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Ellison and Anor & Karnchanit [2012] FamCA 602

Categories: Children, Jurisdiction, Parenting Orders, Paternity, Surrogacy
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Judge Name: Ryan J
Hearing Date:29/11/2011
Decision Date:01/08/2012
Independent Children s Lawyer: Legal Aid NSW
Applicant: Mr Ellison
Respondent: Ms Karnchanit
Solicitor for the Applicant: Lewis Law
Solicitor for the Respondent: No appearance for or on behalf of the Respondent
Solicitor for the Independent Children s Lawyer: Legal Aid NSW
Counsel for the Independent Children s Lawyer: Ms Rees SC and Ms Ward (November 2011) and Ms Ward on 26 March 2012
File Number: SYC 1924 of 2011
Legislation Cited: Adoption Act 2009 (Qld) s 92
Australian Citizenship Act 2007 (Cth) s 8
Birth, Deaths and Marriage Act 2003 (Qld)
Civil Commercial Code (Thailand) ss 1546, 1547
Commonwealth of Australia Constitution Act 1900 ss 33, 51, 75, 76
Commonwealth Powers (Family Law - Children) Act 1990 (Qld)
Department of Immigration & Citizenship Policy Advisory Manual
Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth) ss 4, 31, 60B, 60CA, 60CC, 60CG, 60G, 60H, 60HB, 61B, 61C, 61DA, 64B, 65AA, 65DAA, 65C, 66W, 67ZC, 68B, 69A, 69B, 69C, 69E, 69G, 69H, 69J, 69K, 69L, 69M, 69N, 69R, 69S, 69T, 69U, 69V, 69VA, 69W, 69Z, 69ZB, 69ZE, 69ZF, 69ZG, 69ZT, Part VII
Family Law Regulations 1984 reg 6, 12CA, 12CAA, Part 11A reg 21A , 21F, 21M
Status of Children Act 1978 (Qld) s 23
Surrogacy Act 2010 (Qld) s 22(2)
Surrogate Parenthood Act 1988 (Qld)
United Nations Convention on the Rights of the Child
Cases Cited: Aldridge v Keaton [2009] FamCAFC 229; (2009) 42 Fam LR 369
Ames v Ames [2009] FamCA 825; (2009) 42 Fam LR 95
B and B Family Law Reform Act 1995 (1997) FLC 92-788
B v J (1996) FLC 92-716
Brianna v Brianna [2010] FamCAFC 97; (2010) 43 Fam LR 309
Chu Kheng Lim [1992] HCA 64; (1992) 176 CLR 1
Dudley & Chedi [2011] FamCA 502
Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286
G v H [1994] HCA 48; (1994) 181 CLR 387
Gough & Gough & Kaur [2012] FamCA 79
H v Minister for Immigration and Citizenship & Anor; Minister for Immigration and Citizenship v McMullen [2010] FCAFC 119; (2010) 272 ALR 605
KN and SD [2003] FamCA 610; (2003) FLC 93-148
McK v O (2001) FLC 93
McQuinn & Shure [2011] FamCA 139
Minister for Immigration & Multicultural and Indigenous Affairs & B [2004] HCA 20; (2004) 219 CLR 365
Re C (No 1) (1991) 15 Fam LR 350
Re D and E [2000] NSWSC 646; (2000) 26 Fam LR 310
Re Evelyn (No 2) (1998) 23 Fam LR 73
Re Mark: an application relating to parental responsibilities [2003] FamCA 822; (2003) 31 Fam LR 162
Re X and Y (Foreign Surrogacy) [2009] 1 FLR 733
Stone v Bowman [2000] FamCA 1280 (unreported, 28 February, 2000)
The Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273
Tobin v Tobin [1999] FamCA 446; (1999) FLC 92-848
Tryon & Clutterbuck [2007] FamCA 580; (2007) FLC 93-332
Tryon & Clutterbuck (No 2) [2009] FamCAFC 176; (2009) FLC 93-412

Pascoe J. “How trafficking in expectant women affect the rights of the child” 5th World Congress on Family Law and Children’s Rights, Nova Scotia, August 2009

Australian Law Reform Commission. Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC Report 96)

UNHCR. Report of the Special Rapporteur on the sale of children, child prostitution, and child pornography, 8 March 2005

UNHCR. Report of the Special Rapporteur on Violence against women its causes and consequences, 18 March 2005

Surtees R. Second Annual Report on victims of Trafficking in South-Eastern Europe, International Organization for Migration, Geneva (Switzerland), 2005
Jurisdiction: Family Court of Australia
Parental Responsibility Outcome: Sole Parental Responsibility - with Other
Residential Outcome: Sole Residence - limited, supervised, or no physical contact with Other


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Orders

Pursuant to s 69VA of the Family Law Act 1975 (Cth) it is DECLARED that Mr Ellison is a parent, namely the father of L Ellison born … January 2011.

Pursuant to s 69VA of the Family Law Act 1975 (Cth) it is DECLARED that Mr Ellison is a parent, namely the father of R Ellsion born … January 2011.

That Mr Ellison and Ms Solano (“the applicants”) have shared parental responsibility for the child L and the child R each of whom was born … January 2011 (“the children”).

That the children live with the applicants.

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.

All outstanding applications are dismissed.

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

REASONS FOR JUDGMENT

Introduction

On 18 March 2011, accompanied by his wife Ms Solano, Mr Ellison brought two eight week old children from Thailand to Australia. They had paid $7,350.00 to Ms Karnchanit (“the birth mother”) to be their surrogate birth mother. According to Mr Ellison, his sperm which was used to fertilise an egg provided by an unknown donor chosen by a Thai fertility clinic, with the resultant embryos implanted in the birth mother. The birth mother, in accordance with her agreement with Mr Ellison, relinquished the children to Ms Solano and Mr Ellison. Ms Solano is a co-applicant with Mr Ellison. Together, they seek orders that they have shared parental responsibility for the children and the children live with them. Because the birth mother and Mr Ellison have entered into a parenting plan in which she purports to relinquish her parental authority in their favour and she consents to the orders sought, they hope that the cumulative effect of that plan and their proposed orders is that they alone will have parental responsibility for the children.

In addition to the application for parenting orders, leave was given to Mr Ellison to seek a declaration as to parentage or, in the alternative, a finding of parentage. The latter was initially pressed on the basis that because in Australia a child’s parentage and citizenship are intertwined, subject to other conditions which are met, if Mr Ellison was able to prove he is an Australian citizen, Australia would recognise the children as her citizens. Although during the period of an adjournment the children were granted Australian citizenship, as will be discussed later, there are important reasons why it is in their interests that, if the evidence establishes that Mr Ellison is their father, this Court declares accordingly.

Scant evidence was initially provided by the applicants in support of their application. This was designed to mask the fact that the children were born as a consequence of an illegal (in Australia) commercial surrogacy arrangement. While such an arrangement is not illegal in Thailand, the Surrogate Parenthood Act 1988 (Qld) in which State the applicants and children live, asserts extraterritorial effect and renders the applicants liable to prosecution and potentially imprisonment for up to three years. Of course, imprisonment of the applicants would see two much loved children (from the children’s perspectives) inexplicably separated from the only people they have known as parents. The potential for long term psychological and emotional harm to the children were such an event to come to pass is obvious. Thus, so as to ensure that the Court could get to the truth, each applicant was granted a certificate pursuant to s 128 of the Evidence Act 1995 (Cth). They were thus able to speak freely and be confident that their evidence could not be used in other courts.

Even so, it is only as a consequence of the diligent approach adopted by the Independent Children’s Lawyer (“ICL”) and the Australian Human Rights Commission (“AHRC”) that much of the evidence required to determine the children’s identity and their best interests was obtained. So that it is clear, without the investigations undertaken by the ICL for all the Court knew, the children may have been victims of child trafficking for whom unidentified parents searched in vain. This is mentioned at the outset to help the applicants understand why the Court looked so closely at the children’s circumstances.

Lest it be thought the Court’s concerns are fanciful, writing ex judicially Chief Federal Magistrate Pascoe recently drew together various international reports about the extent and methods used in international baby selling and trafficking. From UNHCR and other credible reports he highlighted international concern about the extent of international baby trafficking and “… the ability of traffickers to become legal guardians of [trafficked] babies without any record to prove otherwise”. Not infrequently this involves the trafficker declaring himself the biological father of the child and the birth mother refuting her parental rights. In the same paper the Chief Federal Magistrate explained how coercion may be used and that discrimination against women and poverty are major reasons why some women see no option other than to abandon or sell their babies. These are compelling reasons why it is incumbent upon agencies (including courts) to be satisfied to a high level that babies brought to this country are who it is claimed they are, about the circumstances of their birth and that the subject children have not been wrongfully taken from their parents.

In the result, when the hearing started there was a paucity of evidence presented by the applicants in support of their application. For example, the Court did not have certified copies of the children’s original birth certificates. No evidence was adduced from the clinic in relation to their conception or the hospital in relation to their birth. The asserted agreement with the birth mother was not in evidence and neither she nor the children’s biological mother was informed about this hearing. Although the Court requested that the applicants adduce expert evidence in relation to the law in Thailand, this was not forthcoming. In short, the evidence was so poor it was difficult to see how the applicants’ unchallenged evidence provided an evidentiary foundation for the orders they sought.

Because of the serious issues, an ICL was appointed to represent the children’s interests and the AHRC was invited to intervene. I record at the outset the Court’s gratitude to the ICL, the AHRC and their counsel. From both the Court received thorough, well researched and carefully considered submissions. They played an active role pre-trial and, as will become apparent, provided the Court with real assistance in relation to the disposition of this case, as well as material which may inform the Court’s approach to other international surrogacy cases. Twice the AHRC invited the Commonwealth Attorney-General to intervene, which offer unfortunately was not taken up.

