McQuinn and Shure

[2011] FamCA 139

FAMILY COURT OF AUSTRALIA

MCQUINN & SHURE [2011] FamCA 139

FAMILY LAW – CHILDREN –ADOPTION –Whether to grant leave to commence proceedings pursuant to s 60G of the Act – Surrogate mother

Adoption Act2009 (Qld)
Adoption of Children Act1964 (Qld)
Family Law Act 1975 (Cth) Div 12A, ss 60G, 69ZN, 69ZT
Family Law Rules 2004 (Cth)
Surrogacy Act 2010 (Qld)

Carlson & Bowden (2008) 40 FLR 327
Fogwell & Ashton (1993) FamCA 113

APPLICANTS: Mr McQuinn & Mrs McQuinn

RESPONDENT: Mrs Shure

FILE NUMBER: BRC 11624 of 2010

DATE DELIVERED: 15 February 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 15 February 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Best of Best Wilson Family Law

THE RESPONDENT: In person

Orders

IT IS ORDERED THAT

1. The Applicants exercise equal shared parental responsibility for all long term and day to day issues concerning the care, welfare and development of M born … August 2006 (hereinafter referred to as “the child”).

2. The child live with the Applicants.

3. In furtherance of paragraph 1 herein, each Applicant be at liberty to liaise and provide direction or instruction pertaining to the child to any school, learning institution, doctor, health professional or medical institution.

4. Pursuant to section 60G(1) of the Family Law Act1975 (Cth) the Applicants shall be granted leave for proceedings to be commenced for the adoption by the First-named Applicant of the child, it being determined that such Order is in the best interests of the child.

IT IS NOTED that publication of this judgment under the pseudonym McQuinn & Shure is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11624 of 2010

Mr & Mrs McQuinn

Applicants

And

Mrs Shure

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. M was born in August 2006, as a result of an altruistic surrogacy arrangement entered into between Mr and Mrs McQuinn, who are applicants to the current proceedings, and Mrs Shure, who is the respondent to these proceedings. 

2. Mr and Mrs McQuinn apply for orders in this court that they exercise equal shared parental responsibility for all long-term and day-to-day issues concerning M’s care, welfare, and development, that M live with them, and that:

   In furtherance of the order for equal shared parental responsibility] each applicant be at liberty to liaise and provide direction or instruction pertaining to the child to any school, learning institution, doctor, health professional, or medical institution.

3. A further order is sought, pursuant to section 60G of the Act, for leave for proceedings to be commenced for the adoption of M pursuant to state legislation in Queensland.

4. Mrs McQuinn was diagnosed with a medical condition many years ago, as a result of which she is almost certainly unable to conceive a child or, if conception occurs, to carry her own child to full term.  A number of attempts were made by Mr and Mrs McQuinn – who commenced cohabiting in 1997, and subsequently married in 2000 – to use IVF procedures, for example, with respect to donor eggs.  Those processes, continued for a period of about five years or so but no success was achieved.

5. The affidavit filed by Mrs McQuinn reveals that, at the end of that five year period, she was advised to seek other options with respect to she and her husband having children.  The affidavit material reveals the steps that were then taken by Mr and Mrs McQuinn to facilitate their having a child.  In the ultimate, a pregnancy was arranged via a lawful altruistic surrogacy arrangement in Alberta, Canada.  Mrs Shure agreed to that arrangement, pursuant to Alberta law.  Mrs Shure’s pregnancy was uneventful and healthy, and M was born to her in August 2006.

6. The affidavit material reveals that a DNA test was conducted shortly after M’s birth, which confirmed that Mr McQuinn was his father, and that Mrs Shure was his mother.  A birth certificate was issued for M reflecting that fact.  Thereafter, Australian Citizenship was sought and gained for M, and an Australian passport issued to him. 

