Masters & Anor and Harris
[2017] FamCA 450
•28 June 2017
FAMILY COURT OF AUSTRALIA
| MASTERS AND ANOR & HARRIS | [2017] FamCA 450 |
| FAMILY LAW – CHILDREN – Commercial surrogacy – where the children were born in Country B as a result of a commercial surrogacy arrangement – where the applicants seek parenting orders – where the respondent surrogate has been unable to be located – order that service required under rule 7.18 of the Family Law Rules 2004 (Cth) be dispensed with– order made for the applicants to have equal shared parental responsibility – order that the children live with the applicants |
| Family Law Act 1975 (Cth) ss 60CA, 60CC(2), 60CC(2A), 60CC(3), 61B, 61DA, 64B , 65C, 69ZN Family Law Rules 2004 (Cth) r 7.18 |
| Bernieres & Anor & Dhopal & Anor [2015] FamCA 736 Ellison & Anor and Karnchanit [2012] FamCA 602 Fisher-Oakley & Kittur [2014] FamCA 123 Mankiewicz & Anor & Swallow & Anor [2016] FamCAFC 153 |
| FIRST APPLICANT: | Mr Masters |
| SECOND APPLICANT: | Mr Watson |
| RESPONDENT: | Ms Harris |
| INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
| FILE NUMBER: | MLC | 10753 | of | 2016 |
| DATE DELIVERED: | 28 June 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Johns J |
| HEARING DATE: | 8 June 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANTS: | Mr Theoharopoulou |
| SOLICITOR FOR THE APPLICANT: | Lander & Rogers |
| THE RESPONDENT: | No Appearance |
| SOLICITOR APPEARING FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Piekarski |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
That pursuant to Rule 7.18 of the Family Law Rules the requirement that the first-named respondent be served with the applicants’ Amended Initiating Application filed 14 November 2016 be dispensed with.
That the first and second-named applicant have leave to withdraw their application for a declaration as to parentage sought in paragraph 1 of the final orders sought in their Amended Initiating Application filed 14 November 2016.
That the first and second-named applicants have equal shared parental responsibility for the children, C and D both born … 2015.
That the children live with the first and second-named applicants.
That the appointment of the Independent Children's Lawyer be and is hereby discharged.
That all extant applications be otherwise dismissed.
That 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.
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 Masters & Anor and Harris 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 MELBOURNE |
FILE NUMBER: MLC 10753 of 2016
| Mr Masters & Mr Watson |
Applicants
And
| Ms Harris |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Amended Initiating Application filed 14 November 2016 the first and second-named applicants sought orders with respect to the parenting of their two children, C and D, twins aged almost two years.
The children were born in Country B in 2015 as a result of a commercial surrogacy agreement.
The applicants seek orders that they have equal shared parental responsibility for the children and that the children live with them. In their originating application the applicants also sought a declaration as to parentage. However, at the final hearing of that application the applicants sought and were granted leave to withdraw that part of their application.
Pursuant to orders made by Registrar Mestrovic on 9 December 2016 an Independent Children’s Lawyer was appointed to separately represent the children.
The Independent Children's Lawyer supported the proposals of the first and second-named applicants at the final hearing.
The respondent, who is the surrogate mother of the children has not been served with the application and has filed no material in response to the application before the Court. On 8 March 2017 I made orders pursuant to Rule 7.18 of the Family Law Rules 2004 (Cth) requiring the applicants to serve the proceedings on the commercial surrogacy agency that coordinated the surrogacy arrangement between the applicants and the respondent with a request that that agency cause the Court documents to be served on the respondent.
The affidavit of the applicants’ lawyer, Ms E filed 6 June 2017 confirms that the documents were served on the agency in accordance with the orders. At paragraph 7 of that affidavit Ms E deposes that the commercial surrogacy agency has advised that it has been unable to communicate with the respondent regarding the proceedings as she has left her last-known residential address.
As a result of that response Ms E deposes at paragraph 10 of her affidavit as to attempts made to serve the respondent through the respondent’s mother. Attempts were made to leave the Court documents with the respondent’s mother but she refused to accept those documents on behalf of the respondent. Having regard to that evidence as to the steps undertaken on behalf of the applicants to effect service of the proceedings, I am satisfied that my orders of 8 March 2017 have been complied with and that it is appropriate in all of the circumstances to dispense with the requirement of service of the Court documents upon the respondent.
As a result, the applicants’ application is unchallenged and unopposed by any party. The evidence adduced by them as to the circumstances of the children’s conception and their parenting arrangements since that time is not contradicted.
These are my Reasons for Judgment with respect to the applicants’ application for parenting orders.
