Raines and Anor and Curtin

[2007] FamCA 1295

FAMILY COURT OF AUSTRALIA

RAINES AND ANOR & CURTIN [2007] FamCA 1295

FAMILY LAW – CHILDREN – Parenting – Child born as result of gratuitous surrogacy arrangement – Parental responsibility – Leave to adopt

Family Law Act 1975 (Cth)

APPLICANTS: Mr Raines & Ms Banner

RESPONDENT: Ms Curtin

FILE NUMBER: MLC 9182 of 2007

DATE DELIVERED: 15 October 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 15 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Mr Sayer

SOLICITOR FOR THE APPLICANTS: T.J. Mulvany & Co.

Orders

1. That until further order Mr Raines and Ms Banner have equal shared parental responsibility for the child born … May, 2007.

2. That until further order the child live with Mr Raines and Ms Banner.

3. That upon advice to the associate of the Honourable Justice Brown that he has received a letter from solicitors instructed by the respondent, confirming that the respondent does not oppose the orders sought in the application for final orders filed 15 August, 2007, the matter be listed before the Honourable Justice Brown on a date to be advised.

4. That the form 2 application filed 15 August, 2007 be otherwise dismissed.

5. That pursuant to s.65DA(2) and s.62B of the Family Law Act1975 (Cth), 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.

6. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

7. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of a solicitor appearing as counsel.

IT IS NOTED that publication of this judgment under the pseudonym Raines and Anor & Curtin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9182 of 2007

MR RAINES & MS BANNER

Applicants

And

MS CURTIN

Respondent

REASONS FOR JUDGMENT

1. Before the court are applications for final orders and interim orders in respect of the child, who was born in May 2007.  The applicants, Mr Raines and Ms Banner, have been in a relationship for some time and married in January 2004.  Ms Banner has deposed to the lengthy and no doubt harrowing procedures she and Mr Raines attempted in the hope of having a child.  She had a number of miscarriages and many assisted fertility procedures; the court is well aware, based on of expert evidence, of the commitment that is necessary from those who take that path.

2. Eventually, an egg donor was arranged, through proper channels; she is the respondent to the application, Ms Curtin.  When it became clear that Ms. Banner could not carry an embryo to full term, Ms Curtin agreed to carry an embryo, made up of an egg donated by her and sperm from Mr. Raines.  The child is thus his biological child.

3. The court has an obligation to make it clear that surrogacy agreements are not able to be enforced pursuant to the laws of Victoria.  That is a matter within State law.  I say nothing further on that subject.  The court’s jurisdiction is to make parenting orders in respect of children, on application by a parent, grand parent or other interested party.  I am satisfied the applicants have the status to bring the application and the court the jurisdiction to make the orders sought.

4. The parties have deposed to the good relationship they have with Ms Curtin.  Today I heard evidence from the applicants’ solicitor about discussions with a solicitor instructed by Ms Curtin, following the initial listing of this matter at a case assessment conference.  That solicitor foreshadowed the filing of a response by Ms. Curtin, confirming her consent to the orders sought.  The Family Law Rules2004 only require a response to be filed if the respondent seeks orders other than those sought by an applicant, which is not the case here.  

5. On the evidence now before me, there is no reason to doubt the bona fides of all the parties to this application.  No doubt each will understand that the court must ensure it is not being used to “rubber stamp” inappropriate arrangements, which may not be in the best interests of the children involved.  For that reason, the court must be confident the respondent has been served and does not wish to be heard in opposition to the proposed orders.  That is why the Registrar referred the case into court.

6. The orders sought provide for the applicants to have equal shared parental responsibility for the child, who has been living with them since her birth.  They seek to be able to sign applications for a passport for her.  An order for equal shared parental responsibility would enable them to do that.  They also seek a declaration that Mr. Raines is the parent of the child for the purposes of all laws of the Commonwealth, and to be granted leave for proceedings to be commenced for the adoption by Ms Banner of the child.

7. Under the relevant law a person named on an Australian birth certificate (such as that before the court) as the father of the child is deemed to be the father.  No evidence suggesting otherwise, I am satisfied that Mr. Raines is the father of the child and should be declared to be her parent for all the purposes of the laws of the Commonwealth of Australia.  I am also satisfied it would be in the child’s best interests for the parties to seek her adoption by Ms. Banner.  Adoption confers full parental status, unlike an order of this court, which can govern the exercise of parental responsibility until a child turns 18.  While adoption is a matter for State authorities, it is likely it would accrue to the child’s benefit to be, as the result of an adoption order, the child of Ms. Banner, as well as the child of Mr. Raines.

8. I am satisfied it is appropriate to make interim parenting orders today.  Upon the filing of a letter from the solicitor instructed by the respondent, confirming that Ms. Curtin does not oppose the orders sought, final orders will be made.

9. I thus make interim orders providing for the applicants to have equal shared parental responsibility for the child until further order, and for the child to live with them. Upon confirmation from their solicitor of receipt of the letter from the solicitor instructed by the respondent, I will make final orders in the terms of the application.

I certify that the preceding 9 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Brown AM.

Associate:  15 October 2007