Navarro & Batara
[2024] FedCFamC2F 1677
•22 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Navarro & Batara [2024] FedCFamC2F 1677
File number(s): BRC 6722 of 2024 Judgment of: JUDGE BERTONE Date of judgment: 22 November 2024 Catchwords: FAMILY LAW – Parenting – Application by Paternal Aunt – Undefended hearing – Father has passed away and the biological mother is unknown – Respondent Surrogate does not wish to participate Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61D, 65C, 69E
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Division: Division 2 Family Law Number of paragraphs: 21 Date of last submission/s: 22 November 2024 Date of hearing: 22 November 2024 Place: Brisbane Counsel for the Applicant: Mr Hartnett Solicitor for the Applicant: TWC Lawyers For the Respondent: There being no appearance for or on behalf of the Respondent ORDERS
BRC 6722 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS NAVARRO
Applicant
AND: MS BATARA
Respondent
ORDER MADE BY:
JUDGE BERTONE
DATE OF ORDER:
22 NOVEMBER 2024
THE COURT ORDERS:
1.The Applicant, Ms Navarro, have sole decision-making authority for X born in 2023 (‘the child’) for all her long-term care and issues, welfare and development as defined in section 4(1) of the Family Law Act 1975(Cth).
2.The child live with the Applicant, Ms Navarro.
THE COURT NOTES:
A.The Applicant is the paternal Aunt of X.
B.The Respondent is the surrogate who carried X. X’s Father unfortunately passed away in 2023. The biological Mother is unknown as the ovum was anonymously donated.
C.The Respondent surrogate has been given the opportunity to be heard and has consented to the proceedings continuing without her being heard.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE BERTONE
These are the settled reasons of a judgment I delivered ex tempore. Corrections have been made, where appropriate, to correct grammatical errors, to add citations and legislative provisions for ease of comprehension. The substance is unchanged.
These are proceedings in respect of the child, X, who was born in 2023.
X's circumstances are unusual. Unfortunately, her Father has recently passed away, and having been born via a surrogacy arrangement that he engaged in prior to his death, X does not have a Mother in the usual sense of cases that are dealt with in this Court.
The person who gave birth to X was the surrogate, and she is named as the Respondent to these proceedings. She is not the biological mother of X because a donor egg was provided to help create this little girl. The donor egg's identity is unknown.
The Applicant appearing before me today is the Paternal Aunty of X. She filed her Application on 22 May 2024, seeking orders for sole decision-making authority for X and also, for X to live with her.[1]
[1] Pursuant to sections 60CA and 61D of the Family Law Act 1975 (Cth).
I have read the material set out in the Outline of Case document filed 20 November 2024 on behalf of the Applicant (with the exclusion of the two lots of submissions dated 9 August and 3 August 2024).
I have had regard to the Affidavits of Service which confirm the Respondent, Ms Batara, has properly been served in these proceedings and that she has been given the opportunity to be heard in these proceedings.
Having regard to the Application before the Court, the Respondent has, in fact, conveyed to the Applicant, and then, by extension to the Court, that she consents to X having Australian citizenship and an Australian passport, and that she does not place any conditions on her consent, and that it is her strong preference not to be asked to provide further consent as “My consent is permanent and is not going to change.”
That statement is contained in a letter that is annexed to the Affidavit of the applicant filed 21 May 2024 at annexure MSN03.
Given the unique circumstances in which X came to be, I need to be satisfied that I have jurisdiction to hear the matter and make the orders that the Applicant asks me to make.
I am satisfied that given that the Applicant is the Paternal Aunty of X, she is a person who is able to apply for a parenting order within the meaning of section 65C(c) of the Family Law Act 1975 (Cth) (“the Act”).
The Applicant is clearly a person concerned with the care, welfare, and development of this child. Not having biological parents who are either alive or who are applying for orders before me is, as I said earlier, an unusual situation.
I do have evidence of X's late Father's wishes as to who would be the appropriate person to care for X in the event of his death. The surrogacy agreement is contained in the Affidavit filed 21 May 2024 at annexure MSN04, at page 1 (on the English translation side of the document).
The person that is noted as being the designated person in case of death or absence of the biological Father is, in fact, the Applicant: the Paternal Aunty of X.
I am satisfied also that within the meaning and intent of section 69E of the Act, the proceedings have been properly instituted in relation to X because, pursuant to section 69E(1)(b), X is an Australian citizen even though, at the moment, she is not in Australia (she is currently in Country C with her paternal family).
I am also satisfied that under section 69E(d) of the Act, the Applicant, who is a party to the proceedings, whilst not being an Australian citizen, is present in Australia on the relevant day, being the day she makes the Application and the day that she is having the Application heard. And I note that it is her desire to become ordinarily resident in Australia to care for X.
In making the orders that I am being asked to make for parental responsibility and for X to live with her Paternal Aunty, I must be satisfied that the orders are in X’s best interests.
The unique situation this little girl finds herself in is a situation she will have to grapple with when she gets older. The speed with which the Paternal Aunty left her home in America to help care for X's Father whilst he was receiving treatment for his terminal illness shows the dedication in the Applicant, to not only care for X's Father during his time of need, but also, to willingly taking on the responsibility of caring for X, a little girl who now does not have a Mother or a Father.
I have read the Affidavit of the Applicant setting out the proposals she makes for X's care and wellbeing into the future and I am satisfied that those arrangements are in X's best interests, and that they will, in accordance with section 60CC of the Act, promote her safety and care for her in an appropriate way, exposing X to her Country C and Country B culture, and also, experiencing her place of citizenship, being Australia.
X will have the opportunity to get to know her paternal relatives who will help care for her and help her come to know the Father who so desperately wanted her, but who unfortunately, cannot help raise her.
I therefore make orders granting the Application.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Bertone. Associate:
Dated: 3 December 2024
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