BACKGROUND
The first applicant is Mr Masters. He was born in 1970 and is aged 47 years. He is engaged full-time in an executive capacity. He has an income of approximately $412,000 per annum with potential bonuses of $120,000 per annum.
The second applicant is Mr Watson. He was born in 1970 and is aged 47 years. He is engaged in full-time employment, operating his own business. His income is approximately $250,000 per annum.
The applicants commenced a relationship in about December 2010 and commenced cohabitation in September 2012. They have lived together in a domestic partnership since that time.
In 2014, the applicants commenced seeking an international surrogate in order to fulfil their desire to have children. Initially, the applicants sought a surrogate in Asia. However due to their concern as to the instability of the political environment in that country, they were referred to and ultimately entered into a surrogacy arrangement with a surrogacy agency in Country B.
The applicants engaged the commercial surrogacy agency to source an egg donor. They also entered into a surrogacy agreement with the respondent which set out the circumstances for her to carry and give birth to the children. That agreement, signed by the first-named applicant and the respondent on 17 November 2014 provides that:-
·The first-named applicant is the legal father of the child;
·The respondent is nominated as the surrogate mother;
·The respondent has held discussions with the first-named applicant and has freely and voluntarily consented to gestate his embryo in her uterus and to undergo IVF treatment;
·The respondent is fully aware that her role is voluntary and that she acknowledges that the embryos implanted do not belong to her;
·The respondent waives any action regarding the legal custody of the resulting child;
·The birth certificate issued, as well as all other documents relating to the child’s birth is to be issued in favour of the first-named applicant;
·The resulting child is to be handed over to the first-named applicant immediately after birth and the respondent may meet the child if the first-named applicant wishes; and
·The first-named applicant is required to pay in advance all travel expenses, food and transportation costs and amenities required as well as other expenses generated by the respondent.
In addition to that arrangement, the second-named applicant also entered into a surrogacy agreement with another woman with the intention she would carry an embryo created using his sperm. Embryos were transferred to both surrogates on 20 November 2014. The transfer of the embryo created using the second-named applicant’s sperm was unsuccessful. Confirmation of a pregnancy using the first-named applicant’s embryo was confirmed on 9 December 2014.
Following confirmation of the pregnancy, the applicants communicated with the respondent approximately on a monthly basis using Skype, until the final 6 to 8 weeks of the pregnancy where they communicated via SMS.
The applicants and the first-named applicant’s parents travelled to Country B in 2015 in anticipation of the birth of the children. The children were born just after their arrival in G Town, Country B via caesarean section.
As the children were born prematurely they both had respiratory difficulties and remained within the natal care unit at hospital for a period of approximately one week following their birth. C was discharged from the hospital into the applicants’ care in mid-2015 and D was discharged into their care a few days later.
The applicants remained in G Town, Country B with the children for a further six-week period during which time they obtained the necessary birth documents, birth certificates and permission to travel from the Country B authorities.
Thereafter the applicants relocated to City H with the children where they obtained Australian citizenship for the children and passports to enable them to return with the applicants to Australia.
On 23 July 2015 the first-named applicant and the respondent executed a contract with respect to the guardianship and custody of the children in Country B. The respondent also executed a document permitting the children to travel to Australia with the first-named applicant. The contract signed by the respondent provided that:-
·The respondent will no longer be the guardian or have custody of the children;
·The first-named applicant will have full and sole guardianship and sole custody of the children;
·The respondent does not reserve any right or action and understands that her role as surrogate mother of the children;
·That the first-named applicant will be responsible for all expenses associated with the children;
·That the first-named applicant will provide health services to the children and in the event he elects to obtain private medical expenses he will cover their full cost;
·That the respondent is not required to pay for the children’s food as she is not legally obliged to do so; and
·That the first-named respondent physically and morally respects the respondent as well as her person, her family and belonging and shall monitor the health of the children.
On 11 August 2015 the Country B State Civil Registry issued birth certificates for the children and the first-named applicant was named as the children’s father on their birth certificates. The respondent was not named on the children’s birth certificates.
On 14 October 2015 the children obtained Australian citizenship by descent. They were issued with Australian passports on 29 October 2015 and returned to Australia with the applicants on 7 November 2015.
Upon their return to Australia, the first-named applicant and the children undertook DNA testing which concluded that the first-named applicant has a relative chance of paternity of 99.999998 per cent in respect of C and 99.999992 per cent in respect of D.
Upon their return to Australia the applicants and the children lived in the applicants’ home in Suburb I, Victoria. The applicants have engaged a nanny, Ms J who assists them with the care of the children from Monday to Friday.
