O’CONNOR & KASEMSARN
[2010] FamCA 987
•29 October 2010
FAMILY COURT OF AUSTRALIA
| O’CONNOR & KASEMSARN | [2010] FamCA 987 |
| FAMILY LAW – CHILDREN – surrogacy – biological father |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr O’Connor |
| RESPONDENT: | Ms Kasemsarn |
| FILE NUMBER: | SYC | 5505 | of | 2010 |
| DATE DELIVERED: | 29 October 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 26 October 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: |
| SOLICITOR FOR THE APPLICANT: | Joe Lynch |
| COUNSEL FOR THE RESPONDENT: |
| SOLICITOR FOR THE RESPONDENT: |
Orders
The children, C and A born … May 2010 live with the father, Mr O’Connor.
The father have sole parental responsibility for making decisions on both day to day and long-term issues relating to the children.
IT IS NOTED that publication of this judgment under the pseudonym O’Connor & Kasemsarn is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC5505 of 2010
| MR O’CONNOR |
Applicant
And
| MS KASEMSARN |
Respondent
REASONS FOR JUDGMENT
Mr O’Connor, the applicant, applies for orders for sole parental responsibility in relation to twin girls and an order that they live with him.
In May 2010 twin girls, C and A O’Connor (the children) were born to Ms Kasemsarn.
The children were conceived by IVF and are the product of the sperm of the applicant, an ova donated by an anonymous woman, implanted into the respondent Ms Kasemsarn.
The applicant said that the provision of the donated ova was arranged through a hospital in Bangkok. He further entered into an arrangement with the respondent for her to be the surrogate mother of the children. As part of the agreement, she consented to handing the care of the children born of this process to the applicant after their birth.
Immediately after the birth of the girls, they were given into the applicant’s care and have lived with him and been in his care ever since.
DNA testing of the children confirms that the applicant is their biological father.
An affidavit filed by a lawyer practising in Thailand was to the effect that there are presently no laws governing surrogacy in Thailand and pursuant to section 1546 of the Thai Civil and Commercial Code, a child born of an unmarried woman is deemed to be the legitimate child of that woman. As a result, he said, the birth mother is the only person having any parental rights over the child and, as a consequence neither the applicant as biological father nor the woman who donated the ova has parental rights.
The respondent has been informed of these rights and acknowledged the applicant as the biological father of the children. She has consented to him being recorded as the father on the children’s birth certificates.
The respondent swore an affidavit in the proceedings in which she acknowledges that she bore the children through IVF. She confirmed that she had agreed to act as surrogate for the children and, on their birth to consent to him having sole responsibility for any children born of the process. She has been served with the documents filed in this court and associated affidavit and consents to the orders sought by the applicant.
The parties entered into a Parenting Plan dated 24th June 2010 by which the respondent relinquished all her parental rights and responsibilities in relation to the children and agreed that they should live with the applicant who will have sole parental responsibility for them.
I am satisfied on the evidence before me that the respondent has been properly and fully informed of her rights in relation to the children, has received and had translated the documents filed in this application and has consented to relinquish her rights as a parent to the children in favour of the applicant.
After living for a short while in Thailand, the applicant obtained birth certificates and other documents necessary to obtain Thai passports for the children.
The applicant wishes to obtain Australian Citizenship for the children. He applied for Australian Citizenship for the children from the Australian Embassy in Bangkok.
The Australian Citizenship Act provides for Australian citizenship by descent if it is established that the person claiming citizenship is the child of an Australian citizen. There is no doubt that the applicant is the father of these children and is a citizen, nonetheless, the application was refused in Thailand, apparently because there was no order establishing his parental rights (and, according to the applicant’s affidavit, that the mother had relinquished her parental rights to the children).
As a result the applicant sought and obtained visas to enable the children to travel with him to Australia. The children have been living with the applicant in country NSW for the last three months.
The applicant is aged 43. He is not married and has no other children. He is employed in an executive position in a large company. He has engaged an experienced nanny to help him care for the children and has two students who live in the house who offer additional help around the house in exchange for accommodation. From time to time his employment requires him to travel overseas and, since the children have lived with him and he was required to travel, his mother moved into the house to care for the children. The applicant said that they are happy and healthy little girls.
Submissions
It was argued for the applicant that the Family Law Act does not (relevantly for these purposes) define “parent”.
In Tobin and Tobin (1999) FLC 92 – 848, in the course of considering the word “parent” in the context of an application for child maintenance, the Full Court determined that the word “parent” for the purposes of Division 7 of Part VII of the Act was a reference to a “person who has begotten or borne a child”.
In the course of discussion of this issue in Re Mark [2003] FamCA 833, Brown J found that Act does not provide an exhaustive definition of who is a parent and that in the absence of a definition, the word is to be given its most natural and ordinary meaning. In the face of the changing technology of conception and social and community change, it is appropriate that the word “parent” have a flexible meaning.
Mr Lynch for the applicant relied on Hudson v Minister for Immigration and Citizenship [2010] FCAFC 119 in which there was considerable discussion of the nature of who is a parent and whether that is more than the person who provided the genetic material to the child.
What is clear beyond doubt in this case is that the applicant provided his genetic material through IVF and is the biological father of the children. I am satisfied that he is a parent in the sense of having “begotten” the children.
Loughnan J has dealt with a similar case in Collins & Tangtoi [2010] FamCA 878. His Honour, after referring to Brown J’s reasoning in Re Mark said:
…it is not necessary for me, as it was not necessary for Her Honour, to make that decision (whether a man who has provided donor sperm for the conception of a child is a parent of the child). The legislation says that an application can be made by a parent of somebody else with an interest in the children can make an application. An applicant for parenting orders need not be a parent.
Whether the applicant is a parent or a person with an interest in the children gives rise to different legislative considerations.
Having found that the applicant is a parent of these children, I must, in making parenting orders in relation to them make an order that serves their best interests. When considering a parenting order as between parents, the Family Law Act enjoins a consideration of the presumption of equal shared parenting. In the circumstances of this case, it is not practicable because the respondent has no wish to have any relationship with the children or to exercise any parenting role at all.
On the evidence before me, I am satisfied that the orders sought by the applicant are in the best interests of the children.
I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 29 October 2010.
Associate:
Date: 29 October 2010
Key Legal Topics
Areas of Law
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Family Law
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