sperm donor is the father of the child, however despite that status, he has no rights or liabilities in relation to the child. Nonetheless, it follows that under State law in Queensland, the man who donated sperm in order to fertilise a donated ovum, is the father of any relevant child from to a woman implanted with the resultant embryo.
The position in relation to the donor of the ovum (and hence the biological mother in this case) is more clear cut. Section 23(2)(b) creates a presumption for all purposes, that the donor of the ovum is “not to be the mother of any child born as a result of the pregnancy.” That presumption is irrebuttable: see s 23(3). Rather, it is to be irrebuttably presumed that the child’s mother is the woman into whose womb the fertilised donor ovum was implanted: s 23(2)(a).
In summary therefore:
(a)the biological parents of a child born to a surrogacy arrangement are the persons whose sperm and ovum combine to produce the gamete;
(b)however those persons are not, for the purposes of the Family Law Act, the parents of the child, unless the State legislation, either directly or by order made under it, effects such as a status;
(c)here, s 23(4) of the Status of Children Act operates such that the donor of sperm used to fertilise a donor ovum implanted into another woman’s womb, remains the father of the resultant child, has no rights or liabilities relating to it; and further
(d)by s 23(2) of the Status of Children Act, there is an irrebuttable presumption that the ovum donor is not the mother of the child, but the recipient is.
Nonetheless, as noted by Ryan J in Mason & Mason (supra) at [45]-[46]:
[45]. In cases in which parents are parties, those objects, principles and factors which refer to parents must be considered insofar as they apply to the child’s parents. Those which apply to all parties apply to parents and non-parents alike. Those which refer to other specific categories of people, for example, grandparents, apply specifically. However, by virtue of s 60CC(3)(m) the Court may decide that s 60CC(3) factors which refer solely to parents, for example, s 60CC(3)(c) ought to be considered having regard to other important people in the child’s life. Another example might be that reliant on s 60CC(3)(m) the Court considers the benefit to the child of having a meaningful relationship with a person, such as the applicant, who has been significantly involved in the child’s life. This makes the various factors inclusive not exclusive.
[46]. However, there is no general presumption that orders be made in favour of parents and s 65C does not prescribe a hierarchy of applicants (Aldridge v Keaton (2009) 42 Fam LR 369 at [83]). In Aldridge v Keaton [60], the Full Court referred, with approval, to comments of a previous Full Court in Re Evelyn (No 2) (1998) 23 Fam LR 73 that while the fact of parenthood is an important factor in deciding a parenting application, there is no presumption in favour of a biological parent. Rather each case must be decided on its facts with the welfare of the child being the paramount consideration.
WHO ARE THE PARENTS OF THE CHILD FOR THE PURPOSES OF THE FAMILY LAW ACT
Bernieres & Dhopal (supra) compels, so it seems to me, the conclusion that the biological mother is not, for the purposes of the Family Law Act, a parent of the child. Rather, the effect of the Status of Children Act is that the birth mother is irrebuttably presumed, for all purposes, to be the mother of the child unless a parentage order is made pursuant to the Surrogacy Act.
The position of the biological father, at least in Queensland, is a little less clear. The State legislation does not deprive him of fatherhood per se, but rather strips that fatherhood of any rights or liabilities, unless he were to marry the birth mother. On the other hand, Bernieres & Dhopal and indeed Mason & Mason as well (albeit in the context of Victoria and New South Wales respectively) expressly held that the sperm donor father was not a parent for the purposes of the Family Law Act, although neither of the States from which those cases sprang had any equivalent to s 23(4) of the Status of Children Act.
Although with some hesitation, I am nonetheless persuaded that in Queensland, the combined effect of s 17 of the Surrogacy Act and s 23(4) of the Status of Children Act, means that the father is a parent of the child, and that, consistent with Bernieres & Dhopal, the Family Law Act will recognise that status.
NATURE OF RELATIONSHIP BETWEEN PARTIES AND CHILD
Ultimately these matters were not of any great contention. The child has only spent some brief time with the birth mother after he was born, and on the following day. Otherwise he has not seen or communicated with her. He has no relationship with her.
