Sedgwick and Anor and Rickards and Anor

[2013] FCWA 52

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: SURROGACY ACT 2008

LOCATION: PERTH

CITATION: SEDGWICK & ANOR and RICKARDS & ANOR [2013] FCWA 52

CORAM: DUNCANSON J

HEARD: 26 MARCH 2013

DELIVERED : 17 MAY 2013

FILE NO/S: SUR 1 of 2012

BETWEEN: MS SEDGWICK

MR SEDGWICK
Arranged Parents

AND

MS RICKARDS
Birth Mother

MR RICKARDS
Birth Father

Catchwords:

CHILDREN - child born pursuant to surrogacy arrangement - ancillary application to publish account of proceedings - best interests of the child - public interest - permission granted

Legislation:

Family Court Act 1997, s 37, s 243
Family Law Act 1975, s 43, s 121
Surrogacy Act 2008, Part 3, s 23, s 42, s 43

Category: Not Reportable

Representation:

Counsel:

Arranged Parents : Ms Oakley

Birth Mother : No Appearance

Birth Father : No Appearance

Solicitors:

Arranged Parents : Dwyer Durack

Birth Mother : Self Represented Litigant

Birth Father : Self Represented Litigant

Case(s) referred to in judgment(s):

Bakhtiari and Minister for Immigration, Multicultural and Indigenous Affairs and Others [2002] FamCA 768

Re Lowe and The Herald and Weekly Times Limited (1995) FLC 92-592

Re South Australian Telecasters Ltd (1998) FLC 92-825

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN

CHANGED

INTRODUCTION

1The proceedings concern [K Rickards] (“the child”) born [in] 2012. The child was born following a surrogacy arrangement entered into between [Ms Sedgwick] and [Mr Sedgwick] (“the arranged parents”) and [Ms Rickards] and [Mr Rickards] (“the birth parents”). Ms Sedgwick and Ms Rickards are sisters. Apart from a short stay in hospital after his birth the child has lived with the arranged parents. The parties complied with the requirements of the Surrogacy Act 2008 (WA) (“the Act”) with respect to the surrogacy arrangement.

2On 1 August 2012 the arranged parents were granted a parentage order in relation to the child who thereafter became known as [K Rickards].

THE ORDERS SOUGHT

3The application before the court is that of the arranged parents filed 11 July 2012 in which an ancillary order in the following terms is sought:

We seek a further order pursuant to s 243(89)(g) [sic] of the Family Court Act 1997 that we be permitted to participate in interviews with media organisations in relation to our Surrogacy Arrangemet [sic] and the circumstances of [K’s] conception and birth.

4The birth parents consent to the order sought.

5On 1 August 2012 it was further ordered that in the event the parties sought to proceed with their application for ancillary orders the court documents be served upon the following agencies:

The Attorney General of Western Australia;

The Minister for Health, Western Australia;

The Minister for Child Protection, Western Australia;

The Children’s Commissioner for Western Australia.

6I was informed that service had been effected and the aforementioned agencies did not seek to be heard.

7It was also ordered on 1 August 2012 that the parties had liberty to serve a copy of the documents upon the West Australian, Channel 7 and That’s Life magazine.

8Pursuant to s 43(1) of the Act the proceedings were not heard in open court but I directed that counsel for West Australian Newspapers and Channel 7 Perth have leave to appear.

9The proposal of West Australian Newspapers and Channel 7 Perth was as follows:

With the consent of the parties West Australian Newspapers and Channel 7 Perth wish to publish in The West Australian, online and on television a story which may include an “account of the proceedings”, in terms of section 243(1) of the Family Court Act 1997.

THE EVIDENCE OF THE ARRANGED PARENTS

10The arranged parents deposed that they intend and have agreed with the birth parents that the child will be told about the circumstances of his birth as soon as he is old enough to understand it. They and their extended families agree it is appropriate for the family to take that approach to his upbringing.

11Shortly before and shortly after the child’s birth the parties were interviewed by the West Australian Newspaper and articles were published in that newspaper before an application was filed in this Court.

12The previous reporting of the arrangement spoke positively about their experiences and made it clear that surrogacy took place in the appropriate manner pursuant to the provisions of the Act.

