Lowe and Barry and Anor
[2011] FamCA 625
•5 August 2011
FAMILY COURT OF AUSTRALIA
| LOWE & BARRY AND ANOR | [2011] FamCA 625 |
| FAMILY LAW - CHILDREN – surrogacy- parental responsibility – with whom a child lives |
| Family Law Act 1975 (Cth) ss 60B, 60CC, 61B, 64, 65D Surrogacy Contracts Act 1993 (Tas) s 3 |
| Dudley and Anor & Chedi [2011] FamCA 502 Wilkie and Anor & Mirkja [2011] FamCA 667 Aldridge & Keaton [2009] FamCAFC 229 |
| Brown L, The New Shorter Oxford Dictionary on historical Principles, Clarendon Press, Oxford 1993 Watson Janu P “Surrogacy Arrangements in Australia: Analysis of the Legal Framework” (1995) 9 Australian Journal of Family Law Harland A, Cooper D, Rathus Z and Alexander R “Family Law Principles” (2011) |
| APPLICANTS: | Ms Lowe and Mr Lowe |
| RESPONDENT: | Ms Barry |
| SECOND RESPONDENT: | Mr Taylor |
| FILE NUMBER: | HBC | 71 | of | 2011 |
| DATE DELIVERED: | 5 August 2011 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart in Chambers |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 25 May 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Not applicable |
| SOLICITOR FOR THE APPLICANT: | Not applicable |
| COUNSEL FOR THE RESPONDENT: | Not applicable |
| SOLICITOR FOR THE RESPONDENT: | Not applicable |
Orders
L Lowe born … November 2010 (“the child”) live with the applicants.
The applicants have sole parental responsibility for the child.
The child spend time with the first and second respondents at such times as may be agreed between the parties or otherwise ordered by a Court exercising jurisdiction under the Family Law Act 1975 (Cth).
Reasons will be published in due course.
IT IS NOTED that the father will provide the child with an age appropriate explanation of his origins at a time to be decided by the applicants.
Pursuant to s.65DA(2) and s.62B, 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 that publication of this judgment under the pseudonym Lowe & Barry and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER: HBC: 71 of 2011
| Ms Lowe and Mr Lowe |
Applicants
And
| Ms Barry and Mr Taylor |
Respondents
REASONS FOR JUDGMENT
INTRODUCTION
Surrogacy in one form or another is probably as old as humankind itself, whether the arrangements are by way of commercial, altruistic or other method. This case involves an apparently informal altruistic surrogacy entered into by some members of a family in respect of the child, L, who was born in November 2010.
Surrogate is defined in this context as:-[1]
Taking the place of or standing for something else … . Surrogate baby a baby borne by a surrogate mother.
[1] Brown L, The New Shorter Oxford Dictionary on historical Principles, Clarendon Press, Oxford 1993.
In a community understanding, surrogacy is said by Wikipedia to be:-
… an arrangement in which a woman carries and delivers a child for another couple or person. This woman may be the child's genetic mother (called traditional surrogacy), or she may carry the pregnancy to delivery after having an embryo, to which she has no genetic relationship, transferred to her uterus (called gestational surrogacy). If the pregnant woman received compensation for carrying and delivering the child (besides medical and other reasonable expenses) the arrangement is called a commercial surrogacy, otherwise the arrangement is sometimes referred to as an altruistic surrogacy.
Surrogate parenting arrangements vary from the understandable aspirations of families (whether single parent, heterosexual or same sex relationships) to more sinister aspects including use of children for body parts or of children for exploitation. There are aspects of surrogacy (in the broader context of the use of that term) which reflect the cultural practices of some particular communities, such as Kupai Omasker within the Torres Strait Islander groups and similar practice in other Melanesian cultures within the South Pacific basin. It seems clear that prohibition of surrogacy does not work and in Australia, most States approach this difficult policy issue by way of regulation. Such regulation is difficult in a globalised world where travel from continent to continent is no longer difficult. Added to this, in some parts of the western world, there is wealth to the extent that funding of surrogacy (whether commercial or altruistic) is easily achieved.