Ms K’s report addressed many of the matters which a Family Report would ordinarily consider. That said, her report is now of some vintage, in that it arises from visits and communications in August and September 2016. Nonetheless there is no reason to think that what she observed on that occasion has materially changed. Particularly she noted that the genetic parents were very dedicated to, and caring of, the child, who is physically strong and healthy. Ms K reported that the child was confident, makes good eye contact and has a happy disposition. She observed that he engaged well with both of the genetic parents, giving them sweet, loving smiles. She concluded that he was well adjusted for his age and stage of development, and obviously very well cared for. Unsurprisingly she therefore concluded that he is safe and secure in their care, and has a primary attachment to both of the genetic parents. She even went so far as to conclude that the child “has a biologically driven emotional connection to his [genetic] parents…” I accept all of that evidence.
BENEFIT OF MEANINGFUL RELATIONSHIP WITH PARTIES AND HOW BEST FACILITATED
There was no dispute that the child would benefit from a meaningful relationship with the genetic parents, and I am well satisfied that he would. It is plain that they are devoted, to and love the child, who is a special treasure to them, because he will be their only genetic child. The child has a primary attachment with them, and plainly they both will be good role models for him as he grows and matures into an adult.
The real question is whether he would benefit from a meaningful relationship with the birth mother. Although ordinarily one might expect that he would, sadly, here the parties’ conflict looms large. Ms K reported that the birth mother was “articulate, strong minded and deeply angry and frustrated about the events around her surrogacy.” She told Ms K that she had concluded that the genetic parents were unfit to parent the child, and even when speaking with Ms K said that she wanted to have the child back and put him up for adoption. She was concerned that the child would be physically harmed by the genetic mother in a temper. She refused to be reassured that in fact the genetic parents were adequately caring for the child. Ms K concluded that the birth mother “is left deeply angry and resentful about many perceived injustices done to her. She resents her unfair treatment and has been deeply hurt by losses and damage she perceives has been done to her family of origin and to her extended family (some members have rejected her).” Even before me, the birth mother contended that the genetic mother was both “suicidal and homicidal.”
After Ms K’s initial interview with the birth mother had concluded, the birth mother contacted her and advised that in fact her position now was that she wanted “shared custody of my legal son.” Ms K was concerned that the birth mother “cannot see that [the child] is primarily attached to [the genetic parents] and to disturb this will undermine him profoundly.”
Ms K addressed this issue in her oral evidence before me. She said that unfortunately the level of conflict between the adults was pervasive, entrenched, long standing and ongoing. She said that it was not in the child’s best interests for him to be exposed to that dynamic. She said that family conflict tears children up at every psychological level. She said that it was likely that the conflict between the parties would assume centre stage, and whilst it may improve over time, she could not confidently predict that.
She said that, apart from the question of ongoing conflict, and the child’s exposure to it, otherwise the child would likely benefit from a meaningful relationship with the birth mother. However I note her concerns that the child may “find out in the worst possible way about his origins” given the level of publicity which this case has already generated. Plainly any continuing hostility between the parties will only work to potentially compound the difficulties which may ultimately ensue when he finds out about his origins.
In this context I should also note some concerns that I have about the birth mother, arising from the inconsistent way in which she has conducted herself in relation to the child. Particularly:
·Initially she agreed, under the surrogacy agreement, to surrender the child to the genetic parents;
·Next she contemplated aborting the child, and it seems would likely have done so but for the fact that the pregnancy was too advanced;
·Next she wanted to give the child up for adoption;
·Next she wanted to have shared custody of the child;
·Finally, her position before me was that she wanted to have the child spend time with her, including occasional overnights.
The fact that the birth mother has, within a relatively short space of time, had such completely conflicting wishes in relation to the child is concerning, although I accept it may be simply the consequence of her being involved in the relatively uncharted waters of altruistic surrogacy. Nonetheless, I do have some concerns in relation to those considerable variations in her wishes for the child.
However, the fundamental difficulty which this case presents is that, so long as there is a substantial prospect that the child will be exposed to adult conflict and hostility by virtue of having a relationship with the birth mother, any benefits that might ensue from that relationship would be vastly outweighed. Sadly, I am well satisfied that the birth mother remains angry, hostile, offended and desirous of punishing the genetic parents. I share Ms K’s concerns that the birth mother may be using the child to punish his biological parents, in that she is using her legal rights in a way which she knows is deeply upsetting and potentially harmful to them. I accept the submissions of the genetic parents that the birth mother “is locked on a revenge path”.
I am therefore not satisfied, in the circumstances of this case, that the child would benefit from a meaningful relationship with the birth mother.
