Wilkie & Anor and Mirkja

[2010] FamCA 667

FAMILY COURT OF AUSTRALIA

WILKIE AND ANOR & MIRKJA [2010] FamCA 667

FAMILY LAW – CHILDREN – Parental responsibility

Family Law Act 1975 (Cth)

APPLICANTS: Mr Wilkie and Mr Edmore

RESPONDENT: Ms Mirkja

FILE NUMBER: MLC 5150 of 2010

DATE DELIVERED: 9 July 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 9 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Buchanan

SOLICITOR FOR THE APPLICANT: Berry Family Law

Orders

1. That the requirements of service of the application filed 8 June 2010 on MS MIRKJA be waived.

2. That the applicants have leave to proceed forthwith on an undefended basis.

3. That the applicants have equal shared parental responsibility for the children E born … May 2009 and G born … May 2009.

4. That the children live with the applicants.

5. 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.

6. That the application filed on 8 June 2010 be otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5150 of 2010

MR WILKIE and MR EDMORE

Applicant

And

MS MIRKJA

Respondent

REASONS FOR JUDGMENT

1. This is an application filed on 8 June by Mr Wilkie and Mr Edmore.  The application seeks parenting orders.  The first order sought is that the service upon Ms Mirkja who is described as the surrogate mother of two children be waived. The evidence seems to suggest that notwithstanding a complex surrogate contract was entered into by Ms Mirkja, who is described as being a married woman with a husband, she gave an address that did not exist.

2. The evidence is that Ms Mirkja can not be found.  The evidence in support of that is that a solicitor in Mumbai who was responsible for organising the surrogacy for Mr Wilkie and Mr Edmore, went to the location where the address was said to be and found that it did not exist.  As such, there is no reason to endeavour then to find a substitute service option.  The usual ways of trying to find an Indian family would not apply in this case because the applicants did not meet the surrogate mother.  There are no indications as to her status or intellectual capacity which would enable me to find that a notice by way of advertisement in a newspaper would bring the application to her attention.

3. Importantly, I am told that these two children who are now 14 months of age, have had no contact with their mother since they were born. On that basis, it is reasonable to assume that Ms Mirkja is not interested in the proceedings and would not attend even if she was properly served. The second part of the application seeks the waiver of the requirements of section 60I of the Family Law Act 1975 (Cth) (“the Act”) on the basis that Mr Wilkie and Mr Edwell are not in any conflictual situation. According to Mr Wilkie’s evidence they are in a committed relationship and, as such, there would be little point in having any such attendance.

4. The third issue relates to whether or not there could be seen to be the necessity for a contradictor in the case such as this, but on the evidence I heard from Mr Wilkie, these two children are well cared for and it would seem to me logical that what has occurred in the last 12 months should continue.  I turn then simply to the facts. 

5. The two children are described in birth certificates which have been accepted and registered in Victoria, as E and G, they are both described as having been born in May 2009, in Mumbai in India.

6. Their birth comes about by reason of a surrogacy arrangement organised in India.  It appears that Mr Wilkie contributed the biological material and that Ms Mirkja agreed to act as a gestational surrogate.  The children were conceived using a process in which eggs were withdrawn from an anonymous donor, impregnated with sperm by Mr Wilkie and then they are placed in Ms Mirkja.  As such, the biological mother is not known.  As a matter of law in Australia, Ms Mirkja is seen as the mother of the children. 

7. Mr Wilkie and Mr Edmore make application for parenting orders not on the basis of either of them being a parent but rather on the basis that they have an interest in the welfare of the children.  It is on that basis that I approach making the orders sought.

8. The law is, to say the least, complex in parenting cases but made more so by a case such as this where there is no clear boundary as to the definition of a parent.  Probably in this case it does not matter because the evidence of Mr Wilkie is that he wanted to ensure the protection of the girls for the future to know that not only were they well cared for but that his partner Mr Edmore was going to be a significant parent in their lives.  Again, as a matter of law, the word “parent” tends to suggest some biological connection but when one looks at the various sections to which I will now turn, biology does not really matter; it is all about parental responsibility.

9. Section 65D of the Act, provides that a court may, subject to section 61DA, as well as Part VII of the Act make such parenting order as it thinks proper. Section 61B provides that parental responsibility in relation to a child means all duties, powers, responsibilities and authority which by law parents have in relation to children. Section 61C provides that each of the parents of the child who is not 18 has parental responsibility for the child.