In an article by Penne Watson Janu called “Surrogacy Arrangements in Australia: Analysis of the Legal Framework”[2] she describes a surrogacy arrangement as an arrangement whereby a woman (“the surrogate mother”) agrees to conceive and bear a child, which she intends to transfer to another or others (the “commissioning couple” or “commissioning husband” and “commissioning wife”) upon the child’s birth. Surrogacy arrangements may be made on a commercial basis (where the mother is paid for bearing and transferring the child), or on a non-commercial or altruistic basis where no payment is made (although costs such as medical expenses may be paid for by the commissioning couple). Having regard to the earlier comments, this is an accurate but perhaps limited definition of the term surrogacy. A surrogacy arrangement may involve a total or partial surrogacy. A partial surrogacy involves the use of the surrogate mother’s egg in achieving the pregnancy and the surrogate mother will be related to the child. The egg is fertilised either by sperm from the commissioning husband/father or from a donor. A total surrogacy arises where a donor embryo is implanted into the surrogate mother. The surrogate mother has no connection with the child.[3] Modern science and medical skill surrounding the creation of life are now well ahead of legal, social and legislative policy.
[2] (1995) 9 Australian Journal of Family Law at page 200.
[3] Harland A, Cooper D, Rathus Z and Alexander R “Family Law Principles” (2011) at page 139.
In Australia the creation of effective policy will be difficult particularly on a State by State basis. These policy issues probably need to be dealt with on a national, whole of continent consistent basis, including having regard to Australia’s international treaty obligations.
These particular proceedings involve an application filed in January 2011 by the so called ‘social parents’; Ms and Mr Lowe. The applicants asked the Court make consent orders to give them parental responsibility for, and the care of, the child L. Their application seeks to put in place an effective legal structure by way of orders under the Family Law Act 1975 (Cth) (“the Family Law Act”) reflecting the current parenting arrangements for the child. He has lived with the applicants since he was born. At all material times, the applicants resided in Tasmania. The child was born in Tasmania and has lived all of his life in Tasmania.
The respondents, Ms Barry and Mr Taylor, are the child’s biological parents, and at all material times they resided in New South Wales, except for when Ms Barry travelled to Tasmania to live with the applicants during her pregnancy with the child. Ms Lowe is Mr Taylor’s aunt and as such she is the child’s biological great aunt.
In December 2009, the respondents offered to have a child for the applicants. It was their stated intention that once the child was born, he or she would be deemed to be and would be treated as, a child of the applicants. Ms Barry and Mr Taylor said that they did not want a parenting role in the child’s life. They decided to forfeit any right or obligation to do so in respect of the child.
In accordance with the intention of all the parties involved, the child was handed, by Ms Barry and Mr Taylor into the care and responsibility of Ms Lowe and Mr Lowe at and from his birth.
There was no exchange of money between the parties.
At the time their application for consent orders was filed, Ms Lowe was aged 43 and Mr Lowe was aged 61. Both are in good health. They have been married for about 17 years.
The applicants are unable to have any biological children of their own. Ms Lowe underwent a hysterectomy as a younger woman due to health issues, which issues are now resolved. Neither Ms Lowe nor Mr Lowe had any children prior to their marriage.
The applicants have a daughter, M, aged 13. M was conceived by way of an intrauterine implantation of Mr Lowe’s sperm and an egg from Ms Lowe’s sister, R. In addition, R carried the fertilised egg that became M from implantation until birth. M has disabilities including spina bifida and autism. She is wheelchair dependent.
Ms Barry was aged 19 and Mr Taylor was aged 21 at the time the application for consent orders was filed. They have a daughter N who, at the time the Family Report was prepared, was about two years old.
In December 2009 the respondents offered to have a child for the applicants. Their offer was accepted after some discussion. After the first trimester of her pregnancy with the child L, Ms Barry moved from New South Wales to Tasmania to live with the applicants. She lived with them for the remainder of her pregnancy. Mr Taylor remained in New South Wales due to work commitments.
The applicants assisted Ms Barry with the care of N, and they attended all appointments with her during her pregnancy with the child L. Ms Lowe was present at L’s birth.
The applicants intend to adopt the child when and if they are able to do so. The domestic law, as it presently stands in Tasmania, does not allow for this to occur.