Following their return to Australia in November 2016, the applicants filed their Initiating Application seeking orders for equal shared parental responsibility for the children as well as orders that the children live with them. The applicants seek such orders so as to ensure that both have the legal status to enable them to make significant decisions regarding all aspects of the children’s care and welfare and to ensure that in the case of a medical emergency, both the first and second-named applicants are able to provide consent for medical treatment. The orders sought by the applicants reflect the reality of the children’s daily lives; that is that together they share all responsibilities of caring for the children.
DOCUMENTS RELIED UPON
The applicants relied upon the following documents:-
·Amended Initiating Application filed 14 November 2016;
·Affidavit of Mr Masters filed 4 November 2016;
·Affidavit of Mr Watson filed 4 November 2016;
·Affidavit of Ms E filed 4 November 2016;
·Affidavit of Mr K filed 4 November 2016;
·Affidavit of Mr Masters filed 2 June 2107;
·Affidavit of Ms E filed 6 June 2017.
LEGAL PRINCIPLES
The applicants did not press their application for a declaration as to parentage in relation to the children. Accordingly, I am not required to consider the issues arising from that part of their application.
The balance of the applicants’ application is made pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 65C of the Act provides that a parenting order in relation to a child may be applied for by:
(a)either or both of the child’s parents; or
(b)the child; or
(ba) a grandparent of the child; or
(c)any other person concerned with the care, welfare or development of the child.
The Full Court considered the issue of standing to bring an application for a parenting order pursuant to s 65C of the Act in the decision of Mankiewicz & Anor & Swallow & Anor [2016] FamCAFC 153. At paragraph 10 Ryan and Austin JJ stated:-
…Applicants who only fall within s 65C(c) have the right to do no more than bring an application to attempt to establish facts which would permit them to apply for a parenting order and have no right to seek substantive relief until they do so. The point being that they can only apply for a parenting order where a court determines they are such a person and thereby grants permission. Whether or not permission should be given is a question of fact and to be determined on the basis that an applicant can demonstrate he or she is concerned with the care, welfare or development of the child. It will be a matter for the judge to decide in the individual case whether this issue is addressed as a discrete issue early in the case or at some other stage.
Although not biologically connected to the children, I am satisfied that the second-named applicant is a person concerned with the care, welfare and development of the children. All of the evidence supports a finding that he, together with the first-named applicant has cared for the children’s physical, intellectual and emotional needs since their birth.
The applicants seek parenting orders pursuant to Part VII of the Act. A parenting order may deal with any aspect of the care, welfare or development of the children or any other aspect of parental responsibility for a child (s 64B).
Parental responsibility is defined under s 61B of the Act and means “all the duties, powers, responsibilities and authority which by law, parents have in relation to children”.
In making parenting orders, the child’s best interests are the paramount consideration (s 60CA). Section 60CC(2) and (3) of the Act set out the primary and additional considerations the Court must consider in determining what is in the child’s best interests.
As the second-named applicant is not a parent of the children within the meaning of the Act, the presumption as to equal shared parental responsibility pursuant to s 61DA of the Act does not apply.
The primary considerations pursuant to s 60CC(2) of the Act are:-
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying those primary considerations, greater weight must be given to the need to protect children from physical or psychological harm or from being subjected to or exposed to, abuse, neglect or family violence (s 60CC(2A)). The unchallenged evidence in this matter is that there is no allegation that the children are exposed to or subjected to physical or psychological harm in the applicants’ care and the children are not in need of protection from such harm.
During the course of his oral submissions, the Independent Children's Lawyer confirmed that he had made all necessary enquiries of the Department of Health and Human Services (“DHHS”) and that DHHS has confirmed that it has no concerns as to the children’s welfare in the applicants’ care. DHHS has no record of any involvement or notification of concerns with respect to the children and nor has it any concerns as to the care provided to the children by the applicants. I accept that submission.
As to the question of the children having a meaningful relationship with the applicants, the reality is from the children’s perspective that they know no other life than being cared for and nurtured by the applicants. All of the evidence before the Court supports a conclusion that it is in the children’s best interests that they continue to have the benefit of that meaningful relationship with the applicants.
The Additional Considerations
Having regard to the ages of the children their views are not relevant.
Both the first and second-named applicant deposed that they enjoy a close and loving relationship with the children. In his affidavit filed 2 June 2017 the first-named applicant deposes to the day-to-day routine established with the children. The first and second-named applicants attend to every aspect of the children’s physical and emotional needs with the support of the nanny who has been engaged to assist with their care since 2015. I am satisfied that the children are nurtured and supported in their growth and development by the applicants.
In addition to the children’s relationship with the applicants, they have actively sought to ensure that the children establish warm and loving relationships with the members of their extended family. The first-named applicant’s parents travelled with them to Country B for the birth of the children and have been spending regular time with the children since their return to Melbourne. The first-named applicant also deposes as to the time spent by the children with their great-grandmother, uncle as well as their friends. I accept that evidence.