RISK OF HARM POSED TO THE CHILD BY THE PARTIES
Plainly neither of the genetic parents pose any risk of harm to the child. The concerns which the birth mother raised with Ms K, that they were likely neglecting him or may shake him in anger and harm him, are so fanciful that they must be dismissed out of hand.
As to the birth mother, the risk of harm which Ms K identified that she posed was the potential exposure of the child to adult conflict. She said that that conflict will particularly impact upon the child if – when – he finds out about the negativity surrounding his birth. I am satisfied that the risk of harm to the child of that kind arising from exposure to conflict is real and substantial. The unusual circumstances of his conception and birth will be difficult enough for the child to ultimately deal with, to say nothing of the likelihood that he will find out about the acrimony and hostility associated with his birth, because it is known within the community and readily available on the internet. The concern is that to couple that with ongoing exposure to hostility between the adults is a recipe for disaster in relation to the child. I accept Ms K’s evidence that exposure to it will invariably adversely impact on the child.
Although arising from a most unusual set of facts, I am satisfied that the risk of harm to the child posed by the birth mother is of a magnitude that can be legitimately be described as unacceptable.
I then turn to the means available to mitigate the risk. Supervision was not contended by any person; in any event the Full Court decisions of Moose & Moose [2008] FLC 93-375, Slater & Light (2013) 48 Fam LR 573 and Gorman & Huffman (2016) FamCAFC 174, would make indefinite supervision problematic, unless it were coupled with a mechanism for its review in the future, which would likely necessitate further litigation. There is no other means of adequately mitigating the risk of harm to the child.
PARTIES’ CAPACITY TO PARENT THE CHILD
Ms K’s reports in relation to the genetic parents’ raising of the child are glowing. I am well satisfied that they have ample capacity to parent the child.
Likewise it seems indisputable that the birth mother has the capacity to physically care for the child, in that she has successfully raised her son to an earlier relationship, and whilst he was not in the birth mother’s care when Ms K attended her home, she had no difficulty in concluding that the birth mother was nonetheless a capable parent. I accept that evidence.
LIKELY EFFECT ON THE CHILD OF NOT HAVING RELATIONSHIP WITH BIRTH MOTHER
Ms K’s evidence was that the lack of any relationship between the child and the birth mother would not harm him, because he would have no concept of what he would be missing. Moreover, she opined that, given the adult conflict, it would positively benefit the child not to have contact with the birth mother, because it would shield him from exposure to the adult conflict. I accept that evidence.
SECTION 60CC CONSIDERATIONS
It will be appreciated that this case is not an easy fit to a standard application of s 60CC considerations, because the biological mother, in whose care the child is jointly in, is not in law a parent for the purposes of the Family Law Act. However I am satisfied that pursuant to s 60CC(3)(m) the fact that the child has been, virtually since birth, in the sole care of his biological parents, is a fact or circumstance that mandates a consideration of both the primary and additional considerations in a way that takes into account that fact and the biological mother’s relationship with the child, as contemplated by Ryan J in Mason & Mason (supra) at [45]-[46].
With that in mind, it will be appreciated that I have already addressed both of the primary considerations and some of the additional considerations when discussing the issues. Nonetheless I make the following observations relevant to those additional considerations that I have not traversed.
The child is clearly too young to express any views.
The birth mother is likely liable for child support, but in the circumstances of this case, no criticism could be made of her for failing to maintain the child, not least because no doubt the genetic parents would not want, and would likely resent, any attempt by the birth mother to maintain the child.
The parties live close enough together that there would be no difficulty or expense in the child spending time and communicating with the birth mother.
There is a real prospect that ordering time and communication between the birth mother and the child may lead to further proceedings, if she wished to have any requirement for supervision of her time removed, or wished to increase the time which she spent with the child. On the other hand there is some prospect that if no time is ordered, she may again seek to litigate that issue in the future.
The child has foreign heritage, however since that is shared by both the birth mother and the genetic mother, each present a potential pathway to his knowledge and experience of that culture.
PARENTAL RESPONSIBILITY
There was no dispute that the genetic parents should have sole parental responsibility. I am satisfied that the birth mother’s concession in that respect is justified. By virtue of s 61C(1) she presently has shared parental responsibility for the child with the genetic father. However I am satisfied that it would not be in the best interests of the child for the birth mother to have any parental responsibility for him, because no parties’ proposal would see the child ever live with her, and to allow her input into decision making would be unworkable, because of the intractable hostility between the genetic parents and the birth mother, which seems insoluble and likely permanent.