When the application first came before me, I was concerned about the proposed parenting arrangements, including having regard to the legal and social need for this child to know his parents and the culture and traditions of his biological families. I directed the preparation of a Family Report. That report was prepared and was in evidence before me when I considered the application.
THE RELEVANT LEGAL PRINICPLES TO BE APPLIED
The law in Australia in relation to surrogacy is complex. There is no uniform legislation between the States and Territories governing surrogacy. The Commonwealth Government lacks the constitutional power to enact effective national legislation. I am not aware of any proposal that the States refer the necessary legislative powers to the Commonwealth to enable the creation of such a uniform system.
However, there is some indication of policy development. Watts J observed:-
In very recent times Australia has been moving towards a uniform position in relation to the legality of surrogacy arrangements[4] and all places in Australia, except Tasmania and the Northern Territory, now have laws about surrogacy arrangements.[5]
State laws have aimed to protect women and children from what the legislature has seen as abusive practices which potentially surround the commercialisation of surrogacy. At this date, all State laws that have been enacted authorise altruistic surrogacy and make illegal commercial surrogacy[6].[7]
[4] See for example “A Proposal for a National Model to Harmonise Regulation of Surrogacy January 2009” by a Joint Working Group of the Standing Committee of Attorneys-General, Australian Health Ministers’ Conference and Community and Disability Services Ministers’ Conference which proposed that uniform laws be introduced so that commercial surrogacy be illegal on the basis that it, “commodifies the child” and “risks the exploitation of poor families for the benefits of rich ones”.
[5] Watts J Dudley and Anor & Chedi [2011] FamCA 502 at paragraph 13.
[6] For example, s 8 of the Surrogacy Act 2010 (NSW) provides: “A person must not enter into, or offer to enter into, a commercial surrogacy arrangement.”
[7] Watts J op cit note 5 at paragraph 14.
In Tasmania s 3 of the Surrogacy Contracts Act 1993 defines a surrogacy contact as:-
a contract, agreement or arrangement, with or without payment or reward, under which –
(a)a person agrees to become, or is already, pregnant and agrees to surrender to another person the custody or guardianship of, or rights in relation to, a child born as a result of the pregnancy; and
(b)the other person agrees to accept custody or guardianship of such a child.
Under the Tasmanian Act it seems surrogacy agreements, whether ‘with or without payment’, may presently be prohibited. Section 4 of the Act provides that a person must not introduce, or agree to introduce, prospective parties to a surrogacy contract. Penalties[8] include a fine or a period of up to twelve months imprisonment for those found to have acted in breach of the section. In this case it is not clear in which State the contract was entered into and/or whether it is the parties to the agreement who may be in breach of the law, or whether it is directed at third parties who facilitate such agreements. Either way that is not a matter for me.
[8] See section 4 of the Surrogacy Contract Act 1993 (Tas).
In Tasmania the legal status of a child born through surrogacy is in the process of possible change. Currently before the Tasmanian Parliament is a draft Bill, entitled the Surrogacy Bill 2010 (“the Bill”). If enacted the Bill would provide a legal mechanism for the parentage of a child born as the result of a surrogacy arrangement to be transferred from the biological mother to the intended parents.
In the circumstances of this present legal lacuna, Ms Lowe and Mr Lowe have made this application to the Family Court so that orders can be made about parental responsibility and where the child should live.
Section 65D of the Family Law Act enables a court, subject to s 61DA and Part VII of the Act, to make such parenting orders as it thinks proper.
Section 61B of the Family Law Act defines parental responsibility to be “all the duties powers, responsibilities and authority which, by law, parents have in relation to children”. Orders made by this Court can only confer parental responsibility for children who have not yet attained 18 years of age.[9]
[9] Section 61C of the Act.
Ms Lowe and Mr Lowe 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.
Section 64B(2) of the Family Law 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.
The catch-all in section 64B is that the court can make a parenting order that provides for any aspect of care, welfare and development of a child or any aspect of parental responsibility of the child.[10]
[10] Wilkie and Anor & Mirkja [2011] FamCA 667 at paragraph 12.
Section 64 further provides that the persons referred to in the section have the same entitlements and responsibilities if a parenting order is made in their favour, regardless of whether or not they are parents 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 Family Law 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”. This is the basis upon which Ms Lowe and Mr Lowe make their application.