In any event the ICL tendered documents produced under subpoena which provided contact details for the birth mother and revealed that she had a de facto partner. Until this was discovered, the evidence adduced in the applicant’s case indicated that she was neither married nor in a de facto relationship and thus none of the provisions contained in the Family Law Act 1975 (Cth) (“the Act”) which deemed or presumed parentage might apply. However, in the event that s 60H(1) of the Act applies to children born overseas, this new evidence possibly meant that the children would be the children of the birth mother’s de facto partner. Thus all parties agreed procedural fairness required service upon the birth mother’s de facto partner which necessitated an adjournment. Of course an adjournment gave the applicants an opportunity to rectify their lack of evidence and for the Court to order DNA parentage testing. It was agreed that during the period of the adjournment interim parenting orders in the applicants’ favour should be made. On the basis that each applicant is a person concerned with the care, welfare or development of the children (s 65C(c)) and a Family Report evidenced the children were very well cared for, the Court was satisfied that it was in the children’s interests that these orders be made.

Jurisdiction and standing to bring the application

As was mentioned earlier, the orders sought by the applicants are:

The children live with the applicants.

The applicants have equal shared parental responsibility for making decisions on both day to day and long-term issues relating to the children.

These are parenting orders in relation to which the provisions of Part VII of the Act apply. The jurisdictional basis to Part VII is contained in Division 12 of that Part, which accordingly “controls and limits the operation of the balance of Pt VII.” Minister for Immigration & Multicultural and Indigenous Affairs & B (2004) 219 CLR 365 per Gummow, Hayne & Heydon JJ [95].

Section 69A, in Subdivision A of Division 12 provides:

This Division deals with:

(a) the institution of proceedings and procedure (Subdivision B); and

(b) jurisdiction of courts (Subdivision C); and

(c) presumptions of parentage (Subdivision D); and

(d) parentage evidence (Subdivision E); and

(e) the places and people to which this Part extends and applies (Subdivision F).

The effect of s 69B is to render the provisions of Part VII imperative; that is, proceedings under the Part are not to be instituted other than in accordance with the Part. Section 69C is to the effect that in relation to the type of orders sought by the applicants these may be instituted by the category of person referred to in s 65C. In relation to an application for a parenting order, s 65C provides that the following categories of person may apply:

(a)  either or both of the child’s parents; or

(b)  the child; or

(ba)  a grandparent of the child; or

(c)  any other person concerned with the care, welfare or development of the child.

In relation to Mr Ellison, reliant on s 65C(a), he claims standing as a parent; in the alternative s 65C(c) upon which provision Ms Solano also relies.

In s 4 of the Act the term “parent” is defined as meaning “when used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child”. Similar inclusive definitions of the word “child” are found in s 4. The term “parent” is not otherwise defined and, as the definitions referred to have no application to these parties, it is necessary to consider the presumptions of parentage (there being no issue that Mr Ellison cannot establish standing by the application of Thai law) to determine whether for the purpose of the Act he is a parent and is thus able to rely upon s 65C(a) in order to establish standing. Because the answer to that question dovetails with a number of other matters, the answer will be deferred. As will shortly be discussed, the applicants will establish that Mr Ellison is the children’s biological father. In circumstances where the children have resided with him from birth and based on their genetic relationship to him, Australia granted them citizenship by descent, even if I am unable to conclude that under the Act he is their parent, he is undoubtedly a person concerned with their care, welfare and development and pursuant to s 65C(c) has standing. Ms Solano is intimately involved in the children’s lives and, by virtue of the same provision, in her own right, has standing.

Proceedings may be instituted under this Act in relation to a child only if, on the day the application is filed, one of the factors listed in s 69E(1) is established. The proceedings were commenced on 29 March 2011 which is after the applicants returned and the children arrived in Australia. The provisions of s 69E(1)(a) and (d) are established.

It follows that the applicants have established the necessary conditions to the institution of the proceedings.

Is Mr Ellison the children’s biological father?

Although the answer to this question is fundamentally important to disposition of these proceedings, the applicant’s were perplexed that an affirmative answer would not be determinative. As will be discussed, even if Mr Ellison establishes on the balance of probabilities that he is the children’s biological father it does not automatically follow that federal and state laws recognise him as their parent.

The evidence on this topic garnered by the applicants is not as tidy as the gravity of the issue suggests. For example, they initially presented uncertified copies of the children’s Thai birth certificates, errors in their translation were apparent, when eventually DNA testing results were provided they did not comply with the Family Law Regulations 1984 (“Regulations”), and produced no evidence from the clinic to the effect that Mr Ellison’s sperm was used to inseminate the donor egg which, in turn, was implanted in the birth mother. Fortunately, as the case proceeded, better evidence became available.

Turning then to the DNA evidence. According to the applicants, DNA evidence relied upon by them complied with the Act and Regulations. Other than a bald statement to that effect, curiously when the case commenced, the DNA results were neither provided nor were the results disclosed. An affidavit was then filed by Mr Ellison to which he annexed photocopies of the DNA reports undertaken by S Institute (“the Institute”). These reports recorded that there is a 99.99999996% probability that Mr Ellison is the children’s biological father. However, on each report there is a note that “This parentage testing report does not meet the requirements of the Family Law Act Regulations”. As a consequence of this note and that presented in the manner it was the DNA evidence was otherwise inadmissible, on 30 November 2011, it was ordered that Mr Ellison and the children undergo a parentage test procedure conducted in accordance with the Regulations. Despite this order, further parentage testing was not undertaken. Instead, the applicants provided an affidavit sworn on 21 March 2012 by Dr B. He is a pathologist employed by the Institute. Annexed to this affidavit are two reports which detail the results of the original DNA testing but without the note. Dr B was cross-examined as to how he was able to issue these second reports, using the same bodily samples and data, and certify that the testing was done in accordance with the Regulations when the first reports had been qualified. Dr B explained that the note contained in the first reports was inserted because the DNA testing procedure had not been authorised by a person with authority to give it. Those advising the applicants informed him about the DNA parentage testing order and wrongly advised that compliance with the order merely required that he prepare a new report using the previously collected sample and data. Fortunately Dr B’s oral evidence also resolved various technical difficulties which would otherwise have rendered the DNA reports inadmissible.

The first DNA reports indicate that the Form 4 (Regulations) statements for the children were completed on 16 February 2011, the bodily samples were received by the Institute on 22 February 2011 and the testing was undertaken between 22 February 2011 and 7 March 2011. At this time there were no parenting orders in favour of Mr Ellison who signed the consent forms as the children’s “putative father”. As will be discussed, at that time the birth mother was the only person who had authority to consent to a DNA sample being taken from the children.

If the parentage of a child is a question in issue in proceedings under the Act, the Court may make a parentage testing order (s 69W). By s 69W(5), it is clear that the making of a parentage testing order “does not affect the generality of s 69V”. That latter section empowers the Court, in proceedings under the Act, to “make an order requiring any person to give such evidence as is material to the question”. Section 69ZB establishes the power to make regulations relating to the carrying out of parentage testing procedures under parentage testing orders and the preparation of reports obtained as a result of those orders. The relevant regulations are in Part IIA of the Regulations. So that it is clear, by reg 21A, it is evident that Part IIA only applies to a parentage testing procedure ordered pursuant to s 69W(1). By reg 21M, for the purpose of s 69ZB(b), unless a report is completed in accordance with the Regulations, it “is taken to be of no effect” (reg 21M(5)).

The applicants eventually produced certified and appropriately translated copies of the children’s Thai birth certificates. For each child, Mr Ellison is identified as the father. In relation to a parenting testing procedure, reg 21F requires that before a bodily sample is taken from a child, consent and completion of the Form 2 affidavit is required from “a person who is responsible for the long term care, welfare and development of the child” (reg 21F(3)(a)). As will be discussed later, for the purposes of the Act, the inclusion of Mr Ellison’s name on the children’s Thai birth certificate does not give rise to a presumption of parentage. This meant that, in order to determine the admissibility of the reports, it was necessary to consider whether under Thai law Mr Ellison, at the time he purported to exercise parental authority as the “putative father” had responsibility for the children’s long term, care welfare and development or other parental authority.

Helpfully, the ICL obtained expert evidence from an attorney-at-law in Thailand in relation to the following matters:

Whether Mr Ellison could obtain a judgment from a court in Thailand to allow the children to live with him in Australia?

Whether Mr Ellison could obtain a judgment from a court in Thailand which grants him full parental power and removes all parental power from the surrogate mother?

The usual practice and procedure of Thai courts when making orders about parental rights in relation to children, particularly children born in international surrogacy arrangements.

In answering these questions the expert addressed whether pursuant to Thai law, absent an order, Mr Ellison had parental authority. The effect of the expert’s evidence is that there are no surrogacy specific laws in Thailand. Surrogacy issues thus, are governed by the Civil Commercial Code (“CCC”). According to s 1546 of the CCC a child born of an unmarried woman is deemed to be her legitimate child unless otherwise provided by law. The effect of s 1546 CCC is that the birth mother has sole legal custody of the children. However, s 1547 CCC provides that “a child born of parents who are not married to each other is legitimised by the subsequent marriage of the parents, or by registration made on application by the father, or by a judgment of the Court”. Thus, Mr Ellison is entitled to apply for registration and/or petition a Thai court “for legitimisation of his children”. An application for registration requires both the mother and children’s consent. Where the child is too young to consent (under the age of 7 years) a father must obtain the Court’s consent on the child’s behalf. It is explained by the expert, that in this case “since the children are too young to give consent, the legitimisation must be effected by judgment of the Family Court [of Thailand]”.