The applicants have provided for every aspect of the children’s financial support since their birth. In his affidavit filed 2 June 2017 the first-named applicant deposes as to the applicants’ decision to relocate to a new and larger home in Suburb L. That home is close to parks, leisure centres and a range of primary and secondary schools which the children will have access to. To facilitate the transition to that area, the applicants have rented a home in close proximity to their new home pending settlement of the purchase of that property.
Following the children’s birth, the respondent attended the apartment at which they were living with the applicants in order to visit the children. In his first affidavit filed 4 November 2016 the first-named applicant deposed that the respondent spent the afternoon at the apartment with her mother and teenage son and that she enjoyed cuddling and holding the children. The applicants invited her to see the children again but the respondent declined that invitation. Subsequent to that meeting, the first-named applicant deposes at paragraph 40 of that affidavit that he met with the respondent on two further occasions to complete the necessary paperwork regarding the children’s care arrangements. On those occasions the first-named applicant showed the respondent photographs of the children. Save for those occasions the applicants have had no contact or communication with the respondent.
The orders sought by the applicants will ensure that the existing care arrangements for the children continue. Those arrangements have been in place for the children since their birth.
The unchallenged evidence of the applicants supports a finding that the applicants have provided and will continue to provide for the children’s physical, emotional and intellectual needs. I am satisfied based on that evidence that the applicants have demonstrated a consistent and positive attitude towards the responsibilities of parenthood. The evidence before the Court supports findings that the children are much loved and well-cared for and that this will continue into the future to ensure that the children achieve their full potential.
There is no evidence before the Court of any family violence involving the children or members of their family.
CONCLUSION
Having regard to all of the evidence, I am satisfied that it is in the children’s best interests that the applicants have equal shared parental responsibility for making decisions regarding their care, welfare and development. The applicants have undertaken that decision-making responsibility since the children’s birth. An order in those terms will ensure that they continue in that role.
I am also satisfied that it is appropriate and in the children’s best interests that I make an order that the children live with the applicants. Again, this order will reflect the reality of the children’s lives.
All of the factors pursuant to s 60CC of the Act support a finding that the applicants are committed to the care, welfare and development of the children. I am satisfied that they are dedicated to ensuring that the children’s physical, intellectual and emotional needs are met. Accordingly, I am satisfied that the orders sought by the applicants are in the children’s best interests.
In reaching that finding, I am mindful of the fact that the respondent has not been served with the Court documents and has not participated in the proceedings. However, I am satisfied that the applicants’ have exhausted all avenues in their attempt to bring these proceedings to the notice of the respondent.
The Independent Children's Lawyer has undertaken all necessary enquiries as to the care arrangements for the children. He has confirmed his support for the orders sought by the applicants.
Section 69ZN of the Act requires that child-related proceedings be conducted without undue delay and with as little formality, legal technicality and form as possible. Taking into account those matters, I am satisfied that the application should be determined without the need for any further affidavit material.
I am mindful of the on-going concerns of the community with respect to international commercial surrogacy. Those concerns have been highlighted in the decisions of Cronin J in Fisher-Oakley & Kittur [2014] FamCA 123, Ryan J in Ellison & Anor and Karnchanit [2012] FamCA 602 and Berman J in Bernieres & Anor & Dhopal & Anor [2015] FamCA 736. I share those concerns with respect to the practice of commercial surrogacy, particularly that:-
·There are inconsistencies of the laws within Australia regarding international surrogacy;
·The lack of scrutiny of those in Australia participating in such arrangements;
·The inability to protect and safeguard the rights of the surrogates engaged; and
·The inability to ensure that the children born of such arrangements have the opportunity to know and experience their cultural and biological identity.
Nonetheless, the issue before me for determination is the question of what is in the best interests of C and D, the children the subject of these proceedings.
Having made the above findings as to the primary and additional considerations required in s. 60CC of the Act, and being satisfied that the applicants’ proposals are in the children’s best interests, I make orders as follows:-
1.That pursuant to Rule 7.18 of the Family Law Rules the requirement that the first-named respondent be served with the applicants’ Amended Initiating Application filed 14 November 2016 be dispensed with.
2.That the first and second-named applicant have leave to withdraw their application for a declaration as to parentage as provided in paragraph 1 of the final orders sought in their Amended Initiating Application filed 14 November 2016.
3.That the first and second-named applicants have equal shared parental responsibility for the children, C and D both born … 2015.
4.That the children live with the first and second-named applicants.
5.That the appointment of the Independent Children's Lawyer be and is hereby discharged.
6.That all extant applications be otherwise dismissed.
7.That 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.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 28 June 2017
Associate:
Date: 28 June 2017
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