I am satisfied that this court has jurisdiction to make an order relating to the child L under the Family Law Act.
BEST INTERESTS
Having established that there is jurisdiction for the Court to make the orders, the Court must then turn to section 60B of the Family Law Act. Section 60B 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.
Watts J in Dudley and Anor & Chedi [2011] FamCA 502 considered the question of “best interests” and said at paragraph 37:-
There is a general policy question as to whether or not I should make the requested orders, which could be perceived in some sense to sanction acts which were illegal in Queensland at the relevant time and which were against public policy … .
His Honour went on to say that the paramount consideration in determining whether or not the order sought was appropriate was whether it was in the best interests of the child.
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 factors set out in s 60B of the Act were considered by the Family Consultant. At paragraph 37 of the Family Report dated 24 May 2011, she says:-
The pre-conception discussions held by the two couples appear to have explored many of the issues that arise from surrogacy. It will be important that they continue to have such discussions and develop a shared understanding of what is in [the child’s] best interests in terms of explanations and future contact with his biological parents as part of his extended family network and also what is in [N’s] best interests (not to mention that of any other children that [Ms Barry] and [Mr Taylor] might have in the future and who would therefore by full siblings biologically to [L]).
In this case, the respondents have made it clear that they do not want to have any involvements in the child’s life as parents. They want to be seen as the child’s aunt and uncle, and for their daughter N to be a cousin to L.
All of the parties are of the firm belief that if Ms Barry and Mr Taylor were to take on any joint parenting role with Ms Lowe and Mr Lowe, it would only cause confusion for the child and affect his sense of identity and bond with Ms Lowe and Mr Lowe. They believe that there may be a risk of psychological harm to the child, if he were to be told of the facts surrounding his birth before he had reached an appropriate age/level of maturity.
In the further statement of agreed facts filed 15 March 2011, the applicants said that they intend to seek counselling for the child. This is to assist them in determining when he has reached an appropriate maturity level to be informed of his natural parentage, as well as the best way to inform the child.
The Family Law 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 Ms Lowe and Mr Lowe are not “parents” for the purposes of the Family Law Act, they have for all intents and purposes fulfilled the role of parents in the child’s life since his birth. He has always known them as his parents, and they are the people who have an interest in his welfare. Ms Lowe and Mr Lowe visited the child in hospital every day following his birth and took responsibility for feeding and bathing him. The child was released from hospital into their care, and they have taken him to regular appointments with the community nurse. They helped care for the child while he recovered from a collapsed lung.
Their capacity as parents is supported by the observations of the Family Consultant at paragraph 31 of the Family Report dated the 24 May 2011 where she says:-
[The child] will grow up in what appears to be a loving household with the support an extended family.
The Family Consultant goes on to say at paragraph 38:-
They have experience as parents and have impressed others with their commitment and skills. They are already closely attached to [the child] as is their daughter [M]. … They are inclusive of [the child’s] biological parents and are aware of the importance of providing him with age appropriate explanations of his origins. Therefore it appears appropriate for parenting orders to be made as they request.
The Act also provides that one of the objectives which the Court needs to have regard to when considering making the orders sought is the child’s right to enjoy their cultural heritage. In this case, the child is of Aboriginal and Torres Strait Island heritage. In their further statement of agreed facts filed 15 March 2011 the applicants said that they intend to encourage the child if he wants to find out about his heritage, and to assist him in making a connection with his culture if he so desires to.
A further objective which the Family Law 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 Family Law 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. To that end, I am aware of the comments made by the Full Court in Aldridge & Keaton [2009] FamCAFC 229 (Bryant CJ, Boland JA & Crisford J). The facts in that case involved a dispute between a couple in a same sex relationship. The child was the biological child of the mother and conceived through in vitro fertilisation via an unknown donor. One of the grounds of appeal was whether the trial judge had made an error in law by taking into account the provisions of s 60B and s 60CC that were only applicable to parents. At paragraph 119 the Full Court said:-
In short, we are satisfied that the Chief Federal Magistrate based his consideration of this child’s best interests on his determination of relevant matters. In accordance with well recognised principles an “overly critical, or pernicky” examination of his reasons is not appropriate (AMS v AIF (1999) 199 CLR 160 per Kirby J at 211; see also A & J (1995) FLC 92-619 at 82,232). We accept other judicial officers may have given more weight to the matters the mother raised, such as her sole financial responsibility for the child and matters relevant to the child’s sense of identity as she matures and questions the role of the applicant in her life, but that is not the test. We also accept that the Chief Federal Magistrate could have referred to relevant matters which would normally be considered in respect of a parent, by specifically referring to those matters under s 60CC(3)(f) and (m), but we do not accept he fell into appealable error by using the framework of ss 60CC(2) and (3), with appropriate qualification, to arrive at his ultimate determination. We are satisfied there is no merit in this challenge.