The effect of a successful application by Mr Ellison in Thailand for legitimisation of the children would be to grant him, inter alia, parental power in accordance with s 1547 CCC. His parental rights would be shared equally with the birth mother in relation to which they would jointly have the right to:

determine the child’s place of residence;

punish the child in a reasonable manner for disciplinary purposes;

require the child to do such work as may be reasonable to his or her ability and condition in life; and

demand the return of the child from any person who unlawfully detains the child.

Provision is made in the Thai CCC for removal of parental power, either in part or its entirety which is the mechanism by which Mr Ellison could extinguish the birth mother’s parental power so that under Thai law, he alone, had parental power in relation to the children. An application of this type would have limited prospects of success because, according to the expert, “[Thai] courts do not like to deprive parents of their parental power and will only do so when presented with clear facts of serious misconduct”. The evidence does not establish that a surrogate mother who relinquishes her child to the man, whose sperm fertilised the embryo, would by virtue of relinquishment be deprived of her parental power.

In any event, no application has been made by Mr Ellison in Thailand for orders which would “legitimise” him as being the children’s father, nor to extinguish the birth mother’s parental power. To the extent that it was argued by the applicants that the Thai law was insufficient to address issues in relation to parental rights, where and with whom the children would live and the like, the submission is rejected. Relevantly, it follows that neither under Thai nor Australian law was Mr Ellison invested with capacity to authorise the taking of a bodily sample from the children. Thus, the applicants’ submission that they provided DNA test results undertaken in accordance with Regulations is rejected.

So that it is clear, provided these second reports are admissible, Dr B’s evidence established to a degree of medical certainty that Mr Ellison is the children’s biological father. Through him the chain of custody concern was resolved and the medical efficacy of the Institute’s procedures and opinions clarified.

The applicants’ decision to simply have the first samples and data reviewed and a second report issue does not result in a report which complies with the Regulations. Although during the hearing I indicated that pursuant to reg 6(1) it was appropriate to dispense with compliance with those regulations that rendered the second DNA reports inadmissible, on reflection it is apparent that when a parentage testing procedure takes place pursuant to an order under s 69, strict compliance is required. Regulation 6(1) only permits dispensation with regulations subject to the Act and Regulations. However, reg 21M(5) specifically renders an ordered but non-compliant report inadmissible and it is thus not amenable to reg 6 dispensation.

Thus it is necessary to determine whether the first DNA reports might nonetheless be admissible under the Act and Evidence Act. In this regard it was fortunate for the applicants that these proceedings were conducted in accordance with Division 12A of the Act and that evidentiary rules, which would have made admission of aspects of the evidence on this topic problematic, did not apply (s 69ZT of the Act). In Re C (No 1) (1991) 15 Fam LR 350, Fogarty J said that compliance with the Regulations is mandatory and there is no capacity to admit a non compliant report into evidence. Mullane J in McK v O (2001) FLC 93 ruled inadmissible a DNA certificate where a parentage testing order was not made.

Sections 69W and 69ZB do no more than provide a mechanism which, following the making of a DNA parentage testing order, renders admissible a compliant DNA certificate which would otherwise be inadmissible. The sections are permissive and do not exclude the admission of other non-ordered forms of DNA evidence provided that material complies with the evidentiary requirements for admission. Clearly, when a parentage testing order has not been made more than mere production of the DNA certificate will be required so as to admit this DNA evidence.

As was mentioned earlier, subject to an issue about capacity to consent to the procedure, Dr B’s oral evidence and documents produced under subpoena from the testing laboratory resolved other matters which would have rendered those first reports inadmissible. Importantly, the chain of custody was sufficiently reliable to establish that the samples tested were taken from Mr Ellison and the children. The effect of this was that the first DNA reports were admitted and the totality of the admitted evidence on this point established to a degree of medical certainty that Mr Ellison is the children’s biological father.

However, before leaving this topic, it is appropriate to record that in its report “Essentially Yours: The Protection of Human Genetic Information in Australia” (ALRC Report 96) the Australian Law Reform Commission (“ALRC”) recommended that the Act should be amended to provide that parentage testing reports are admissible in proceedings under the Act only if made in accordance with the Regulations. For the reasons articulated by the ALRC, it is timely that consideration is given to that recommendation.

Parentage, presumptions and declarations of parentage

Spread across different divisions in Part VII there are a number of provisions that deal with parentage, presumptions and declarations of parentage. Those in Division 1 subdivision D operate to irrebuttably deem a child for the purposes of the Act, in the circumstances there identified, the child of designated people. Those in Division 12 subdivision D create rebuttable presumptions for the purpose of the Act. Notably by s 69U it is acknowledged that two or more presumptions under that subdivision may apply, in which case (excluding s 69S(1)) it is for the Court to determine which presumption should prevail. Then in Division 12 subdivision E, the Court is empowered to issue a declaration of parentage that is conclusive for the purposes of all laws of the Commonwealth. In essence there is a scheme which operates so that, for the purpose of the Act or federal law, children may variously be deemed, presumed or declared the child of a person.

In the context of a maintenance case concerned with inferences that may be drawn from a failure to comply with a parentage testing order (then s 66W(5) now s 69Z), the High Court in G v H (1994) 181 CLR 387 discussed parenting presumptions and declarations of parentage (then Div 7 now Div 12) made under the Act. Their Honours Deane, Dawson and Gaudron JJ [p 400] said:

… Moreover, while a determination of parentage for the purposes of Family Law Act proceedings is obviously a serious matter for both the child and the putative parent, such a determination cannot properly be regarded as a declaration of paternity in the traditional sense… (my emphasis)

Their Honours continued [400]:

As earlier indicated, there are several presumptions in Div. 7 of Pt VII which are “rebuttable by proof on a balance of probabilities”. Those presumptions proceed on a basis which is diametrically opposed to the notion that, in maintenance proceedings, the biological fact of parentage involves an important or grave allegation to which due regard must be had before a finding is made in that regard. Rather, the presumptions operate in the interests of the child and provide the basis for the imposition of parental duties and responsibilities unless and until proof to the contrary is forthcoming… (footnotes omitted) (my emphasis)

In G v H Brennan and McHugh JJ said, [at 391]:

We do not suggest that paternity is not a serious issue. It is serious because paternity carries with it both significant privileges and grave responsibilities, only some of which relate to monetary obligations. The attribution of paternity may be seen by a child’s mother to be no more than the means of procuring a maintenance order during the child’s infancy, but a finding that a particular man is the child’s father might well be of the greatest significance to the child in establishing his or her lifetime identity… (my emphasis)

Do s 60H and s 60HB apply to children born outside Australia?

Before consideration is given to the application of the various presumptions of parentage called in aid of Mr Ellison’s claim that for the purpose of the Act and/or laws of the Commonwealth he is the children’s parent, it is appropriate to address the submission made by the AHRC that those provisions of the Act which deal with children born as a result of artificial conception procedures (s 60H) and children born under surrogacy arrangements (s 60HB) may not apply to children born overseas. It is submitted by the AHRC and the applicants that the geographical limits contained in Division 12 of Part VII may mean that these provisions only apply to children born in Australia.

Section 69H(1), in Subdivision C of Division 12, confers jurisdiction on the Family Court “in relation to matters arising under [Part VII]”. However, MIMIA v B established that this section is not of itself a conferral of jurisdiction. Gleeson CJ and McHugh J explained at [47]:

… ss 69H(1) and 69M, even when read together, do not operate to confer jurisdiction on the Court in respect of “matters” for the purpose of s 77 of the Constitution. As we have indicated, s 69H(1) confers jurisdiction on the Family Court “in relation to matters arising under this Part”. However, s 69H(1) is not a self-contained conferral of federal jurisdiction: the “matters” over which the Court has jurisdiction can be identified only by reference to other provisions of Pt VII. Thus, s 69H requires a search for a relevant “matter” arising under Pt VII. It no more determines the question of the Family Court’s jurisdiction in respect of children than does the reference to “jurisdiction” in s 67ZC. Section 69M, to which the majority also referred as giving jurisdiction, does not take the position any further. It simply declares that the jurisdiction conferred or invested by Div 12 “is in addition to any jurisdiction conferred on or invested in the court apart from this Division”.

As is explained by Gummow, Hayne and Heydon JJ [at 97] Subdivision C (jurisdiction of courts) and Subdivision F (extension, application and additional operation of [Part VII]) work together:

… They confer jurisdiction upon certain courts and do so within selected limits of federal authority concerning both “matters” for the conferral of federal jurisdiction and the creation of rights and liabilities in the exercise of legislative powers found in s 51 of the Constitution.

At paragraph 98 their Honours continued:

It is convenient to begin with subdiv C (ss 69G-69N). Jurisdiction is conferred by s 69H(1) on the Family Court “in relation to matters arising under [Part VII]”. That expression includes proceedings under the injunction provisions of Div 9, including s 68B (s 69G). However, looking outside subdiv C, para (d) of s 31(1) states that jurisdiction is conferred with respect to “matters …. with respect to which proceedings may be instituted in the Family Court under this Act”. Further, s 33 confers jurisdiction in respect of matters which are “associated” with those in which the jurisdiction of the Family Court is invoked or with those arising in proceedings before it. These “associated matters” are limited to categories of “matter” of federal jurisdiction listed in ss 75 and 76 of the Constitution. These provisions are to be read together with s 69H. This follows from s 69M… (footnotes omitted)

It follows, that s 69H(1) provides that the source of jurisdiction is to be found in the sections within Part VII that concern the relevant “matter”. Reference to the term “matter” is to those referred to in Part VII and interpreted in the context of the Constitutional heads of powers under which the Act is enacted.

