Pappas and Anor and Ugapathai
[2017] FamCA 1090
•21 December 2017
FAMILY COURT OF AUSTRALIA
| PAPPAS AND ANOR & UGAPATHAI | [2017] FamCA 1090 |
FAMILY LAW – CHILDREN – Commercial surrogacy – hearing in the absence of the respondent – service attempted unsuccessfully on the respondent – best interests of the child – where the applicants seek orders for equal shared parental responsibility – where the applicants seek orders that the child live with them – order made for the applicants to have equal shared parental responsibility for the child – order made for the child to live with the applicants.
Family Law Act 1975 (Cth) ss 60CC, 60CA, 61B, 64B(2)(i), 65C(c), 69ZN(7)
| Bernieres and Anor & Dhopal and Anor [2017] FamCAFC 180 |
| 1st APPLICANT: | Mr Pappas |
| 2nd APPLICANT: | Ms Pappas |
| RESPONDENT: | Ms Ugapathai |
| FILE NUMBER: | MLC | 819 | of | 2016 |
| DATE DELIVERED: | 21 December 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thornton J |
| HEARING DATE: | 5 December 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANTS: | Mr L |
| SOLICITOR FOR THE APPLICANTS: | Anderson Family Lawyers |
| THE RESPONDENT: | No Appearance |
Orders
That the applicants have equal shared parental responsibility for the child B born … 2015 (“the child”);
That the child live with the applicants.
The applicants’ solicitors, Anderson Family Lawyers serve upon the respondent by sending by registered post:
(a) a sealed copy of these orders;
(b) a certified Country M translation of these orders;
(c) a covering letter explaining these orders; and
(d) a certified Country M translation of the covering letter:
to the respondent’s addresses of C Street, Provence D, Country M and E Street, Provence F, Country M.
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.
All extant applications be otherwise dismissed.
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 Pappas and Anor & Ugapathai 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 819 of 2016
| Mr Pappas and Ms Pappas |
Applicants
And
| Ms Ugapathai |
Respondent
REASONS FOR JUDGMENT
introduction
The applicants seek orders for equal shared parental responsibility for the two year old child, B born in 2015 who has been in their full-time care since she was born. They also seek an order that the child live with them.
The child was born in City G, Country M after the applicants entered into a surrogacy agreement with the respondent through the assistance of the Q Fertility Centre in City G on or about 15 July 2014. The agreement is written in both English and Country M. The child was born as a result of an embryo transfer to the respondent surrogate in Country M. The embryo was created from an anonymous egg donor and the sperm of the first named applicant. The first applicant is listed on the Country M birth certificate of the child as her father.
The Australian Embassy in City G assisted in collating the documents required for the formal process of obtaining Australian citizenship and the passport for the child. Shortly after the birth of the child, the applicants brought her to Australia. This was after they satisfied the requirements for the child to obtain Australian citizenship prior to departing Country M.
Service
An order was made by Registrar Field on 27 September 2017 for the service of an Amended Initiating Application, a sealed copy of the order, and the affidavit of the first applicant together with translation of the documents in the Country M language to be sent by International registered post to the respondent.
Registrar Field ordered that in the event there was no compliance by the respondent in respect of paragraph 3, which provided that all parties were to attend the hearing on 5 December 2017, the applicants have liberty to apply to have their Initiating Application proceed on undefended basis.
A notation to the order records that the respondent was sent copies of the relevant court documents both in English and Country M on or about 4 April 2016 to which there was no response.
An affidavit of Mr H was filed on 26 April 2016. Mr H is a lawyer employed in Country M and was engaged by the applicant’s solicitors to attend to service of the application on the respondent. He deposed to attempting to telephone the respondent on many occasions but was met with a connection to a Country M message bank service. He deposed to attending the respondent’s last known residential address in March 2016, but that nobody was at the property.
Mr H deposed to meeting with a woman in April 2016 who was the International Patient Care Manager at Q Fertility Centre. He deposed that he was informed that the respondent had moved and that Q Fertility Centre was not aware of her address.
Further Mr H deposed that the woman attempted to telephone the respondent in his presence and there was no answer. He deposed that the woman telephoned the respondent’s sister and then informed him that the respondent’s sister had no knowledge of the respondent’s whereabouts. He deposed that the woman agreed to retain the Court documents and make them available to the respondent should she come into contact with her.
He also deposed that the applicant’s solicitors prepared a letter dated 4 April 2016 to the respondent and the letter and the documents were sent to the respondent’s ID card address on 7 April 2016. He deposed the letter was translated into the Country M language and the documents were in Country M and English.