13The West Australian and Channel 7 Perth seek to do a follow up article around the time of the child’s first birthday [in] 2013.

14The parties deposed that they are happy to share their story with others and intend to show the articles and recordings to the child when they tell him about the circumstances of his birth.

15It was anticipated that the article to be published by the West Australian would include:

a)a photograph of the family;

b)a positive description of the experience the arranged parents have had over the first year of the child’s life;

c)a brief outline of the steps taken to achieve the surrogacy arrangement and subsequent pregnancy; and

d)an indication of the costs incurred in relation to the surrogacy arrangement.

16There would be no payment to the arranged parents or the birth parents for participating in the publication of the article.

THE LAW

17Parenting orders are made under Part 3 of the Act.

18Section 23 of the Act provides:

When the court makes a parentage order it may make any consequential or ancillary order it thinks fit in the interests of justice or for the welfare and in the best interests of the child whose parentage would be affected.

19Pursuant to s 42(1) of the Act, the Family Court Act 1997 (WA) applies to these proceedings.

20Section 243(1) of the Family Court Act 1997 (WA) provides as follows:

(1)A person must not publish in a newspaper or periodical publication or by radio broadcast, television or other electronic means, or otherwise disseminate to the public or to a section of the public by any means, any account of proceedings, or of any part of any proceedings, under this Act that identifies –

(a) a party to the proceedings;

(b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or

(c) a witness in the proceedings.

21Section 243(8) provides as follows:

(8) Sub-sections (1) and (2) do not apply to or in relation to –

…

(d) the publishing of a notice or report in pursuance of the direction of a court; or

…

g) the publication of accounts of proceedings, where those accounts have been approved by a court.

THE SUBMISSIONS OF WEST AUSTRALIAN NEWSPAPERS AND CHANNEL 7 PERTH

22Counsel for West Australian Newspapers and Channel 7, Mr McCarthy, submitted that there were three aspects to the Court’s consideration, namely:

1)the interests of the child and of the parents of the child;

2)the public interest; and

3)what the public is interested in.

The Interests of the child and of the parents of the child

23Counsel submitted that the occurrence of the child’s first birthday [in] 2013 was a “positive, good news” story. He said that the nature and tone of the article was to be one of celebration and joy for the two families involved. In considering the child’s interests, counsel submitted that it is the parties’ intention to explain to the child the circumstances of his birth when he is able to understand. The reports in the newspaper will therefore come as no surprise to him. Having regard to the positive nature and tone of the article, and the parties’ intentions, counsel submitted that an order allowing publication would be in the child’s best interests.

24Counsel provided me copies of the two previous newspaper articles. One was a front page publication [in] which reported the child’s birth as the first under the Western Australian surrogacy laws. The earlier article [in] provided background on the decision of the parties to enter into the surrogacy agreement and discussed the process undertaken. Counsel suggested that the previous articles would “give [the Court] a feel for what has been reported in the past and what is likely to be reported in the future”.

The public interest

25Counsel submitted that the surrogacy legislation deals with a matter of significant importance and public interest. He referred to the number of couples whose only option to have a child is by surrogacy and that the options they take are “some[times] difficult and sometimes awful”. The public interest, particularly where the story includes an account of proceedings, is therefore to bring the existence of this legislation, and the procedure within, to the attention of the public. The story would portray the legislation to the public in an effective way.

26Counsel submitted that it is appropriate to look at the issue of the public interest as other courts do with the starting point being the principles of open justice. He referred to relevant authorities including the following:

•Re Bromfield , Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153;

•Re Robins SM, Ex parte West Australian Newspapers Ltd (1999) 20 WAR 511;

•Re Her Honour Chief Judge Kennedy; Ex parte West Australian Newspapers Ltd [2006] WASCA 172;

•Re West Australian Newspapers Ltd – v – The State of Western Australia [2010] WASCA 10;

•TK v Australian Red Cross Society and Others (1989) 1 WAR 335.