Subdivision F of Division 12 identifies the places and people to which Part VII extends and applies. In that subdivision, s 69ZE, subject to its own terms (and to s 69ZF (State welfare laws which for present purposes are irrelevant), extends the operation of Part VII to New South Wales, Victoria, Queensland, South Australia and Western Australia. Section 69ZE(2) provides that this section extends to Western Australia (a) if the parliament of Western Australia refers to the Commonwealth matters concerning (i) the maintenance of children and the payment of expenses in relation to children or child bearing or (ii) parental responsibility for children or (b) if Western Australia adopts Part VII. Section 69ZE(3) provides that Part VII extends to a State only if an Act of the Parliament of the State either refers to the Parliament of the Commonwealth those matters referred to in s 69ZE(2)(a)(i) and (ii) or “matters that include, or are included in, those matters” or adopts Part VII. Section 69ZE(4) extends Part VII to a State only in so far as it makes provision with respect to the matters that are referred to the Parliament of the Commonwealth or matters that are incidental to the execution of any power vested in the Commonwealth Parliament in relation to those matters.

In MIMIA v B, per Gleeson CJ and McHugh J [74] their Honours (with whom the other justices agreed) explained that “Section 69ZE confers jurisdiction on the Family Court in matters the subject of a reference by a State of power, and matters incidental to the execution of a power vested by the Constitution in the federal Parliament in relation to those matters.” In this regard, between 1986 and 1990 each State, with the exception of Western Australia, referred to the Commonwealth the referring State’s powers in relation to the maintenance of children and the payment of expenses in relation to children and child bearing, and the custody and guardianship of, and access to, children. (see for example, Commonwealth Powers (Family Law Children) Act 1990 (Qld))

It is submitted by the AHRC that s 69ZE and s 69ZG that these geographical references may indicate that here is a geographical limit on the application of Part VII, relevantly to s 60H and s 60HB. The point being, that the geographical limitations just mentioned means that s 60HB does not apply to surrogacy arrangements entered into overseas and s 60H applies to couples who use artificial conception procedures or surrogacy arrangements occurring under a prescribed law of an Australian State or Territory.

In aide of this submission, the AHRC referred to the Australian Citizenship Act 2007 (Cth), in particular, s 8 which relates to children born as a result of artificial conception procedures or surrogate arrangements. Section 8 of the Australian Citizenship Act 2007 (Cth) is set out below:

(1)  This section applies if a child is:

(a)  a child of a person under section 60H or 60HB of the Family Law Act 1975; and

(b)  either:

(i)  a child of the person’s spouse or de facto partner under that section; or

(ii)  a biological child of the person’s spouse or de facto partner.

(2)  The child is taken for the purposes of this Act:

(a)  to be the child of the person and the spouse or de facto partner; and

(b)  not to be the child of anyone else.

The submission that s 8 of the Australian Citizenship Act 2007 (Cth) essentially picks up s 60H and s 60HB of the Act is accepted. See also H v Minister for Immigration and Citizenship & Anor; Minister for Immigration and Citizenship v McMullen (2010) 272 ALR 605. The AHRC then referred to the interpretation of the application of s 8 of the Australian Citizenship Act by the Executive in relation to which they tendered the Department of Immigration & Citizenship Policy Advisory Manual (No 3). Reference was made to three separate instructions contained therein but, as they have the same flavour, discussion of one will suffice. The current instructions, which are dated 1 January 2012, provide a description of the background for the legislative provisions concerning children born as a result of artificial conception procedures or surrogacy arrangements (Part 2 of the Instructions). Under the heading “legislative background” the Instructions state:

Section 8 of the Citizenship Act determines who can be considered a (parent) and consequently also a responsible (parent) of a child born through artificial conception procedures in Australia or overseas or a child born through a surrogacy arrangement in Australia. Section 8 is linked to the Family Law Act 1975 (FLA), specifically s 60H (about children born through artificial conception procedures) and s 60HB (about children born through a surrogacy arrangement). Section 8 does not cover surrogacy arrangements occurring overseas.

It is clear that these instructions differentiate between children born through artificial conception procedures without the use of a surrogate and those born through a surrogacy arrangement and that, for the purposes of s 8 of the Citizenship Act, there is a geographical limit on the latter scenario. This geographical limitation is said to arise as a consequence of ss 69ZE and 69ZG of the Act. If this is correct it must follow that Part VII orders of all types may only be made in relation to children present in the Australian States and Territories mentioned in those sections. Such an outcome would be inconsistent with s 69E. It would also be inconsistent, for example, with the referral of powers and with the investiture of powers to the Court reliant upon the Constitutional external affairs powers (s 51(xxix)) and the territories power (s 122). So that it is clear, s 69ZE and 69ZG reflect the terms of the references of power by the States and Territories to the Commonwealth, they do not establish other geographical limits to the application of Part VII.

The answer to the issue about the application of geographical limits to s 60HB but not to s 60H (both of which are set out later in these reasons) is found in the sections themselves. By its terms, s 60H(1)(b) applies to more situations than merely those referred to in s 60H(1)(b)(ii) namely under a prescribed law of the Commonwealth or of a State or Territory. Relevantly, by s 60H(1)(b)(i), s 60H(1) also applies where “the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedures”. There are no words of geographic limitation therein. On the other hand, s 60 HB only applies “If a court has made an order under a prescribed law of a State or Territory” in relation to which various State Surrogacy Acts are prescribed. The effect of this is that, depending on the relevant State or Territory, where in the case of an altruistic surrogacy a state parentage order has been made s 60HB would apply. So that it is clear, State surrogacy legislation has not been prescribed for the purposes of s 60H(1)(b)(ii).

In relation to artificial conception or surrogacy arrangements, do s 60H and s 60HB operate to exclude the general presumptions?

Before consideration is given to the general presumptions of parentage, it is appropriate to address those that specifically refer to children born as a result of artificial conception procedures (s 60H) and children born under surrogacy arrangements (s 60HB). Section 60H concerns children born as a result of artificial conception procedures deems a child the child of a woman or man in certain situations.

Section 60H provides:

(1)If:

(a)a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent); and

(b)either:

(i)the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or

(ii)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;

then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act:

(c)the child is the child of the woman and of the other intended parent; and

(d)if a person other than the woman and the other intended parent provided genetic material—the child is not the child of that person.

(2)If:

(a)a child is born to a woman as a result of the carrying out of an artificial conception procedure; and

(b)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman;

then, whether or not the child is biologically a child of the woman, the child is her child for the purposes of this Act.

(3)If:

(a)a child is born to a woman as a result of the carrying out of an artificial conception procedure; and

(b)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of a man;

then, whether or not the child is biologically a child of the man, the child is his child for the purposes of this Act.

(5)For the purposes of subsection (1), a person is to be presumed to have consented to an artificial conception procedure being carried out unless it is proved, on the balance of probabilities, that the person did not consent.

(6)In this section:

this Act includes:

(a)the standard Rules of Court; and

(b)the related Federal Magistrates Rules.

This provision does not contain the word “parent” but instead deems certain children born as a result of artificial conception procedures to be a child of a man or a woman for the purposes of the Act. The man or woman need not necessarily be biologically related to the child.

There are a number of issues that arise with respect to the application of s 60H. The first is whether the birth mother in this case was in a de facto relationship when the artificial conception procedure was carried out, and if she was, whether s 60H(1) deems the children to be her and her de facto partner’s (to the exclusion of Mr Ellison).

Potentially contradictory evidence was received with respect to the question of whether the birth mother was in a de facto relationship at the time of the artificial conception procedure. A subpoena was issued by the ICL for production of the children’s files held by the Department of Immigration and Citizenship. As part of the process of the birth mother giving her consent for the children to permanently leave Thailand and migrate to Australia, she was interviewed by an officer of the Australian Embassy, Immigration Section, in Thailand. During the interview the birth mother was asked “Are you married?” to which it is noted she replied “not legally married, still with partner”.

On 15 February 2012, the birth mother filed an affidavit, in which she deposed:

I am presently in a de facto relationship with [Mr W] of [address]. I commenced a relationship with him in early 2007. I am not married to him. [Mr W] lost hios job in early 2010. I told him I was going to take on the role of surrogate mother and he was against this. We separated in about April 2010 and he went back to his family home upcountry. At the time of the artificial conception procedure which gave rise to the birth of [the children] I was not in a relationship with him and he did not consent to the artificial conception procedure. We reconciled in about September 2010 and remain living together. We are now both employed at different factories. (spelling as per original)

Her current de facto (Mr W) provided an affidavit which was filed on 15 February 2012. He corroborates the birth mother’s evidence that she was not in a de facto relationship with him at the time of the procedure. However, as was submitted by counsel for the ICL, it is unfortunate that when the further affidavit was obtained from the birth mother, she was not asked to address her interview with the embassy official. Notwithstanding this omission the evidence is sufficient to persuade me that the birth mother was in a de facto relationship when she was interviewed at the embassy, but not at the time of the carrying out of the artificial conception procedure. It follows that the child is not the child of the birth mother’s current de facto partner.

Having found that the birth mother was not in a de facto relationship at the time of the procedure, consideration must be given to whether s 60H nonetheless applies. McMillan J in Gough & Gough & Kaur [2012] FamCA 79, a case in which the factual circumstances are similar, found that s 60H(1) nonetheless applied and had the effect of excluding the applicant father in that case from being a parent. In considering the application of s 60H(1), her Honour found that “[t]he first named applicant in this case was not the husband or defacto partner of the respondent. Whilst he provided genetic material, the child is not his child for the purposes of the Act.”

I respectfully disagree with this interpretation of s 60H(1).