An affidavit of service by the first applicant filed at the hearing on 5 December 2017 confirmed compliance with the orders of 5 December 2017 and deposed that the documents were sent to the respondent at her last known address on 22 November 2017, together with a self-addressed envelope. He deposed that FedEx was used to deliver the documents. He deposed that he believed the FedEx employees attempted to deliver the documents at the two known addresses of the respondent however they were unsuccessful. He deposed that:
FedEx tracking provided a tracking report for the documents. This report shows that there was no one at the first address. With respect to the address specified on the Respondent’s [Country M] ID card, the occupants at the premises refused to accept the documents.
The first applicant deposed that he is unaware of any other means of locating or serving the respondent.
The first applicant annexed a copy of the surrogacy agreement (“the Agreement”) which is in both English and Country M. The Agreement provides that:
The Surrogate and Intending Parent(s) agree that the Intending Parent(s) will take full responsibility for the child as soon as is medically practicable following its birth and will bear the full cost and responsibility of caring for and raising the child.
The Agreement also provides that the surrogate agrees to the following responsibilities:
1.Neither the Surrogate, nor any member of her family or other people connected with her, shall have any physical or any parental rights or duties with respect to the child born of this gestational surrogacy process, and that the Intending Parents shall exclusively have such custody and all parental rights and duties from the moment of the child’s birth.
2.The Surrogate understands and acknowledges that when she gives birth to the child, the Parent/s shall be able to take the child abroad and the Surrogate grants permission for the Parent/s to take the child from [Country M]. This permission and consent shall be irrevocable in all respects and the Surrogate shall proceed to assist the undertaking for all necessary steps to facilitate the Parent/s with consent and approval from the competent authorities including but not limited to the Embassy of [Country M], Immigration office, Child protection, Child Welfare department and/or Child adoption bureau in [Country M] in helping to take the child out of [Country M].
Taking into account the order made by Registrar Field and the affidavit evidence about the attempts at service filed 26 April 2016 and 5 December 2017 together with the surrogacy agreement, I am satisfied that the applicants have taken all reasonable steps to bring this application to the attention of the respondent.
In all the circumstances of the case I am satisfied that it is appropriate to dispense with further service and proceed with the application in the absence of the respondent on an undefended basis.
The respondent to the application who was provided with the address of the applicants, has had no contact with the child since birth and has made no attempt to contact the child or the applicants.
Background
The applicants have lived together since 2001 and were married in 2003 in City J, Country K. The parties have no children of the relationship and live in Australia.
The first applicant is aged 46 and employed as a technician on a full-time basis. His annual income is approximately $105,000 per annum.
The second applicant is aged 49 years and was born in Country K. Since the birth of the child, the second applicant has been the primary carer and attended to all the child’s day to day needs.
Evidence
The applicants relied on the following documents:
· Amended Initiating Application filed 11 October 2017;
· Affidavit of Mr Pappas filed by leave on 5 December 2017;
· Affidavit of Mr Pappas filed 11 October 2017;
· Affidavit of Mr L filed 2 November 2016;
· Affidavit of Ms Pappas filed 3 February 2016;
· Affidavit of Mr Pappas filed 3 February 2016; and
· Affidavit of Mr H filed 26 April 2016.
The affidavit of the first applicant filed 3 February 2016 has been read by the second applicant and confirmed by her to be true and correct.
The first applicant deposed that the child is happy and healthy and has attended all of her scheduled appointments with the maternity and child health nurse and “is tracking to the age appropriate developmental milestones.”
The first applicant deposed that the child engages with a number of different groups and attends occasional care once a week. She is enrolled for three-year-old kindergarten programs in 2018 and to participate in “a bush playgroup, [Country K] story time, a playgroup for children born through surrogacy and formal swimming lessons”. He deposed that the child has a relationship with the second applicant’s parents whom she regards as her grandparents. The second applicant’s parents have visited from Country K annually since the child was born and contact the child via phone and Skype. He deposed that the child also has regular contact with his parents on a fortnightly basis.
The first applicant deposed that he shares with the second applicant the duties and responsibilities concerning the care, welfare and development of the child with the second applicant and that they continue to provide a safe and loving home environment in which her emotional, psychological and physical needs are met as well as her financial needs. He deposed that the child will also have the support of the extended families of the applicants.
The relevant law
The application is brought pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”). A parenting order may deal with any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child (s 64B(2)(i) of the Act).
Parental responsibility is defined under s 61B for Part VII of the Act in relation to a child, to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
In making any parenting order, the child’s best interests are the paramount consideration mandated under s 60CA of the Act.