10. It is clear in this case that neither Mr Edmore or Mr Wilkie technically may be seen as a parent of the child because there is no evidence to establish that.  In this case, it does not matter because what I have is two people who are applying for parental responsibility and the parental responsibility will continue until the two girls are 18 years of age.  A parenting order confers parental responsibility under section 61D on a person but only to the extent to which the order confers on that person duties, powers, responsibilities or authority in relation to the child.  A parenting order in relation to a child does not take away or diminish any aspect of parental responsibility except where the order provides for it.

11. Section 64B defines a parenting order as meaning a number of things including the persons with whom the child is to live and the allocation of the parental responsibility.

12. The catch-all in section 64B is that the court can make a parenting order that provides for any aspect of care, welfare and development of a child or any aspect of parental responsibility of the child.  In this case, both Mr Wilkie and Mr Edmore seek orders that they have comprehensive parental responsibility in terms of the law as I have set it out.

13. Section 64B also provides that the persons who are referred to in the section, regardless of whether or not they are their parent, have the same entitlements and responsibilities if a parenting order is made in their favour. 

14. To the extent in this case that Mr Wilkie and Mr Edmore may not necessarily be the parents of the two children, they will have all of the responsibilities that the law would confer upon them as parents.

15. Section 64C provides that the parenting order can be made in favour of a person other than a parent and section 65C provides that a parenting order may be applied for by the persons such as Mr Wilkie and Mr Edmore. 

16. Fundamentally, then, once there is jurisdiction to make the order, the court must turn to section 60B.  Section 60B sets out the objects for the purposes of the exercise which are to ensure that the best interests of the children are met by a number of things.  Those interests include ensuring the children have the benefit of both parents having a meaningful involvement in their lives.  Unfortunately, or otherwise, in these children’s lives they are not going to have any benefit of having a mother because she has, pursuant to the surrogacy agreement, excluded herself from their lives as well as having had nothing to do with them since they have been born.

17. Section 60B also provides that the court’s obligations are to ensure wherever possible that children receive adequate and proper parenting to help them achieve their full potential. Having read the affidavit of Mr Wilkie and heard from him and read the affidavit of Mr Edmore, it seems quite clear that these children will benefit appropriately and receive adequate and proper parenting from both of them. The Act also requires that the court endeavour to ensure that parents fulfil their duties and their responsibilities concerning the care, welfare and development of the children.

18. Again, because Ms Mirkja has decided to do what she has done, the children cannot have the benefit of her involvement in their lives and having regard to what I have heard about Mr Wilkie and Mr Edmore, that may not be a major problem. The objects of the Act have underlying principles which set out that the children have a right to know and be cared for by both of their parents. In this case, that is not going to happen, at least in the foreseeable future.

19. Children also have a right to spend time on a regular basis and communicate with both of their parents as well as all of the other issues to which I have referred. In this case, the children do not have the benefit of a mother but they have the good fortune of having two fathers. There is no definition of parent in the Act other than in relation to an adoption application. As such, whilst it is clear that the Act talks about a parent as a mother and a father, it is more important to look at the benefits that children receive from the parenting responsibilities that the people who care for them undertake and in this case, there is little point in pursuing a definition of a parent.

20. Section 60CA provides that in making a parenting order the court must have regard to the best interests of the child as the parent in consideration and in determining that, the court must turn to section 60CC.  There was no evidence in the affidavit material of the applicants in relation to that, but I have heard from Mr Wilkie and his plans for the children along with those of Mr Edmore.  At this stage, the children are very young and the parents, as I shall call them from now on, share the care of the children.  They have registered them at a local school and they have extended family to assist them.  They are in a committed relationship and there are prospects of another child later in the year.

21. Having regard to the primary considerations in section 60CC, I am satisfied that the children do have the benefit of a meaningful relationship with both of the applicants, albeit that that may not have a relationship with their biological mother.  There are no family violence issues to which I have been referred and, therefore, the children are in a very secure environment.  The additional considerations set out in section 60CC, do not need any great attention.  It is clear from the material that both applicants are responsible people who understand the needs of children and they are proposing to fulfil the requirements of parents to the best of their ability.

22. I then, finally, turn to the question of section 61DA.  That provision says that when making a parenting order in relation to a child the court must apply the presumption that it is in the best interest of the child’s parents to have equal shared parental responsibility.  Again, I do not have the benefit of any indication from Ms Mirkja of what her position is and as such, I am entitled to exercise the powers in section 61DA(4) and rebut the presumption on the basis that it would not be in the best interest of the children for Mr Wilkie and Mr Edmore to have equal shared parental responsibility with Ms Mirkja.

23. It seems in the circumstances that this is a case where the presumption should be rebutted. 

24. In all of the circumstances I am satisfied that it is in the best interests of these children that orders be made for Mr Wilkie and Mr Edmore to have equal shared parental responsibility and for the children to live with them.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  3 August 2010