In Re Mark: an application relating to parental responsibilities (2003) 31 Fam LR 162, which case concerned a child born to a same sex couple through an international surrogacy arrangements, Brown J considered the reach of s 60H. Her Honour [at 40] determined that “To the extent that s.60H could be said to define ‘parent’ for the purposes of the Family Law Act I am not satisfied it is an exhaustive definition. To use the language of Fogarty J in B v J (1996) FLC 92-716, its provisions enlarge, rather than restrict, the categories of people who may be regarded as the child’s parent.”

Similarly, in Stone v Bowman [2000] FamCA 1280 (unreported, 28 February, 2000) Faulks J (as he then was) concluded that s 60H expanded rather than limited the categories of people who are deemed to be parents. This was a case which concerned whether a man who provided sperm for the purpose of artificially inseminating a woman who was in a continuing lesbian relationship was the parent of the child she bore. His Honour referred to a number of definitions of the word parent, and considered the effect of s 60H. At [16] his Honour said:

It is principally, if not exclusively, an extending definition of child to include people who would not otherwise be included as parents. It is noticeable that contrary to the provisions of the various State acts relating to this matter, there is no provision which would provide a presumption, rebuttable or otherwise, that the person supplying the semen in this case, or the egg in an appropriate case, is not the relevant parent.

With Faulks and Brown JJ, I agree. It follows that I also agree with the submissions of the ICL that s 60H(1) has no effect in relation to a birth mother who was not married or in a de facto relationship at the relevant time. So that it is clear; in my opinion the language of s 60H(1) delineates the circumstances in which the section will apply. If those circumstances are not present then the section has no application. Read in the context of Part VII, s 60H(1) is not intended to be an exhaustive definition and thus does not operate to exclude a person as a parent if his or her circumstances do not coincide with those identified in the section.

Section 60H(2) applies to presume the children to be the children of the birth mother for the purposes of the Act, if under a prescribed law of the Commonwealth or of a State or Territory, the children are the children of the birth mother. Relevantly, s 23 of the Status of Children Act 1978 (Qld) is a prescribed law for the purposes of s 60H(2): reg 12CA of the Regulations.

Section 23 of the Status of Children Act provides:

(1) A reference in this section to a fertilisation procedure is a reference to the procedure of implanting in the womb of a woman

(a) an embryo derived from an ovum produced by another woman and fertilised by semen produced by a man who is not the husband of the first-mentioned woman; or

(b) for the purposes of fertilising an ovum produced by another woman together with semen produced by a man who is not the husband of the first-mentioned woman.

(2) If a woman has undergone a fertilisation procedure as a result of which she has become pregnant

(a) the woman who has undergone the fertilisation procedure is presumed, for all purposes, to have become pregnant as a result of the fertilisation of an ovum produced by her and to be the mother of any child born as a result of the pregnancy; and

(b) the woman who produced the ovum from which the embryo used in the procedure was derived is presumed, for all purposes, not to be the mother of any child born as a result of the pregnancy.

(3) A presumption of law that arises by virtue of subsection (2) is irrebuttable.

(4) Also, the man who produced the semen has no rights or liabilities in relation to any child born as a result of the pregnancy happening because of the use of the semen unless, at any time, he becomes the husband of the child’s mother.

(5) The rights and liabilities of a man who produced the semen and becomes the husband of the mother of a child born as a result of a pregnancy mentioned in subsection (2) are the rights and liabilities of a father of a child but, in the absence of agreement to the contrary, are restricted to rights and liabilities that arise after the man becomes the husband of the child’s mother.

Thus, for the purposes of the Act, there is an irrebuttable presumption that the children are the children of the birth mother (s 23(1) – (3) Status of Children Act). Section 23 of the Status of Children Act does not recognise a person in the position of Mr Ellison as a parent or a person with any rights or liabilities in relation to the children (s 23(4)). However s 60H(2) only concerns prescribed laws with respect to who is presumed to be a child of a woman. Section 60H(3) concerns prescribed laws with respect to who is presumed to be a child of a man. Section 23 of the Status of Children Act is not, however, a prescribed law for the purposes of s 60H(3). Indeed there are no laws prescribed in the Regulations for the purposes of that section. Thus, although Mr Ellison cannot rely on s 23 of the Status of Children Act or any other law to support his case to be recognised as a parent under s 60H(3), the operation of s 23 of the Status of Children Act or s 60H(2) or (3) of the Act does not have the effect of excluding him from being the children’s parent.

Section 60HB concerns children born under surrogacy arrangements and provides:

(1)If a court has made an order under a prescribed law of a State or Territory to the effect that:

(a)a child is the child of one or more persons; or

(b)each of one or more persons is a parent of a child;

then, for the purposes of this Act, the child is the child of each of those persons.

(2)In this section:

this Act includes:

(a)the standard Rules of Court; and

(b)the related Federal Magistrates Rules.

In Dudley & Chedi [2011] FamCA 502, a case with similar facts, Watts J considered the application of s 60HB. At [29] his Honour said:

… By enacting s 60HB FLA, the Federal Government resolved any issue as to whether or not the transfer in the 1980s by the States of powers relating to children created any issue as to whether or not laws about parentage in relation to surrogate children should be made at Federal or State level. Section 60HB FLA provides that State law will govern the determination of parentage and that State law will be recognised by Federal law.

By reg 12CAA of the Regulations, the Surrogacy Act 2010 (Qld) is an Act prescribed for the purpose of s 60HB. By that Act, a Queensland Children’s Court is invested with power to make a parentage order in accordance with its s 22(2). Because these children were born through a commercial surrogacy arrangement an application for a parentage order under that Act cannot be made.

Counsel for the applicants and the AHRC agreed that s 60HB has more limited application than was stated by his Honour. Although in the ICL’s written submissions a contrary view was expressed, in closing addresses the ICL’s submission embraced the argument advanced by the AHRC. The gravamen of all counsel’s submissions is that s 60HB applies only in circumstances where an order of the type referred to in that section has been made so as to deem that order to be conclusive for the purposes of federal law. In other words, the section does no more than say that if a relevant order is made by a state court, then for the purposes of the Act, it will apply. With these submissions I agree. In my view, absent words of exclusion, the wording of s 60HB is specific and only applies in situations where an order had been made under a prescribed law of a State or Territory. As there has been no order made under a prescribed law of a State or Territory s 60HB does not apply to the facts of this case.

Application of the general presumptions of parentage

Thus, one turns to the remaining presumptions of parentage referred to in the Act. Of these ss 69R, 69S and 69T are potentially relevant.

By s 69R if a person’s name is entered as a parent of a child in a register of births or parentage information kept under an Australian law or a prescribed overseas jurisdiction the person is presumed to be the child’s parent. No overseas jurisdiction has been prescribed for the purpose of this section. Therefore the inclusion of Mr Ellison’s name as the father on the children’s Thai birth certificates does not give rise to a presumption of parentage under the Act.

Section 69S concerns presumptions of parentage arising from findings of courts. This section creates a presumption of parentage arising from an express or implied finding by an Australian court or a prescribed overseas court. If such a court has found expressly that a person is a particular child’s parent or made a finding that it could not have been made unless the person is a particular child’s parent, and the finding has not been annulled or set aside, the person is presumed to be the child’s parent. No overseas jurisdiction has been prescribed for the purpose of this section. No finding has been made by an Australian court.

Section 69T concerns presumptions arising from acknowledgements and creates a presumption of paternity in favour of a man arising from his execution of a paternity acknowledgment under an Australian law or a prescribed overseas jurisdiction. No overseas jurisdiction has been prescribed for the purpose of this section. The relevant State law is the Birth, Deaths and Marriage Act 2003 (Qld). There is no evidence that Mr Ellison has executed a relevant instrument executed under a law of the Commonwealth, State or Territory and thus the presumption has no application.

Should a declaration of parentage be made?

In circumstances where none of the presumptions of parentage applies, it is submitted by the applicants that if the evidence establishes that Mr Ellison is the children’s father pursuant to s 69VA, the Court should so declare. As this issue is considered, it is important to bear in mind that the applicants have established that Mr Ellison is the children’s biological father.

Section 69VA is set out below.

69VA  Declarations of parentage

As well as deciding, after receiving evidence, the issue of the parentage of a child for the purposes of proceedings, the court may also issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.

The first issue that requires consideration is the meaning of the word “parentage” in s 69VA. The Full Court in Tobin v Tobin (1999) FLC 92-848 considered the question of who is a parent for the purposes of the Act and after considering the definitions of the word parent in the Oxford and Macquarie dictionaries said, [42] that:

… in respect of the Family Law Act, in our view, the natural meaning of the word “parent” is the first definition given in both the Oxford and Macquarie dictionaries, and the definition “a person who has begotten or borne a child”, from the Oxford English Dictionary (2nd ed. vol. 9), which was accepted by Gummow J (in a different context) in Hunt and the Minister for Immigration and Ethnic Affairs (1993) 41 FCR 380, at 386.

And [at 45]:

Whilst the term may be capable of being used in different contexts to include broader categories than those of “father” or “mother”, in our view, the natural meaning of the word in the context in Part VII, Division 7 of a child is the biological mother or father of the child and not a person who stands in locus parentis.

It is accepted that s 69VA is thus concerned with whether a declaration of parentage should be made in favour of a biological parent.

The next issue that arose is whether a declaration pursuant to s 69VA is a parenting order to be determined in accordance with Subdivision BA of Part VII. The words “parenting order” are defined in s 64B in which there is no reference to declarations of parentage. Counsel for the ICL expressed the view that such a declaration is not a parenting order. Coleman J in Tryon & Clutterbuck (2007) FLC 93-332 determined that an order pursuant to s 69W is a parenting order. With his Honour, Dawe J in Ames v Ames (2009) 42 Fam LR 95 agreed.