Under s 64C of the Act parenting orders may be made in favour of parents or other persons. There is no definition of “parent” in the Act other than a definition which includes an adoptive parent in relation to a child who has been adopted.
In Mankiewicz & Anor & Swallow & Anor [2016] FamCAFC 153 at paragraph 10, Ryan and Austin JJ said of the issue of standing to bring an application for a parenting order:
The effect of s 65C is that the only people who have an unconditional right to apply for parenting orders are those identified in ss 65C(a), (b) and (ba). 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.
Section 65C sets out who can apply for a parenting order. I am satisfied that the applicants have standing to make an application for parenting orders under s 65C(c) of the Act, as they are clearly persons concerned with the care, welfare and development of the child.
I have had regard to several decisions made in this Court concerning surrogacy arrangements. Those decisions include Ellison and Anor & Karnchanit [2012] FamCA 602 and Fisher-Oakley & Kittur [2014] FamCA 123 (“Fisher-Oakley”), and the recent decision of the Full Court in Bernieres and Anor & Dhopal and Anor [2017] FamCAFC 180, noting that the case before me has some distinguishing features in that there is no declaration as to parentage sought by the applicants here.
I agree with the level of disquiet which has been expressed by the judges of this Court about international surrogacy arrangements. The disquiet expressed has related to concerns, amongst other things, about organisations or agencies profiting from the poverty and other problems that women in developing countries such as Country M might face.
However, I have no reason to doubt the evidence in this case that the applicants have cared for the child since birth and are genuine loving parents. Whilst it is open to the Court to consider the appointment of an Independent Children’s Lawyer, I agree with Cronin J’s comment in Fisher-Oakley that there seems little benefit in revisiting those matters which were considered by Ryan J in Mason & Mason and Anor [2013] FamCA 424. The appointment of an Independent Children’s Lawyer is unlikely to add to any of the information already obtained from the parties and would involve considerable expense for the public purse.
I have also taken into account that Division 12A of the Act reduces the significance of the evidentiary rules in relation to applications for parenting orders. As per s 69ZN(7) of the Act, child related proceedings are to be conducted without undue delay, and with as little formality, legal technicality and form as possible. Accordingly, I consider that the application should be determined without the need for any further material.
Determining the child’s best interests
Section 60CC sets out “primary” and “additional” considerations, to which I have had regard in determining what orders are in the child’s best interests.
Primary considerations
The primary considerations in 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 the primary considerations greater weight must be given to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[1]
[1] Family Law Act 1975 (Cth) s 60CC(2A).
The reality is that the applicants have always had the child in their care and offer the only proposal for the care of the child. There is no other proposal for consideration. The child does not have any relationship with the respondent who has had no contact with the child since birth.
There is no evidence of there being any need to protect the child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.
The additional considerations
The additional considerations are listed at s 60CC(3) of the Act.
The views of the two year old child are not relevant here having regard to her young age.
The applicants have been responsible for all major long-term decisions concerning the child and have been providing for her emotional and intellectual needs since birth. There is no proposal to change the existing parenting arrangements for the child and no proposal by the respondent. There is no evidence that the respondent intended to form any ongoing relationship with the child and in fact there is no relationship between the child and the respondent. There is no evidence about any difficulty or expense of spending time and communicating with the respondent as there is no proposal by the respondent. There is no evidence of any family violence.
Conclusion
I am satisfied that the applicants have standing to make the application. I am also satisfied that in the circumstances of this case, the applicants have made all reasonable efforts to serve the respondent with the application and supporting affidavits and it was appropriate to proceed in the absence of the respondent.
I accept the evidence of the applicants.
I have had regard to the paramount consideration of the best interests of the child under s 60CA of the Act, as well as to the primary and additional considerations as outlined in s 60CC of the Act.
Despite any questions of policy surrounding international surrogacy arrangements, I am here tasked with determining only whether the orders sought by the applicants are in the best interests of the child.
I am satisfied that since birth, the child has been loved, cared for and supported by the applicants. Both applicants are concerned with the care, welfare and development of the child, and on the uncontradicted evidence, they appear to have the capacity and intention to continue to responsibly support and care for the child. The s 60CC factors favour a finding on all the evidence that the applicants are responsible, dedicated and willing carers of the child, and are the only parental figures the child has ever known. The reality is that there is no other carer seeking parental responsibility for the child. In these circumstances I am satisfied that the proposals of the applicants are in the best interests of the child and that it is appropriate to make the orders they seek.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 21 December 2017.
Associate:
Date: 21 December 2017
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