Ronalds and Victor

[2011] FamCA 389

FAMILY COURT OF AUSTRALIA

RONALDS & VICTOR [2011] FamCA 389

FAMILY LAW – SURROGACY - Parenting orders

1st APPLICANT: Mr Ronalds

2nd APPLICANT: Mr Victor

1st RESPONDENT: Ms Sarkar

2nd RESPONDENT: Mr Azad

FILE NUMBER: MLC 2388 of 2011

DATE DELIVERED: 13 May 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 13 May 2011

REPRESENTATION

SOLICITOR FOR THE 1ST APPLICANT: Lander & Rogers

SOLICITOR FOR THE 2ND APPLICANT: Lander & Rogers

Orders

1. That the applicants MR RONALDS and MR VICTOR shall share equal parental responsibility for the children L and O born … October 2009 and the children shall live with the applicants.

2. That 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.

3. That the application filed 23 March 2011 shall otherwise be dismissed and the case removed from the list of cases awaiting finalisation.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 2388 of 2011

Mr Ronalds & Mr Victor

Applicant

And

Ms Sarkar and Mr Azad

Respondent

REASONS FOR JUDGMENT

1. Mr Ronalds and Mr Victor have lived together since 2006 and have been in a registered relationship under the Victorian Relationships Act 2008 since 10 March 2009.  They wanted a family together.  In February 2009, Mr Ronald’s sperm was used to fertilise an egg from an anonymous donor, to be carried by the first respondent under a surrogacy agreement entered into in Mumbai on 17 February 2009. 

2. Twin girls, L and O were born in Mumbai in October 2009.  Within days of their birth, they came into the care of the applicants who nursed them in the Neonatal Intensive Care Unit until their release from hospital, and since then at first in Mumbai while Australian citizenship and passports were arranged, and since 22 October 2009 in Melbourne where they live.

3. Mr Ronalds was registered as the children’s father on their birth certificate. 

4. On 23 March 2011, the men filed an application seeking orders for the children to live with them both, and for them to have equal shared parental responsibility.  They sought substituted service on the respondents in India, via the international surrogacy agency that arranged the surrogacy, and also that the need for a family dispute resolution certificate should be waived. 

5. As to service, a Registrar ordered substituted service on 29 March 2011.  The affidavit of service filed on 6 May 2011 satisfies me that there has been compliance, and that the respondents have had adequate notice of the proceedings.

6. The respondents have chosen not only not to participate by attending, but also not to participate with any contact at all with the Court or with the applicants.  That would be consistent with the terms of the surrogacy agreement annexed to the initiating application and the affidavits of the men both filed on 23 March 2011.  It seems that since she gave birth to the twins, neither the first respondent nor her husband have maintained any contact at all with them or the men. 

7. As to the dispute resolution certificate upon which children’s cases should generally be founded, I am satisfied that this case can proceed nevertheless. Section 60I (9)(e) of the Family Law Act envisages a waiver in a case such as this, where physical remoteness would mean that there could not be effective participation.  In any event, in this case, the circumstances are such that the applicants and the respondents have had no interaction throughout the children’s young lives and that, in accordance with their shared intent captured in the agreement.  I would not be proposing enforcing the dispute resolution set out in the Act.

8. I turned my mind briefly to s 65G of the Act as to whether a Family Report is needed, given Mr Victor’s legal status as a non-parent party.  However, as Mr Ronalds joins him in the application, I am satisfied that it is not necessary.  In any event I would not regard it as necessary in the circumstances of this case. 

9. These orders effectively seek only to regularise the reality of the children’s little lives and worlds.  The girls shall continue to live with their two primary caregivers, who in turn shall continue to share responsibility for the decision-making for them. 

10. It is the children’s best interests that is the paramount consideration for me.  The sworn evidence satisfies me that it is in their best interests to live with the two adults who are essential to their wellbeing, where it appears they are well loved and well provided for physically, emotionally and financially. 

11. It would be to the detriment of the girls if only Mr Ronalds could make the major decisions for them, particularly in the context of Mr Victor attending to their daily care.  While Mr Ronalds is in paid work, if urgent major decisions are needed it is particularly important and in the children’s interests that Mr Victor is able to act, sign documents, and give instructions on their behalves, just as Mr Ronalds can.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 13 May 2011.

Associate: 
Date:  13 May 2011