However, the question of whether a declaration of parentage pursuant to s 69VA has recently been considered by the Full Court in Brianna v Brianna (2010) 43 Fam LR 309 and Tryon & Clutterbuck (No 2) (2009) FLC 93-412. The views reflected by their Honours in their respective reasons for judgment are captured in those delivered by Finn and Thackray JJ in Brianna [at 157-159]:

157.The question therefore arises as to why, when the drafter came to Subdiv E of Div 12 of Pt VII (parentage evidence), no mention was made of the best interests test in the section concerning the power to make a declaration of parentage (s 69VA), nor in the section concerning the power to make orders for parentage testing (s 69W).

158.Interesting though this question of whether or not a parentage testing order is a parenting order may be, this case is not, in our opinion, the case in which this question can, or should be, determined (if indeed it can be satisfactorily determined without legislative intervention), for the reason that the court has not had the benefit of any legal argument on the question given the self represented status of both parties.

159.We are, however, prepared to accept that whether or not a parentage testing order is a parenting order, it would seem self evident that when exercising the discretion under s 69W to make a parentage testing order (the exercise of which discretion is undefined), one of the matters to which the court must have regard in exercising that discretion is the interests of the child in question. Whether that matter should be the paramount matter does not require to be determined in this case as will be later shown.

In short, at appellate level there is disquiet about whether a declaration of parentage pursuant to s 69VA is a parenting order. In circumstances where no mention of declarations of this type is made in s 64(B), I am unable to conclude that reference in s 64B(2)(i) to “any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child” is sufficient to render a declaration an “order” (s 64B(1)(a)). Thus resolution of this issue will proceed in the basis that a declaration pursuant to s 69VA is not a parenting order to be determined in accordance with Subdivision BA of Part VII.

Nonetheless the children’s interests and welfare are important considerations in determining whether or not to make a declaration of parentage. In this respect it is accepted that the Court should have regard to the factors which under the Act determine a child’s best interests as well as other matters relevant to the exercise of its discretion.

The application that the Court declares Mr Ellison a parent of the children is supported by the AHRC, who submitted that:

It would formalise the legal relationship between the biological father and the children. The effect of a parenting order would obviously only last until the children turn 18. The Commission submits that in cases of this type if such a finding is open on the evidence then it should be made because it would have important implications for the rights of children… (Transcript, 26/3/12, p 24)

In support of its argument, the AHRC relies upon the United Nations Convention on the Rights of the Child (“CRC”). The Court’s capacity to have regard to the Convention is not in doubt. I respectfully agree with the submission made by the AHRC that in instances of legislative ambiguity, legislation is to be construed so as to give effect to, and not to breach, Australia’s international obligations. This approach assists in minimising the risk of legislation inadvertently causing Australia to breach its commitment to international law. The point being, any breach of international law occasioned by an Act of Parliament ought to be the result of a deliberate decision by Parliament. To this end, where a construction that is consistent with international law is open, that construction is to be preferred over a construction that is inconsistent with international law (The Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 362 per Mason CJ and Deane J). The requirement of ambiguity in aid of interpretation is to be interpreted broadly (Chu Kheng Lim (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ).

Here, however, there is no ambiguity which would make it necessary to turn to the CRC to ensure an interpretation of the Act did not result in an unintentional breach of Australia’s international obligations and law. However, in B and B Family Law Reform Act 1995 (1997) FLC 92-788 the Full Court (per Nicholson CJ, Fogarty and Lindenmayer JJ) were in strong agreement that in Part VII cases it is permissible for the Court to have regard to CRC. See also KN and SD (2003) FLC 93-148. In circumstances where the High Court (G v H) (supra) has made plain that the presumptions operate in the interests of the child, in considering the exercise of my discretion about whether to make a declaration of parentage, the CRC casts a protective shadow over the children.

Because the argument is so well articulated in the AHRC’s written submissions, it is appropriate that these are recorded in full. The AHRC submitted:

22.There are a number of articles of the CRC that are relevant to determining the best interests of the child in the present proceeding.

23.As a starting proposition, Art 2(2) of the CRC relevantly provides that State Parties shall take all appropriate measures to ensure that children are protected against all forms of discrimination on the basis of the status of their parents, legal guardians or family members. The Commission submits that children born of surrogacy arrangements should not be subjected to a disadvantage or detriment as a result of any difference in legal status conferred on their parents or guardians.

24.Secondly, there are a number of articles of the CRC that deal with particular rights that involve the relationship between children and their parents or guardians. For example:

24.1.States parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures (Art 3(2)).

24.2.States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of their rights (Art 5).

24.3.States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern (Art 18(1)).

25.These rights recognise the importance of parents in safeguarding the interests of children. However, the language used in the CRC is not limited to parents, and recognises that in some circumstances these responsibilities will also fall on other legal guardians.

In Dudley & Chedi, Watts J [32] articulated five reasons why he declined to make a finding or declaration of parentage in that matter; namely:

The applicable State law made what the first applicant did illegal;

There was at that time no provision in State law that would allow the recognition of any relationship between the children and the first applicant;

Had the surrogacy arrangement been altruistic, there is now such a provision that would allow such recognition;

The first applicant may seek a remedy through adoption legislation; and

The [parenting] orders sought could be made without recognising the first applicant as the father of the children.

The AHRC submitted that although it was open to his Honour to adopt the course he did, in the opinion of the AHRC it was not consistent with the children’s interests or the CRC. The AHRC submitted that the first three reasons given by his Honour raise public policy issues. Without a doubt a matter such as this raises public policy issues, namely the potential for a declaration of parentage to potentially subvert (in part) at least the spirit of law in Queensland in relation to commercial surrogacy. However, the AHRC is demonstrably correct in its submission that “the court is faced with having children in front of it and needs to make orders that are in the best interests of those children, and at that stage it’s probably too late to ask whether – or to inquire into the legality of the arrangements that had been made. The court really needs to take children as it finds them” (Transcript, 26/3/12, pp 25-26).

The tension or interplay between the public policy considerations and other considerations that arise under the Act, including what is in the best interests of the children, are the same in this country as expressed by Hedley J (in the United Kingdom) in Re X and Y (Foreign Surrogacy) [2009] 1 F.L.R. 733, cited by counsel for the ICL:

I feel bound to observe that I find this process of authorisation most uncomfortable. What the court is required to do is to balance two competing and potentially irreconcilably conflicting concepts. Parliament is clearly entitled to legislate against commercial surrogacy and is clearly entitled to expect that the courts should implement that policy consideration in its decisions. Yet it is also recognised that as the full rigour of that policy consideration will bear on one wholly unequipped to comprehend it let alone deal with its consequences (i.e. the child concerned) that rigour must be mitigated by the application of a consideration of that child’s welfare. That approach is both humane and intellectually coherent. The difficulty is that it is almost impossible to imagine a set of circumstances in which by the time the case comes to court, the welfare of any child (particularly a foreign child) would not be gravely compromised (at the very least) by a refusal to make an order…If public policy is truly to be upheld, it would need to be enforced at a much earlier stage than the final hearing…The point of admission to this country is in some ways the final opportunity in reality to prevent the effective implementation of a commercial surrogacy agreement. It is, of course, not for the court to suggest how (or even whether) action should be taken, I merely feel constrained to point out the problem.

A similar approach was adopted by the Supreme Court of NSW when granting an application by commissioning parents to adopt a child born through an altruistic surrogacy arrangement. In Re D and E (2000) 26 Fam LR 310 at [21], Bryson J, correctly in my view, said;

Consideration of the welfare and interests of the child in this case outweighs, in an overwhelming way, any consideration that in order to serve public policy and discourage surrogacy arrangements an adoption order should be withheld or the court’s response to the application should be modified to accommodate the view that surrogacy arrangements should not be encouraged, or should be discouraged. The applicants, the birth mother and the child have no real interest in the attainment of public policy objectives of that kind. I see no way in which the welfare and interests of the child, which are the paramount consideration, would be served by modifying what would otherwise be an appropriate disposal of this case to accommodate broad public policy considerations relating to whether surrogate parenthood arrangements should be made, or should be encouraged.

In relation to this issue, even if these children’s best interests are not the paramount consideration, the approach adopted by Bryson J is no less applicable as to how public policy and these children’s interests should be balanced.

Later in these reasons there is a fuller discussion of how, by reference to the factors referred to in Subdivision BA of Part VII, it is in the children’s best interests that parenting orders are made in the applicant’s favour. Those findings weigh strongly in favour of a declaration of parentage in favour of Mr Ellison. Although the children have been granted Australian citizenship, a declaration of parentage has a wider reach than parenting orders. Considered from the perspective of the children, it is difficult to discern how it could be in their interests to permit public policy considerations to stand in the way of a declaration of parentage in relation to the person who is their biological father. As was said in G v H such a finding may well be of the greatest significance to the child in establishing his or her lifetime identity (per Brennan and McHugh JJ). In this case, to the children, a declaration of parentage has the significance there stated. In the exercise of my discretion, I am unable to give greater weight to public policy considerations of the type discussed in Dudley & Chedi in priority to the children’s interests.

Lest it be overlooked, irrespective of how State law views the applicant’s actions, the children have done nothing wrong.

The fourth reason his Honour in Dudley & Chedi declined to make a finding or declaration of parentage is that the applicant father may have been able to seek a remedy through adoption legislation. In that respect the AHRC submitted:

91. One of the reasons given by Watts J in Dudley & Chedi for declining to make a finding that a biological father was a parent was that the applicant could seek a remedy through State adoption legislation. There is some doubt about whether that is so in the present matter.