27Counsel submitted that s 243 of the Family Court Act1997 (WA) is an exception to the principle of open justice. He referred to two publications which suggested that the section is intended to ensure that persons do not feel discouraged from coming to the court for fear of having the details of their proceedings made public. Those publications included a Family Law Courts paper headed “The Family Law Courts and your privacy” which referred to s 121 of the Family Law Act 1975 (Cth) and included the following statement:

“However, the special nature of family law proceedings, which often involve children requires that a balance be struck between the need for open justice and a family’s right to privacy”.

28The other publication was a report dated June 2008 published by the Legislation, Policy and Criminal Law Review Division of the NSW Attorney-General’s Department on access to court information. The latter document contained a commentary on s 121 of the Family Law Act1975 (Cth) and stated that non publication orders are intended to protect the identity of vulnerable people in society and parties involved in domestic relationship disputes, among others.

29Counsel submitted that domestic relationship proceedings involved inherently personal and family disputes and parties may be disinclined to seek legal redress if they were subject to identification.

30He said it is clear that is not the case in these proceedings as is apparent from the evidence of the arranged parents.

31Counsel submitted that the interests of the child and the parties are protected. It is in the public interest to bring this positive story to the attention of the public.

What the public is interested in

32This is different to what is in the public interest. The public are interested in the circumstances of the child who is about to turn one year old and in a contemporaneous report about him.

SUBMISSIONS OF THE ARRANGED PARENTS

33Counsel for the arranged parents stated that the arranged parents agreed with the submissions made on behalf of West Australian Newspapers and Channel 7 Perth.

DISCUSSION

34The usual situation in which a newspaper is granted permission to publish an account of proceedings in the Family Court is where a child has been abducted and the purpose of the publication is to locate and recover the child. In those circumstances either the parents or the Court initiate the grant of permission with the intention of protecting the welfare of the child.

35The circumstances of this case are different in that the parents have initiated the grant of permission to share their story with others and the newspaper seeks to publish because of the public interest and what the public is interested in.

36In Re Lowe and The Herald and Weekly Times Limited (1995) FLC 92-592 Chief Justice Nicholson dealt with an application by The Herald and Weekly Times Ltd, pursuant to s 121 of the Family Law Act1975 (Cth) for leave to publish information in property proceedings between a wife and her husband. The husband had been sentenced to imprisonment for life for the murder of a child and the matter was the subject of considerable press publicity. At paragraphs 18 to 21 Nicholson CJ said:

It is certainly true that the authorisation of publication is often of considerable assistance to the Court in matters such as the location of children. However, I do not believe that it should be confined to that object. There is a recognised right of freedom of public discussion of matters of legitimate public concern. In Gillespie v Bahrin: The Herald and Weekly Times Ltd (intervener) (1993) FLC 92388, Frederico J cited at 79,998, the following relevant passage from Deane J’s judgment in Hinch v The Attorney-General of Victoria (1987) 164 CLR 15 at 57:

“Freedom of public discussion of matters of legitimate public concern is, in itself an ideal of our society. The fact that judicial proceedings have been instituted does not remove such matters from the area of legitimate public comment, public discussion and public inquiry. Matters of importance or concern of interest to the nation, to a particular section of the community or to particular individuals are commonly involved in judicial proceedings and it would be oppressive and futile to adopt the approach that the mere fact that they are so involved should automatically remove them from the public domain”.

Deane J, of course, was speaking in general terms in that case, but he was dealing with a case where there were competing public interests, one being the freedom of public discussion of matters of legitimate public concern and the other the issue of whether the fair trial of a person would be affected by such public comment.

In the present case, the difference is the existence of section 121 which indicates a general intention on the part of the legislature not to identify persons in family law proceedings without the leave of the court. However, the fact that the legislature granted the Court the power to give such leave suggests that it also was conscious of the public interest to which I have referred.

One might add that, in the circumstances of the present case and given its background, it stands in a somewhat different light from the ordinary Family Court proceedings to which such protection is normally given. Accordingly, I think that the public interest to which I have referred justifies the grant of leave to publish some details about the parties and the case. However, in my view this does not mean that the media are entitled to proceed completely untrammelled by the provisions of section 121, and I do not think that it would be appropriate for me to give any general authority to the media to report these proceedings.

37The Chief Justice directed that publication of the proceedings be permitted subject to certain limitations.