7. Subsequently, proceedings were commenced in the Court of Queen’s Bench in Alberta, with Mrs Shure’s cooperation and agreement, the result of which was an order of that court which is exhibited to the affidavit of Mrs McQuinn, filed on 10 December 2010.  That order provides:

   UPON considering section 85 of the Family Law Act, and Rule 395 of the Alberta Rules of Court;  UPON reviewing the following material received from counsel for the Applicants and counsel for the Respondents:

   (1)Affidavits of the Applicants, [Mrs McQuinn] and [Mr McQuinn];

   (2)Affidavits of the Respondents, [Mrs Shure] and [Mr Shure];  and

   (3)      Parentage test results from [Medical Testing Company B];

   UPON the Court being satisfied that [Mr McQuinn] is the father of M (“the child”); AND UPON noting that:

   (1)The surrogate mother of the child, [Mrs Shure], has consented to this Application; 

   (2)The surrogate mother’s husband, [Mr Shure], has consented to this Application; 

   (3)      The Application was made after the birth of the child;  and

   (4)The Applicants have established, on a balance of probabilities, the genetic and biological relationship between [Mr McQuinn] and the child;

   IT IS HEREBY ORDERED THAT:

   Pursuant to section 9(2) of the Family Law Act, S.A. 2003 c.F-4.5, [Mr McQuinn] is the sole father of [M], the child born [in August] 2006 in [D], Alberta, for all purposes of the law in Alberta.

8. As part of the agreement between Mr and Mrs McQuinn and Ms Shure, a further consent order was obtained in Alberta on 8 September 2006 , the terms of which were that:

   The applicants shall be entitled to take the child to the Commonwealth of Australia, where the child shall remain with the applicants for an indefinite period of time.

9. Thereafter, Mr and Mrs McQuinn and M have resided together in Australia.  The evidence plainly reveals that M has never known any other parents other than Mr and Mrs McQuinn, and regards them as his father and mother respectively. 

10. There is no doubt at all, on the evidence before the Court, that Mr and Mrs McQuinn provide a loving, caring, and child-focused environment in which M is nurtured in an entirely appropriate, caring, and loving way.  The material also reveals that M has met all major milestones and is a healthy and happy child.  There is no doubt that Mr and Mrs McQuinn provide in every respect for M’s day to day care, including his financial, emotional, and psychological health.

11. The affidavit material reveals gratitude on the part of Mr and Mrs McQuinn to Ms Shure for the agreement of her and her family to the surrogacy arrangement.  I have already referred to the fact that Ms Shure cooperated with and agreed to the earlier proceedings in Canada. 

12. The material reveals that the McQuinns and Shures have remained friends and, as it happens, Ms Shure is present in court for these present proceedings, she fortuitously being in Australia for a holiday and at this time when she is visiting Mr and Mrs McQuinn. 

13. Ms Shure, therefore, is present in court to signify her agreement with the orders sought by Mr and Mrs McQuinn in these proceedings, which such agreement is, in any event, reflected in an affidavit sworn by her and filed on behalf of Mr and Mrs McQuinn on 10 January 2011. 

14. Consequent upon the order made on 8 September 2006, M has lived with Mr and Mrs McQuinn in Queensland since about October 2006. 

15. This State has introduced surrogacy legislation, the Surrogacy Act 2010 (Qld) which took effect in June of last year. However, that Act does not apply to Mr and Mrs McQuinn’s circumstances, so as to permit them to become “parents” of M by reason of it:

16. Section 60HB of the Family Law Act contains a specific provision with respect to surrogacy arrangements.  That section provides for a court to make an order, pursuant to a “prescribed law” of a State of Territory, to the effect that a child is the child of one or more parents and, if that occurs, the child is, for the purposes of the Act, a child of each of the relevant persons.

17. Regulation 12CAA of the Family Law Regulations makes it clear that the only prescribed law of State or Territory relevant for the purposes of section 60HB is a piece of legislation in the Australian Capital Territory.