There will be an order that the genetic parents have equal shared parental responsibility in relation to the child, and I am satisfied that it is in his best interests.
WITH WHOM CHILD LIVES
There is no dispute that the child should primarily live with the genetic parents, and again I am well satisfied that such is in the best interests of this child. He has a primary attachment to both of the genetic parents, and is loved and cared by them, and reciprocates that love. The child will benefit from a meaningful relationship with both of them, and there is no suggestion that either of the genetic parents do not have the capacity to parent the child, or that they pose any risk of harm to him.
There will be an order that the child live with the genetic parents.
CHILD’S TIME WITH BIRTH MOTHER
This was the nub of the conflict between the parties. On the one hand the birth mother seeks to spend time with the child, culminating in overnight time. The genetic parents wish to leave open the opportunity for the birth mother to spend time and communicate with the child if, in the exercise of parental responsibility, they choose to do so. The Independent Children's Lawyer seeks an order positively prohibiting the birth mother from spending time or communicating with the child.
The following points favour the birth mother’s position, or tell against the genetic parents and Independent Children's Lawyer’s position:
·Knowing his birth mother may assist the child in learning in a positive way about the circumstances surrounding his conception and birth, but only if it does not expose him to adult conflict;
·Other than exposure to conflict, the birth mother poses no risk of harm to the child;
·There is no question mark in relation to the birth mother’s capacity to physically care for the child if he was spending time with her;
·It may allow him to develop a relationship with G.
On the other hand the following matters tell in favour of the genetic parents’ position, or are contrary to the birth mother’s position:
·The child is presently primarily attached to them, and any disruption to that attachment may profoundly undermine him;
·It is difficult to see how the child could have a relationship of any kind with the birth mother, without a significant risk of being exposed to adult conflict, which will then likely adversely impact upon him not only directly and immediately, but more insidiously, likely harm him when it comes time for him to understand the circumstances surrounding his conception and birth.
·I am deeply troubled by the prospect that the birth mother would use her connection with the child to seek to inflict harm upon the genetic parents. It is likely that she has a desire to extract revenge for what she believes to have been the terrible slights and insults which the genetic parents have inflicted upon her;
·The genetic parents have clear capacity to parent the child;
·Not knowing the birth mother, or having a relationship with her, will not adversely impact upon the child;
·Having a relationship with the birth mother is likely to harm the child if exposed to adult conflict, which seems inevitable.
As I understand it, the reason why the Independent Children's Lawyer seeks a more restrictive order than the genetic parents do, is to guarantee that the risk of harm to the child from being exposed to adult conflict via the birth mother is wholly alleviated. Moreover, it leaves no possibility for the birth mother to seek to communicate with the genetic parents in relation to her spending time or communicating or otherwise developing a relationship with the child. However in my view, the genetic parents should be trusted with the responsibility of, should they wish, permitting the child to know the birth mother.
Weighing those factors in the balance, to my mind tells strongly in favour of the position of the genetic parents. There will therefore be an order that the child spend no time with the birth mother unless the genetic parents permit it.
I should make it plain that, if I am in error in concluding that the genetic father is a parent of the child for the purposes of the Family Law Act, I would nonetheless still arrive at the same conclusion in relation to this issue for the same reasons.
DECLARATION OF PARENTAGE
Section 69VA of the Family Law Act provides:
As well as deciding, after receiving evidence, the issue of the parentage of a child for the purposes of proceedings, the court may also issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.
The genetic parents contended that either s 69VA was a stand alone power to make such an order, or in the alternative, if it were not, that there had been an issue in dispute as to the parentage of the child, by virtue of the birth mother’s then solicitors’ communication to their solicitors in January 2017.
However it is now plain from Bernieres & Dhopal (supra) that s 69VA is not a stand alone power available to remedy any difficulties which s 60HB may give rise to: at [62] and [63]. Indeed the Court expressly disapproved of the use of s 69VA to remedy a gap in the relevant legislation, as had been done in Green-Wilson & Bishop [2014] FamCA 1031.