Section 60CC(2)(a) The benefit to the child of having a meaningful relationship with both of the child's parents;
This factor is a significant and challenging feature of this application. There is no doubt a benefit in the child having a meaningful relationship with his biological parents, however those parents have, for altruistic reasons, decided the best place for this child to live is with Ms Lowe and Mr Lowe. All the relevant adults implemented that determination from at least the time of the child’s birth. The child has bonded with the applicants and regards them as his parents. I am satisfied that the child has a meaningful relationship with the applicants, but they are of course not his parents in the legal sense. At this stage the child is very young and it is unlikely that he will be attached to his biological parents, but the consequence of these orders are that he will know of them and their respective family backgrounds and culture. He will have an ongoing relationship with his biological parents and their families although he may not have a meaningful relationship with his biological parents until he is older. This finding is supported by the Family Consultant where she says, at paragraph 31 of the Family Report dated 24 May 2011:-
He will know of his biological parents but is unlikely to have much personal familiarity with them until he is much older unless his parents relocate back to NSW. He will therefore be able to make sense of who he is and where he came from. Unlike a child where the surrogate parents are non-related, [L] has a loving extended family of which he is biologically a part. Many extended families assist by raising children born to relatives who are unable to care for them. Whilst that is not the case here, there are similarities in terms of the close connectedness and bonds that develop for a child in such an extended family network. In some cultures it is a readily accepted practice that a related family will bear a child for an infertile couple. It is not known whether [Mr Taylor’s] aboriginal heritage influenced his thinking on this issue.
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
There was no evidence of any family violence issues in the material filed by the parties.
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 very young and his views are not a relevant consideration in these proceedings.
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);
Having regard to the material filed by the applicants, I am satisfied that they have developed a close bond with the child from an early age. Ms Barry moved to Tasmania to live with the applicants when she was approximately three months pregnant. They say that this was to enable the child to develop a familiarity with them through hearing their voices and for them starting to take responsibility for him by attending antenatal visits with Ms Barry.
From the material, it appears that M, the applicant’s daughter, has also developed a close relationship with L. This is also supported by the observations of the Family Consultant, which I have discussed elsewhere in these Reasons.
Section 60CC(3)(c) the willingness and ability of each of the child’s parents to facilitate, and encourage a close and continuing relationship between the child and the other parent;
All of the relevant adult parties are open and willing to facilitate a continuing relationship between the child and his biological family. Having regard to the nature of the parenting agreement and the geographic distance between the parties, that relationship is unlikely to be close. The applicants have said that they will inform the child of his origins when it I appropriate for them to do so. At paragraph 38 of the Family Report the Family Consultant says of Ms Lowe and Mr Lowe:-
… They are inclusive of [the child’s] biological parents and aware of the importance of providing him with age appropriate explanations of his origins.
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;
In the material filed by the parties, Ms Barry and Mr Taylor say that they have made it clear that they do not want to have any involvement in the child’s life as parents. They says that if the child were to live with them it would pose a risk of:-
psychological harm to [the child] by putting him in an environment where it was never intended that he live and with parents that he has not developed any attachment to. [11]
[11] At paragraph 22 of the further statement of agreed facts filed 15 March 2011.
They go onto say that Ms Lowe and Mr Lowe:-
have filled the role of parents in [the child’s] life since his birth, and he has always known them as his parents, any separation from them would be damaging to [the child].[12]
[12] Ibid at paragraph 23.