18. The material reveals that numerous inquiries have been made by Mr and Mrs McQuinn of the Department of Communities (Queensland) with regard to Mrs McQuinn facilitating the formal adoption of M. Although it might seem odd to so describe her, the Department is of the view that the process by which Mrs McQuinn can become registered as M’s mother is by the step-parent adoption procedure provided for in the Adoption Act 2009 (Qld).

19. Section 92 of the Adoption Act 2009 (Qld) makes it plain that Mr and Mrs McQuinn can apply to adopt M. That is so because Mr McQuinn is M’s father, and Mrs McQuinn is his “spouse”. It is to be noted that the application in respect of M can only be made once he turns five. He is currently aged four and a half. Similarly, an application can only be made once leave has been granted by this court. There is, though, no pre-condition that a child be five as a pre-condition to the granting of leave under this Act.

20. Indeed, it might be thought that leave can be obtained prior to him turning five, so that each of those pre-conditions can be met under the state legislation at the time that the application is made, and ultimately determined by the relevant state authorities and the Children’s Court. 

21. It is against that background, then, that the order is sought by Mr and Mrs McQuinn pursuant to section 60G of the Act. Section 60G of the Act provides as follows:

    (1)      Subject to subsection 2, the Family Court…may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent. 

    (2)      In proceedings for leave under subsection 1, the Court must consider whether granting leave would be in the child’s best interests, having regard to the effect of paragraph 60F(4)(a) or paragraph 60HA(3)(a), and of sections 61E and 65J.

22. It is plain that, by reference to the definition of “prescribed adopting parent” in section 4, Mr and Mrs McQuinn meet the definition, being respectively a parent of the child, and the spouse of a parent of the child. 

23. The reference to section 61E and section 65J are relevant to the instant application.  Section 61E provides for the cessation of parental responsibility upon the making of an adoption order.  It will be clear, from what I have said, that for the purposes of Australian law, Ms Shure has parental responsibility in respect of M by reason of being, for Australian law, his parent.  It will be equally clear that Ms Shure is not only clearly aware that an adoption order will bring her parental responsibility to an end, but has agreed to an order to similar effect in Canada, and is agreeable to that occurring for the purposes of Australian law. 

24. Section 65J is referred to in the helpful written submission prepared by the solicitor for Mr and Mrs McQuinn, Ms Best.  The section provides:

    This section applies if (a) a child is adopted, and (b) immediately before the adoption a parenting order was enforced in relation to the child (2) the parenting order stops being in force on the adoption of the child unless the adoption is by a prescribed adopting parent, and leave was not granted under section 60G for the adoption proceedings to be commenced.

25. The parenting orders sought in the application by Mr and Mrs McQuinn are then, as the written submissions recognise, designed to properly regulate the decision-making and co-nurturing responsibilities for M in the period until an adoption order is made, pursuant to state law. 

26. If and when that order is made, pursuant to state law, Mr and Mrs McQuinn will become, for all purposes, M’s parents and, as Ms Best points out, will be as a result entitled to be recorded as his parents. 

27. In Fogwell & Ashton (1993) Fam CA 113, Chisholm J said:

    It is somewhat odd that it is necessary to apply to one court for leave to apply to another court for an exercise of the latter court’s ordinary jurisdiction.  Nevertheless, that is the consequence of the provisions of the Family Law Act 1975 (“The Act”).

28. His Honour went on to say, in that case:

    In these undefended proceedings, it is appropriate for this court to rely on the presumption that the relevant provisions of the Family Law Act are constitutionally valid. I note, however, that for the reasons developed by Dr Jessep, in a jointly authored article, their validity may well by arguable: CO Jessep and R Chisholm, “Step-parent Adoptions and the Family Law Act” (1992) 6 Australian Journal of Family Law 179 at 182-185, discussing in particular re LSH; ex-parte RTF (1987) 75 ALR 469.