Moreover, this is not a case where, in the hearing before me, there was any factual dispute as to genetic parentage of the child. That issue had resolved by the DNA tests. Therefore s 69VA is not available to assist the applicants here, notwithstanding that the practical consequences of that may be far reaching.
CHANGE OF CHILD’S NAME
The genetic parents should be able to determine the child’s name. I am satisfied that the birth mother should be obliged to co-operate to cause the child’s birth registration details to change his name to that selected by the genetic parents, namely C Sorensen.
However the genetic parents also seek orders that the birth mother should be required to co-operate to cause the birth registration details to record them as the father and parent of the child.
I am satisfied that the genetic father is, by virtue of s 23(4) of the Status of Children Act, the father of the child for the purposes of Queensland law, and therefore the birth mother should be obliged to cooperate so as to cause the birth registration details to reflect that legal position. On the other hand I am not satisfied that she should be coerced into recording the genetic mother as a parent of the child on the birth certificate, because under Queensland law, that is not her legal status. An injunction of the kind sought by the genetic parents should not be granted so as to subvert a legal status by the back door.
PASSPORTS
I am satisfied that the orders in relation to passports sought by the genetic parents, if efficacious, are in the child’s best interests and will make them. However I would have to say that I am not convinced that such orders will necessarily see a passport issued to the child, as that will ultimately be a matter for the relevant issuing authority.
PROHIBITION ON COMMENT BY BIRTH MOTHER
The genetic parents and the Independent Children’s Lawyer also proposed orders that the birth mother be restrained from publishing information about these proceedings on the internet, social media site or to the media. Specifically, the genetic parents sought in their revised orders dated 10 February 2017, that “the Respondent is restrained from posting any information about this case, the child or the surrogacy on any social media site on the internet”. Similarly, the next order sought “the Respondent is retrained from giving an interview to any person, including a media outlet or journalist, or provide for viewing or copying to any person any material, including court documents and any document released under subpoena, about this case of the surrogacy”. The Independent Children’s Lawyer sought a similar order in her outline of case.
In the submissions of the applicants, they argued that “specific restraints are needed [to be imposed on the birth mother], as the Court cannot assume that the respondent will abide by s 121 of the Family Law Act.” Ordinarily, s 121 operates to protect parties and children to family law proceedings by making it an offence to publish or disseminate to the public by any means, information which would identify the parties, children or any person related to the proceedings. The question is whether the injunctive orders sought by the ICL and the applicants are warranted when s 121 accommodates their concern.
The authorities on this issue state that injunctions merely restating the effect of s 121 of the FLA are unnecessary and undesirable, and that such an injunction should only be granted in “special circumstances.”[2] In Re South Australian Telecasters Ltd (1998) 23 FamLR 692, Nicholson CJ held that an injunction should be granted restraining a television station from broadcasting a segment on a Current Affair relating to interim parenting residence proceedings in the Family Court. The facts of that case involved evidence in which the program would have clearly identified the children, where the reporting was found to be inaccurate and had the effect of bringing the court into contempt or lowering its authority, and would also place improper pressure upon the judicial officer. As a result, His Honour found that these facts were “exceptional circumstances” and granted the injunction.
[2] Gibb and Gibb (1978) FLC 90-405; Re Schwartzkopff (1993) FLC 92-381; Sitwell & Sitwell [2014] FamCAFC 5; Re South Australian Telecasters Ltd (1998) 23 FamLR 692.
Again in Xuarez & Vitela [2012] FamCA 574, the Independent Children’s Lawyer sought injunctions against the father, requiring him to remove content from a website he created, and to not publish similar material again. The content on the website included details of the family law proceedings, the parties’ details and the names and photographs of the lawyers involved in the case. Forrest J said at [50]-[52] when discussing the power to grant such injunctions:
50. Clearly, the Full Court (differently constituted on two occasions), and the former Chief Justice of this Court, considered that there is power to grant an injunction, in cases where special circumstances exist, to restrain a contravention of s 121. Particularly, I am satisfied the power to enjoin exists where the publication in contravention of s 121 also contemptuously scandalises the Court. In my view, the power exists in such circumstances as a part of the Court’s inherent power to control its own process.
51. Additionally though, as the substantive proceedings between the parties in this case solely relate to the parenting of their children, the Court has the express power, as was pointed out by counsel for the mother, to grant such injunction as it considers appropriate for the welfare of those children. That express power is found in s 68B of the Family Law Act. Further, s 114(3) expressly confers power on the Court to grant an injunction in any case in which it appears to the Court to be just or convenient to do so as an adjunct to the valid exercise of jurisdiction otherwise under the Act.
