Schone & Schone & Anor

[2013] FMCAfam 1126

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SCHONE & SCHONE & ANOR [2012] FMCAfam 1126

FAMILY LAW – Whether application should be transferred to the Family Court of Australia – conflicting decisions of Family Court judges – whether an Independent Children’s Lawyer would be funded by Victoria Legal Aid.

Family Law Act 1975 (Cth), s.60H
Relationships Act 2008 (Vic)
Federal Magistrates Act 1999 (Cth), s.39

Ellison & Anor & Karnchanit (2012) FamCA 602
Gough & Gough (2012) FamCA 79

Applicant: MR D SCHONE

First Respondent: MR M SCHONE

Second Respondent: MS CARTLAND

File Number: DGC 2209 of 2012

Judgment of: Phipps FM

Hearing date: 10 October 2012

Date of Last Submission: 10 October 2012

Delivered at: Dandenong

Delivered on: 10 October 2012

REPRESENTATION

Counsel for the Applicant: The Applicant appeared in person

Counsel for the First Respondent: The First Respondent appeared in person

Counsel for the Second Respondents: No appearance by or on behalf of the Second Respondent

ORDERS

1. Pursuant to s.39 of the Federal Magistrates Act1999 (Cth) this matter be transferred to the Family Court of Australia.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DANDENONG

DGC 2209 of 2012

MR D SCHONE

Applicant

And

MR M SCHONE

First Respondent

MS CARTLAND

Second Respondent

REASONS FOR JUDGMENT

(Revised From Transcript)

1. The applicant and first respondent are caring for twins born under a commercial surrogacy agreement in India.  The current material says that the applicant, Mr D Schone, is the biological father of the two children. The two children are [Y] and [X], both born [in] 2012.  The first respondent, Mr M Schone, is the partner of Mr D Schone and, on the affidavit material I have, is the principal carer for the children.  The second respondent, Ms Cartland, is the surrogate mother.

2. I have on the file an affidavit of service on the second respondent, although I am not confident that it is sufficient to establish service, although it is not something I will need to determine.  The applicant and first respondent apply for orders that Mr D Schone and Mr M Schone have equal shared parental responsibility for the children, and that the children live with them, and other orders concerning the authorisation of medical and similar matters.

3. There have been a number of decisions in the Family Court of Australia concerning applications by Australian citizens for parenting orders in relation to children born in other countries under commercial surrogacy agreements.  The most recent of them is Ellison and Anor & Karnchanit (2012) FamCA 602, a decision by Ryan J in the Sydney Registry.  There, the applicants applied for orders in relation to twins born under a commercial surrogacy arrangement in Thailand.  The decision shows the complications involved in a case such as this.  Her Honour had the assistance of senior counsel and junior counsel representing the Independent Children’s Lawyer, and counsel appearing for the Australian Human Rights Commission as intervenor.

4. Her Honour sets out at the end of the judgment under the heading Surrogacy Matter Best Practice Principles the steps which she considers should be followed.  They included the appointment of an Independent Children’s Lawyer, a family report, and a significant amount of evidence, including evidence from the birth mother about the birth mother’s personal circumstances, in particular her circumstances at the time the reproduction procedure took place, the circumstances leading up to the surrogacy agreement, and the procedure itself, and the circumstances after the birth of the child.

5. On the file in this case is the birth certificate for the child [Y].  The birth certificate is from the Government of [omitted], a municipal corporation of Greater Mumbai.  It states the name of the mother as “not known” and the father as Mr D Schone.  Also on the file are certificates of citizenship by descent for the two children issued by the Commonwealth of Australia.  They have filed, too, their relationship certificate, that is, by both Mr M Schone and Mr D Schone, their relationship certificate under the Relationships Act 2008.

6. In Ellison & Karnchanit (2012) FamCA 602, Ryan J took the view that s.60H in the Family Law Act 1975 (Cth) which deals with children born by in vitro fertilisation or assisted reproduction was not the sole section of the Family Law Act 1975 (Cth) which dealt with determination of parentage in such cases for the purposes of Australian law. In Gough & Gough (2012) FamCA 79, Macmillan J took a different view.  If I was to proceed with this case, I would be faced with conflicting decisions by Family Court of Australia judges.

7. The other matter is the complications involved.  If I follow Ryan Js decision about procedure that would include the appointment of an Independent Children’s Lawyer.  There is nothing in the material to suggest that this case would satisfy the requirements of the Victoria Legal Aid Commission for them to appoint an Independent Children’s Lawyer.  There are three matters that Victoria Legal Aid require: Allegations of physical, sexual or psychological abuse; the conduct of the parties is alleged to be anti‑social; or there are issues of significant medical or psychological illness or personality disorder.  This is not such a case.  The contrary appears to be the case.

8. If I was to make an order in this court for the appointment of an Independent Children’s Lawyer, it is likely that it would not be made and funded by Victoria Legal Aid.  For these reasons, the matter should be transferred to the Family Court of Australia. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Phipps FM.

Date:  11 October 2012