29. In these proceedings, all parties are in agreement as to an order being made, pursuant to section 90G.  Accordingly, no argument has been addressed here in respect to the constitutional validity of the provisions of the Family Law Act. In this ex tempore judgment I will assume, as did Chisholm J, that the provisions are constitutionally valid for the purposes of these proceedings. 

30. Pursuant to the Adoption Act 2009 (Qld), which came into force on 1 February 2010, criteria different to those contained in the earlier Queensland Adoption Act apply to adoptions.

31. Critically, for the purposes of this case, the Act requires prospective adopting step-parents to satisfy, in addition to the previous Act’s criteria, two new criteria.  First, is that the relevant child is at least five years of age and under 17, and secondly, it is now a requirement that this Court has granted leave to adopt.  As earlier referred to, no provision of this Act suggests that the age requirement specified in the Queensland Act is applicable to applications for leave. 

32. A natural parent of the child must ‑ absent an order dispensing with consent – obtain the consent of that other parent, irrespective of whether the natural parents of the children were married.  It will be necessary, as I understand the law, then, for Ms Shure to consent to the adoption, pursuant to the state processes yet to be undertaken.

33. Section 60G, to which reference has earlier been made, was inserted into the Act in 1995 after the decision in Fogwell & Ashton, to which I have earlier referred.  Chisholm J’s determination that the criterion of best interests applied to the application for leave to adopt, is now enshrined in the Act. 

34. I have earlier discussed all of the matters which, to my mind, are relevant to a determination that the provision of leave is in M’s best interests, and I have no hesitation on the evidence before me in deciding that it is so.

35. I have, on earlier occasions, referred to the interrelationship, or the potential for an interrelationship, between proceedings for leave to adopt and the ultimate proceedings for adoption, which will take place pursuant to state law.  It is important to understand that the decision facing this court, in respect of an application for leave to adopt, is different to the decision which will face the court charged with the decision of whether to permit the adoption (which, in this State, will be the Children’s Court). 

36. Thus, the granting of leave to adopt does not have the consequences that adoption itself will have, but it is important, in my view, to observe that the state legislation does bear upon the decision to be made in these proceedings.

37. First, as I’ve mentioned, leave to adopt is a pre-condition to the making of an order for adoption under the legislation.  Secondly, and importantly as it seems to me, the State court must ultimately consider, as well as the general requirement to consider best interests, the matters enumerated at section 208 of the State Act which include, for example, the requirement that an order can be made only if the Court is satisfied relevantly that:

    …an order for the child’s adoption by the step-parent would better promote the child’s wellbeing and best interests than an order under the Family Law Act, any other court order, or no court order.

38. I have referred, in passing, to that issue in discussions with Ms Best this morning.  It seems to me, however, entirely understandable that Mr and Mrs McQuinn would wish to formalise M’s parentage for the purposes of Australian law by means of adoption proceedings.  In particular, whilst, for reasons about to be discussed, it is both permissible and, in this case, appropriate, to make orders for parental responsibility (and other parenting orders) in favour of Mr and Mrs McQuinn, an order for adoption can have related, but nevertheless different, consequences for M and Mr and Mrs McQuinn.

39. Accordingly, it seems to me that, whilst this Court should not grant leave to adopt in circumstances where it is clear on the face of the material that the ultimate application to adopt will be either redundant or unnecessary (or, indeed, unlikely to be made by reference to issues such as best interest), the opposite also applies, and, where it is plain to this court that there are good reasons and it is otherwise in the best interests of the relevant child to make an order granting leave, such an order ought be made. 

40. I am of the view that the latter clearly applies in this case. Accordingly, I propose to make the order granting leave, pursuant to section 60G of the Act.

41. The written submissions of Ms Best on behalf of Mr and Mrs McQuinn make reference to an earlier decision of mine, reported now as Carlson & Bowden (2008) 40 FLR 327. At issue in that case, relevantly, was the application of the presumption of equal shared parental responsibility, and the court’s power to make such an order in any event, in circumstances where an applicant for such an order was not a parent of the child.