M, Mr Lowe’s biological daughter has formed a strong relationship with the child. At paragraph 15 of the Family Report, the Family Consultant says what [Ms Lowe] described that a strong bond has already formed between M and her baby brother: “she absolutely adores him … she’s very protective of him”.
The parties say that separation from M would not only be damaging to the child, but to M as well.
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;
At paragraph 31 of the Family Report the Family Consultant said that, although the child would know his biological parents, he “is unlikely to have much personal familiarity with them until he is much older unless his parents [Ms Lowe and Mr Lowe] relocate back to NSW”.
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 demonstrated that they have the capacity to provide for the child’s needs. They began demonstrating as much even before the child was born. They welcomed Ms Barry into their home prior to the child’s birth so that he could become familiar with their voices, and to enable them to be involved in antenatal visits.
After the child was born, the applicants attended hospital every day and took responsibility for meeting his needs, such as feeding and bathing him. They have continued to meet his medical needs by ensuring that the child has attended regular appointments with the community nurse and are up to date in his vaccinations.
Neither Ms Lowe nor Mr Lowe work. They are able to provide him with the full time care that a child of this age needs.
The applicants have been financially responsible for the child since his birth. They have provided him with all of his clothes and toys. The respondents have not provided any financial assistance for his care.
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;
The child is of Aboriginal heritage. As previously discussed elsewhere in these Reasons, the applicants have said they will encourage and support the child should he wish to find more about his Aboriginal or Torres Strait Island heritage. His relationship with his biological father is not hindered by the proposed orders and he will remain a feature of the child’s life.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
From the material filed by the parties, it is evident that they have demonstrated appropriate attitude towards the responsibilities of parenthood. The applicants have said they will seek counselling for the child to help them determine when he has reached an appropriate level of maturity for him to be informed of his natural parentage. They have also said they will seek guidance about the best way to tell the child about his natural parentage.
The respondents have said they do not wish to have any involvement in the child’s life as parents. Rather they wish to be seen as aunt and uncle figures. All of the parties are of the view that if they were to adopt a joint parenting role it would cause confusion for the child and may affect his sense of identity with Mr and Ms Lowe.
The evidence of the Family Consultant is that the parties had discussions prior to the child’s conception which appeared to have explored many of the issues that arise from surrogacy. This further demonstrates that the parties have adopted an appropriate attitude towards their responsibilities as parents to the child.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;
As discussed elsewhere in the reasons there was no evidence of family violence in the material filed by the parties.
Section 60CC(3)(k) any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
This is not a relevant consideration in these proceedings.
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;
The parties seek to make the orders by consent. Accordingly this is not a relevant consideration in these proceedings.
Section 60CC(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) 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; and
(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
I have considered these factors in the overall assessment of the evidence before me.
Section 61DA provides that the Court must, when making a parenting order in relation to a child, 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. That presumption can be rebutted if there is a finding that it would not be in the best interests of the child to apply that presumption.[13] In this matter, it is the parties’ view that it would not be in the child’s best interests for the respondents to have equal shared parental responsibility. In their further statement of agreed facts filed 15 March 2011, the respondents say at paragraph 19 that they do not want that responsibility. They go on to say at paragraph 24 that they have not participated in any decision making about short-term or long term issues in relation to the child (other than where and with whom he will be living) and do not wish to do so in the future.
[13] Section 61DA(4).
The circumstances in this case are such that it is not in the best interests of the child that the presumption should apply, that is that the biological parents should not have equal shared parental responsibility. In this case, such responsibility should rest with the applicants as they are in fact exercising that responsibility and appear to be doing so in a way that best meets the needs of the child.
I am satisfied that, in the circumstances of this case, it is in the bests interests of the child that orders be made for the applicants to have equal shared parental responsibility.
From the evidence, and considering all of the circumstances, I am satisfied that it is in the child’s best interests to live with the applicants.
I make these orders with some sense of unease, as this area of the law and social science are the subject of changing and polarised community views and approaches. However, I am satisfied that the child is safe, well cared for and loved in his current environment and having regard to all of the facts, factors and circumstances in terms of this child, these orders meet his best interests. Accordingly, I made the consent orders sought by all of the parties.
I certify that the preceding seventy seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 5 August 2011.
Associate:
Date: 5 August 2011
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