92. This issue was raised in McQuinn & Shure [2011] FamCA 139. In that case, a child was born as a result of an altruistic surrogacy arrangement in Alberta, Canada. The biological father and his wife (the intended parents), applied to the Family Court of Australia for parenting orders and leave for proceedings to be commenced for the adoption of the child pursuant to State legislation in Queensland. These orders were consented to by the surrogate mother.

93. It appears that the first step in the adoption process would be an application to the Family Court of Australia under s 60G of the Family Law Act for leave for adoption proceedings to be commenced by a ‘prescribed adopting parent’ (a similar application could also be made to a State Family Court). A prescribed adopting parent is defined by s 4 to mean:

93.1. a parent of the child; or

93.2. the spouse of, or a person in a de facto relationship with, a parent of the child; or

93.3. a parent of the child and either his or her spouse or a person in a de facto relationship with the parent.

94. The Court in McQuinn & Shure accepted (at [44]) that the biological father was a parent of the child.

95. Because the adoption sought was by the biological father of the child and his spouse, the appropriate adoption regime at State law is adoption by a ‘step-parent’ under the Adoption Act 2009 (Qld). In McQuinn & Shure, this advice was provided by the Queensland Department of Communities to the intended parents (see at [18]). Adoption by a step parent can only occur once the child turns 5 years old (s 92(1)(i) of the Adoption Act), however an order under s 60G of the Family Law Act can be obtained before then.

Under the Adoption Act 2009 (Qld) if the parenting orders requested by the applicants are made (excluding the declaration or finding of parentage), then the definition of ‘parent’ in Schedule 3 of the Adoption Act recognises both applicants as being the children’s parents. This is because they would have “the right to have the child[ren’s] daily care, and the responsibility to make decisions about the child[ren’s] daily care, under … (iii) a court order other than an order under this Act”. Then, as Murphy J (albeit in relation to an altruistic surrogacy arrangement) correctly, in my opinion, determined in McQuinn & Shure, s 92 of the Adoption Act 2009 allows people in the position of the applicants to apply to adopt the children; each being the spouse of a ‘parent’. Nothing to which the Court has been taken would suggest that there would be a different outcome if the adopting parents sought an order in relation to a child born out of a commercial surrogacy arrangement.

Section 92 of the Adoption Act 2009 relevantly provides:

(1) A person may apply to the chief executive to arrange an adoption by the person of a stated child if —

(a) the person is the spouse of a parent of the child; and

(b) the person, the person’s spouse and the child are living together; and

(c) paragraphs (a) and (b) have applied for a continuous period of at least 3 years up to the time of the application; and

(d) the person has been granted leave under the Family Law Act 1975 (Cwlth), section 60G(1); and

(e) the person is an adult; and

(f) the person or the person’s spouse is an Australian citizen; and

(g) the person is resident or domiciled in Queensland; and

(h) the person’s spouse is not the same gender as the person; and

(i) the child is at least 5 years old and has not yet turned 17.

(2) Despite subsection (1)(i), the chief executive may accept an application relating to a child who has turned 17 if the chief executive considers—

(a) there is enough time to complete the adoption process before the child turns 18; and

Note

An adult may not be adopted. See section 10(3).

(b) the grounds for making an adoption order in favour of the applicant are likely to exist.

(3) In this section —

parent does not include guardian.

Such an application, however, could not be made for three years.

In order to achieve their stated goal (namely that they alone have parental responsibility), the applicants would need to obtain leave to apply to adopt under s 60G(1) of the Act.

Section 60G of the Act provides:

(1)  Subject to subsection (2), the Family Court, the Supreme Court of the Northern Territory or the Family Court of a State may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent.

(2) In proceedings for leave under subsection (1), the court must consider whether granting leave would be in the child’s best interests, having regard to the effect of paragraph 60F(4)(a), or paragraph 60HA(3)(a), and of sections 61E and 65J.

Note: Sections 60CB to 60CG deal with how a court determines a child’s best interests.

The definition of a prescribed adopting parent has already been set out. Simply put, in order for the Court to grant leave under s 60G Mr Ellison must be a parent for the purposes of the Act. It follows that a declaration or finding of parentage is a preliminary necessary step for adoption proceedings. This is another strong reason why it is in the children’s interests that a declaration of parentage is made.

The fifth reason referred to in Dudley & Chedi was that the orders that the parenting orders sought by the applicants could be made without declaring or finding Mr Ellison is the children’s father. On behalf of the AHRC is was submitted that:

It’s an important principle in the Convention on the Rights of the Child that children be protected against discrimination on the basis of the status of their parents, legal guardians and family members. While that isn’t a free-standing right we say that it informs the way in which the best interest principle can be applied, and if Mr [Ellison] is not recognised as being the parent of the children it has potential to impact on other rights… (Transcript, 26 March 2012, p 25)

And:

Important rights would accrue to the children under Australian law, and as recognised in the CRC, if Mr [Ellison] is recognised as being their parent. These rights include rights relating to citizenship, migration, medical treatment, intestacy and child support. The Commission submits that it would be contrary to the rights of the children for Mr [Ellison] not to be recognised as a parent where the evidence supports such a finding. (Summary of Argument, Australian Human Rights Commission, p 3)

As has already been mentioned, the children have been granted Australian citizenship by descent. Thus, as was conceded by the AHRC, some of the rights identified above are now accorded to the children, including citizenship and healthcare. Nonetheless the AHRC maintains that there would still be some additional benefit to the children from a declaration of parentage and/or a finding that Mr Ellison is a parent. I agree. As has been mentioned earlier, a declaration of parentage has a wider reach than parenting orders. Relevantly, such a declaration survives the children’s minority. In the most obvious manner, it would recognise the reality of the children’s lives and where Mr Ellison stands in relation to their biological identity.

For the reasons discussed above, in the children’s interests, in relation to Mr Ellison a declaration of parentage will be made in relation to Mr Ellison.

Should parenting orders be made in the applicants’ favour?

Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64B). They arise in proceedings conducted under Pt VII of the Act. Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. ‘Parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children”. Section 61DA requires that when making a parenting order in relation to a child, “the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.” Essentially, the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2), the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child, has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DA(4)). Thus, if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements.

Section 60B sets out the objects of Pt VII and the principles, which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensure that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimal outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.

1.The objects of this Part are to ensure that the best interests of children are met by:

(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d)parents should agree about the future parenting of their children; and

(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

(a)to maintain a connection with that culture; and

(b)to have the support, opportunity and encouragement necessary:

(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

(ii)to develop a positive appreciation of that culture.

In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).

To the extent they are relevant to the particular case, the Court must consider thirteen additional considerations set out in s 60CC(3). Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities (s 60CC(4)). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence (s 60CG).

If the Court is satisfied parents are to have equal shared parental responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with his or her parents (ss 65DAA(1)(b) and (2)(d)) and whether doing so would be in the best interests of the child (ss 65DAA(1)(a) and (2)(c)). The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in ss 65DAA(3) and (4).

Where neither concept delivers an outcome that promotes the child’s best interests, the issue is at large and to be determined in accordance with the child’s best interests (Goode & Goode (2006) FLC 93-286).

By virtue of s 60CA, the Court will determine the weight to be given to the various factors, be they primary or additional considerations or considerations as identified as issues arising in the particular case but not specifically referred to in the Act. Ultimately, the weight attached to each factor is a matter of discretion.

In cases in which parents are parties, those objects, principles and factors which refer to parents must be considered insofar as they apply to the child’s parents. Those which apply to all parties apply to parents and non-parents alike. Those which refer to other specific categories of people, for example, grandparents, apply specifically. However, by virtue of s 60CC(3)(m) the Court may decide that s 60CC(3) factors which refer solely to parents, for example, s 60CC(3)(c) ought to be considered having regard to other important people in the child’s life. Another example might be that reliant on s 60CC(3)(m) the Court considers the benefit to the child of having a meaningful relationship with a person, such as Ms Solano, who has been significantly involved in the child’s life. This makes the various factors inclusive not exclusive.

However, there is no general presumption that orders be made in favour of parents and s 65C does not prescribe a hierarchy of applicants (Aldridge v Keaton (2009) 42 Fam LR 369 at [83]). In Aldridge v Keaton [60], the Full Court referred, with approval, to comments of a previous Full Court in Re Evelyn (No 2) (1998) 23 Fam LR 73 that while the fact of parenthood is an important factor in deciding a parenting application, there is no presumption in favour of a biological parent. Rather each case must be decided on its facts with the welfare of the child being the paramount consideration.

At [77-79], their Honours in Aldridge v Keaton said:

[77] the Act in its present form enables a court dealing with a parenting application the flexibility to recognise and accommodate “new” forms of family, including families with same-sex parents, when making orders which are in the best interests of a child who is part of such a family.

[78] Children who have been brought up in these new forms of family may be children who fall within s 60H. There will also be children who, while not conceived with the consent of the co-parent (or as described in the legislation the “other intended parent”), have effectively been treated as a child of the relationship of a same-sex couple. Such children may be the biological child of one parent born, before the same-sex relationship commenced, but whose substantial parenting experience has been from each of the same-sex “parents”. More commonly, they may have been conceived as the result of a private agreement with a known donor and without formal consent documentation. These children’s best interests are the paramount consideration to be taken into account, not the circumstances of their conception or the sex of their parents.

[79] In summary, in dealing with any parenting application by a person interested in the care, welfare or development of a child, a court will determine that application applying the relevant provisions of Pt VII to determine whether making (or not making) a parenting order would be in the child’s best interests.

Section 61DA of the Act refers only to a presumption of equal shared parental responsibility between “parents” and not between a parent and persons interested in the children’s welfare. Thus, had a declaration of parentage not been made in relation to Mr Ellison, s 61DA and s 65DAA would not apply. In that scenario, the parenting orders application would have been determined solely in accordance with the best interests of the children (s 60CA and s 65AA).