42. Relevantly, I there said:

    177.Counsel for the mother argues that the mother, father and grandmother should together have equal shared parental responsibility.  Such a submission calls into question what the Act means by the undefined “equal shared parental responsibility”.

    178.At first blush the Act would appear to give no power to make an order for non-parents to receive the benefit of such an order.  First, s 61DA – the section containing the presumption - speaks only of “parents” having equal shared parental responsibility. Further, the power to make parenting orders (s 65D) is made subject to s 61DA.  And, s 65DAA, which mandates the consideration of equal time upon the application of the presumption, applies when an order provides that “the child’s parents” are to have equal shared parental responsibility.

    179.But, the picture is not that simple.  Section 64B defines parenting orders to include orders whereby the court allocates parental responsibility.  Section 64B(2)(d) contemplates, in terms, the possibility of “two or more” people sharing parental responsibility and also refers to “persons” sharing parental responsibility as distinct from parents.

    180.Further, an application for a “parenting order” which, by definition, can include an application for an order for parental responsibility by “two or more persons”, can be made not only by a parent, but by any person concerned with the care, welfare and development of the child (s 65C) and can be made in favour of a parent or “some other person”.

    181.The position is, then, it seems to me, that an order allocating parenting responsibility can be applied for by a non-parent concerned in the care welfare and development of the child and an order can be made between two or more persons including persons who are not a parent.  However, the presumption of equal shared parental responsibility applies only as between parents.

    182.Further, where an applicant, or applicants, other than the parents apply for a parenting order allocating parental responsibility, the presumption would operate such that it would be presumed that the parents would have equal shared parental responsibility to the exclusion of the non-parents.  Expressed another way, the presumption that the parents share parental responsibility equally would need to be rebutted by reference to the matters enumerated in s 61DA(2) or (4) before an order allocating parental responsibility to non-parents could be made.

    183.Thus, in the present case, it seems to me, with respect, erroneous to seek an order for three persons, including a non-parent to have “equal shared parental responsibility”. 

    184.Equally, though, it would be open for the mother to argue (although her counsel did not express it in these terms) that s 61DA(2) or (4) applied so as to rebut the presumption of equal shared parental responsibility and to then contend for an order that parental responsibility be allocated equally between the parents and the grandmother.

    185.Whilst that might seem to be sophistry, it seems to me that this is what the application of the Act requires.

1. It will be clear from what I said there that I am of the view that Mr McQuinn, as the father of the child, and Mrs McQuinn, as a person plainly concerned with the care, welfare, and development of M, can together apply for an order for equal shared parental responsibility in respect of M although, for the reasons there discussed, the presumption in section 61DA of the Act does not apply to them. 

2. It will equally be clear, from what I have said, that the presumption does apply as between the father and Ms Shure, they being the “parents” of M, currently, for the purposes of Australian law.  Equally, for the reasons earlier discussed, it will be obvious that in this case it is plainly in M’s best interests, and appropriate, that the presumption be rebutted and, in lieu, an order be made in favour of Mr and Mrs McQuinn in terms of that sought in the application filed by them on 10 December 2010.

3. It is also plainly the case that an order should be made that M live with Mr and Mrs McQuinn. 

4. It might be though that the order sought in paragraph 3 of the application is but an incident of the exercise of equal shared parental responsibility by Mr and Mrs McQuinn. However, it seems to me that in circumstances that are somewhat unusual, there is the potential for a “school, ‘learning institution’, doctor, health professional, or medical institution” to raise issues relating to, for example, the provision of relevant consent and the like.  For the purposes of ensuring clarity and certainty in M’s life and that of Mr and Mrs McQuinn, it seems to me appropriate to make an order in terms of paragraph 3 of the orders sought in the application. 

5. I will, then, make orders in accordance with paragraphs one through four of the Application.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 15 February 2011.

Associate: 

Date:  4 March 2011