52. In this particular case, I am satisfied that I have the power to grant the injunctions sought by the ICL arising from those sources just identified.
His Honour found that the publication fell within the “exceptional circumstances” category because it was published on the internet, accessible by anyone in the world, and the material clearly contemptuously scandalised the Family Court and deliberately intimidated the lawyers and the Independent Children's Lawyer in that matter. However, His Honour only granted the injunction for the father to take down the material on the website and did not grant the second injunction which restrained him from publishing in any way whatsoever written material on the internet relating to the proceedings. The reason for this was that His Honour was of the view that the father did not intend to publish similar material on the website in the future and said at [60]:
..In the absence of clearly identified proposed publication of material that would contravene s121 and impact upon the welfare of children and/or scandalise the Court, that the Full Court’s recognition of the need for caution in respect of the use of injunctive powers within the realm of that which is intended to be covered by s 121, is appropriately heeded.”
Lastly, the Full Court in Sitwell & Sitwell [2014] FamCAFC 5 reiterated the principle that an injunction merely restating the effect of FLA s 121 is unnecessary and undesirable. Their Honours went on to say, when discussing the “special circumstances” in which injunctions may be granted, at [65]:
….In our opinion, evidence to the effect that the material to be published is likely to impact upon the welfare or best interests of the children may be sufficient to demonstrate “special circumstances”. Similarly, evidence to the effect that the material to be published contains scandalous disparagement of courts or judicial officers which is likely to impair their authority, or serious and baseless attacks on the integrity or impartiality of courts or judicial officers, may also be sufficient to demonstrate “special circumstances”. The category of circumstances which might fairly be described as “special”, whether individually or in combination with other circumstances, is not closed.
From these authorities, it seems whatever source of power the Court uses to grant the injunction, whether s 68B or s 114 of Family Law Act, without “special circumstances” to justify a departure from the general principle that an injunction which merely restates s 121 is unnecessary and undesirable, the Court should not grant such injunctions.
Turning to the facts of this case, one could argue that there are “special circumstances” in which specific restraints should be placed on the birth mother. In the Applicant’s submissions, they refer to the birth mother already having provided a box of material to the media. As a result he parties’ ‘Private and Confidential’ psychological assessment report and excerpts from correspondence between the parties’ lawyers was made public. Whilst the name of the applicants are not stated in the media report, the respondent and her solicitor (at the time) were identified and the intended parent is identified as a relative of the birth mother. There has also been information presented on the on an associated website,[3] containing direct quotations of the solicitor then representing the respondent, which refers to this case.
[3] Exhibits 8 and 9.
However there is no evidence that the birth mother intends to, or from which I could infer is likely to, repeat her media engagement in relation to this case, or make social media or other online commentary about it in a way that would offend s 121. The fact she has – very unwisely – done so in the past, does not to any real degree inform her likely future behaviour.
Moreover such injunctions, in the terms proposed, would likely prohibit the birth mother from in the future making any commentary – even anonymously to a journalist or otherwise – about her experience of the surrogacy process. The public has a legitimate interest in surrogacy, and the debate about the issue can only be better informed if those who have experience of it are able to speak about it, albeit in a way which does not offend s 121.
I am therefore not satisfied that there are special circumstances established here, and decline to order the injunctions.
BIRTH MOTHER’S CONTENDED ORDERS
The birth mother sought injunctions restraining the genetic parents from denigrating her, or permitting others to denigrate her, and vice versa. I am satisfied that should indeed not occur in the presence of the child, and will so order.
She further seeks orders that the genetic parents are to ensure “at an age appropriate time, that the child knows about his birth origins and that the respondent was his birth mother under a surrogacy arrangement.”
Such an order would derogate from the general order for parental responsibility which I intend to pronounce in favour of the genetic parents. I am not persuaded that such an erosion of their rights under that order should be made, particularly given the very vague way in which the order is sought to be cast, which seems to invite further disputation between these parties as to when an age appropriate time arises.
CONCLUSION
For these reasons there will be orders as set out at the commencement of this judgment.
I certify that the preceding one hundred and thirty-two (132) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 21 September 2017.
Associate:
Date: 21 September 2017
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