38In the matter of Bakhtiari and Minister for Immigration, Multicultural and Indigenous Affairs and Others [2002] FamCA 768, his Honour Justice Dawe distinguished the issues therein from those in Re Lowe v The Herald and Weekly Times Ltd (supra) on the basis that they did not touch upon the significant issues in relation to the question of the interests of the children.

39The case of Bakhtiari and Minister for Immigration, Multicultural and Indigenous Affairs and Others (supra) concerned an application by a local newspaper for a direction pursuant to s 121 (9)(d) of the Family Law Act 1975 (Cth) that the newspaper be granted leave to publish accounts of proceedings. It was submitted that the proceedings were not the traditional domestic dispute between parties but related to the topic of the treatment of refugees which was of extreme public interest both nationally and internationally.

40His Honour accepted that the matter was not one concerning an ordinary domestic dispute between parents of the child or between parties concerning the residence of the child but said it was “of its very nature a dispute concerning the welfare of the child”.

41He referred to s 43 of the Family Law Act1975 (Cth) which contains the principles to be applied by the Court in the exercise of its jurisdiction including the following:

(1)The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to:

…

(b)the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children;

(c)the need to protect the rights of children and to promote their welfare;

…

42His Honour concluded at paragraph 20:

The publication of the nature sought by the newspaper is one which, of its very self, would identify the children. Nothing has been put before me which would indicate that they would not be likely, as a result, to be held up to some kind of notoriety or curiosity “by reason of their unfortunate circumstances” (obviously there I have quoted from the Chief Justice in Re South Australian Telecasters Ltd (supra).

43In reaching my decision as to make the ancillary order sought I am guided by what I consider to be in the interests of justice or for the welfare and in the best interests of the child and I am mindful of the provisions of s 37 of the Family Court Act 1997 (WA) which contains the principles to be applied in the exercise of my jurisdiction.

44In coming to my decision I take into account that the order sought by the arranged parents is consistent with their intention to inform the child of the circumstances of his birth when he can understand it. They are supported in this by the birth parents and extended family. The child is not the subject of a dispute between parties. I do not consider that the publication will hold him up to “either ridicule or curiosity of some kind or notoriety…” (Re South Australian Telecasters Ltd (1998) FLC 92-825). The circumstances of the child are not “unfortunate”. On the contrary they are the source of joy and happiness to the arranged parents, the birth parents and their family and the child’s first birthday was a cause for celebration.

45The evidence suggests that the arranged parents are caring, loving and responsible parents who have taken the view that the circumstances of the child’s birth is an issue which should be openly and freely discussed within the family rather than be concealed, potentially causing confusion for the child at a later date.

46A significant factor in my determination is that the child has a right to know his identity and the parties’ approach to the matter is consistent with that right.

47I have had an opportunity of considering the previous newspaper articles which provide a favourable and positive account of the surrogacy process undertaken by the parties and importantly, that it was undertaken pursuant to the requirements of the legislation.

48I accept there is an aspect of public interest to this case. Surrogacy is becoming increasingly prevalent. Unfortunately not all surrogacy arrangements are carried out in accordance with the legislation leading to the exploitation of vulnerable adults and children both in Australia and overseas. The reporting of the arrangements in this case is informative. It may provide an example to others and discourage surrogacy arrangements undertaken contrary to the terms of the legislation. The permission to report the account of proceedings will not be inconsistent with the best interests of the child. Had it been so, the best interests of the child would have overridden the public interest.

49In all the circumstances I shall relieve the arranged parents and The West Australian Newspaper and Channel 7 from compliance with s 243 of the Family Court Act 1997 (WA). Pursuant to s 243(8)(g) I approved the article prior to extraction of my order and publication of the article.

THE ORDERS

50I was advised by counsel that it is possible that permission may be sought to publish a further story about the child in the future. In the circumstances my order makes provision for that, subject to the account of the proceedings first having been approved by the Court. The proceedings will be adjourned generally as there may be a need for further court intervention in the future.

51On 26 March 2013 I made the following orders:

1.Until further order of the Court, West Australian Newspapers Ltd and Channel 7 Perth be permitted to publish an account of these proceedings from time to time where those accounts have been approved by the Court.

2.The said proceedings otherwise be adjourned generally with liberty to relist.

I certify that the preceding [51] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate