Saliba & Anor & Romyen
[2015] FamCA 927
•22 October 2015
FAMILY COURT OF AUSTRALIA
| SALIBA AND ANOR & ROMYEN | [2015] FamCA 927 |
| FAMILY LAW – CHILDREN – where the parties seek an order for parental responsibility – where the parties have engaged in an overseas gestational surrogacy arrangement – where first applicant is the biological progenitor of the children – where the ovum produced was from an anonymous donor – where the children are Australian citizens by decent – where consideration is given to the best practice principles as determined in Ellison & Karchanit (2012) Fam LR 33 – where consideration is given to the circumstances of the surrogacy arrangement and the birth mother to ensure that she has not been the subject of exploitation, coercion or duress – where it is found that the orders sought by the applicants are in the children’s best interests – where it is ordered that the applicants have equal shared parental responsibility and that the children live with them. |
Family Law Act 1975 (Cth) – s 60B, s 60H, s 60HB, s 62B, s 65C, s 65DA, s 69ZN, Part VII
| Bernieres & Anor & Dhopal & Anor [2015] FamCA 736 Ellison & Anor & Karchanit (2012) Fam LR 33 Green-Wilson & Bishop (2014) FamCA 1031 Groth v Banks (2013) 49 Fam LR 510 Mason & Mason [2013] FamCA 424 |
| APPLICANTS: | Mr Saliba and Ms Lepidi |
| RESPONDENT: | Ms Romyen |
| FILE NUMBER: | ADC | 1781 | of | 2015 |
| DATE DELIVERED: | 22 October 2015 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 22 October 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr McGinn |
| SOLICITOR FOR THE APPLICANT: | Nicholes Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | No appearance |
Orders
The applicants Mr Saliba and Ms Lepidi have equal shared parental responsibility for the care, welfare and development of the children A Saliba and Z Saliba both born … 2014.
The said children live with the applicants.
That pursuant to section 65DA(2) and section 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.
That all proceedings be removed from the pending list of cases.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Saliba and Anor & Romyen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 1781 of 2015
| Mr Saliba and Ms Lepidi |
Applicants
And
| Ms Romyen |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
INTRODUCTION
By Initiating Application filed 21 May 2015 Mr Saliba, being the first applicant, and Ms Lepidi, being the second applicant, seek parenting orders in respect of A Saliba and Z Saliba, twin children born in 2014. Whilst the Initiating Application names Ms Romyen (“the birth mother”), as the respondent to the proceedings, it is common ground that she has not filed a response to the application and therefore did not seek any orders. When this matter first came before me on 27 August 2015 I was concerned at the paucity of information before the Court, not in terms of the personal circumstances of the applicants, but rather as to the circumstances of the respondent and her knowledge, or perceived knowledge, of the proceedings.
There were matters of disquiet in respect of the terms and conditions of the surrogacy agreement, a document that I will refer to later in these reasons, but it is sufficient to note that at that stage I could not be confident or satisfied that the respondent had been given all reasonable opportunity to appear and to seek orders and/or to contest the assertions that were being made by the applicants. I was asked on the last occasion to assume that the non-appearance of the respondent should be considered as tacit consent to the orders being sought. I was not satisfied that such a finding was open to me in circumstances where the surrogacy agreement provided that any contest by the respondent in respect of the assertions made by the applicants in this or in any other court may well enliven a claim for damages against the respondent.
A second consideration that I took into account was an assumption, perhaps that I was not entitled to make, that the respondent may well have been in straitened financial circumstances and could not afford either representation or a proper consideration of the issues.
It was also put to me on the last occasion that I should approach the arrangements as between the applicants and the respondent as one of an altruistic surrogacy. That was because the agreement did not provide, other than what might be considered the expected and anticipated disbursement costs of the procedure and the confinement of the respondent, for any other further or extraneous payment. That matter was raised, and I note the response and submission that whilst there may have been financial arrangements as between the applicants and the third-party entity in the agreement, namely “the team”, the applicants are not certain of what the financial arrangements were in respect of the team and the respondent.
I am not so certain that the full nature of the arrangement has been the subject of complete disclosure. Those matters of uncertainty caused me to consider that the matter needed to be further adjourned to enable better information to be placed before the court. Upon the matter returning to me today, a further affidavit has been provided, as yet not filed but sworn by the first applicant on 20 October 2015.
BACKGROUND
The first applicant is 46 years of age. His employment is recorded as being the managing director of a company. He asserts that he is in good health. The second applicant is his wife. And I am told that it is her intention, as a result of the return of the parties, but also the children, from Thailand to Australia, that at least for the foreseeable future she intends to remain at home with her clear focus being the ongoing care of the infant children.
The parties commenced their cohabitation in 2007, were married in 2014, and present to the Court as a united couple, with a relationship now in excess of eight years. Importantly, the children are of good health and are in the full-time care of the applicants. The children were born in Thailand, as a result of a surrogacy arrangement. The documents provided initially, but also in terms of the most recently tendered affidavit from the first applicant, satisfy me that he is the biological progenitor in respect of the children. That is, the children were conceived with his sperm, together with an ovum produced from an anonymous donor.
There is nothing in the documents which talks about the connection and the identity of the egg donor. I assume it is intended that be so. It is a matter that is common in respect of surrogacy matters that there is rarely any information as to the identity of the egg donor.
The applicants did not enter into the surrogacy process lightly. Their discussions, in terms of starting a family, have obviously been a matter of active consideration. And from 2010 the affidavit material suggests that the parties started to explore surrogacy as an opportunity and pathway towards starting a family that they so clearly desired to achieve. The process, which is described in the affidavit material as “the surrogacy journey”, is an interesting one. The parties attended a conference, travelled extensively between Thailand and Australia, and met and consulted with a number of surrogacy organisations. Eventually, an organisation was agreed upon. After some six previous attempts via surrogacy process, the parties were successful.
As is again common in these matters, the parties, or more particularly the first applicant, entered into a surrogacy agreement involving the surrogate mother, namely the respondent in these proceedings. There are aspects of the agreement which are unlikely to be enforceable, and in respect of certain of the provisions, are nothing short of outrageous.
Following acceptance by the relevant authorities, both in terms of the Thai government and the Australian government, that proper practice and procedure has been satisfied, permission was given for the children to leave Thailand and travel to Australia. As far as the Australian government was concerned, an appropriate Application for Australian Citizenship by Descent was made. Upon the Australian government being satisfied that Mr Saliba was the biological progenitor, a Citizenship by Descent Certificate was issued, and the children were permitted to enter Australia.
FINDINGS
I indicated to counsel but as a matter of formality, I will again say that I am entirely satisfied that all appropriate procedures have been undertaken and that the biological connection is clear and established. There is nothing in the matters that I say, with the comments that I make, which in any way suggests that the applicants have not been other than entirely honest and appropriate and have complied with precision to the requirements necessary to achieve the result that they desire, namely that the children were given citizenship in the Commonwealth of Australia.
As a secondary benefit of the documents provided by the first applicant, I am able to find that even though there has been no response or consent from the respondent that nonetheless the process in and of itself, would not have enabled the children to leave Thailand and enter Australia unless the relevant authorities were satisfied that the children were leaving Thailand was with the consent of the respondent.
Accordingly, I am satisfied that I can proceed to determine the application on its merits and not be hindered or hampered by any lingering or residual concern that I have that in some way the respondent has not been given an appropriate opportunity to be heard.
That is not to say that I am now unconcerned as to the appropriateness of the agreement nor, indeed, am I satisfied that I have been given the full circumstances in respect of the financial arrangements. It is simply that in this case I am satisfied that the personal circumstances of the parties lead me to give those other considerations less weight and focus my attention on the reality which is that these children are in the care of the applicants and are likely to remain so.
The orders that are being sought are that the applicants both have parental responsibility in relation to the long-term and day to day care, welfare and development of these children and as a secondary order, that the children live with the applicants.
I am not being asked to consider whether there should be a declaration of parentage or, indeed, even a finding that for the purposes of the Family Law Act 1975 (Cth) (the Act) and the provisions pursuant to Part VII, that either of the applicants are a parent for the purposes of the Act.
That may seem an unusual observation and I make it only because there is current uncertainty in terms of the status of parties in a similar position to the applicants.
There are countervailing decisions of this Court which have found, on the one hand, a person in the position of the applicant is a parent and decisions which say that whilst that may be obvious and a common sense outcome, the consideration of the provision in the Act, do not allow for such a finding.
As I have indicated to counsel, that issue is now subject to appeal and assuming that the proceedings run their course, it is hoped that the Full Court will provide some clarity to what is a very difficult and distressing hiatus in the provisions of the Act insofar as they relate to the particular issues thrown up by these sorts of applications.
For the purposes of the proceedings, I rely upon the following documents:-
(1)The Initiating Application filed 21 May 2015
(2)The Affidavit of the first applicant filed 21 May 2015
(3)The Affidavit of the second applicant filed 21 May 2015
(4)An Affidavit of Nadine Udorovic, solicitor for the applicants, filed 24 July 2015
(5)The Affidavit tendered by counsel of the first applicant sworn 20 October 2015
In making orders as sought, the hesitation is not simply the rigour that is imposed upon me in terms of the provisions of Part VII of the Act relevant to the proceedings but I am also mindful of what has been described as the best practice principles as determine by Ryan J in Ellison & Anor & Karnchanit (2012) Fam LR 33.
That case is important because her Honour had the advantage of submissions from the Australian Human Rights Commission and an independent children's lawyer. The concern of the Court was to acknowledge the complexity of surrogacy cases and the potential lack of transparency as to the arrangements that are entered into which require consideration to be given to the birth mother to ensure that she has not been the subject of exploitation, coercion or duress.
In my opinion, properly so, her Honour was of the strong view that the birth mother’s consent must be both free and informed and that in all surrogacy cases there should be a high level of rigour imposed by the court as a safeguard to ensuring, as best as may be possible, the veracity of the birth mother, child or children, and the parties.
That statement may seem self-evident. It is not beyond the ability of parties who are devious and who have a malintent that documents are forged and that children are promoted as having a connection with applying parties in circumstances where there is no such connection. It is also an unfortunate feature of the industry, and I use that expression generically but advisedly, that there is as her Honour found, coercion and duress.
At [135] to [139] of her Honour’s judgment she sets out a number of steps which she considered should be followed. I do not propose to go into those steps but I raise it so that it at least is understood that I am cognisant of those matters. To the extent that I have not undertaken them I consider, in the circumstances of this case, that not all are necessary.
Principally, I have not considered it necessary to have an independent children's lawyer appointed nor, indeed, that there be a report from a family consultant. If I had the slightest doubt as to the veracity and integrity of the applicants I would not have hesitated to follow here Honour’s best practice steps.
I do not do so because I am entirely satisfied as to the personal circumstances of the applicants and the truthfulness of their story in the sense that their purpose was to, by way of surrogacy, have children to build a family. These children have not been brought to Australia for ulterior or criminal purpose and the personal circumstances of the parties are both impressive and have impressed me but it is a high bar and if I had had the slightest concern as to the motives, intentions and circumstances of the parties, the course and conduct of this matter would have been more rigorous.
Again, I make those remarks notwithstanding the misgiving that I have that there is more to the financial story than has been expressed.
The surrogacy arrangement in this case can be described as “gestational surrogacy”. That is the surrogate mother has no genetic link with the child. In this case, the ovum or egg is from an anonymous donor. The sperm comes from the first applicant. The concept and attitude towards surrogacy, in particular when it is not altruistic surrogacy, evokes strong emotion.
In a judgment that I delivered of recent date, namely Bernieres & Anor & Dhopal & Anor [2015] FamCA 736 I quoted the remarks from the Honourable Member of the New South Wales Parliament Pru Goward when the member considered the Surrogacy Bill being introduced into the New South Wales Parliament in 2010 and she said the following in what I recorded in my judgment as “emotive terms” but nonetheless sets out the parameters:
Women are not cows; they are not animals and their job is not to bear children for money because other people want children. If it is good enough to ensure that Australian women cannot be exploited commercially for this purpose, out of respect for women around the world, particularly the vulnerable women of Asia and other countries where commercial surrogacy flourishes, we should be particularly mindful that if we do not support this amendment, effectively we are saying that there is one rule for our women and another rule for women in poor countries. That is not good enough. Whilst this parliament does not have a leading role in international relations and affairs, it should, as much is able, uphold Australian values which mean respect for all and the rights of all to live free of exploitation.
It is an interesting observation that in the fact sheet annexed to the affidavit of the first applicant there is clear advice and warning in respect of matters arising from the sentiment expressed by the Honourable Member but also of assistance in the circumstances where the New South Wales Parliament has determined that international surrogacy is illegal.