As a consequence of the s 69VA declaration of parentage in favour of Mr Ellison, for the purpose of the Act he and the birth mother are the children’s parents. The children’s biological mother, with whom they share half their genetic identity, is unknown and will remain so unless in Thailand there is a significant change in the law. Clearly Ms Solano is a person interested in the children’s welfare.

Turning then to the children’s birth mother. The applicants met her a few times and, to the Family Consultant, they described her as “beautiful with a lovely personality”. To the parties and this Court the birth mother has made it plain that it is her wish not to be involved in the children’s upbringing. The applicants have her contact details and are committed to maintaining contact with her if this is what she wants. They have secured her agreement that she receive photographs of the children and to meet with the applicants and children when they visit Thailand.

Considerable efforts were made by the Court to secure the birth mother’s participation in the Family Report and Court processes. Significant attempts were made by the Family Consultant to speak with her. However, these came to nought. The birth mother provided a number of affidavits which, according to the affidavit of Ms Y were translated into the Thai language before completion by the birth mother. In addition, the affidavits sworn by the applicants, application, parenting plan and consent orders, relevant provisions of the Act and s 1546 of the Thai Civil Commercial Code were provided to her and translated into Thai.

The gravamen of the birth mother’s evidence is that she agreed to act as surrogate mother for the applicants and thereafter that they raise the children. Consistent with this, following the children’s birth, she placed them “in the sole care of the Mr and Mrs [Ellison] [sic]. They have agreed to have the sole care and responsibility for the children and I am satisfied that they will do this and that they will care for and nurture them”. Throughout the proceedings she has remained firm in her support that parenting orders be made in their favour which she understands, along with the parenting plan previously executed, will mean that she will not have parental responsibility under the Act for the children.

In short, the preponderance of evidence establishes that neither the birth mother nor biological mother seeks to have a role in the children’s lives.

Each of the applicants gave evidence and was cross-examined. As part of the ICL’s investigation of the children’s circumstances, subpoenas were issued to child welfare agencies and police to ascertain whether those agencies had information which might assist in the Court’s deliberations. In short, the parties have not come to the attention of child welfare agencies and cross-examination of the parties by counsel for the ICL revealed that the police matter disclosed in the subpoenaed material is of no consequence. The point being, that there is nothing in this material which raises concern about the applicants’ parenting capacity.

The applicants have arranged their family life with the children at the forefront. Mr Ellison works full-time and they agree that he will provide financially for the family. Ms Solano is not in paid employment and cares for the children full-time. As was explained by the Family Consultant, this is a joint lifestyle decision actively supported by Mr Ellison. It is the Family Consultant’s assessment that “[b]oth parents impressed as significantly involved in the care of the children and as Mr [Ellison] currently works an afternoon shift this enables him to share in the day to day care of the twins”.

The Family Consultant, both formally and informally, observed the children with the applicants. She described the parties working in tandem “in an age appropriate and child focussed manner. Each twin sought comfort and reassurance from the parent figure attending to his or her needs and each child was responsive to that parent figure, as is congruent with twins’ expected developmental stage and level of attachment to a primary caregiver”. The Family Consultant described both children as “bright and active, smiling and making regular eye contact with their parent figures”.

From her detailed discussions with the applicants, the Family Consultant assessed them as “attuned to the children’s needs and capable of adequately meeting them. Whilst they provided routine and consistency for the twins, they also recognised the need for flexibility in their parenting and general expectations”. It was clear that the applicants had given considerable thought to future issues, including those of identity and culture.

The applicants’ decision to have a child in Thailand using a donor egg and surrogate mother was carefully considered and planned. They knew there was a possibility of multiple births and are happy to have received twins.

The Family Consultant explored with the applicants their decision to have children through an international commercial surrogacy agreement. Ms Solano described her strong desire to have children and her disappointment that her previous cancer treatment prevented her from conceiving. She and Mr Ellison explored IVF treatment and adoption. Physically Ms Solano is unable to carry a child through pregnancy to term and, although accepted as eligible for adoption, the long waiting list to adopt a child within Australia as well as overseas has meant that by virtue of age, they no longer qualify.

Mr Ellison has two adult children from his first marriage, with whom he has good relationships. His children have nice relationships with Ms Solano and have met the children. Into both applicants’ families, the children have been welcomed with warmth and excitement.

It is unnecessary to fully record the evidence provided by the applicants as to their circumstances, and sufficient to state that their evidence and the evidence given by the Family Consultant is accepted. The gravamen of the evidence is as stated by the Family Consultant at par 38 of the Family Report. There, the Family Consultant said:

In the continued care of [the applicants] [the children] will have the best opportunity to grow and develop into healthy, content and emotionally stable adults. From the perspective of [the children], they already relate to [the applicants] as their parent figures in a psychological and social sense. For the children this situation resembles what we might call an “open adoption”, where they have formed secure attachments to their parent figures which as they move through child hood will provide them with a sense of security and belonging in the family, whilst at the same time having an ongoing early awareness of their biological and cultural heritage through transparent child focussed and age appropriate information imparted to them by the adults from whom they derive a sense of trust and nurturing and safety.

As to disposition of the matter, it is the Family Consultant’s opinion that:

… it is in [the children’s] best interests that the current parenting arrangement be formalised so that the children are legally secure as well as emotionally secure in their relationships with their parent figures.

The Family Consultant’s opinion is accepted and given significant weight.

Although it is almost certain that the children will never know their biological or birth mother, it is not within the Court or the applicants’ power to coerce those women to establish or maintain a relationship with the children. I agree with the ICL that this may raise issues for the children as they mature.

Because of the stance adopted by the birth mother, the presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility is rebutted.

It is strongly established that it is in the children’s best interests that the applicants share parental responsibility for the children and that each of them has all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. In every sense, they share the children’s care and it is important that in the children’s daily lives, they are cared for by people with the legal authority to make decisions in relation to their care. For the same reasons, orders that the children live with the applicants are in their best interests.

Surrogacy Matters – Best Practice Principles

The AHRC and ICL made submissions in relation to the desirability of either the formulation of Rules of Court or a Practice Direction applicable to surrogacy cases. As is clear, these cases are complex cases the number of which is increasing. I agree that the position of the birth mother requires close attention to ensure that she has given free and informed consent and has not been subjected to exploitation, coercion or undue influence and that her rights have been adequately protected. This can be problematic in cases that involve cross-border arrangements in which the birth mother may be difficult to locate and in which there may be complexities with communication. The Court must also be able to determine that the subject child or children are who the applicants say. It is thus vital that the Court has sufficient evidence before it so that these issues can be determined with a high degree of certainty.

The gravamen of the submissions made by the AHRC and the ICL are set out below. Essentially it is their recommendation that the Court considers how and whether these recommendations should be approached. For all surrogacy cases, the steps set out below should be followed.

An Independent Children’s Lawyer is appointed to represent the child’s interests.

Affidavit evidence of the applicant(s) and the birth mother comprising:

their personal circumstances, in particular the circumstances at the time the procedure took place;

their circumstances leading up to the surrogacy agreement and of the procedure itself;

the circumstances after the birth of the child and subsequent arrangements for the care of the child.

Independent evidence regarding the identification of the child including:

the surrogacy contract/agreement entered into between the persons seeking the parenting orders and the clinic and/or surrogate mother;

a certified copy of the child’s birth certificate, and, if not in English, a translation accompanied by an affidavit of the person making the translation verifying that it is a correct translation and setting out the translator’s full name, address and qualifications;

parentage testing in accordance with the Regulations to ascertain whether that the child is the biological child of the person/s seeking the parenting orders;

evidence of Australian citizenship of the child if citizenship has been granted.

Independent evidence with respect to the surrogate birth mother. This may be obtained by a family consultant or an independent lawyer, including:

confirmation that legal advice and counselling were provided to the surrogate mother prior to entering into the surrogacy arrangement;

confirmation that the surrogacy arrangement was entered into before the child was conceived;

confirmation that the surrogacy arrangement was made with the informed consent of the surrogate mother;

evidence after the birth of the child of the surrogate mother’s views about the orders sought and what relationship, if any, she proposes with the child;

if the child has been granted a visa to enter Australia, evidence of participation by the surrogate mother in an interview with immigration officials prior to the grant of the visa, and the views expressed by her during this interview.

The preparation of a Family Report which addresses:

the nature of the child’s relationship with the persons seeking parenting orders;

the effect on the child of changing their circumstances;

an assessment of the persons seeking the parenting orders capacity and commitment to the long-term welfare of the child;

the persons seeking the parenting orders’ capacity to promote the child’s connection to their country of birth’s culture including but not limited to their birth mother;

advice in relation to issues which may arise concerning the child’s identity and how those issues are best managed;

the views of the birth mother, in particular her consent to the proposed parenting orders, and other matters with respect to the birth mother referred to above.

Other evidence including:

evidence of the legal regime in the overseas jurisdiction in which the procedure took place with respect to surrogacy arrangements;

evidence of the legal regime in the overseas jurisdiction in which the procedure took place with respect to the rights of the birth mother, and if applicable, of her husband or de facto partner.

There are many and varied paths to parenthood. Where the path involves an international surrogacy arrangement, it is long and difficult. As this case demonstrates, the commissioning parents’ goal of the safe arrival of a longed for child often results in them overlooking or underestimating the legal issues involved. From the children’s perspective at least, in the pursuit of parenthood, it is important that the commissioning parents and those who assist them give proper regard to ensuring that parental status is possible once the children are born.

I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 1 August 2012.

Associate:

Date: 1 August 2012


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