AUTHORITIES
At the conclusion of the submissions by counsel, a number of decisions were provided to me for my assistance. One of them was a decision by Johns J in Green-Wilson & Bishop [2014] FamCA 1031. In that case, her Honour had to consider whether a party who was the child’s biological father should be declared a parent of the child. Her Honour helpfully considered the various authorities that the commercial surrogacy arrangement entered into by the parties was not a surrogacy arrangement recognised under the relevant Victorian legislation; therefore, section 60HB did not apply, and in her Honour’s judgment she posed what is clearly the gravamen of the matter, namely, who are the child’s parents.
In Mason & Mason [2013] FamCA 424, being a decision by Ryan J following her Honour’s decision in Karnchanit (supra), her Honour was not prepared to make a declaration as to parentage, although the matter was confused by her Honour’s refusal being based upon her Honour’s view that the child or children born of surrogacy arrangements should be properly considered by reference to the law of a relevant state or territory, and in New South Wales the law covered the field. Johns J did not indicate whether she did or did not find favour with the approach taken by Ryan J but was relieved of the decision because in Victoria commercial surrogacy was not prohibited.
The matter, however, was then left in an hiatus, but ultimately Johns J considered that adopting the approach by Cronin J in Groth & Banks (2013) 419 Fam LR 510, if there is both the biological connection and an intention to parent, then it is permissible to make a finding that the provider of the biological material is a parent for the purposes of the Act. Their Honours considered that s 60H and s 60HB in and of themselves have extended the category of persons who satisfy the definition of a parent, and, therefore, the category and definition of who can be a parent is not closed.
Even though the Act does not make provision for the circumstances in this and in other cases, their Honours argued that if the definition is not closed, that is, it is expansive, then the biological connection together with appropriate ancillary intention may well be all that is required or sufficient. I raise those matters not because there is any order sought in respect of a finding of parentage or even a declaration that one or other of the applicants be considered a parent, but because the issue, as I have indicated, is still under active consideration by the Full Court.
PARENTING ORDER
Therefore, the matter ultimately rests upon a consideration of orders pursuant to Part VII. The issue of a finding as to whether a party is or is not a parent clearly has some relevance in terms of the status of the applicant parties. Whilst I held a particular view, as I have indicated, as to whether a person is or is not a parent in the circumstances of this case, to some extent it is a moot consideration. Section 65C of the Act indicates clearly that a parenting order in relation to a child may be applied for by either of the child’s parents, the child, a grandparent or any other person concerned with the care, welfare or development of the child.
There has been authority that the particular categories under s 65C are not in order of priority but rather simply a list. I am satisfied and confident that I am able to proceed. There are two issues, obviously, that need to be considered. The parties seek an order for equal shared parental responsibility and then an order that the children live with them. The application is brought pursuant to Part VII of the Act, and any application in respect of Part VII requires the Court to have active regard to s 69ZN. There are five principles which require the Court to consider the needs of the child, the impact that the conduct of the proceedings may have on the child and to ensure that the proceedings occur with the least technicality.
Again, to some extent, once I am satisfied as to the integrity of the application and the applicants, I think I am entitled to give significant weight to s 69ZN and to ensure that the proceedings are brought to an end expeditiously. The certainty that the resolution sought by the applicants will bring will inevitably have an impact and a beneficial impact upon the children, notwithstanding that they are one year of age. It seems to me that I should make the order sought by the applicants for equal shared parental responsibility.
The test, as in all matters under Part VII, is the best interests of the children, and obviously the determination of that is by way of consideration under s 60CC. It is clearly practicable in the sense of the proposals put by each of the parties. The parties are clearly able to provide financially for these children and, importantly, are able to provide emotionally. The environment intended and actually created by he applicants for these children is in all the circumstances appropriate. These children will have the advantage not only of a loving and affectionate family environment but the added advantage of extended family of each of them.
Accordingly, I propose to adopt the following approach: that is, to give consideration to the proposals put by the parties as identified to the Court, and having regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2), have regard to the provisions of s 60CC(2) in order to determine by way of the primary consideration what is in the best interests of the children but then the additional considerations.
I also note that I am not obliged to give considerations to what might be considered the unnecessary or irrelevant provisions of s 60CC, but also as I have not made a finding that either of the parties are a parent to the children, I do not propose to apply those sections of s 60CC(2) both primary and additional which only apply to parents. That, of course, is not a significant impediment, because s 60CC(3)(m) easily persuades me that the orders that are sought by the applicants are in the children’s best interests.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 22 October 2015.
Associate:
Date: 29 October 2015
0
3
5